' Appellant Mohabbat, Shadan alias Shahzado and Miandad were tried by Mr. Shamsuddin Hisbani, Bird Additional Sessions Judge, Sukkur, for the murder of Jafar by means of guns. The Additional Sessions Judge found appellant Mohabbat guilty for the offence under section 302/34, P.P.C. And sentenced him to suffer imprisonment for life and to pay a fine of Rs,10,000 or in default to suffer R.I.
For six months. The appellant was also directed to pay Rs,10,000 as compensation to legal heirs of deceased Jafar or in default to suffer R.I. For six months. He was, however, extended the benefit of section 382-B, Cr.P.C. Co-accused Shadan alias Shahzado and Miandad who were tried along with appellant Mohabbat were, however, acquitted. The appellant has challenged his conviction and sentence recorded on 20-12-1988, through this appeal.
2. The case of the prosecution as unfolded in F.I.R. Briefly runs as under:- ' On 31-10-1986, Bus No, 3935 left Sadiqabad for Sukkur at dawn time. Complainant Muhammad Haneef was driving the bus. Aijaz Ahmed was the conductor of the bus, while Riaz Ali was its cleaner. At about 6-15 a.m. The bus reached at Police Check Post Khamoon Shaheed where it stopped for checking. One person boarded the bus and immediately thereafter he was fired at by the appellant and his companions who were armed with guns. It is alleged that appellant Mohabbat and co-accused Shadan alias Shahzado and Miandad then got down from the bus and started running. They were given a chase by Ameer Hussain A.S.I. Constables Ahmad Bux and Muhammad Ali who were present at the check post. There was exchange of firing and as a result thereof appellant Mohabbat was hit and was apprehended along with his licensed gun and cartridges. The other two culprits, however, escaped. Appellant Mohabbat disclosed the name of deceased person as Jafar who according to him was killed as he was Karo (Siahkar) with Mst.
Azeema, sister-in-law of accused Shadan alias Shahzado (since acquitted). The report of this incident was lodged by Muhammad Haneef, driver of the bus at Ubauro Police Station, which was registered at 8-30 a.m. Ameer Hussain A.S.I. And Ahmed Bux Police Constable then produced appellant Mohabbat before Rana Saleemullah S.H.O. Who arrested him and recovered crime weapon from his possession. He then referred appellant Mohabbat to Medical Officer Ubauro for medical examination and treatment. The Police Officer then repaired to the scene of occurrence (Wardat) and inspected it in presence of Mashirs Abdul Razak and Ahmed Bux. The dead body of Jafar was lying in the bus parked in front of police check post. The empties were secured and sealed on the spot. The dead body of Jafar was then despatched to Medical Officer, Ubauro for post-mortem examination. The statements of the witnesses were then recorded. The gun and the empties were sent to Ballistic Expert, Karachi for examination and report. After completing the investigation the appellant and the co-accused were sent to stand trial.
3. At the trial the prosecution has examined Muhammad Haneef (P.W.1), Riaz Ali, (P.W.2), Aijaz Ahmed (P.W.3), Ameer Hussain A.S.I. (P.W.4), Ahmed Bux, Police Constable (P.W.5), Abdul Karim Tapedar (P.W.6), Abdul Razak (P.W.7), Dr. Mehmood Ali (P.W.8), Muhammad Younis Police Constable (P.W.9), and Rana Saleemullah S.H.O. (P.W.10).
4. In his statement recorded under section 342, Cr.P.C. The appellant has disputed the case of the prosecution. According to him he sustained injury at the hands of police officials who implicated him falsely in order to save their skin. He, however, did not step into the witness-box. He also did not examine any witness in his defence.
5. On the assessm ent of the evidence available on record, the learned Additional Sessions Judge found the appellant guilty for the offence under section 302/34, P.P.C. And sentenced him accordingly.
6. I have heard Mr. Azizullah Shaikh, learned counsel for the appellant and Mr. K.M. Nadeem, learned A.A.-G. For State. The latter has supported the conviction of the appellant.
7. The fact that deceased Jafar died an unnatural death after receiving gunshot injuries is not in controversy. Besides the ocular testimony which I will discuss at the proper time, there is evidence of Dr. Mehmood Ali (P.W.8) who had conducted the autopsy on the dead body of Jafar and on external examination found the following injuries on his person:--
(1) A circular lacerated wound about 2-1/2 c.m. In diameter. Burning and blackening of margins, chest cavity deep at the level of 7th rib on left side. (wound of entrance).
(2) A lacerated wound about 3-1/2 c.m. In diameter with fracture of humorous lateral side on left arm, through and through 5 c.m. On middle side. (wound of exit).
(3) Seven circular lacerated wounds each about 1 c.m. In diameter scattered in the area of 8 c.m. In diameter over the lateral side of chest below the left axilla (wound of entrance).
8. On internal examination of the dead body of Jafar, the Medical Officer 'found pleura, lung, pericardium, heart and blood vessels ruptured. The shots were fired from a very close range and whoever had caused these injuries had no other intention but to kill deceased Jafar. The appellant has also not disputed this position.
9. The prosecution has examined five eye-witnesses, namely, Muhammad Haneef (P.W.1), Riaz Ali (P.W.2), Aijaz Ahmed (P.W.3), Ameer Hussain A.S.I. (P.W.4) and Ahmed Bux, P.C. (P.W.5). Out of them Muhammad Haneef (P.W.1), Riaz Ali (P.W.2) and Aijaz Ahmed (P.W.3) were the driver, cleaner and the conductor of the bus respectively and they were present in the bus when this unfortunate incident took place. All of them, however, turned hostile although there was compulsive force of 164, Cr.P.C. Statements against two of them. The fact, however, remains that the incident took place in the bus while it was parked in front of check post of police at Khammo Shaheed bus stop. The presence of Ameer Hussain A.S.I. (P.W.4) and Ahmed Bux, Police Constable (P.W.5) who were on duty at the check post, therefore, cannot be suspected. Both of them are natural witnesses and they have fully implicated the present appellant. According, to them appellant Mohabbat was one of the culprits who had got down from the bus immediately after firing at deceased Jafar. They were chased by the police party who were successful in apprehending the present appellant, while the others made good their escape. Both of them were subjected to a searching cross- examination, but nothing has come out on record to shake their credence. The evidence of police officials cannot be discarded simply because that they belong to police force. Both of them are natural witnesses and their evidence gets full support from attending circumstances. The injury sustained by appellant during the exchange of firing and his apprehension after sustaining injury lends support to the case of the prosecution as unfolded by Ameer Hussain A.S.I. (P.W.4) andj Ahmed Bux, Police Constable (P.W.5).
10. Mere quantity of evidence leads us no where. As a rule witnesses are weighed and not numbered. Under Article 17 of the Qanun-e-Shahadat, 1984, no particular number of witnesses is required for the proof on a murder charge. Volume and weight of the evidence may be considered together, but if there is conflict between the two, the quantity will certainly give way to quality.
11. Admittedly none of the two police officials, namely, Ameer Hussain A.S.I. (P.W.4) and Ahmed Bux, Police Constable (P.W.5) saw the actual killing. They saw the present appellant alongwith two others while leaving the bus. The following facts emerged from the evidence of these two witnesses:-
(i) Three shots were heard after the bus stopped at police check post.
(ii) The police officials saw three culprits including the present appellant, two armed with guns and one empty-handed.
(iii) The police officials chased the culprits, whereupon there was exchange of firing resulting into the injury on the right foot of appellant Mohabbat.
(iv) Apprehension of appellant Mohabbat soon after the incident and recovery of gun, licence, cartridges and one empty from his possession.
(v) Fresh smell of gun powder from the barrel of the gun secured from the possession of appellant.
(vi) Production of appellant before S.H.O. Ubauro Police Station after the incident.
12. A conviction may be based on circumstantial evidence alone, but to establish an offence by circumstantial evidence four things are essential:
(i) The circumstances from which the conclusions are drawn should be fully established.
(ii) All the facts must be consistent with the hypothesis.
(iii) The circumstances should be of a conclusive nature and tendency.
(iv) The circumstances should, to a moral certainty, actually exclude every hypothesis, but the one proposed to be proved.
12-A. The evidence which has come on record points out only one possible inference that the appellant was one of the assailants responsible for the murder of Jafar. Both Ameer Hussain A.S.I.
(P.W.4) and Ahmed Bux, Police Constable (P.W.5) had no reason to depose falsely against the appellant. I have considered the criticism made against these witnesses by learned counsel for the E appellant. I have also considered the arguments that were urged before me with a view to persuade me to discard the evidence relied on by the Additional Sessions Judge, but I do not feel impressed with the theory advanced on behalf of the appellant that he was roped in this case by the police officials in order to save their own skin, specially when there is no evidence in defence to prove that appellant was hit when he was in the village of his maternal-uncle and then he was taken away to the police station.
13. An attempt has also been made to show that the appellant was not fired from backside while he was being chased. Dr. Mehmood Ali (P.W.8) who had examined him found the following injury on his person:-- "Lacerated wound 1/2 c.m. In diameter through and through over dorsum of right foot. The injury had entrance on the upper side of the foot and the exit at the palmer surface."
On the face of the site of injury the admission of the expert that this injury could be caused while standing face to face to injured person is not tenable. The entrance wound was on the back of the foot suggesting that the shot was fired in the manner as stated by the police officials. In the case of medical evidence, its acceptability always depends on the grounds and cogency of reasoning on which the opinion is based. If the reasoning of the expert is not cogent or if the explanation is not satisfactory, a Court is entitled to attach no value to such opinion. There is nothing in law which even faintly suggests that a Judge has to surrender his judgment to the opinion of an expert.
14. The evidence of Ameer Hussain, A.S.I. (P.W.4) and Ahmed Bux, Police Constable (P.W.5) has further been corroborated by the positive report submitted by the Ballistic Expert (Exh.30), which shows that crime empties C.1 to C.4 were fired from the gun secured from the possession of appellant. The delay in dispatching the crime weapon and empties to the expert is by itself not sufficient to rule out the report of expert. The cases reported as Nisar Hussain v. The State PLD 1964 Pesh. 59, and Muhammad Ashraf v. The State 1975 P Cr. L J 787, which are relied upon by learned counsel for the appellant simply lay down that the report of fire-arm expert, even if convincing, would not warrant the conviction without other evidence being available on record. I have no cavil with the ratio of both these cases. The conviction against the appellant is based upon the evidence of two police officials supported by medical evidence and the positive report of the Ballistic Expert.
15. The motive of the case had come out from the mouth of appellant himself. Since the statement to that effect made before the Police Officer was not admissible, it was rightly discarded by the learned Additional Sessions Judge. No incumbent duty lay on the prosecution to establish the motive. The appellant was in fact awarded lesser punishment because of this factor alone.
16. In the last an attempt has been made to persuade this Court to ignore the evidence which was not believed in respect of co-accused who have been acquitted by the trial Court. The case of the present appellant is distinguishable from those who have been acquitted. The present appellant was apprehended soon after the incident at a distance of 445 feet from the Wardat as testified by Abdul Karim Tapedar (P.W.6), while the identity of co-accused was not established.
17. For the aforesaid reasons, I find that the appellant was rightly convicted in this case. His conviction and sentence are, therefore, maintained. The appeal has got no merits and is accordingly dismissed. The appellant who is in custody shall serve out the sentence awarded to him by the trial Court.