1. ' FAZAL ILAHI KHAN, J.--This is an appeal with leave of the Court against the judgment of Lahore High Court, Lahore, dated 9-10-1990; whereby, the convicts' appeal against the judgment of learned Additional Sessions Judge, dated 29-4-1987 was allowed and their conviction and sentence under section 302/34, P.P.C. Was set aside and they were acquitted of the charge. The complainant's Revision Petitions against the acquittal of Jamil Anwar and Saeed Anwar was also dismissed.
2. Briefly, the prosecution case, as set up in the F.I.R. Lodged by Ch. Muhammad Siddique complainant (P.W. 10) to Ghulam Abbas, Inspector, (P.W. 12) on his arrival at the spot on 27-4-1987 at about 6-10 p.m., is that he was a candidate in Ward No,26 (presently Ward No,1) in the election to the local bodies in the year 1979. That on the day of election a fight took place in which Khalid son of Abdul Latif had received injuries and later died as a result of such injuries. Khalid was the brother of the wife of Jamil Anwar accused, while Jamil Anwar and Saeed Anwar, the acquitted accused, are real brothers. Zaheer Ahmed accused is the brother of the wife of Khaild deceased while the wives of Zaheer Ahmed and Muhammad Zubair accused/respondents are real sisters. For the murder Jamshed son of Siddique, Mushtaq his brother 'and Noor Ahmed his son-in-law were charged. At the trial of that case Mushtaq was acquitted whereas Noor Ahmed was acquitted by the Hon'ble High Court. Siddique's son Jamshed was sentenced to life imprisonment and he is undergoing the sentence.
3. It was reported that at about 5 p.m. Siddique alongwith his son Khalid Javed deceased was proceeding in Ghalla Mandi Loharan. The deceased was ahead of him and when they reached near their shop he saw Jamil Anwar, Saeed Anwar, Zaheer Ahmed and Muhammad Zubair accused emerging at the shop armed with pistols approaching from the eastern side and challenged that they (the deceased party) would not be allowed to go. Jamil Anwar simultaneously fired with his pistol hitting Khalid Javed on his right side and forehead. With the firing of Saeed Anwar he was hit on his back side and chest. On receipt of the injuries he fell on the ground. After that Zaheer Ahmed and Muhammad Zubair accused fired 3/4 shots at the deceased with their respective pistols which hit the deceased on his back and on the left side of his neck. After commission of the offence the accused decamped from the spot, shouting that they have revenged the ordeal murder. Umar Draz (P.W.11), Gulzar and Usman Ghani were stated to have witnessed the occurrence.
4. Ghulam Abbas Inspector (P.W.12) on hearing of the commission of offence, who was present in Chowk Kundawala, arrived at the spot just after the occurrence and recorded the statement of Muhammad Siddique Exh.PC. The statement was read out to the complainant who admitting it correct signed the same. The statement Exh.PC was sent to police station through Ghulam Muhammad Constable for registration of the case and himself started investigation. He prepared the injury sheet and inquest report of the deceased which are Exhs.PI and PJ, respectively and sent the dead body for post-mortem examination. He prepared the site plan at the instance of the P.Ws.
2. And took into possession blood-stained earth from the spot vide Exh.PD. He also took into possession three crime empties recovered from the spot vide memo. Exh.PE and sealed into a sealed parcel and handed over to Muhammad Anwar, ASI, for safe custody in Malkhana for onward transmission to the Chemical Examiner and Forensic Science Laboratory. He also took into possession a phial containing led bullets and the clothes of the deceased sent by the Doctor.
3. ' Jamil Anwar and Saeed Anwar accused were arrested on 4-5-1985. Muhammad Zubair and Zaheer Ahmed accused were arrested on 11-5-1985. Revolver Exh.Pl alongwith 2 live cartridges were recovered at the instance of Zaheer Ahmed on 22-5-1985 which are taken into possession and sealed vide recovery memo. Ex.PF. The parcel was deposited on the same day with Moharrar for safe custody. On 23-5-1985 Muhammad Zubair accused while in police custody led to the recovery of pistol Ex.P2 alongwith two live cartridges which were taken into possession and sealed into a parcel vide recovery memo. Exh.PG and handed over to Moharrar Malkhana for safe custody.
4. ' On completion of investigation the accused/appellants were put on trial in the Court of Additional Sessions Judge. Relying on the ocular evidence, the motive, recoveries and the medical evidence the learned trial Judge found Zahoor and Zubair guilty of the offence and on conviction sentenced both of them under section 302, P.P.C. To imprisonment for life. The two accused; viz. Jamil Anwar and Saeed Anwar were acquitted for want of corroboration to the ocular evidence in their case.
5. The learned High Court, on acceptance of the convicts' appeal acquitted them of the charge and in consequence rejected the State appeal against the acquittal of Jamil Anwar and Saeed Anwar as well as the revision petition filed by the complainant vide judgment dated 9-10-1990.
6. Leave to appeal was granted against the judgment of the learned Lahore High Court acquitting Muhammad Zubair and Zaheer Ahmed respondents to examine the submissions made by the learned counsel for the appellant that the occurrence took place at 5 p.m., F.I.R. Was lodged very promptly in the same evening at 6 p.m. And the shops of the eye-witnesses being close to the place of occurrence they were very natural witnesses of the occurrence. That a discrepancy in the ocular and medical evidence with regard to the seat of one injury out of so many was not sufficient to discard the ocular evidence in toto; that sufficient corroboration was available in the form of motive which stands proved but evidence has not been appraised in accordance with the established principle of appraisal of evidence.
7. ' We have heard the learned counsel for the parties and have gone through the entire evidence with their help and have perused the record. With regard to the submissions noted above, made by the learned counsel at the leave grant stage and reiterated before us, it may be pointed out that the prosecution has throughout in support of its case placed reliance on the ocular testimony of Muhammad Siddique (P.W.10) and Umar Draz (P.W.11) and sought corroboration from the medical evidence, recoveries from the spot that made at the instance of the accused/respondent, report of the Forensic Science Laboratory and motive. The learned trial Judge has found that though the eyewitnesses were not disinterested and independent their presence at the spot was quite natural as they have their shops in the vicinity of the place of occurrence and after thorough discussion were further found reliable and their statement confidence inspiring. It was further found that their statements were fully corroborated by medical, circumstantial and other evidence in the case. It was on the principle of abundant caution in administering criminal justice that benefit of doubt was extended in the case of the two acquitted accused as corroborating in their case was not of that standard which is required in criminal cases for bringing home charge to the accused beyond any reasonable doubt.
8. ' As far as evidence against the accused/respondent is concerned Muhammad Siddique complainant (P.W.10), has fully supported the narration of facts given in the F.I.R. Exh.PA. His statement has been fully supported by Umar Draz in his statement recorded at the trial. His presence at the spot at the relevant time is natural as he has his shop near the place of occurrence. Similar is the case of Umar Draz (P.W.11) who has stated that his shop is adjacent to the shop of the complainant. Umar Draz has been thoroughly cross-examined on the point but nothing material has been brought in his statement to discredit his version about his running of a shop in the vicinity. Ghulam Abbas, Inspector (P.W.12) on his arrival at the spot, just after the occurrence, has found them present at the spot. He has stated that on 27-4-1985 he was present in Chowk Gondlanwala in connection with investigation of some other murder case that he got the information of the occurrence, at which he immediately left for the place of occurrence and the first thing which he did that he recorded the statement of Muhammad Siddique (P.W.10) which is Exh.PC. He then recovered 3 crime empties from the place of occurrence which were taken into possession and made into a sealed parcel vide memo. Exh.PH and handed over alongwith other recoveries to Muhammad Anwar ASI, on 28-4-1985, for safe custody in the Malkhana and . For onward transmission to the Chemical Examiner and Forensic Science Laboratory. Zubair and Zaheer accused/respondents were arrested on 11-5-1985. Zaheer accused disclosed and led to the recovery of revolver Exh.P1 alongwith 2 live cartridges which were taken into possession and sealed into a parcel vide memo. Exh.PF, and deposited in Malkhana for safe custody. Zubair accused/respondent while in police custody led to the recovery of pistol P2 alongwith 2 live cartridges which were taken into possession and sealed into a parcel vide memo. Exh.PG and handed over to Moharrar for safe custody. The sealed parcels of weapon of offence Exh.P1 and Exh.
9. P2 and that of live cartridges were sent to Ballistic Expert for comparison. In the cross-examination the Investigating Officer has stated that according to his investigation Jamil Anwar and Saeed Anwar accused were innocent as their presence at the spot at the time of occurrence is not proved and such opinion he based on the statements of Muhammad Hanif, Muhammad Saeed and Khawaja Ghalib whose shops are also stated to be adjacent to the place of occurrence.
10. ' With regard to the recoveries Muhammad Anwar ASI (P.W.13) has stated that while posted as Moharrar he registered the case F.I.R. Exh.PC/1 on report of the complainant that he was handed over 3 sealed parcels pertaining to the blood-stained earth, crime empties and the clothes of the deceased for safe custody in Malkhana. He delivered the same on 5-5-1985 to the Chemical Examiner and Forensic Science Laboratory, respectively. He delivered parcel containing crime empties to Abdul Ghafoor F.C. For delivery to the Forensic Science Laboratory on 25-5-1985. It was on 2-6-1985 that he delivered two sealed parcels containing pistol and revolver to Liaqat Ali, F.C.
11. For the same purpose. The parcels containing revolver was delivered to him on 22-5-1985 and that of pistol on 23-5-1985. It was further stated that these parcels remained intact with him and none tampered with it and remained intact till these were sent to the Experts. The recoveries of empties have been proved through the statement of Muhammad Iqbal (P.W.7), a disinterested witness. The recovery of crime weapons has been proved through the statement of Muhammad Aslam (P.W.8) and their statements are unshattered.
12. ' According to the Forensic Science Laboratory Report Exh.PN, the parcels containing the articles were received intact containing crime empties of 7.65 mm Marks CI and 0; one pistol of 7.65 mm bore and one revolver of .32 bore. That on comparison crime empties 7.65 mm bore Marks Cl and C3 were found to have been fired from pistol of 7.65 mm, mentioned above.
13. ' It is not always true that conviction cannot be based on the statements of interested witnesses even if their presence is otherwise proved at the spot at the time of occurrence but for safe dispensation of criminal justice superior Courts have always searched for some sort of corroborative evidence before basing conviction on such interested evidence. In the instant case report of the occurrence was promptly lodged at the spot before the I.O. Who arrived just after the occurrence on hearing of the occurrence at a place near to the place of occurrence, proves the presence of the complainant at the spot.
14. ' He has his shop at the spot and is also a natural witness. As already pointed out his statement is supported by Umar Draz (P.W.11) and by the medical evidence and recoveries of the crime empties from the spot and recoveries of the crime weapons at the instance of the accused/respondent in presence of the disinterested witnesses. The opinion of the Forensic Science Laboratory 2 crime empties recovered from the spot were found to have been fired from the crime weapon recovered at the instance of the accused. The learned High Court has discarded the evidence of recoveries and the Expert Report on flimsy grounds. Delay in sending the crime empties per se is no ground for rejecting such evidence and throwing away the entire prosecution evidence otherwise found reliable by the trial Court. Delay in sending the crime empties and crime weapons is immaterial, if there is nothing on record that the seals applied on the parcels after the recovery were intact when received in Forensic Science Laboratory and are not tampered with. No such objection was raised and the witnesses have not been cross-examined on the point rather it is evident that the seals were intact till its comparison. If any authority is needed reliance can be placed in Sikandar and 2 others v. The State (PLD 1981 SC 477).
15. ' Investigation in this case is challenged as dishonest merely on the ground and bare allegation that the crime empties have been planted. If that had been the case then what prevented the investigating officer for not manoevouring the empties of the revolver recovered from Zaheer accused. In the circumstances of the case the ocular evidence against Zubair accused is fully supported by the recovery of crime empties from the spot in the presence of the witnesses who have appeared in Court and whose credibility has not been shattered in the cross-examination.
16. Similar is the case of recovery of pistol at the instance of Zubair accused. The empties recovered from the spot and sealed into parcel in presence of the witnesses having been sent to the Forensic Science Laboratory alongwith pistol duly sealed, were tested and it was opined that the crime empties Exhs.Cl to 0 were fired from the pisto recovered from the possession of Zubair accused.
17. Such evidence coupled with the motive for commission of offence fully supports the prosecution case. The contradiction pointed out by the learned High Court that one of the injury on the person of the deceased did not reconcile with the version given in the F.I.R. Is factually not correct as injury on the waist (I) lower back and hips cannot be considered contradictory as the injury was found on back of the hip close to the waist. It may, however, be pointed out that no empty of the revolver was recovered and as such no opinion of the Forensic Science Laboratory was available in his case to lend support to the prosecution case.
18. ' For the reasons stated above and on the principle of safe dispensation of criminal justice we would not interfere with the order of acquittal of Zaheer accused/respondent. Appeal against Zaheer accused/respondent is, therefore, dismissed and he is discharged of bail bond.
19. 'As far as the plea of alibi raised by Zubair accused/respondent through the statement of Col. Bunyad Hussain Sayed is concerned his statement has been fully considered by the trial Court and found not confidence inspiring on sound judicial reasoning. Such finding has also not been disturbed in appeal.
20. ' For the reasons stated above the case against Zubair accused/respondent is proved beyond any reasonable doubt through the ocular evidence corroborated by medical evidence, motive, recovery of pistol at his instance and recoveries of empties from the spot coupled with positive opinion by the Forensic Science Laboratory. Accordingly, appeal against Zubair accused/respondent is 'accepted, the impugned judgment and order of the learned High Court in his case is set aside. He is convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs,2,000. In default of payment of fine he shall further undergo 2 years' R.I. He shall also pay a sum of Rs,2,000 as compensation to the heirs of the deceased and in default shall undergo further 2 years' R.I. He shall be taken into custody forthwith for undergoing his sentence of imprisonment.