' MIR HAZAR KHAN KHOSO, J.---Petitioner Sheraz Asghar seeks leave for appeal against judgment dated 22-12-1994 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby his appeal challenging his conviction and sentence of imprisonment for life and fine awarded under section 302, P.P.C. By Sessions Judge, Jhelum, on 5-7-1992 was dismissed.
2. The facts giving rise to this petition are that on 7th of April, 1991 at about 12 noon Wasif Rasool deceased was shifting planks of timber to his house. He was followed by his father complainant Muhammad Arif and Ahsan Mahmood (not examined) and Muzaffar Hussain. Petitioner Sheraz Asghar and his younger brother Ghulam Asghar armed with pistols bypassed the abovesaid witnesses. Petitioner Sheraz Asghar opened burst fire at the deceased who sustained injury on his back and fell down. They both successfully escaped.
3. The motive for murder was that both the brothers suspected that deceased had illicit relations with their late sister Mst. Shaheen, who had died one year earlier than the present incident.
4. Complainant sent the dead body to hospital at Jhelum. Then himself went to the police station where his statement was recorded in 154, Cr.P.C. Book at 2-15 p.m.
5. Bashir Ahmed, S.I. Alongwith complainant went to the hospital. He prepared inquest and injury reports. He requested Medical Officer to conduct post-mortem on the dead body of deceased. 'He went to the Vardat. Recovered two wads of cartridges. Prepared inventory.
5-A. On 13th April, 1991, petitioner Sheraz Asghar and his brother Gulfam Asghar appeared before him. He arrested them. Investigation then changed hands. On 21-4-1991 it was transferred to D.S.P., Raja Munawar Hussain. Then it came in hands of Raja Farooque Ahmed, D.S.P. Ultimately in hands of Ahmed Nawaz Khan Niazi, S.P. Range Crimes, Rawalpindi. He summoned the prosecution witnesses and verified their statements. After verification of entire investigation he handed over papers to Inspector Tariq Zafar, who put up challan against both the brothers before Court.
6. They did not plead guilty to the charge and claimed trial. Prosecution examined in all fourteen witnesses. The material evidence is that of Dr. Nasir Ahmed, eye-witnesses Muhammad Arif, Muzaffar Hussain and Investigating Officers Bashir Ahmed, Si. And Ahmed Nawaz Khan Niazi, S.P..
7. P.W.7 Dr. Nasir Ahmed conducted autopsy on the dead body of deceased on 7-4-1991. He found gunshot injury on his back. The same was ante-mortem and sufficient to cause death in ordinary course of nature.
8. P.W.8 Muhammad Arif. He was eye-witness of the incident. The relevant portion of his statement is:--.
"Wasif Rasool deceased was my son. On 7-4-1991, at about 12 noon, Wasif Rasool deceased and Muzaffar P.W. Had brought a tractor-trolley loaded with earth and timber, which was being driven by Asjid Rauf P.W. To our village. The tractor-trolley was unloaded at some distance from my house and thereafter Asjid Rauf left with the tractor-trolley. Then myself, Wasif Rasool, Muzaffar and Ahsan P.W. Started carrying timber to our house. Wasif Rasool deceased while carrying timber was going ahead of myself and Ahsan P.W. On way to our house. When he reached near a crossing in front of the house of Sabir Hussain, in the village thoroughfare, Sheraz Asghar and Gulfam Asghar accused, present in Court, came over there and when they reached near Wasif Rasool deceased, Sheraz Asghar accused took out a carbine which he had concealed in his clothes and fired at Wasif Rasool deceased hitting him on his back on the right side, upon which he fell down on the ground faceward. Then the accused ran away and while running away Gulfam Asghar accused also took out his carbine which he had concealed in his clothes and fired one shot in the air. I approached the body of my deceased son which was motionless and considering him to be unconscious I sent his body on a Suzuki van in the Civil Hospital, Jhelum, accompanied by Muzaffar P.W. 1 then went to P.S. Saddar, Jhelum. There I reported the incident to Raja Bashir, S.I., who recorded F.I.R. Exh.P.E. On my dictation which was read over to me and I signed the same in token of its correctness. Then Raja Bashir, S.I. Accompanied me to Civil Hospital, Jhelum, where he was found to be dead.
' The accused had suspected that my deceased son Wasif Rasool had illicit relations with their sister Shaheen, who had died prior to the occurrence. Because of said grouse they had killed my deceased son."
9. P.W.11 Muzaffar Hussain. He was second eye-witness of the incident. The relevant part of his statement is:-- "Then myself, Wasif Rasool deceased and Ahsan Mahmood and Muhammad Arif, P.Ws., started carrying timber to the house of the deceased. At about 12 noon, while carrying the said timber Wasif Rasool deceased was-ahead of us, at some distance and when he reached the house of Sabir Hussain then Sheraz Asghar and Gulfam Asghar accused came from behind and after overtaking us, they reached near Wasif Rasool deceased. They both were armed with carbines.
Sheraz Asghar accused then fired with carbine hitting Wasif Rasool deceased on the right side of his back, who being wounded slumped on the ground. The accused then ran away from the scene and while running away they fired one shot in the air. Wasif Rasool died at the spot."
10. P.W.12 Bashir Ahmed, S.I. And P.W.10 Ahmed Nawaz Khan Niazi, S.P. Are Investigating Officers. It is not necessary to reproduce their statements.
11. The petitioner and his brother in their 342, Cr.P.C. Statements denied the allegations levelled against them by the prosecution and canvassed innocence and claimed that on the account of enmity they have been roped in a false case.
12. The learned Sessions Judge, Jhelum, vide his judgment dated 5-7-1992, acquitted Gulfam Asghar of the charge but found the petitioner guilty for the offence and convicted him under section 302, P.P.C. And sentenced him to suffer imprisonment for life and to pay fine of Rs,50,000. In default to suffer R.I. For five years more. If fine realized was directed to be paid to the heirs of deceased as compensation.
13. The petitioner filed appeal before the Lahore High Court, Rawalpindi Bench, challenging his conviction and sentence, whereas complainant filed twb revision petitions requesting for enhancement of the sentence of the petitioner and setting aside acquittal of Gulfam Asghar. The High Court dismissed the appeal as well as both the revision petitions by one judgment on 22-12- 1994.
14. The petitioner has come before this Court and filed this petition for leave to appeal.
15. We have heard Sardar Muhammad Ishaq Khan, Advocate Supreme Court, for the petitioner at length. The learned counsel took us through relevant portions of (i) the statements of two eye- witnesses Muhammad Arif and Muzaffar Hussain, (ii) statement of Medical Officer Dr. Nasir Ahmed,
(iii) statements of Investigating Officer, Bashir Ahmed, S.I. And Ahmed Nawaz Khan Niaz, S.P. And (iv) the judgments of Sessions Judge, Jhelum and the Lahore High Court, Rawalpindi Bench.
16. The learned counsel, then formulated his contentions as under:--
(i) There is inordinate delay in lodging of F.I.R. After due deliberations, consultations and receiving the medical report, F.I.R. Has been lodged, eye-witnesses set up and false case cooked up against the petitioner and his 14 years old brother Gulfam Asghar. If the witnesses would have been there they could have easily saved life of the deceased or caught hold of the petitioner and his brother.
(ii) The prosecution has miserably failed to prove the place where the murder had taken place.
From the alleged Vardat neither blood nor timber carried by the deceased was recovered.
(iii) Eye-witnesses Muhammad Arif is father of the deceased. He had enmity with the petitioner's family. He is related-cum-inimical witness. Muzaffar Hussain was friend of the deceased. He is interested in prosecution. Their evidence requires strong corroboration which lacks. No conviction can be based on their interested evidence.
(iv) The medical evidence belies the ocular evidence. In F.I.R. Complainant has alleged that petitioner and his brother were carrying pistol. The petitioner opened burst fire on the deceased.
The medical evidence established that fire at the deceased was made from gun using cartridges.
To bring medical evidence in accord with ocular evidence witnesses have improved their version and averred that assailants were carrying carbines.
(v) Motive though advanced has not been proved by the prosecution. It shatters the entire prosecution case.
(vi) The investigation is dishonest and mala fide. Investigating Officer has not used his own hands but has got written everything from retired Head Constable, Atta Muhammad.
(vii) On same evidence Gulfam Asghar has been acquitted and petitioner convicted. Consistency required that petitioner should had also been acquitted.
(viii)The two Courts below have not properly assessed the evidence and thus drawn improper conclusions. Reliance was placed on 1973 PCr.LJ 102 and 1991 PCr.LJ 174
17. The incident had taken place at 12 mid-day. The complainant, Muhammad Arif, lodged the complaint at 2.15 p.m. At Police Station Saddar, Jhelum. It is at a distance of 9/10 miles from the place of occurrence. Two hours and 15 minutes time might had been consumed by the complainant in arranging conveyance and despatching the dead body to hospital at Jhelum.
Arranging conveyance for himself and covering the distance of 9/10 miles for reaching at police station. Such delay in detail has been explained by the complainant in the trial Court during cross- examination. There lies no fault on the part of complainant in lodging the F.I.R with such delay.
Besides, delay in lodging F.I.R. Is not per se fatal to a case. It neither washes away nor torpedoes trustworthy and reliable ocular or circumstantial evidence. F.I.R. In this case has been lodged by an eye-witness. It contains the names of the eyewitnesses, the names of the assailant with arms carried by them, active role played by each of the assailant. The prompt lodging of the F.I.R. With details excludes possibility of deliberations, consultations, manoeuvring and false implication.
18. The place of incident is in a street near the house of the complainant. At time of inspection the Investigating Officer neither found blood nor planks of timber. Only two wads of cartridges were found and recovered. They could he result of one or two fires. It is not material as only one shot proved fatal. It is attributed to the petitioner. The complainant produced planks of timber from Ns house. He explained that the same might had been taken by small children. About absence of blood complainant has said that after receiving the injury on his back deceased had fallen on the ground with his face downwards. Naturally the wound lay upwards. Medical Officer has certified that after receiving injury the deceased had died within a few minutes. He had collected 3 litres of blood from right pleural cavity and 500 CC from the left cavity. Obviously blood had collected in the pleural cavities and had not oozed out from the wound. Absence of blood, and timber at the Vardat has been explained. It eclipses its significance particularly when wads of fired cartridges were recovered from there.
19. Complainant Muhammad Arif resided in village Qureshian. Assailants also resided in the some village. Muzaffar Hussain resided at a distance of 1/2 mile from there. The parties know each other very well. It was broad daylight incident. There can be no mistaken identity. Muhammad Arif is father of the deceased. His close relationship with deceased would neither term him interested witness nor untrustworthy. He is a natural witness. His presence at the spot is established. Muzaffar Hussain explained his presence at the spot. He was friend of the deceased. He has no animosity with the petitioner. He cannot be termed as interested witness. Both the witnesses have successfully stood to the acid test of cross-examination, No inherent defect is traced therein.
Insignificant minor contradictions are there. They do not touch the material facts involved in the case. The same could be ignored easily. Muzaffar Hussain lends support to complainant Muhammad Arif. Their evidence individually and severely is sufficient to prove charge.
20. In his first information report complainant has said that the petitioner and his brother were armed with pistols. Only petitioner opened burst at the deceased which proved fatal. The complainant has used the word pistol twice in F.I.R. Pellets were found from the wounds of the deceased. Later the complainant and eye-witness Muzaffar Hussain have averred that the assailants were armed with carbines. The petitioner fired with carbine at back of deceased. The medical evidence -reveals that deceased might had received injury at a distance of beyond ten feet. The witness says that deceased was fired at very close range. The wound in such range ordinarily should have traced blackening and contained wads. It is not uncommon with people of rural area to give misdiscription in ragards to small arms. In colloquial language sometimes they call it pistol, sometimes revolver, sometimes carbine. Besides, mistaken indentity of arms in the instant case is natural as the assailants rushed from the backs of the witnesses and attached the deceased within seconds at their backs to the witnesses. In such event even giving exact distance between the assailants and the victim would not be possible. The medical evidence thus does not conflict with the ocular version. It can neither be said an improvement nor sinsiter effort on the part of two eye-witnesses to bring their evidence in accord with medical evidence. Even otherwise in the position as the victim, the assailants and the witnesses were eye-witnesses had a very short glimpse of the occurrence, such contradictions cannot be given much weight but ignored lightly.
21. Motive though advanced and evidence led by the prosecution has not been believed by the trial Court with the observation that motive remained in mystery. The trend of cross-examination of complainant/eye-witnesses reflects that ill-will existed between the parties. The is double-edged sword. At one place it can be advanced as motive for commission of an offence. At other place a reason for false implication. Motive is a fact which is conceived in mind of an assailant or to the knowledge of a victim. If a victim survives he would disclose the same. If he dies, it is buried with him. The motive can neither be read nor reflected from face of an assailant. It is gathered from the facts existing before the crime, at the time of occurrence or just thereafter. Absence of motive would not destroy trustworthy or reliable ocular or circumstantial evidence. No doubt, murders oftenly are committed with some motive. Rarely without it. Sometimes motive is proved.
Sometimes it is not proved. Sometimes it remains shrouded in mystery, as is in the instant case. We have already observed that, cross-examination reflects that existed between the parties. Ill-will may possibly be the motive for commission of the offence. The motive for committing offence depends upon the character, psychological bend of the mind and the society in which a person is brought up. It is difficult to lay down any hard and fast rule in respect of the same. Every criminal case has its own facts. They are to be judged from their own angles. However, no-proving of motive in the instant case would neither puncture the prosecution case nor would dent the positive confidence inspiring ocular version of witnesses Muhammad Arif and Muzaffar Hussain.
22. Above said two witnesses have only charged the petitioner for having caused death of the deceased. Gulfam Asghar has not been assigned any active role. He had not caused any injury to deceased. He was given benefit of doubt and acquitted of the charge by the trial Court and upheld by the High Court. The case of the petitioner is quite distinguishable from acquitted companion's case. Besides, doctrine of "falsus in uno falsus in omnibus" is not recognized by the superior Courts of this country. In order to arrive at right conclusion it is G bounden duty of a Court to sift grain from the chaff. In the case in hand, the two Courts below have done their duty judiciously. Proper win nowing has been done. Acquittal of Gulfam Asghar thus would neither strengthen the petitioner's case nor would render any help to him.
23. Mere fact that one retired Head Constable, Atta Muhammad, had recorded statements of the witnesses or prepared certain documents would not make the investigation as a whole mala fide.
The statements and documents were prepared at the dictation of Investigating Officer. It was later verified by Superintendent of Police, Crime Branch. There is nothing wrong with the investigation. It is neither dishonest nor mala fide. Besides, any irregularity committed during the investigation of case would neither affect the trial of the case nor the judgment passed by the Courts. Unless it uproots the entire I structure and entails tc niscarriagc of justice which is not in the instant case.
Section 537 of Code of Criminal Procedure shields such faults. It reads as under :-- "537. Subject to the provisions hereinbefore, contained, no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered ur ler Chapter XXVII or on appeal or revision on account--
(a) of any error, omission or irregularity in the complaint, report by police officer under section 173, summons, warrants, charge, proclamations, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless such error, omission of irregularity has in fact occasioned a failure of justice.
Explanation.--In determining, whether any omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."
24. The conduct of the witnesses thE they kept mum and did not try to apprehend the assailants is not unexceptional. The assailants were armed with deadly weapons. One man was killed. No person would take risk of his life in such circumstances. The conduct of the witnesses is not unnatural.
25. The two Courts below have properly assessed and evaluated the evidence produced by the prosecution and the stand taken by the defence. It is neither case of misreading nor non-reading of evidence. There is concurrent findings of the facts. Ostensibly no illegality has been committed either by the trial or appellate Court. There is no material available on the record to call for interference of this Court. Two authorities relied upon by the learned counsel for the petitioners are of no help to him. The petition as such is dismissed. Leave to appeal is refused.