MIAN BURHANUDDIN KHAN, J.-- Accused appellants Sultan, Khan, Ghulam Hussain and Khanoo, alongwith 9 others namely; Muhammad, Bashir, Ijaz Shah, Murad Shah, Haider Shah, Munir Shah, Shabbir Shah, Muhammad Shah and Sabar Hussain Shah were tried by the learned Additional Sessions Judge, Sargodha under section 302 read with sections 149, P.P.C. On two counts and section 148, P.P.C. Committing the murders of Amir Hussain Shah and Ghulam Hussain Shah; and vide his judgment dated 1-12-77 the learned trial Judge convicted Sultan Khan, Ghulam Hussain and Khanoo under section 302/34, P.P.C. On two counts, and sentenced Sultan and Khan to death; while Ghulam Hussain and Khanoo were sentenced to imprisonment for life. Rest of the accused, named above, were acquitted.
The above-named four convicts filed appeal in the Lahore High Court against their convictiog and sentence and Murder Reference for confirmation of death sentence, awarded to Sultan and Khan were also placed before the learned Judges. Criminal Revision No. 269 of 1978 was also filed against the acquittal of the 9 co-accused, named above, and for enhancement of sentence awarded to Ghulam Hussain and Khanoo. The learned High Court dismissed the appeal of the four convicts; confirmed the death sentences awarded to Sultan and Khan; answered the Murder Reference in the affirmative and also dismissed the Criminal Revision vide impugned judgment dated 15-6-1980.
2. Sultan and three others, the four convicts, filed petition for leave to appeal against the aforesaid judgment of the High Court dated 15-6-1980 and leave was granted by this Court per order dated 7-12-1981 on the, grounds: "that by amendment in section 540, Cr. P.C Arms Expert's presence has alsq been exempted alongwith that of the Chemical Examiner and Radiologist etc. As such it is now essential that his report should be a detailed one giving reasons for the conclusion arrived at by him and in the absence of such reasons no weight should be attached to his report. In support of his contention the learned counsel relied on Manzoor alias Mujan and another v. The State PLD 1979 Kar. 276. But in the same year another learned Division Bench of the same Court took the contrary view in A.I Hassan v. The State PLD 1979 Kar.661 again the same Court discussed both these judgments in Imam Bux v. The State 1979 P Cr. L J 1008 and agreed with the view taken in PLD 1979 Kar. 276; that evidence regarding the recoveries in question is absolutely unreliable inasmuch as Munir Hussain Shah P.W.7 was one of the witnesses to the recovery of the guns, is a brother of the deceased and as such was himself an interested witness whose testimony needed corroboration; that the evidence of recovery of guns does not advance the prosecution case because the guns were recovered about a week after the recovery of the empties which were kept back and were sent to the Fire-arm Expert alongwith the guns; that the evidence of recovery of empties is also not very reliable as Said Amir P.W.5, one of the recovery witnesses, is also an eye-witness in this case and he could not corroborate his own testimony ; and that in view of conflict in the opinion in different judgments of the High Court on the point, the question needs thorough examination by this Court."
3.The prosecution case is that on 23-8-1975 the two deceased Ghulam Hussain Shah and Amir Hussain Shah, alongwith Said Shah and Walayat P. Ws. Were present at the Dera of complainant Said Amir Shah P.W.5. In the meantime Muhammad, Ghulam Hussain, Bashir, Khanoo, Munir Shah and Shabbir Shah accused persons, armed with hatchets, Sultan and Khan (appellants) and Murad Shah, armed with guns; Ijaz Hussain Shah and Haider Shah accused, armed with Dangs, turned up there. Muhammad son of Yara accused gave a Lalkara that they had come to avenge the murder of Jahana deceased. It is stated that Khan accused fired a gun shot which hit Amir Hussain Shah deceased in his chest, Murad Shah fired a shot which hit Ghulam Hussain Shah deceased at his arm. To save his life, Amir Hussain Shah ran towards the Kotha of Walayat P.W.; Murad Shah and Sultan entered into the Kotha of Walayat and fired a shot each at Amir Hussain Shah deceased who fell down; upon which Muhammad son of Yara and Ghulam Hussain accused gave him hatchet blows. Ghulam Hussain Shah deceased ran towards the eastern cattleshed, Khanoo, appellant, Munir Shah and Shabbir Shah gave him hatchet blows. Said Shah, Walayat, and Said Amir Shah PWs wanted to rescue the deceased from further assault but Ijaz Hussain and Haider Shah accused stopped them from doing so. The two deceased died on the spot. Khan and Sultan accused appellants dragged the dead body of Amir Hussain Shah towards the road but on the hue and cries raised by the P.Ws. All the accused ran towards their Dera.
4. Zulfiqar Shah and Amir Shah and Walayat remained with the dead bodies while Syed Amir Shah went to the Police Station, Bhalwal where he made the report Exh.P.F. Which was recorded by Malik Sher Muhammad A.S.I. P.W.8. The said A.S.I. Then proceeded to the spot; took up the investigation of the case; sent the dead bodies to the mortuary for post-mortem examination; collected blood- stained earth from the cattleshed vide Memo Exh.P.J. He also took blood-stained earth from the residential Kotha of Walayat P.W. Vide Memo Exh. P.H. He took into possession 8 empties Exh.P.4/1-8 from the spot vide Memo Exh.P.K. On 30-8-1975 the Investigating Officer arrested all the accused persons.
5. Motive for the crime as stated in the F.I.R. Is that about 1-1/4 years prior to the present occurrence Jahana, who was son of Muhammad acquitted accused, brother of appellants Sultan and Khan and father-in---law of appellant Ghulam Hussain, was murdered or which Ghulam Abbas (brother of Ghulam Hussain deceased in the instant case) Shabbir Hussain (brother of Amir Hussain deceased), Kausar Hussain and Ghulam Hussain son of, Gama were charged. The trial of that case was still in progress when the present occurrence took place.
6. Murad Shah, accused, while in police custody, led to the recovery of gun P-7 from the residential Kotha which was taken into possession vide Memo Exh.P.N. While Umar Hayat Khan S.I. P.W.9 recovered, at the instance of Khan and Sultan accused, guns P-5 and P-6 from their residential Kothas which were taken into possession vide Memos Exh.P.L. And Exh. P.M., which were deposited into the Malkhana of the Police Station.
7. Dr. Muhammad Rafiullah Shah P.W.1 performed the post-mortem examination on the dead body of Amir Hussain Shah on 24-8-1975 and found a lacerated wound below scapula 2-3/4" x 2-1/2" x going deep into the chest and 29 other incised and lacerated wounds and abrasion on different parts of his body. In the opinion of the doctor, the death was caused due to shock and haemorrhage resulting from injury No.1 which caused rupture of the heart muscle and laceration of left lung; the injury was thus sufficient to cause death in the ordinary course of nature. The doctor found 11 injuries to have been caused by fire-arms, 8 by sharp-edged weapons and 10 by rough and blunt weapon. He also found some blackening of the margins of injuries Nos. l, 15, 16, 18, 19 and 20; and multiple small pellets were removed from injuries Nos. 1 and 15.
The same day Dr. Rafi Ullah Shah performed post-mortem examination on the dead body of Ghulam Hussain Shah and found six incised wounds. According .To the doctor death was due to shock and haemorrhage resulting from injuries Nos. l and 2 which were sufficient to cause death in the ordinary course of nature.
8. On going through the judgment of the learned trial Judge we find that he has observed in paragraphs 18 and 19 of his judgment as follows:- "18. The first question to be considered is whether Said Amir Shah P.W.5 and Walayat P.W.6 were present at the time of occurrence, and the second, if they were present, whether their statements can be relied upon implicity against each of the 13 accused persons for various acts ascribed to them.
19. After giving a very careful consideration to the whole evidence on the record, I am of the opinion that presence of the said two P.Ws. At the scene of occurrence does not admit of any doubt. Said Amir Shah P.W. Is an old man. If he was not at the spot, there was hardly any need to make him as a complainant, because Walayat, a natural eye-witness, was available to the prosecution Said Amir Shah P.W. Made report promptly at the Police Station in which he has mentioned the name of Walayat P.W. While I am satisfied that the said two witnesses were present at the spot as stated by them. The next question as to how far to accept their statements calls for more anxious analysis.
Their evidence requires close and critical examination besides corroboration------------- "In view of the interested and partisan character of the testimony, I cannot escape the feeling that the tendency to add innocent with the guilty may have found its play (way) in the present case."
The learned trial Judge divided the 13 accused persons into 3 sets and giving benefit of doubt, acquitted the two accused of the first set namely Muhammad Shah and Sabir Hussain Shah. As regards the second set comprising 5 accused namely Ijaz Shah, Murad Shah, Haider Shah, Munir Shah and Shabbir Shah, they were also acquitted by the learned trial Judge in view of the enmity of the said accused persons with the complainant and in the absence of any corroboration. Third set of accused persons comprised of Muhammad, Sultan, Khan, Bashir, Khanoo and Ghulam Hussain.
The trial Judge did not believe that Muhammad and Bashir were active participants in the execution of crime, and therefore, both were acquitted by him. The remaining 4 accused namely Sultan, Khan, Khanoo, and Ghulam Hussain were found guilty, convicted and sentenced as stated above for the reasons recorded as under: "From the evidence on record, I consider that valuable corroboration is present in the case of Sultan, Khan, Ghulam Hussain and Khanoo son of Ismail accused persons in shape of motive and the medical evidence. The said accused had a definite motive to kill the deceased persons. The injuries on the persons of the deceased given by the doctor, correspond with the injuries caused by the said accused persons as stated by the eye-witnesses... And convict them under section 302/34, P.P.C. On two counts. Sultan and Khan accused persons do not deserve leniency in the matter of sentence because they acted brutally during the occurrence and after the death of Amir Hussain Shah deceased, dragged his dead body upto a distance of 2-1/2 Killas. Ghulam Hussain and Khanoo son of Ismail, accused persons deserve leniency in the matter of sentence because specifically no fatal injury on the persons of deceased has been attributed to them."
9. The learned High Court Judges, while considering the question of complicity of the four accused /appellants observed in their impugned judgment as under: "The appellants in the instant case are all Bharwanas who are tenants of the other group, namely the Syeds. Thus, the Bharwanas had a direct motive to commit the murders of the two deceased.
Appellants 1 and 2 are brothers, No.3 is their nephew and No.4 is their Behnoi. So far as the Syed group of the accused party is concerned and who have been acquitted, they may be supporters of their tenants i.e. Bharwanas. But no direct motive was proved against them except that there was some dispute regarding ownership of certain land between the complainant side and the Syed side of the accused party."
Regarding the ocular evidence the learned Judges have agreed with the finding of the trial Court and observed as follows: "Both these eye-witnesses have rightly been considered by the trial Court as highly interested and partisan witnesses. Their testimony can only be considered to the extent that it finds corroboration from an independent source in respect of eachmember of the accused party. The part ascribed to appellants 1 and 2 who armed with guns, by the eye-witnesses, is corroborated by the recovery evidence. Eight crime empties were picked up from the spot. From appellant 1 was recovered gun P.6 which was licensed in the name of Muhammad Shah, acquitted co-accused. According to report of the fire-arm expert this gun was marked as 'A'. Two of the crime empties picked up from the spot, matched with this gun. From appellant No.2 was recovered gun P-5 which was unlicened single barrelled country-made marked as 'B'. Two of the crime empties picked up from the spot matched with this gun."
10. Learned counsel reiterated his arguments as detailed in the Leave Granting Order. He contended that the prosecution evidence is highly interested and inimical. Because of direct blood feud with the accused appellants, the witnesses should not have been relied upon without corroboration from independent source.
Next, the learned counsel relied on the following cases regarding the opinion of the Arms Expert and the evidence of the recovery witnesses of the incriminating articles like crime empties and crime weapons etc.
(i) PLD 1958 Dacca 1
(ii) PLD 1979 Khr. 276
(iii) 1980 P Cr. L J 257
(iv) 1981 P Cr. L J 97
(vi) 1985 P Cr. L J 2217 11.In Mamtajuddin Khan v The State P D 1958 Dacca 1 it was held; "No person, therefore, ought to be put in peril of capital or any punishment on a written report not given on oath and untested by cross-examination."
It was observed in Manzoor alias Mujan and another v. The State PLD 1979 Kar. 276 as follows: "There is a mass of case-law on the point that reasons for opinion of a expert become necessary but most of these cases relate to evidence of Chemical Examiner, but there appears to be no reason why reasons of the Ballistic Expert should be dispensed with if reasons of a Chemical Examiner are necessary. On the contrary there is a greater necessity for obtaining the reasons of a Ballistic Expert in support of the opinion because such opinion is based only on personal impression and observation. On the other hand, the evidence of Chemical Examiner is based on methodical and scientific examination of some objects and the chances of incorrect opinion in such cases are slender and remote. "
The learned Judges of the Lahore High Court held in Shah Muhammad and 3 others v. The State 1980 P Cr. L J 257 as under: "Section 510, Cr. P. C. Is a provision of convenience and it does not relieve the prosecution and of its duty to support the opinion of the Ballistic Expert by reasons for such opinion. In cases where the opinion does not contain reasons, prosecution is required to produce the Expert for cross- examination."
"The common experience, after the amendment of 1972, however, has been that the Fire-arms Expert is hardly ever summoned. The reports submitted by him merely state his opinion unsupported by any reasons. Such a report cannot satisfy the conscience of the Court particularly where the guilt or innocence of the accused turns almost entirely on its analysis. In the anxiety to expedite the disposal of cases, the interest of justice cannot be sacrificed. In the circumstances of a case, therefore, the Court can refuse to place any reliance on the opinion of an expert which is unsupported by any reason."
It was held in Dr. Muhammad Umar Nizami v. The State 1983 PCr.LJ 355 as under: "The prosecution ought to have examined the Chemical Examiner before the learned trial Court and since prosecution failed to do so, it was the duty of the learned trial Court in view of the proviso of section 510, Cr. P.C. To summon and examine the Chemical Examiner in question. Since, this was not done, in my opinion, the appellant is entitled to benefit of doubt on the ground that the prosecution has failed to prove conclusively beyond reasonable doubt, that the deceased persons in question, really dies as a result of poison or alcohol found in their bodies:"
It was observed by a learned Judge of the Lahore High Court in Nawab alias Nawabi v. The State 1985 P Cr. L J 2217 as follows: "It is well-settled that report of an Expert may he be a Ballistic Expert, is after all, an opinion which can be fallible and is not immune from judicial scrutiny. The opinion of an Expert is received in evidence because it either confirms or falsifies the other evidence on record. Since the fate of this case hinges on the evidentiary value of the corroboratory evidence, therefore, there was a greater necessity for obtaining the reasons of the Ballistic Expert in support of his opinion because of the weight to be attached to the Ballistic Expert report depends to considerable extent on the reasons given by him for the conclusion arrived at. The prosecution has not produced Fire-arm Expert to support his opinion. The trial Court did not care to call the Expert as a witness to obtain reasons for his opinion or to provide opportunity to the accused to cross-examine him."
12 But we find that contrary view has been taken in Miss Wendy Elaine Vinn v. The State 1984 P Cr. L J 248 wherein a learned Judge of the Sind High Court observed: "The contention of the learned Advocate for the appellant that the said report be ignored as the chemical examiner, in question, was not examined, in my opinion (contention) has no force at all in view of the admitted fact, that appellant never demanded calling of the chemical examiner and for his cross-examination and as such the said report cannot be discarded on this ground or on any other ground as said report was rightly exhibited under section 510, Cr. P.C by this Court. This view of mine is fully supported by case reported in (1934) 35 Cr. L. J. 700 and I am in respectful agreement with the said judgment for the reasons given therein."
"The report of the Chemical Examiner is admissible in evidence under section 510, Cr.P.C. On the production of such report of the Chemical Examiner the initial burden placed upon the prosecution stands discharged and the same shifts to the accused to prove that what has been recovered from him, is not in fact liquor and Lahan etc."
A Division Bench of the Sind High Court observed in Muhammad Liaque v. The State 1985 P Cr. L J 671.
"It would appear from the above provision (section 510, Cr. P.C.) that it is not necessary to call the expert concerned to prove the report containing his opinion. Nor is it the requirement of above section that the expert report be tendered or produced in evidence formally through any other witness. All what is enjoined by the above provision of law is that the report produced by the expert may be used as evidence in any enquiry, trial or other proceeding under this Code."
Section 510, Cr. P. C. Is an exception to the general rule laid down that all evidence shall be taken in the presence of the accused. It makes a departure from the elementary rule of law that unless evidence is given on oath, and is tested by cross-examination it is not legally admissible against the party affected, thus, section makes the report of any of the experts mentioned therein, admissible in evidence without calling him as a witness, the reason for the special dispensation which is thus granted to such experts, presumably, is the avoidance of expense, delay and inconvenience which would be entailed if the expert had to travel round the country giving evidence at every trial of a criminal case.
The requirement under the section are i.e. (i) original report shall be put in evidence (ii) report must be formally tendered, (iii) report must be 'under the hand' of the expert, (v) if the report alone is to be considered sufficient, it should contain all the information which the officer himself would have been able to furnish if he had been examined as a witness; when the report is meagre and cryptic and incomplete, it is open to the Court to summon and examine the expert; it would be better if in such reports reasons for the opinion expressed, are given.
Setting out of the reasons at length will help to clarify his ideas and it will furnish a valuable guide to the parties and to the Court in testing the value to be attached to that opinion. It would also be fairer to the person against whom the opinion is to be used; that the reasons for that opinion are definitely expressed. No value can be attached to a bald report which does not state any reasons in support of the conclusion stated therein, nor the test applied for arriving at such conclusion.
13. Section 510, Cr.P.C before amendment reads as under:-- "Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code."
After the amendment by Law Reforms Ordinance, 1972 it reads as follows: "Section 510, Report of Chemical Examiner, Serologist etc.---Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, finger-print expert or fire-arm expert, appointed by Government, or the Chief Chemist of the Pakistan Security Printing Corporation Limited, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code: Provided that the Court may, if it considers necessary in the interest of justice, summon and examine the person by whom such report has been made."
The amendment thus confers upon the Court the power to summon and examine the officer whose report has been used as evidence under the proviso "if it considers necessary in the interest of justice".
We think the proviso gives discretion to the Court to summon and examine the officer concerned if an application for it is made by the prosecution or the accused. But if the accused does not choose to apply to the Court to summon or examine the expert as to the subject--matter of the report, the effect is the same as if the accused has exercised this right and opportunity and actually cross- examined the officer as to the subject-matter of the report so that the evidence furnished by him does not suffer from any infirmity or blemish that it is not given oath and is untested by cross- examination. The language employed in the proviso leaves to the Court the option to summon and examine the Expert or Chemical Examiner, if the Court does not feel it necessary to examine the officer and the accused does not make a request to summon and examine him, the report may be used in evidence even without examining the Expert. There can be no question of compelling the prosecution to examine the expert when it has no doubt as to the result of the report.
To conclude we would hold that there is no doubt that the provision of law contained in section 510, Cr. P. C is of an exceptional nature. It is, however, deliberately enacted by the Legislature and the Courts are, in our opinion, bound to give effect to it so long as it remains on the statute book whatever may be said of the wisdom and the policy underlying it. It can hardly be open to the Courts to render the enactment nugatory by refusing to attach any weight to the reports in question. If they are not to have any weight, there would be no object in making them admissible in evidence. To my mind the intention of the Legislature is that they should have the same value as they would have if they were formally proved by the sworn testimony. It is always open to the Courts to call the expert when this course is, deemed to be necessary in the interest of justice.
14. Said Amir Shah P.W.5 witnessed the recovery of 8 empty cartridges Exh. P.4/1-8 on 23-8-1975 from the Kotha of Walayat P.W. Vide Memo Exh. P.K. He is uncle and father-in-law of Amir Hussain Shah deceased. The other witness of the recovery of the said articles is Sarwar Shah son of Said Shah, and Said Shah P.W. Is maternal-uncle of Amir Hussain Shah deceased.
Munir Shah P.W.7 witnessed the recovery of guns P-5 and P-6 from the residential Kothas of Sultan and Khan and these recoveries were effected at the instance of Khan and Sultan, accused. Munir Shah is the son of Said Amir Shah P.W.5 and brother of Ghulam Hussain deceased and cousin of Amir Hussain Shah deceased. These recoveries were made on 3-9-1975 by Umar Hayat Khan S.I.
P.W.9.
So far as the recovery of the aforesaid 8 empties is concerned reference is made to Muhammad Shafi etc v. The State PLD 1967 SC 167 wherein it was held as under: "Ordinarily, independent witnesses are sought for verification of such recoveries, but in this case no disinterested persons who had seen the occurrence or the recoveries would come forward for the purpose. The reason is obvious. The recoveries were being made while the sensation of this terrifying occurrence had not subsided and men were naturally fearful of becoming involved in so serious an affair."
But this cannot be equally applicable to the recovery of guns effected later on i.e. 3-9-1975.
Provision of section 103, Cr.P.C. Are, no doubt, mandatory and it is to guard against possible manipulation. Therefore, it is all the more necessary that the Investigating Officer should have tried in this case to secure the attendance of independent witnesses to attest the recovery of the guns at the pointing of the accused /appellants, and failure to do so would cast doubt on the factum of recovery, although this principle may not be applicable to all the cases where recovery of incriminating articles are made under a different circumstance.
15 The upshot of the above discussion is that the evidence of ocular witnesses supported by the medical evidence and the motive behind the crime is enough proof of the guilt of the accused appellants, even in the evidence of Ballistic Expert and the recovery of the guns is not taken into consideration.
16. The last submission of the learned counsel was for the reduction of the sentence of the two appellants namely; Sultan and Khan who stand condemned to death on the ground that a brother of these two accused /appellants was murdered and a case against the deceased party was pending in the Court during the present occurrence, and, secondly: that they have been condemned to death and are lying in the death cell since 1977. Almost 10 years have passed.
Strictly speaking these two factors may not constitute an extenuating circumstance in this case but keeping in view the fact that there was a dispute over the property which was in possession of the accused /appellants and a suit of the complainant side was dismissed but they still insisted upon getting their share in consequence of which Jahana, brother of the appellants was murdered.
It is admitted by the complainant Said Amir Shah that after the death of one Dewan Shah, he used to look after his land on behalf of Mst. Fateh Bibi, who is the sister of his wife (complainant's wife).
The said land was under the cultivation of Muhammad accused and his sons. 27 Killas out of the said land was under the cultivation of Sultan and Khan accused /appellants and their brother Jahana. Mst. Fateh Bibi died and after her death, the land of Dewan Shah was mutated in the name of Zaman Shah father of Haider Shah acquitted accused. He (the complainant) filed a suit against Zaman Shah and Mst. Badshahi and Mst. Iman Bibi but the same was dismissed about a year and half before the present occurrence. A quarrel took place between Ghulam Hussain and Jahana in which Jahana was murdered and for that murder Ghulam Abbas brother of Ghulam Hussain deceased and Ghulam Shabbir Hussain and two others were challaned. In view of this we consider that life imprisonment would commensurate with the crime committed by the two accused appellants Sultan and Khan. Therefore --the death sentence awarded to them is altered to life imprisonment plus fine of rupees twenty thousand each, on two counts. In default of payment of fine, 5 years' R.I. Each. With this modification appeal of Sultan and Khan appellants is dismissed.
Fine, if recovered, shall be paid as compensation to the heirs of the two deceased.
As regards the appeal of Ghultim Hussain and Khanoo accused appellants, the same has no merit and is, therefore, also dismissed.