' Muhammad Tariq Rashid (18) was tried under section 302, P.P.C. For having murdered Aman Ullah
(22) his co-villager, at 7-15 p.m. On 30-1-1986 in front of the Havcli of father of the deceased in Chak No, 65/JB at a distance of 5 miles from Police Station Theekriwala, by the Additional Sessions Judge, Faisalabad. His paternal-uncle Altaf Hussain (27) was tried along with him by the same Judge, under section 302/309, PPC for having abetted the offence.
2. Learned trial Judge vide judgment dated 27-6-1987 convicted Muhammad Tariq Rashid under section 302, PPC, while Altaf Hussain was convicted under section 302/109, PPC. Learned trial Judge sentenced both of them to imprisonment for life, plus to pay a fine of Rs, 10,000 each in default whereof to suffer R.I. For one year each. Half of the fine, on realization, has been ordered to be paid as compensation to the heirs of the deceased.
2. The convicts have filed appeal. The complainant has filed Crl. Revision, wherein prayer has been made for enhancement of imprisonment for life to death and for awarding compensation according to the provisions of section 544-A, Cr.P.C.
4. F.I.R. Ex.PB/1 was registered at the Police Station on 31-1-1986 at 10-00 a.m. By Muhammad Arshad, MHC on receipt of statement Ex.PB of Ahmad Ali recorded by Muhammad Shoaib, S.I. PW 13 at 12-30 a.m. At bus-stop Sidhar on 31-1-1986.
' According to F.I.R. The complainant and his son were residing in the village Abadi of Chak No, 65/JB. Their Haveli was outside the village towards north. The complainant and the deceased went to their Haveli at 7-15 p.m. With Wanda for the cattle. No sooner they had placed the Wanda in the Haveli, there was a knock at the gate. Aman Ullah deceased opened the gate. Muhammad Tariq Rashid was standing there armed with a pistol. He fired a shot at Aman Ullah within the view of the complainant. The fire struck him on the mouth. Aman Ullah fell down. The complainant ran towards the gate. In the meantime, Muhammad Ashraf PW4 and Abbas Ali PW (given up) who had come from Bahawalpur as a guest of the complainant, reached there. Within their view, Muhammad Tariq Rashid fired 3 more shots at the deceased hitting him on the right upper arm and right wrist.
Muhammad Tariq Rashid ran away with the pistol.
' Aman Ullah died on the spot.
5. Motive for the occurrence given in the F.I.R., is, that the deceased was running a wheat-grinding machine in the village. The women-folk of village used to come for grinding wheat. Muhammad Tariq Rashid appellant suspected that Aman Ullah had teased his sister. He murdered the deceased for that.
6. Muhammad Shoaib, S.I. After recording the statement, dispatched the same for registration of case and himself proceeded to the spot. He prepared injury statement Ex. PH and inquest report Ex.PI. The dead body was thereafter dispatched for post-mortem examination.
7. The investigation was thereafter taken over by Ata Ullah, Inspector/SHO PW 12, who had reached the spot. (He had been promoted as D.S.P. At the time of his evidence). He collected blood-stained earth from the spot.
' Muhammad Tariq Rashid appellant was arrested by him on 1-2-1986. On the same day he led to the recovery of revolver P1, which was taken into possession vide memo. Ex.PD, and was scaled into a parcel.
' Altaf Hussain appellant was arrested by him on 10-2-1986. On 15-2-1986 he led to the recovery of five live cartridges P 2/1-5 and four empties P3/1-4, along with belt P4 and holster P5. All these were taken into possession vide memo. Ex.PE. The challan was submitted to Court after completion of necessary invest ligation.
8. Statements of fifteen P.Ws. Were recorded at the trial. Dr. Muhammad Ajmal Mian who had performed autopsy at 3-30 p.m. On the body of the deceased on 31-1-1986, appeared as PW 11. He had noted following injuries on the body of the deceased:--
(1) A fire-arm wound 1 cm x 1 cm chest deep circular with inverted margins situated on the left side of upper lip dislocating left upper lateral incisor and left upper canine and left lower lateral incisor and left lower lateral canine tooth which were missing from their sockets penetrating the buccal cavity, left pleaura and left lung through and through directed from above downwards and backwards striking into the back left chest wall at the space between 9 and 10 ribs from where a bullet was recovered. (inlet).
(2) A fire-arm wound 1-1/4 x 1-1/4 cm chest deep with inverted margins circular directed almost horizontally into the chest situated on the back of right chest penetrating the right inter space between the 5th and 6th ribs right pleura and right lung through and through from where a bullet was recovered (inlet).
(3) A fire-arm wound 1 cm x 1-1/4 cm into through and through with inverted margins circular situated on the front upper part of right upper arm (inlet).
(4) A fire-arm wound 1-1/4 cm x 1-1/4 cm through and through situated on the upper outer part of right upper arm oval shaped with everted margins 3 cm away from injury No, 3, being its outer (outlet of injury No,3).
(5) A fire-arm wound 1 cm x 1 cm through and through circular with inverted margins situated on the front outer lower part of the right forearm (inlet).
(6) A fire-arm wound 1-1/2 cm x 1-1/2 cm into through and through circular margins averted situated on the inner lower part of the right forearm situated 7 cm away from injury No,5, almost horizontally (outlet).
' On opening the abdomen, he had found the buckle cavity injured. Death was opined by him due to shock and hemorrhage, resulting from injuries Nos.1 and 3. These injuries were opined to be sufficient to cause death individually as well as collectively. All the injuries were opined to have been caused by firearm.
' Probable time between injuries and death was opined to be immediate while the time between death and post-mortem was opined to be 18 to 24 hours, ' The two bullets which were recovered from right and left chest cavity were scaled into a bottle.
' During cross-examination he stated that all the inlet wounds were circular in nature. In answer to another question he stated that possibility of the victim having suffered injuries while standing cannot be ruled out.
9. Ahmad Ali PW 3 father of the deceased who had lodged the F.I.R. Repeated the facts given by him in the F.I.R. He added that the S.I. Had met him at bus-stand Sidhar when he was going to the Police Station and so he made statement Ex.PB to him at the bus-stand. He also stated about having identified the dead body at the time of post-mortem examination. He stated that Altaf Hussain appellant was uncle of Muhammad Tariq Rashid appellant.
' During cross-examination, he stated that he and the deceased had taken `wanda' in two different bales (buckets). According to him the house of the appellants fell on their way to the Haveli.
According to him, the deceased had taken his evening meals before they had come to the Haveli.
He mentioned the time of taking food 15 minutes prior to the occurrence. He stated that they had left for the Police Station after about three hours of the occurrence. The explanation he gave for that was that they had been running hither and thither and weeping, thinking that the deceased might be alive. The distance of Sidhar bus-stand from his village is stated to be 2 or 2-1/2 miles. He conceded that they had a tractor and trolly but added that they had gone to Sidhar on foot. He stated that his real brother Muhammad Ali was a councilor. He denied that Ashraf PW was related to them. He denied that Bashir PW was cultivating his land or the land of his brother. He gave out that his deceased son had disclosed to him 10-12 days prior to the occurrence that Tariq Rashid appellant was suspecting that he had cut jokes with his sister, he also stated that his son had assured him that he had never cut jokes with the sister of Tariq Rashid appellant and that somebody had caused misunderstanding in his mind. He also stated that he talked about this to Tariq Rashid and he replied that he had nothing in his mind by way of suspicion. He gave out that his son was a matriculate and so was Trak; Rashid appellant. He accepted that Tariq Rashid appellant had only one sister but expressed lack of knowledge if she was studying in 7th class at Faisalabad and used to go to Faisalabad alongwith Tariq Rashid appellant on motor-cycle. He denied the suggestion that the deceased was of immoral character and had a bad reputation. He also denied that a fight had taken place 15 days prior to the occurrence between his son and sons of Wali Muhammad. He also denied that the fight had taken place due to immoral character of his deceased son as he had teased their women-folk. He contradicted that light was off due to load shedding at the time of occurrence. He gave out that three electric bulbs were burning in the Haveli at the time of occurrence. He denied the suggestion that it was a blind murder and they had lodged the F.I.R. Merely on account of suspicion.
10. Muhammad Ashraf PW 4 corroborated the statement made by Ahmad All PW 3 in so far as it pertains to the actual occurrence. He stated that electric light was on at the time of occurrence and that one bulb was burning at a distance of 6 feet from the gate of the Haveli. The explanation, he gave for being present at the spot, was that he had gone to see PW Abbas Ali (given up). During cross-examination he was not found to have stated that fact. He gave the time of arrival of the police at the spot to be 2/3-00 a.m. He stated that the police had recorded his statement and that of Abbas Ali. He gave out that the wall of his house was adjacent to the house of the accused. He denied that the box stolen from the house of the accused was recovered from his house. He also denied the suggestion that the matter was not reported to the police due to intervention of the Punchayat. He denied the suggestion that he had not witnessed the occurrence and made a false statement.
11. Muhammad Asghar PW5 stated about having witnessed the recovery of revolver at the instance of Muhammad Tariq Rashid appellant on 1-2-1986 from his house and of having attested memo.
Ex.PD in that regard. He also claimed having witnessed the recovery of 5 live cartridges Ex.P2/1-5, four empties P3/1-4, belt P.4 and one holster P.5 on 15-2-1986, at the instance of Altaf Hussain appellant. He claimed of having attested recovery memo. Ex.PE in that regard. The empties, according to him were sealed in a parcel.
' During cross-examination he admitted that he was a retired Police official and his land was adjacent to that of complainant. He admitted that his bullock was stolen but denied that he had suspected Ibrahim father of Altaf Hussain of having stolen the bullock. He denied that there was any dispute of drain between him and father of Altaf Hussain appellant, and of Altars fat hcr having appeared as a witness against him. In answer to another he stated that except Rana Muhammad Ali (given up PW) none other was with the police at the time of recovery.
12. Abdul Sattar PW 8 stated about abetment of crime by Altaf Hussain appellant.
' He stated that he wanted to purchase fodder and that Haleem (given up PW) had told him that Altaf Hussain wanted to sell the same. According to him, he along with Haleem went to the Dhari of Altaf Hussain appellant and while being at a distance of 4-5 paces from the Dhari, they heard Altaf Hussain appellant asking Muhammad Tariq Rashid appellant while sitting together that Aman Ullah had cut jokes with his sister but he had done nothing. He gave out that Tariq Rashid replied that Aman Ullah was stronger than him and so he had not been able to deal with him properly, upon which Altaf Hussain offered a pistol for that. He further stated that going ahead he had asked as to what they were talking of, but they avoided by saying that they were discussing domestic problems. He added that they could not inform Aman Ullah and on the same evening heard that he had been murdered.
' During cross-examination he stated that he was cultivating some land of Yunas Khan and some of Muhammad Ali a brother of Alunad Ali PW. In answer to another question he stated that from the Dhari of Altaf Hussain they had gone to the Havcli of Aman Ullah to inform him but he did not meet them and only his younger brother Ikram aged 5-6 years had met them. He denied that Ikram was aged 18/20 years and was a student of matric. According to him, he might be a student of 1st or 2nd class. He denied the suggestion of having made a false statement.
13. Bashir Ahmad PW9 stated that Altaf Hussain appellant had come to him at Ishawela and had enquired about Aslam. According to him Aslam was called, and Altaf Hussain told that Tariq Rashid appellant had informed him about Aman Ullah having cut jokes with his sister and that he had told Tariq Rashid to kill him and that he had given him the pistol of Thanedar which he had stolen.
According to him, Altaf Hussain further told them that Tariq Rashid had murdered Aman Ullah but he was innocent and that he requested them for asking forgiveness for him from Ahmad Ali PW.
' During cross-examination he stated that Abdul Sattar PW was his brother-in-law. He denied that he had any relationship with Ahmad Ali PW. He accepted that he was neither a B.D. Member nor lumbafdar. He stated that they did not go to Ahmad Ali as the murder had recently taken place. He gave out that he made statement on the second day, at the Police Station.
14. Muhammad Munir PW 10 stated that he had seen Altaf Hussain and Muhammad Tariq Rashid appellants standing at Chola Pully with a motorcycle at about 3-00 p.m. When he was returning from Faisalabad to the Chak and that Altaf Hussain was having a pistol with him at that time. He gave out that on the same day while standing at the door of his house at 5.00 p.m he had seen Muhammad Tariq Rashid moving around the Haveli of Aman Ullah deceased and that on his enquiry from Tatiq Rashid he had told him that he had some work with Aman Ullah but he was not traceable. He added that on the same day he heard fire reports from the side of the Havcli of Aman Ullah. During cross-examination he stated that his father owned land in square No,6 and Altaf Hussain also owns some land in that square. He denied that his father had made application for demarcation of the trees standing on the water-course passing through the said land. He also denied that Altaf Hussain had forcibly removed those trees from the water-course. He denied that he had made a false statement.
15. Ata Ullah Khan, Inspector/SHO who had partly investigated, and recorded statements of some of the P.Ws. Appeared at PW 12. He stated about the arrest of the appellants and the recoveries effected at the instance of both of them. The challan was also submitted to Court by him after completion of necessary investigation.
' During cross-examination, he stated that both the accused were residing in the houses which had a common courtyard. He clarified that in fact they were residing in two separate rooms, with a common veranda. He disclosed that father of Muhammad Tariq Rashid was serving in the Army. He denied the suggestion that no recoveries had been effected from the appellants and that the articles alleged to have been recovered at their instance, were planted on them.
16. Muhammad Shoaib Khan, S.I. Who had recorded statement Ex.PB and had initially investigated the case appeared as PW 13. During cross-examination, he denied that there was no electric bulb burning near the place of occurrence.
17. Mushtaq Elahi, A.S.I. Who appeared as PW 14 stated that his revolver along with live cartridges was stolen from the house where he was residing in Faisalabad while posted at Police Station Factory Area, during his absence, on account of leave, on 26-1-1986. He stated that on having learnt on 23-1-1986 that his father had died suddenly in an accident, he left for Mianwali leaving all luggage's to the care of Liaquat Ali constable. He stated that on coming back to resume duty on 2- 2-1986 he checked his luggage and found the revolver and live cartridges missing along with the belt and holster. He gave out that Liaquat Ali constable told him that the revolver and other articles had been taken away by Altaf Hussain after opening the box in which they were lying, on 26-1-1986.
He gave out that Altaf Hussain who was also serving as a constable and was attached with him, also used to reside with him some times for night. He added that he recorded a report in this regard in the Ro7namcha Waqiati and later made statement for registration of case, as directed by the Superintendent of Police. He added that he had identified the revolver and the live cartridges, after recovery.
' During cross-examination, he admitted that his statement under section 161, Cr.P.C. Was not recorded in this case and nor his name was mentioned as a witness in this case. He added that his statement was recorded in the theft case pertaining to his revolver. He admitted that FIR Ex.DC was recorded on his statement. He denied that Altaf Hussain alongwith Liaquat Ali had visited him at Jhang on 28-1-1986 for condolence of his father. He gave out that there were two keys of the box in which the revolver was lying, out of which one he had taken with him and the other had remained in his residential room. He denied the suggestion that he had made a false report against Altaf Hussain apprehending his involvement in this case.
18. Liaquat Ali constable PW 15 corroborated the statement made by Mushtaq Elahi, ASI with regard to the removal of his official revolver and cartridges by Altaf Hussain appellant from his residential room. During cross-examination he stated that Altar Hussain had taken away the revolver forcibly in spite of his resistance but he had not made any report at the Police Station for the theft of revolver nor had gone to Jhang to inform Mushtaq Elahi, ASI. He added that he had informed Mushtaq Elahi about Altaf Hussain having taken away the revolver, on his return. He expressed lack of knowledge about Mushtaq Elahi having reported the matter to the police to safeguard and avoid his involvement in this case.
' The statements of the remaining witnesses are, more or less, of a formal nature.
19. Learned D.DA. While closing the prosecution case had also tendered in evidence positive reports Ex.s.PK, PL and PJ from the offices of the Chemical Examiner, the Serologist and the Forensic Science Laboratory, respectively. According to Ex. PJ four empties were found to have been fired from the revolver recovered at the instance of Tariq Rashid appellant. It may be mentioned here that the names of Mushtaq Elahi, A.S.I. PW 14 and Liaquat Ali Constable PW 15 were not mentioned in the calendar of witnesses. They were examined at the trial on an application submitted by the D.D.A.
20. Both the appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole. Both of them declined to make statements on oath.
21. Learned counsel for the appellants after taking me through the evidence, contended that the prosecution has failed to prove motive for the occurrence; that the eye-witnesses in this case do not appear to have wit messed the occurrence. In this regard he particularly laid stress on the point that according to doctor's opinion the semi-digested food found from the stomach of the deceased, might have been taken by him four hours prior to his death. In this regard he referred to the statement made by Ahmad Ali, P.W. Of the deceased, having taken food about 15 minutes prior to the occurrence. Learned counsel added that the occurrence seems to have taken place sometime during the night and no witness appears to have witnessed the same.
' Learned counsel contended that the F.1.R obviously appears to have been recorded after deliberations and that no explanation has been given with regard to the delay in reporting the matter to the police. Learned counsel submitted that the evidence of abetment led against Altaf Hussain appellant was not reliable and that the circumstantial evidence of alleged theft of revolver by Altaf Hussain appellant and the recoveries effected from both the appellants did not prove that they had joined hands in committing the offence.
' Learned counsel vehemently argued that the circumstantial evidence led - at the trial against the appellants was not incompatible with the innocence of the appellants.
22. Learned counsel for the State/complainant contended that the ocular account deposed to in this case by Ahmad Ali father of the deceased who was a natural witness, has been corroborated by Muhammad Ashraf PW who was an independent witness by all means. Learned counsel submitted that the theft of revolver committed by Altaf Hussain appellant and the recovery of the same from Tariq Rashid appellant, his nephew, was fully corroborative of the statements made by PW 8 and PW 9 about the role of abetment/instigation played by Altaf Hussain in the commission of offence.
' Learned counsel strenuously argued that there was nothing on record to consider even that the complainant party was biased or was out to involve the appellants falsely in the case. In that regard learned counsel pointed out that father of the deceased who had lodged the F.I.R had not levelled any allegation of abetment of crime by Altaf Hussain appellant.
' While countering the argument of learned counsel for the appellants about the occurrence apparently not having taken place at 7-15 p.m. On account of the opinion expressed by Di.. P.W.11 that the semi-digested food found from the stomach of the deceased might have been taken by him 4 hours prior to the occurrence, learned counsel cited Ghulam Nabi v. The State PLD 1957 (W.P.)
Lahore 109), Saad Ullah Khan v. The State PLD 1961 Dacca 1), Haji v. The State 1972 PCr.LJ 465 and Yaqub Shah v. The State PLD 1976 SC 53. Learned counsel also referred to the opinion of Modi at page 136 under the heading 'Time of Death' in Modi's Medical Jurisprudence and Toxicology, 21st Edition.
23. The evidence about motive for the occurrence was deposed to by Ahmad Ali P.W.3 father of the deceased. While substantiating the statement made in that regard by him he explained during cross-examination that the fact of Muhammad Tariq Rashid having entertained suspicion against the deceased of having teased his sister was told to him by the deceased himself 10-12 days prior to the occurrence. He also stated that on the deceased having told him that the suspicion was wrongly created by someone, he had talked to Muhammad Tariq Rashid as well. His statement is not a solitary reference to that effect as contended by learned counsel for the appellants. In fact, the same finds corroboration from the testimonies of Abdul Sattar P.W.8 and Bashir Ahmad P.W.9 wherein also the fact of Tariq Rashid appellant having entertained suspicion about the deceased having teased his sister finds mention in some detail. But for this suspicion, there was absolutely no misunderstanding, misgivings or differences amongst the complainant and the deceased on one side and Tariq Rashid appellant on the other side. In the circumstances, the evidence of motive available on record cannot be termed as a meagre evidence devoid of corroboration of the ocular account and the other circumstantial evidence.
24. There is no reference in the F.I.R. To the abetment of the crime by Altaf Hussain appellant. This aspect, in fact, transpired during the investigation. Statement of Abdul Sattar (Ex.D.B.) and that of Bashir Ahmad PW9 under section 161, Cr.P.C. Were recorded on 31-1-1986. The clue about abetment of the crime by Altaf Hussain was given therein. Thereafter, revolver P.1 was recovered at the instance of Muhammad Tariq Rashid appellant on 1-2-1986. It was sometime thereafter that it came to light that the official revolver along with cartridges belonging to Mushtaq Elahi, AS1 of Factory Area Police Station had been stolen by Altaf Hussain appellant. FIR Ex. D.C. In that regard was found lodged at Police Station Factory Area, Faisalabad on the statement of Mushtaq Elahi, AS1 under the orders of the Superintendent of Police. The five live cartridges P.2/1-5 and four empties P.3/1-4 recovered at the instance of Altaf Hussain appellant on 15-2-1986 along with belt. P.4 and holster P.5 further linked Altaf Hussain appellant with the theft of the revolver and cartridges officially belonging to Mushtaq Elahi, ASI. (It may be mentioned here that the said revolver prior to that had been recovered from Tariq Rashid appellant).
25. The evidence of abetment of the crime by Altaf Hussain appellant and his instigating Tariq Rashid appellant to commit the crime, deposed to by Abdul Sattar PW 8 and Bashir Ahmad PW 9 has to be assessed keeping in mind the above facts.
The statement made by Abdul Sattar that Altaf Hussain appellant had given the revolver to Tariq Rashid appellant while instigating him to commit the murder on the day, the evening of which the murder was committed and the theft of official revolver by Altaf Hussain and recovery of the same from Tariq Rashid after the occurrence is obviously a strong link between the two pieces of evidence. Further corroboration of this is available from the testimony of Bashir Ahmad PW 9. The link between the two appellants qua the commission of murder also is borne out from the testimony of Muhammad Munir Khan PW 10 who had seen both the appellants on the day of occurrence together with a revolver in possession of Altai Hussain appellant at 3-00 p.m. And of having seen Tariq Rashid appellant moving near the Haveli of the deceased and looking for him.
26. The argument of learned counsel for the appellants that PW 8 and PW9 appear to be interested as PW 8 was cultivating some land of Muhammad Ali uncle of the deceased, has not impressed me. The argument could have some force if the testimonies of these two witnesses had not found corroboration from the circumstantial evidence, comprising the theft of official revolver of Mushtaq Elahi, ASI committed by Altaf Hussain appellant and recovery of the same revolver from the possession of Tariq Rashid appellant; and recovery of the cartridges stolen along with the revolver from Altaf Hussain appellant. It is unimaginable to consider even that the theft of the revolver and the cartridges and the recoveries of these two articles separately from two appellants, was a patched up drama. The two occurrences had happened in two different Police Stations and the officials of one could not have known about the happenings in the other Police Station, at least there is no such evidence. It is also worth remembering that official revolver was recovered from Muhammad Tariq Rashid appellant some six days before the registration of case in that regard, although theft according to the statement made by Liaquat Ali and F.T.R. Ex.bC lodged by Mushtaq Elahi, ASI PW 14 had taken place on 26-1-1986, i.e, some four days before the present occurrence.
27, Another very important and convincing fact in this regard is that Ahmad All PW3 father of the deceased had not made any allegation of abetment against Altaf Hussain appellant while lodging the FIR. Unlike the usual methods adopted by the complainants and the Investigating Officers, his supplementary statement was also not recorded in this regard even after the evidence about the links of Altai Hussain with the crime, had started coming out. He did not make any attempt of improving his statement even at the trial to make allegation of abetment against Altaf Hussain appellant. He stuck to the story of the occurrence that he had witnessed, and known.
' In the circumstances, not an iota of doubt even remains in my mind about the instigation and abetment of the crime committed by Altaf Hussain. It is also worth mentioning that the four empties recovered at the instance, of Altaf Hussain were found to have been fired from the official revolver recovered from Muhammad Tariq Rashid appellant, which according to the evidence brought on record, was given to him by Altaf Hussain, after stealing the same. The argument in this regard that the opinion of the Firearm Expert of the empties having been found to have been fired from the said revolver, can be no good evidence to hold that the said revolver had been used to murder the deceased, as the empties had not been recovered from the spot, does not help the defence in any manner on account of strong evidence available on record in this regard.
28. The veracity of the ocular account deposed by Ahmad Ali PW3, in spite of being father of the deceased, and Muhammad Ashraf PW4, does not admit of any doubts, for the reason that the conduct of Ahmad Ali PW3, all through has been above-board.
' He had no enmity with Muhammad Tariq Rashid appellant. He had no grievance against him. The suspicion entertained by Muhammad Tariq Rashid about Aman Ullah deceased having teased his sister could not be a source of grievance to him particularly when Muhammad Tariq Rashid. On his enquiry, had assured him that he had no such doubts. His deceased son had also assured him that the suspicion was ill-founded and must have been entertained on some misunderstanding.
' He did not involve Altaf Hussain, who was later found involved in the case. Not only did he not mention him by lodging the F.I.R. But he had also not applied the tactics of making a supplementary statement involving him, so much so that he did not even refer to the part played by Altaf Hussain in abetting the crime, even while making statement at the trial. None of the appellants even imputed any motive to him of having falsely involved them. In fact, it was suggested to him during the trial that his son was a person of bad character and a quarrel had taken place some fifteen days before the occurrence between the members of another family and his deceased son for the nefarious activities of his deceased son qua ladies. Although he had denied these suggestion but the fact remains that if the suggestion of the defence had been true, he would not have let those persons free, and instead involved Tariq Rashid with whom he had no enmity. Furthermore, the deceased was found to have suffered six firearm injuries, four of which were inlet wounds. The complainant could have easily involved more than one person by apportioning some of the injuries to them but he did not read on that path.
29. The argument of learned counsel for the appellants, that the FIR in this case was lodged with an unexplained delay, shows that Ahmad Ali PW3 did not know as to who the actual culprit was and he had lodged the F.I.R. After consultations and deliberations, in my view does not possess weight. In that, as noted earlier, the complainant did not take any undue advantage of spreading the net and involving innocent persons. The delay, even if found to have occurred in lodging the FIR, is per se, no ground to throw away the prosecution case unless the delay is found to have been utilized for setting up a false case. No such thing appears to have been done in the instant case. Only one person was named in the F.I.R. With whom also there was no background of enmity so far as the complainant was concerned.
30. The contention of learned counsel for the appellants that stance of the complainant that in spite of being owner of tractor and trolly, he had proceeded to the Police Station on foot, is incompatible with the normal course of conduct, has not impressed me, the reason being that nobody had asked him as to whether his tractor was in working order. Moreover, he might have thought that after reaching pacca road at Sidhar he would take a bus or some other transport to reach the Police Station. It is not known whether he himself could drive the tractor or not. It is quite possible that in his family only the deceased might be knowing driving? All these things should have been asked and explanation in that regard should have been got that non-use of tractor and trolley for proceeding to the Police Station was for ulterior motives. The delay of 4-5 hours in loading the F.I.R., in my view, is fully covered by the circumstances explained by the complainant. In any case no untoward benefit appears to have been taken by him.
31. The statement of Ahmad Ali PW 3 stands fully corroborated by the testimony of Muhammad Ashraf who by all means was an unbiased and independent witness. He was neither related to the deceased nor had any enmity with Tariq Rashid appellant, against whom he deposed.
32. I have carefully applied my mind to the contention of learned counsel for the appellants that the opinion expressed by the doctor that the deceased would have taken his meals, which were found in semi-digested state, four hours prior to the occurrence, negates the prosecution stand of the occurrence having taken place at 7-15 p.m. In the light of the statement made by Ahmad All PW that the deceased had taken his meals 15 minutes before the occurrence, and have gone through the various cases cited by learned counsel for the State.
' While projecting his contention, learned counsel for the appellants contended that since possibility of the occurrence having taken place at 7-15 p.m. Stands ruled out in view of the opinion given by the doctor, it has got to be accepted that the witnesses did not see the occurrence, which must have taken place at some later hours of the night.
33. The digestion of food starts immediately after the, same is poured in the stomach and is seized of by the digestive system . That means that some portion of the food will appear to be digested to some extent, minutes after the same is taken. Semi-digestion state in this case has not been defined to be in portions. The doctor did not say as to what was the stage of semi-digestion. It is quite well-known that food taken an hour before the death is also jointly found in a semi-digestion state. The digestive system of different persons has also different capacities. A person possessing healthy digestive system would digest food within less time as compared to a person having poor digestive system. The digestive system can stop functioning sometimes resulting from a wound, shock and comma and so in such cases no reliance can be placed on the state of food found in the stomach for determining the time of death. This view has been expressed by Modi also at page 136 of his Medical Jurisprudence and Toxicology in 21st Edition.
' More important than that, for the purposes of this case is the view expressed by Modi at the above page in the same paragraph, in following terms:-- "It must also be remembered that the process of digestion in normal healthy persons may continue for a time after death."
' The deceased in this case was 22 years old and must certainly be in good health. The doctor who performed autopsy also noted that the body was of a normal built male.
33. The fact has also not to be lost sight of that the times given by the villagers cannot 'be assumed to be correctly given by minutes. It is just possible that the deceased would have taken food more than fifteen minutes prior to 7-15 p.m. And the occurrence also might have actually taken place sometime exactly after 7-15 p.m. In that way more than an hour's time might have elapsed between the taking of meals and actual happening of -death.
34. The opinions of the experts and their worth have been matters of discussion in various judgments. Some of the judgments, out of those cited by learned counsel for the State, noted above, are worth consideration. In Ghulam Nabi's case PLD 1975 (W.P.) Lahore 109, it was observed that: "A Court is not bound to accept as gospel truth each word of what a doctor states as an opinion. In law the statement of an expert stands on precisely the same footing as that of any witness and may or may not be accepted by Court.
' In Shahidullah Khan's case (PLD 1961 Dacca 1), it was observed that: "We should also like to observe that it is impossible to dogmatize about the number of hours which an individual person will take to digest food. This will depend upon various factors some of which may not be known to the medical man. We do not, therefore, think that the finding of some partially digested rice in the stomach of the deceased Wahed Ali Mridha negatives the prosecution case with regard to the time of the occurrence."
' In the judgment reported at page 465 of 1972 P Cr.L J it was observed that: ' The time of death given by the doctor is only conjectural and there can be possibility of a greater error as such we are of the opinion that the time given by the doctor would not be conclusive on this point."
' Held that the ocular testimony was reliable and worthy of credence.
' In Yaqoob Shah's case (PLD 1976 SC 53), observations were made about the expert evidence in the following manner:-- "It is a well-established principle that expert evidence, may it be medical or that of a Ballistic Expert is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence.
But if there is direct evidence as in the instant case which is definite, forthright and at the same time creditworthy, confirmatory evidence is not of much significance. It cannot at any rate, outweigh, the direct evidence unless it is for any reason deficient in quality."
' It may, however, be noted that the main question involved in this case was about the opinion of the Ballistic Expert.
34. As a result of the above discussion, I am clear in my mind in ruling that the attempt made by learned counsel for the appellants to build the case of defence for negating the ocular account on the basis of the opinion expressed by the doctor, based on the system of digestion, is neither convincing nor is sound enough to throw away the prosecution case.
35. The ocular account, the circumstantial evidence, the evidence of recoveries corroborated by the evidence of motive, have fully established the case against the appellants.
' In the circumstances, I do not find any merit in this appeal. The same is dismissed.
36. The occurrence even according to the prosecution had resulted because of the strong suspicion entertained by the appellants against the deceased on having played with their honor by teasing sister of one and niece of the other. It was thus clearly a case of acting for family honour. In the circumstances the lesser sentence of imprisonment for life awarded to the appellants does not call for any interference.
' The prayer made for awarding additional compensation is also not well-founded for the reason that it is on record that fathers of both the appellants were still alive and Whatever properties they had, were in their possession. There is nothing on record to hold that the appellants owned enough property or had enough means to pay enhanced compensation. Half of the amount of fine, directed to be paid as compensation, on recovery, in the circumstances, does not require any supplement. The revision petition stands dismissed.