1. IFTIKHAR MUHAMMAD CHAUDHRY, J.---By our short order of even date, we have dismissed this appeal and here-in-below we record reasoning thereof.
2. This appeal calls in question the judgment dated 31-10-1995, passed by Sessions Judge, Naseerabad, in pursuance whereof, appellant Haji alias Peeran has been convicted and sentenced under section 302(b), P.P.C. To suffer imprisonment for life, for murdering deceased Khan Muhammad Bunglani and under section 336, P.P.C. To pay an amount of Rs.1,15,000 to Mst. Bhai (complainant), because on account of injuries caused to her in the incident she lost her one eye. In addition to above sentences, he was also convicted under section 337(r), P.P.C. And sentenced to five years' R. I. As Tazir, for causing injuries on the other parts of the body of Mst. Bhai. The trial Judge, however, extended benefit of section 382-B, Cr.P.C. To appellant.
3. The case of prosecution is that on 21st June, 1994, appellant Haji alias Peeran alongwith Allah Dinna and Allah Bakhsh with common intention duly armed with shotgun attacked the deceased Khan Muhammad Bunglani at about 8-10 a.m. In Village Dhani Bakhsh, resulting in causing of his death, whereas P.W. Mst. Bhai, wife of deceased, sustained injuries on her person. The incident was reported to Incharge, Police Station, Bhagar, who in turn intimated the matter to S.H.O., Police Station, Sohbatpur, which is situated at a distance of 15/16 Kms from the place of incident.
4. Accordingly P.W. Sardar Khan, the Additional S.H.O., reached at the place of incident and vide Marasala (Exh.P/H) got registered case vide F.I.R. (Exh. P/I) at about 10-5 a.m. During investigation, dead body shifted to hospital, which was subjected to post-mortem vide Exh. P/A and injured Mst.
5. Bhai, was also medically examined vide Exh.P/B, produced by P.W. Dr. Wajid Ali. In presence of P.W.
6. Arz Muhammad son of deceased Khan Muhammad Bunglani, site was inspected vide Exh.P/C by S.H.O., besides taking into possession, blood-stained earth vide Inventory Exh. P/D. He also took into possession five empties from the place of incident, vide recovery memo. Exh.P/E. He also prepared Inquest report, Exh.P/J and site plan Exh. P/G. On 7th October, 1994, appellant was arrested and at his pointation shotgun (crime weapon) was recovered on 14th October, 1994. The incriminating articles i.e. Cartridges and shotgun was sent to Forensic Science Laboratory and positive report Exh.
7. P/D was obtained. The blood-stained clothes of deceased were also taken into possession on the day of incident vide Inventory Exh. P/M. These were also sent to Chemical Examiner, who gave report Exh. P/O, confirming that same were stained with numan blood having blood group B-4. On completion of investigation, challan Exh. P/Q was submitted before the Sessions Judge, Naseerabad.
8. The appellant alongwith co-accused Allah Dinna and Allah Bakhsh, were charged by trial Court under section 302/324/34, P.P.C. On 19th January, 1995, and since they did not plead guilty, therefore, to substantiate the accusation, prosecution led the evidence of P.Ws. Dr. Wajid Ali, Mst.
9. Bhai, Arz Muhammad, Ghulam Nabi, and Sardar Khan, 1.0. Thereafter appellant was examined under section 342, Cr.P.C. However, he did not produce any defence witness, nor himself got recorded statement on oath.
10. On completion of trial, vide impugned Judgment dated 31st October, 1995, the Trial Judge, found the appellant guilty for the commission of crime and sentenced him, as specified hereinabove, whereas co-accused were acquitted of the charge. As such, instant appeal has been preferred.
11. Mr. Tahir Muhammad Khan learned counsel for appellant, firstly contended that there is unexplained delay of two hours in lodging the F.I.R. Which makes the case of prosecution doubtful, because the complainant party consumed sufficient time in making deliberations, to involve the appellant falsely in the commission of offence.
12. Chaudhry Ejaz Yousaf, learned Additional Advocate-General, however, contended that as police station is situated at a distance of 15/16 Kms., as per contents of F.I.R., therefore, delay stands fully explained.
13. As far as the distance of police station from place of ' Wardat' is concerned, there is do doubt about it in view of the contents of F.I.R., veracity whereof from this angle, has not been challenged in the cross-examination of P.W. Sardar Khan, the I.O., who recorded it, nor any question was put to him for explaining the delay. It is also noteworthy that besides the deceased Khan Muhammad Bunglani, his wife injured Mst. Bhai and Arz Muhammad (P.Ws.) no one else was present in the Jhugi, where incident took place. Therefore, it was but natural that P.W. Arz Muhammad, whose father was murdered and serious injuries were caused to his mother (P.W. Mst. Bhai) after rehabilitating himself, must have gone to Police Post Bhagar, from where, Incharge passed on the message to Police Station; Sohbatpur and as per the contents of F.I.R., the S.H.O. Started from Police Station at 9-45 a.m. Therefore, in our opinion, under these circumstances, mere delay of two hours, is not fatal to the prosecution case. In this behalf, learned Additional Advocate-General, cited the case of Mst. Shamim Akhtar v. Fiaz Akhtar PLD 1992 SC 211, wherein delay of about 8 hours in lodging F.I.R. Was kept out of consideration, in view of the fact that police station was situated at a distance of 25 miles from the place of occurrence. Secondly it was held that unusually complainant first of all takes, steps to remove the injured to hospital for treatment to save his life. So, following the principle discussed therein, we are inclined to hold that delay in lodging F.I.R. In the given circumstances of case, is not sufficient to disbelieve the prosecution case, unless it is not shown that on account of such factor the intrinsic value of the prosecution witnesses, has not changed.
14. It was next contended on behalf of appellant, that two eye-witnesses, P.Ws. Mst. Bhai and Arz Muhammad, have been disbelieved, by trial Court, as far as acquitted accused Allah Dinna and Allah Bakhsh are concerned, therefore, trial Court erred in law, in believing their evidence against appellant. As such, according to learned counsel, if their statements are kept out of consideration, no incriminating evidence is available on record, to warrant conviction against appellant. He referred 1996 SCM R 317.
15. On behalf of State, learned Additional A.-G. Stated that in view of strong and independent corroboration to the statement of eye-witnesses Mst. Bhai and Arz Muhammad, namely; recovery of cartridges, shotgun, positive report of Forensic Science Laboratory, post-mortem report of deceased, Medical Certificate of injured etc., to the extent of appellant, case stands proved against him. Reference was made to PLD 1964 SC 26, PLD 1985 SC 11 and 1996 SCM R 324.
16. The trial Court in impugned judgment discarded the evidence of eye--witnesses against acquitted accused, as there was no recovery of weapon from them to support their statements nor any other material was produced before the Court to prove common intention of all the accused for murdering the deceased. Thus for these two reasons, it was opined that co-accused had no arm in their possession and further their presence at the time of occurrence was found to be doubtful. It is a settled principle of law that if the prosecution evidence is divisible against the accused facing trial, the Court following the principle B enshrined in the Maxim ' Falsus in uno falsus in omnibus' is competent to rejectsuch evidence against one set of accused and can accept the same against other set of accused for recording conviction, provided strong corroboration is available on record from independent evidence. This principle has been high-IB lighted by Hon'ble Supreme Court in the case of Ghulam Sikandaf and another v. Mamma Raz Khan and others (PLD 1985 SC 11). The Hon'ble Supreme Court had also reiterated same principle of law in the case of Atta Muhammad etc. v. The State 1995 SCM R 599 and this judgment has also been referred by Hoh'ble Supreme Court in 1996 SCM R 317, cited by appellant's counsel. In Atta Muhammad's case, it was laid down by Hon'ble Supreme Court that ocular evidence may be classified into three categories; firstly wholly reliable, secondly wholly unreliable and thirdly partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category even strongest corroborative evidence may not rehabilitate such evidence. In the third category conviction cannot be recorded, unless evidence is corroborated by oral or circumstantial evidence coming from distinct source. The case in hand, of course, falls in third category, and learned trial Court on having found corroboration from other evidence namely; recovery of shotgun at the instance of appellant, coupled with positive report of Fire-Arm Expert (Exh.P/P), post-mortem report of deceased and medical evidence, has rightly believed the testimony of eye-witnesses.
17. Appellant's counsel also objected on the recovery of shotgun and stated that as memo. Of disclosure was not prepared by the I.0. Before effecting recovery (Article 7), therefore, it was not in the interest of justice, to believe this piece of evidence. He relied on 1993 SCM R 2229 (Supreme Court of India). In this report, in absence of any disclosure statement, recovery of axe was found to be meaningless.
18. A perusal of recovery memo of shotgun (Exh. P/F) indicates that 1.0. Recorded therein that during investigation accused disclosed that he can lead the police for recovery of shotgun, which was used by him for murdering Khan Muhammad Bunglani and causing injuries to P.W. Mst. Bhai.
19. Similarly P.W. Ghulam Nabi, re-affirmed this fact-before the Court. It is to be noted that under Article 40 of the Qanun-e-Shahadat, 1984; an information by an accused to Investigating Officer, during custody leading to recovery of cringe weapon etc. Is admissible, therefore, for safe administration of justice, it would be appropriate if such statement is reduced in writing, either before effecting the recovery or during recovery when inventory is prepared. However, there .Is no mandatory requirement to prepare a separate memo of disclosure and if such statement has been incorporated in the Recovery Memo it can be deemed sufficient to fulfil the requirement of law. Since in this case, recovery memo as Well as statement made by recovery witness that appellant made disclosure during investigation about concealment of incriminating crime weapon, fulfils the requirement, therefore, the recovery cannot be doubted merely for the reason that disclosure memo was not prepared.
20. It was next contended by appellant's counsel that there is contradiction in the statement made by P.W. Ghulam Nabi before the Court and the contents of Recovery Memo. (Exh. P/F) with regard to manner of concealing shotgun by accused in the corner of Jhugi.
21. We have considered this aspect of the case as well. In our opinion the contradiction concerning concealment of crime weapon in the corner of Jhugi by accused, which he produced before police after digging out from the earth, is not relevant in view of the provisions of Article 40 of the Qanun- e-Shahadat, nor such contradiction is otherwise fatal to disbelieve the recovery of shotgun.
22. It is then contended by learned counsel for appellant that 1.0. Was bound to despatch the recovered five empties, without waiting the recovery of shotgun in view of the law discussed in 1996 PCr.LJ 625.
23. It is to be noted that the facts involved in the reported judgment are distinguishable from the one in hand. Additionally, P.W. Sardar Khan, the 1.0. Was not questioned about non-despatching of incriminating empties of shotgun without waiting the recovery of shotgun. It is true that in the interest of justice, invariably prosecution should transmit the recovered incriminating articles to concerned quarters for Expert's opinion, without waiting for other connected incriminating articles but if 1.0. Had not done so, it would not be fatal to the prosecution case, unless it has been established that after recovery of incriminating articles, prosecution has tempered with the recovered articles or there is element of manipulation etc. Such facts can only be brought on record, if defence allows an opportunity to 1.0. For offering explanation in this behalf. Therefore in view of the fact that no such question was put to 1.0. The objection is not acceptable, which is accordingly repelled.
24. Learned counsel for appellant also contended that the manner of safe transmission of recovered articles by the 1.0. To Forensic Science Laboratory, has not been proved, therefore, the report of Fire- Arms Expert, has become doubtful and is not worthy of acceptance. He relied on 1992 ALD 241. In this judgment, it has been held that report of Forensic Science Laboratory cannot be relied upon when there is no positive evidence on record, about safe transmission of gun from Police Station to Laboratory.
25. Chaudhry Ejaz Yousaf, learned Addl. A.-G. Contended that in view of the judgments of Hon'ble Supreme Court reported in 1980 SCM R 649 and PLD 1985 SC 361, unless defence has not shown any mala fides on the part of prosecution, in not safely transmitting the recovered articles from Police Station to Laboratory, the evidence furnished by Expert, cannot be discarded.
26. It may be seen that during trial, no such objection was raised on the statement of Investigating Officer nor it was alleged against him that recovered articles were not safely transmitted from Police Station to Laboratory. Even in absence of such explanation from 1.0. a perusal of Inventory pertaining to empties and shotgun (Exhs. P/E & F) respectively,' indicate that immediately after taking into possession these articles, they were sealed in parcels at the spot. The contents of Certificate of Fire Arms Expert also reveals that sealed parcels were received in Laboratory therefore, it can be concluded that incriminating articles were safely transmitted to Laboratory from Police Station.
27. It was also argued by Mr. Tahir Muhammad Khan, Advocate, that there is contradiction in ocular testimony of P.Ws. Mst. Bhai and Arz Muhammad comparing to medical evidence, as far as distance of committing the murder is concerned. The evidence given by them is also not supported by physical circumstances. Inasmuch as, the site plan (Exh. P/G) and blood-stained clothes, taken into possession by 1.0. Vide Memo. (Exh. P/M), have totally belied their statement, because there are no marks of pellets on the wall of Jhugi' nor there is any sign of charring and burning on the clothes of deceased, if it is believed that fire was made from a close distance.
28. Therefore, in view of the judgment reported in PLD 1973 SC 321, appellant is entitled for acquittal on giving him benefit of doubt.
29. On the other hand, learned Additional A.-G. Urged that there is no contradiction in oral and medical evidence and even if at all there are minor contradictions, the direct evidence i.e. Ocular evidence of eye-witnesses, cannot be outweighed by the discrepancies in the medical evidence. The site plan indicates that complainant party was residing in ' Jhugi' there fore, there is no question of noticing the pellets marks on the walls. Similarly the contents of site plan do not belie the statement of eye-witnesses. Learned Addl. A.-G. On the point of contradiction in ocular and medical evidence, placed reliance on PLD 1993 SC 895.
30. A careful consideration of oral testimony particularly the one, furnished by P.W. Mst. Bhai, indicates that appellant along with acquitted accused opened fire upon her husband, on account of which, he died at the spot and the witness also received injuries and this fact has been testified by medical evidence. P.W Arz Muhammad had also furnished strong corroboration to her statement, as he also confirmed the manner, in which, appellant along with two others opened fire upon the deceased and injured. Statement of both the witnesses are consisten and coherent, as far as the commission of crime is concerned. It is noteworth3 that appellant Haji alias Peeran is real brother of P.W. Mst. Bhai, as such, he is also maternal uncle of Arz Muhammad (P.W.), therefore, there was no reason for her to involve her real brother in the commission of offence, by allowing the real culprits to go scot free. Although we have not noticed any material contradiction in the evidence furnished by these witnesses and other evidence available on record, but even if there are minor discrepancies, those are to bi ignored, because the Court has to consider the overall effect of the total evidence, which has come on record, in view of the principle laid down by Hon'ble Supreme Court in the case of Mst. Shamim Akhtar v. Fiaz Akhtar (PLD 1992 SC 211). In addition to it, if there is some contradiction in oral ani medical evidence, it is ignorable in view of principle laid down by Hon'ble Supreme Court (PLD 1993 SC 895), and oral testimony will prevail, because the medical evidence is always treated as a supporting evidence.
31. We have independently evaluated the evidence namely; the ocular testimony of P.Ws. Mst. Bhai and Arz Muhammad and circumstantial evidence. On the basis whereof, it is concluded that the objection raised by learned counsel for appellant, has not changed the intrinsic value of the prosecution evidence, because the incident took place during broad daylight at about 8-10 a.m., appellant Haji alias Meeran being the brother of P.W. Mst. Bhai was already known to her, both the witnesses have furnished consistent and coherent evidence, as far as the manner of opening fire by accused persons upon deceased and injured, is concerned. Further eye-witnesses cannot be termed as interested witnesses, because no previous enmity has been established against- them.
32. Besides it, in view of the available facts, there was no chance of substitution of accused, because such phenomena is very rare in our society, particularly, when a lady witness is involving her real brother being murderer of her husband and also causing injuries to her, in which she lost her one eye.
33. For the above reasons, it is concluded that prosecution has proved the guilt beyond shadow of doubt against appellant and trial Court has rightly found him guilty for the offences, charged against him. As such, no interference is warranted in the impugned judgment.
34. Consequently the appeal is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.