SAJJAD ALI SHAH, J.---This appeal with leave is directed against judgment, dated 8-9-1991 of High Court of Sindh at Karachi, whereby Confirmation Case No. 2/91 and Criminal Appeal No.60 of 1991 have been disposed of by rejecting reference of confirmation of death sentence of respondent Noor Ahmed and setting aside conviction and sentence of respondents Nos. 1 to 4 named above and acquitting them. Trial Court convicted them for offences under section 302/34 and 460, P.P.C.
And sentenced Noor Ahmad to death and remaining three co-accused to hf6 imprisonment and fine of Rs.10,000 or in default R.I. For one year each. They were directed to pay compensation of Rs.25,000 each to the heirs of deceased. Briefly stated relevant facts giving rise to this appeal are as under:--
2. Incident took place on 15-6-1986 at 2 a.m. In the house of complainant Habib, where he and his brother deceased Budhal were sleeping. They were awakened by barking of dogs and in the light of torch complainant saw and identified four respondents from whom Noor Ahmad was armed with gun and others had hatchets. Noor Ahmad fired from close range at Budhal, who was hit in the head and died. Respondents ran away and on cries of complainant, two witnesses namely Muhammad Bux and Ghulam Nabi came to the spot and claimed to have seen and identified the respondents. Complainant apprised these witnesses about how incident took place. Leaving these witnesses near the dead body complainant went and lodged F.I.R. At P.S. Ubauro in District Sukkur at 7-30 a.m. Motive mentioned in F.I.R. Is that before the incident deceased Budhal purchased land from Abdul Khaliq on which Noor Ahmad was annoyed and on that account there was dispute and deceased was threatened with dire consequences. During the investigation, from the spot one crime empty was recovered and after arrest from Noor Ahmad gun was recovered and in that connection report of Ballistic Expert is positive. .
3. In the trial Court, prosecution examined seven witnesses in support of its case including one eye-witness Habib complainant and two corroborative witnesses Muhammad Bux and Ghulam Nabi and other witnesses of formal nature. Post-mortem examination was performed by Dr. Hassan Shah. A.S.I. Abdul Karim, who wrote F.I.R. And investigated the case died before his evidence could be recorded, so his handwriting and signature in the documents were identified by writer H.C.
Muhammad Malook, who worked with 1.0. Prosecution produced reports of Chemical Examiner and Ballistic Expert with positive findings. Respondents in their 342, Cr.P.C. Statements in the trial Court denied prosecution allegations and Noor Ahmad claimed that land in dispute was purchased by him from Abdul Khaliq over which complainant Habib was annoyed. Further Noor Ahmad supported Ahmad Yar Shar in the National Efection 1985 against Jam Muneer Ahmad who is zamindar of complainant Habib. Noor Ahmad produced documents in support of his claims but examined no witnesses in defence.
4. Trial Court convicted and the High Court acquitted as stated above and the Supreme Court has granted leave to consider and examine the question of delay in sending the sealed parcels to the Ballistic Expert and whether on that ground High Court rightly discarded evidence with positive finding in view of enunciation reported in the case of Allahdino v. State 1969 SCM R 714 and whether view in that reported case reflects latest view of this Court on the question of delay.
5. It may be mentioned briefly that according to the High Court, complainant Habib-and other two corroborative witnesses are related to the deceased admittedly and since there was background of enmity between the. Parties due to dispute over land, it was imperative to look for independent corroboration. Not only that but need was felt more strongly for the reason that there were other weak points in the evidence of prosecution which made the Court more cautious and extra careful at the, time of evaluation of evidence. Weak points are enumerated as under:-
6. Firstly evidence of only eye-witness and complainant was criticised on the ground that being brother. Of deceased, if he was present at the spot and identified the assailants then he would have lodged F.I.R. Promptly at police station which was only three kilometres away from his house but in this case incident took place at 2 a.m. And report was lodged in the morning at 7-30 a.m.
Complainant has not given any explanation for this delay particularly when two relatives came to the spot on cries and he could have left them near dead body and repaired to Police Station at that time to file F.I.R. Promptly and without delay. It is mentioned in F.I.R. In the column of delay that delay was on the part of complainant and not on the part of police, yet complainant did not bother to explain the delay in F.I.R. No attempt was made by him in his evidence to explain the delay in spite of the fact that he claimed to have seen the incident in the light of torch and that torch was with him, which he took to police station and if that was so why did he not leave for police station at night at 2 a.m. Immediately after the incident.
7. Secondly complainant omitted to mention availability of crime empty to F.I.R. At the spot in spite of the fact that he remained at the spot from 2 a.m. Till about 7 a.m. Along with torch in the light of which he identified culprits one of whom fired at deceased- Likewise he mentioned wrongly in F.I.R.
That entry of wound on the head of deceased was on the right side, which was contradicted by medical evidence.
8. Thirdly two corroborative witnesses deposed that they heard report of gun-fire came to the house of deceased and identified assailants in the light of torch which was in the hand of complainant. This does not sound very convincing. Even if the houses of these witnesses, who are related to the deceased were adjacent, then according to the complainant only one shot was fired at the deceased and assailants fled away, which means that they would be on the way escaping when attention of witnesses was drawn at by report of gunfire, upon which they got up from sleep and ran out and reached the house of deceased. It is not possible that after firing one shot at deceased, assailants would stand there in that position in the spot light of torch flashed by the complainant to enable witnesses to reach there and identify assailants. If story of witnesses is half believed then natural inference would be that they may see assailants running away from the house of deceased but would not be able to identify them due to darkness of the night. They may be able to tell the number of assailants only but that is not the case of prosecution.
9. Fourthly motive as alleged shows dispute between parties over land and in that also respondent Noor Ahmad was able in the trial Court to substantiate his claim by producing agreement of sale Exh.34 that he had purchased land from Abdul -Khaliq over which deceased and complainant were annoyed and similar claim was made by complainant but no proof was produced. Further Noor Ahmad also produced copy of F.I.R. To show annoyance of Jam Muncer Ahmad Zamindar of deceased with him.
10. Fifthly even otherwise identification in the light of torch is considered as weak type of evidence for the reason that the person, who Cashes torch at assailants exposes himself as easy target for attack, more so particularly when there is firing. Complainant is brother of deceased and if story as narrated by him is to be believed, then it is difficult to understand, how he could have been spared to give evidence as eye-witness.
11. Sixthly learned AA.-G. Sindh appearing for State in the-High Court did not support convictions during the hearing of the appeal and conceded that it was not a fit case for conviction. Before us Mr. A.G. Mangi, AA.-(i_ Sindh has supported appeal against Noor Ahmad only and not against remaining respondents.
12. In the background and for reasons aforementioned, High Court was expected to look for independent corroboration of incriminating nature in support of ocular evidence of complainant.
So far report of Ballistic Expert is concerned, finding in it is positive that crime empty was fired from the gun recovered from respondent Noor Ahmad. Record shows that empty was recovered on 15- 6-1986 and gun was recovered on 8-7-1986. Report shows that both sealed parcels were sent to the Laboratory on 11-12-1986 and received there on 18-1-1987. There is delay of about six months and there is no explanation as to where these parcels were and why they were not sent to the Laboratory in time without delay. For discarding this evidence, High Court relied upon the case of Allahdino v. State (1969 SCMR 714) in which it is held that positive finding in the report of Ballistic Expert is not so strong piece of evidence as to warrant conviction when parcels were sent to the Laboratory after delay of four months, which was not explained. On the question of delay there has been development in case-law and this question came to be considered in the cases of Sikandar and others v. State (PLD 1981 SC 477) and Muhammad lqbal v. Muhammad Tahir and others (PLD 1985 SC 361). In the former case delay of 5 months and 20 days in sending sealed parcel to the Laboratory was disregarded on the ground that delay simpliciter would not materially affect the finding in the report unless there was allegation of tampering with sealed parcel and on that point 1.0. Was cross-examined and something brought out to show that there was dishonest investigation. This view was reiterated in the latter case mentioned above. It is, therefore, clear that delay in itself is not sufficient unless there is allegation of tampering with sealed parcels and dishonest investigation and 1.0. Is cross-examined on the point of delay to give his explanation, which may be accepted or not. In support of the view expressed above, with advantage further reference can be made to the decisions of this very Bench in three cases of Rab Rakhio and others v_ State (1992 SCMR 793), Muhammad Usman and others v. State (1997 SCMR 489) and unreported judgment in Criminal Appeal No.12-K of 1990 entitled Ghulam Sarwar and others v. State .
13. 1 n the instant case Mashir Bangul has admitted in his evidence in the trial Court to cross- examination that his father Piaro cultivated land of .Lam Muneer. He has also admitted that he and Habib complainant did not point out empty cartridge to the investigating officer at the place of incident. Now if these admissions are correct, then this Mashir being interested has given, evidence inconsistent with prosecution case and he should have been declared hostile and cross-examined and co-Mashir should have been examined. This not having been done clearly shows that prosecution accepted these assertions of Mashir correct without dispute or challenge. In the statement under section 342, Cr.P.C. Of respondent Noor Ahmad, no questions have been asked from him about recovery of empty from the spot and gun from him after arrest and positive finding of Ballistic Expert. The questions with regard to the delay in sending sealed parcels or dishonest investigation or tampering could have been put to the Investigating Officer, who died before his evidence could be D recorded in the trial Court, hence benefit of this missing link should not be given to the prosecution but in all fairness should be given to the accused. Furthermore evaluation of this piece of evidence is to be done in view of appraisement of other pieces of evidence also, which as stated above does not make happy reading and as it appears, each piece is tainted, hence it can be E said that one tainted piece of evidence cannot support other tainted piece ofI evidence. We are also mindful of the fact that we are dealing with appeal from acquittal, in which standard of appraisement in rigidity is not same as in appeal F from conviction. For the facts and reasons mentioned above, we are of the, considered view that no interference is warranted with impugned judgment, which does not suffer from any legal flaw or infirmity. In the result appeal is dismissed.