' SYED MANZOOR HUSSAIN GILLANI, J.--- This appeal is filed under section 25 of Islamic Penal Laws Act, 1974, calling in question the order passed by the Division Bench of the Azad Jammu and Kashmir Sharia Court on 20-6-1996, whereby the respondents were acquitted of the charges under sections 5, 14 and 15 of Islamic Penal Laws Act read with sections 307, 147, 148, Penal Code. The respondents (except respondents 9 and 10 who are acquitted throughout) were convicted and sentenced to 14 years rigorous imprisonment besides the sentence of Hakumat-a-Addl in the sum of Rs.25,000 to be paid to the legal heirs of deceased by the District Criminal Court on 23-11-1994.
2. The above respondents were tried for the above referred offences by the District Criminal Court, Mirpur, on the basis of challan filed by the Police Station Mirpur on 27-7-1976. The District Criminal Court, Mirpur, in the first round through its order, dated 15-8-1977, convicted respondents, Muhammad Saleem, Shaukat, Liaquat, Aurangzeb, Allah Ditta and Sakhawat Ali for the death of Muhammad Azam deceased and causing injuries to Khalid Hussain and Mahroof. Muhammad Saleem, was sentenced to death and fine of Rs.5,000 under section 5 of Islamic Penal Laws Act besides seven years rigorous imprisonment and fine of Rs.2,000 for the charges under section 307, Penal Code, and sections 14 and 15 of Islamic Penal Laws Act, while Liaquat, Shaukat, Aurangzeb, Allah Ditta and Sakhawat were convicted to life imprisonment for the offence under section 5 of Islamic Penal Laws Act and sections 148 and 149, Penal Code, with fine of Rs.2,000 each. They were also sentenced to seven years rigorous imprisonment for the offences under section 307, Penal Code, read with sections 14 and 15 of Islamic Penal Laws Act with fine of Rs.500 each. The file was submitted to the High Court under section 374, Cr.P.C. For confirmation of the death sentence awarded to Muhammad Saleem. Appeal was also filed by the convicted respondents and the State as well against the order of acquittal. The High Court set aside the order passed by the District Criminal Court, Mirpur, on 7-5-1979 and remanded the case for recording the statements of the prosecution witnesses, Riaz and Khalid Hussain afresh, which were not recorded by the District Criminal Court as visualised by the Islamic Penal Laws Act, and for purgation of the witnesses of the prosecution. After remand, the District Criniinal Court passed the order' on 23-11-1994 convicting the respondents (except respondents 9 and 10) in the case. The Shariat Court, on appeal against the judgment, as stated above, acquitted all the accused through the impugned judgment.
3. Before stating the facts culminating into this appeal, a few admitted facts may be placed on record, i.e. Abdul Karim son of Fateh Muhammad and Muhammad Rafique son of Muhammad Nazir (respondents 9 and 10) were acquitted by all the Courts throughout. Abdul Karim, alias Godhar son of Muhammad Rasib remained absconder all along after the statement under section 242, Cr.P.C. Sufi Rasib, one of the accused died during the proceedings before the District Criminal Court and the case to this extent abated. Allah Dad son of Abdul Karim did not appear before any Court throughout. The litigation between the complainant and accused party before occurrence is also admitted. It is also admitted that all the accused were bailed out by the District Criminal Court on 12-6-1980 and all of them absconded one after the other. Muhammad Saleem, respondent No.1, appeared for the first time in the Shariat Court on 27-7-1993 and finally bailed out on 23-9-1993. He appeared before the District Criminal Court on 7-11-1993. It is also admitted that statements under section 342, Cr.P.C. Of Muhammad Saleem, Aurangzeb, Sakhawat Ali, Shaukat, Abdul Karim son of Fateh Muhammad, Allah Ditta and Liaquat were recorded by the trial Court on 3-8-1988 after taking evidence of Riaz and Khalid Hussain on remand by the High Court. The appeal against the order of District Criminal Court, dated 23-11-1994 was filed by Muhammad Saleem, respondent No.1, only before the Shariat Court and the Shariat Court acquitted all the accused on appeal filed by Muhammad Saleem only. The accused-respondents did not produce any evidence in defence, neither did they opt for it in their statements under section 342, Cr.P.C., when so asked. The accused-respondents were twice examined under section 342, Cr.P.C., who stated the similar version.
4. The learned Shariat Court has recorded the facts which led to filing of the challan against the respondents in paragraphs 2 and 3 of its judgment in the following manner:-- "(2) The facts giving rise to the present appeals briefly stated are that complainant Muhammad Riaz lodged a report Exh.P.A. On February 1 21, 1976 to the S.H.O. Mirpur that Noor Muhammad son of Bhola who was his uncle, had a dispute over a pathway with Soofi Rasab. This dispute was taken to the Court of Additional District Magistrate, Mirpur where litigation was going on for the last five years. The case was finally fixed for hearing arguments on February 21, 1976. The accused persons mentioned in the F.I.R. Were sitting armed in- the office of Muhammad Sharif Tariq, Advocate. As they were found in an angry mood, Noor Muhammad apprehending the trouble asked the complainant party to go away from the Court premises. According to the complainant, he alongwith other members of the complainant party, preceded towards main thoroughfare.
However, Noor Muhammad remained in the Court premises. One Rafique, cobbler by profession, was standing nearby, who informed the accused persons about the movements of the complainant party. On receiving this information, the accused persons followed the complainant party. Soofi Rasab shouted a Lalkara thereby instigating the members of the accused persons to kill the complainant party. In the meantime, discussed persons fired at the complainant party. The complainant party took shelter in the shop of Doctor Walayat. The accused party followed them and 'started indiscriminate firing on them with fire-arms. Liaquat accused was armed with 7 mm rifle, Godhar and Allah Ditta had pistols with them. Abdul Karim had a Danda whereas the other accused-persons had shotguns with them. The accused persons, according to the F.I.R., started firing at 11-30 a.m. Muhammad Azam deceased who had taken shelter in the shop of Dr. Walayat, received bullet injury on his head and fell down and soon after became unconscious. Muhammad Mahroof son of Noor Muhammad received a bullet injury on his abdomen, knee and hands. Khalid Hussain, the other son of Noor Muhammad, received bullet injuries on his forehead, wrist and legs.
However, the complainant was not injured in this incident. According to the F.I.R., the incident was seen by Dr. Walayat, Chaudhry Muhammad Ismail and Soofi Jalal who were present in the shop of Dr. Walayat. It was claimed in the F.I.R., that this attack was the result of common criminal intention which was pre-planned by the accused party to kill the deceased. Muhammad Azam was reported to be in precarious condition and unconscious.
(3) The above referred F.I.R., Ex. PA was received by the S.H.O., Mirpur on spot because there is a note of the S.H.O., on this application that he received a telephonic call that there was firing in the Kachehri Chowk. On receiving this information, he along with Muhammad Rashid, Head Constable, Muhammad Iqbal and Muhammad Fazal, Constables rushed to the place of occurrence where he recorded the statement of Muhammad Riaz complainant. The accused-persons, according to the prosecution version, soon after the occurrence ran away from the scene. Muhammad Rafique Nawabi, S.H.O., prepared the injury report Exh.P.O./2 of Muhammad Azam deceased. According to Exh.P.O./2, he had two injuries on the left side of his forehead. He was taken to C.M.H., Mirpur for medical examination and treatment. The S.H.O., also prepared inquest report Exh.P.K. Of Muhammad Azam deceased. He prepared the injury reports Exh.P.V./1 of Muhammad Mahroof and Exh.P.W./1 of Khalid Hussain and mentioned therein the bullet injuries, they had received. He also referred these injured persons to the Doctor for their medical legal report. Muhammad Azam later on died in the Hospital whose post-mortem was conducted by Dr. Muhammad Akram who at the relevant time was posted as District Health Officer Mirpur. According to the prosecution report Exh.P.U., the cause of death of Muhammad Azam deceased was the result of wound of shotgun which caused shock and hemorrhage and injuries to his brain. The bullet collected from the body of Muhammad Azam deceased by Dr. Muhammad Akram during his post-mortem was handed over to the police. The injuries mentioned on the dead body of Muhammad Azam by Doctor Muhammad Akram are reproduced here:
(1) Gun-shot wound over forehead left side near hair line (1/4" x 1/4") margin irregular surrounding area of about 1 mm red and cuticle absent. Wound was rounded. Black eye left seen.
(2) Lacerated wound forehead left side 1/2" lat. To injury No.1. Size (1/4" x 1/10") and communicating with injury No. 1."
' The learned Shariat Court summarized the facts' in paragraphs 6, 7 and 8 in the following manner:- "(6) During the course of investigation, blood-stained clothes of deceased Muhammad Azam, Muhammad Mahroof and Khalid Hussain, injured persons, were taken into possession by the Police vide Exhs.P.P., P.C. And P.D., and these were tendered in the evidence. These clothes were sent to the Chemical Examiner through a parcel for his report who reported back that all these articles were stained with human blood. From the shop of Dr. Walayat two packets of M.V. Syrup were taken into possession by the Police during the course of investigation vide Exh.P.M. Which according to the prosecution's version were left by Muhammad Ismail, P.W.9, a retired Inspector of Police, due to the firing of the accused-party. Besides this, the police also took into possession the empty cartridges, the used pellets of revolver broken panes of glass from the said shop vide recovery memo. Exh.P.O.
The earth stained with blood of Muhammad Azam deceased was also taken into possession vide Exh.P.R. In presence of Nazar Hussain, Muhammad Aslam and Muhammad Riaz who were shown as marginal witnesses of these documents.
' Out of the accused-persons vide Exh.P.H. a .12 bore shot gun (P.9) was recovered at the instance of Sakhawat Ali, accused from the house of his father-in-law. At the instance of Abdul Karim, accused-respondent a Danda (P.11) was recovered from his house vide Exh.P.J. At the instance of Muhammad Saleem, accused-appellant, a .12 bore shot gun (P.6) was recovered from his house on 25th February, 1976 vide Exh.P.E. Aurangzeb accused also led to the recovery of .12 bore rifle (P.7) vide Exh.P.F. A rifle (P.8) was recovered at the instance of Liaqat, accused from his house vide Exh.P.G. At the instance of Abdul Karim alias Godhar, revolver (P.10) was recovered. At the instance of Shoukat Hussain a .12 bore gun (P.13) vide recovery memo. Exh.P.L. Was recovered. At the instance of Allah Ditta, accused a .12 bore gun (P.12) was recovered from his house vide Exh.P.K. The marginal witnesses of these articles are Nazar Hussain and Muhammad Riaz, P.Ws. Nos.2 and 10. On demand, the licences of these fire-arms were produced by accused persons on whose instance these were recovered. The site plan Exh.P.T. Along with note Exh.P.T./1 was also prepared on 27-2- 1976.
(8) After the completion of the investigation the accused-persons were sent to face trial before the Court on 27th February, 1976 where they denied their guilt in their statements recorded under section 242, Cr.P.C. The prosecution, later on, in support of its case produced Muhammad Riaz, complainant, Khalid Hussain, P.W., Mahroof P.W., Muhammad Aslam P.W., Muhammad Alam, P.W., Muhammad Ibrahim P.W., Muhammad Ismail P.W., Nazar Hussain P.W., Haji Noor Muhammad P.W., Said Muhammad P.W., Mustafa Khan Kiani P.W., Noor Muhammad Khan P.W. Head Constable, Dr. Ch. Muhammad Akram Khan P.W., Ahmad Saeed Khan P.W., who partly had conducted investigation in the case, Muhammad Khurshid A.S.-I. P.W. And Muhammad Rafique Nawabi, S.H.O., P.W. Who recorded the F.I.R. And later on completed the investigation and finalized the challan."
5. We have heard Messrs Sher Zaman Chaudhry and Abdul Basir Qureshi, the learned Advocates for the appellants, assisted by Additional Advocate-General and Mr. Abdul Majeed Mallick, the learned Advocate, for respondent No.l.
6. The learned counsel for the appellants stating the reasons given by the Shariat Court for acquittal of the accused-respondents, inter alia, contended; that all the reasons given by the Shariat Court are flimsy and based on surmises and conjectures; that the occurrence took place in the broad daylight without any mistaken identity of the accused-respondents; that F.I.R. Was promptly lodged without any delay; that the case of prosecution is supported by seven witnesses, two of whom are injured and Ch. Muhammad Ismail is an independent witness whose credibility is not challenged; that enmity between the parties is proved by the admission of the accused; and that the question of corroboration by the experts does not arise in the case as the case is proved by independent eyewitnesses.
7. Mr. Abdul Majeed Mallick, the learned counsel for respondent No.1, arguing the case, inter alia, contended; that F.I.R. Is lodged after preliminary investigation by the Deputy Superintendent of Police and S.H.O.; that no independent witness is produced in support of the prosecution version; that the evidence led in support of the prosecution is self-contradictory and does not inspire the confidence; that the best evidence of the occurrence, i.e. Soofi Jalal and Dr. Walayat and the surrounding shopkeepers of the vicinity were withheld and not produced; that the evidence of prosecution is not believed to the extent of Abdul Karim and Muhammad Rafique, hence the entire evidence is not reliable against the respondents; that the crime empties were not sent to the Ballistic Experts; that Ismail, Soofi Jalal and Dr. Walayat who are alleged by the prosecution to be in the shop on which the accused party allegedly fired are not injured which belies the prosecution story; that the crime-empties and weapon of offence were recovered from the shop of Dr. Walayat which implies of cross-firing having taken place; that the deceased, according to the medical report, had a head injury with the blunt weapon which implies that the case was not of firing.
Learned Advocate cited plethora of cases in support of their contentions. The relevant shall be referred at appropriate stage.
8. We have considered the arguments of the learned Advocate in the light of record, case-law cited at Bar and in the light of the judgments of the Courts below.
9. The learned Shariat Court has, after referring to various lapses and omissions in the statements of witnesses produced on behalf of the prosecution to prove the occurrence, come to the conclusion that the case is doubtful and shrouded in mystery. To support its view, the Shariat Court has recorded that A.D.M. And D.S.P. Who are stated by Muhammad Mahroof and Muhammad Ismail, P.Ws., to be present at the place of occurrence have not been cited and produced as witnesses. A.D.M. Having recorded statement of Muhammad Mahroof and D.S.P. Having sent the injured persons to hospital were material witnesses in the estimation of the Court. The D.S.P. Being first to have received the information of the occurrence, but the information has not been treated as F.I.R. Perhaps for the reason that after conducting investigation by D.S.P., it was not found favorable for the prosecution. The above stated reasons on the face of it seem hypothetical and based on surmises. Under section 154, Cr.P.C., an information regarding the commission of a cognizable offence has to be given to an Officer Incharge of a Police Station, who is to reduce it in writing. Any information to a D.S.P. Or S.S.P. Of an occurrence is not the F.I.R. Neither can it be so treated. They are administrative officers to control the administration of a Sub-Division or a District, not to record the F.I.R. Or conduct, the investigation or inquiry, unless specially entrusted with the task. Under the ordinary course of their working, when they come to know or are informed of an occurrence, they order the subordinate authorities to proceed under law, and at times, they visit themselves to look after and see as to whether the officers subordinate to them perform their duties. The higher authorities are usually approached for prompt and urgent help. In the case in hand, the D.S.P., as usual, on receiving telephonic information might have visited the place of occurrence which was a very important place of business adjacent to District Offices. His mere visit of the place or sending the injured persons to hospital did not make him a necessary witness when the usual task of investigation of the case was conducted by the relevant/concerned Police Officer, i.e. S.H.O., of the area, neither does the simultaneous visit of D.S.P. And S.H.O., as argued by the learned counsel for defiance, mean that F.I.R. Was lodged after preliminary investigation. The information to D.S.P. Under the circumstances and his visiting the spot and dispatching the injured to hospital, ensured expeditious and efficient handling of the matter to help the relevant authorities and minimize the panic spread in the busy Chowk of the area.
10. Besides, the D.S.P. Who is anyhow concerned with the law and order situation, even common people reach on spot to render their helping hand under the circumstances without making them liable to be cited or produced as witnesses. Muhammad Ismail, who is alleged to have given the information to D.S.P. Was a retired Police Officer having equation with his erstwhile colleagues for ensuring the prompt action in the matter, used his personal influence under the circumstances of the case, and the perusal of record reveals that it really expedited the matter.
11. Similarly, the reason recorded by the Shariat Court that statement of Muhammad Mahroof was recorded by A.D.M. But he was not cited as a witness, is over-reading the statement of Muhammad Mahroof, for the reason that Mahroof has simply said in his cross-examination that{{URDU TEXT}} ' This does not mean that his statement was recorded or reduced into writing. Under these circumstances, when the complainant/injured party or anybody else witnessing the occurrence is asked by any officer responsible for law and order as to what happened and how the occurrence took place, any reply to the query or question does not mean a regular statement. It is simply a narration of facts to a person desirous of knowing it, because of his being concerned with the law and order. Moreover, there was no occasion for A.D.M. To record the statement of Mahroof, as he was neither holding an inquiry under section 202, Cr.P.C. Nor entrusted specially for holding the inquiry under the Inquiries Act. Such a reply or statement by Mahroof, as so held by the Shariat Court, is similar in nature as the statement of Muhammad Ismail that he was summoned by Deputy Commissioner in his office where he narrated the whole story to him. Such a statement does not make the Deputy Commissioner as witness nor the statement of Ismail as a first information report. The learned Shariat Court has given undue and unwarranted weight to these events, which if at all relevant, were so to the extent of interest of District Administration in ensuring that true facts are properly perceived by them for proper implementation of law and order. These were not the sufficient grounds to hold the case doubtful.
12. The learned Shariat Court has held the prosecution case doubtful alleging discrepancies and improvements in the statements of prosecution witnesses, particularly Muhammad Ismail, and has dfurther held that as their statements have not been accepted to the extent of Muhammad Rafique and Abdul Karim, the acquitted accused, the same are treated as not reliable against the other accused respondents as well. The perusal of the judgment and the trend of the arguments of the counsel for the defence, does not reveal as to which discrepancies bedevil the prosecution version or which improvements in their statements negate the true prosecution version. The parrot like narration of events by all the prosecution witnesses is not the essence of proof nor is one's failure in doing so a discrepancy or contradiction of the prosecution version. The perception, intelligence, eloquence and I.Q. Of all the persons is not equal, similarly, the expression of their perception also varies. The Court is to see the substance of the statement not the minute details thereof, unless the happening of the occurrence is perceived by the Court to be impossible by the statement of the witnesses when read in juxtaposition to each other. The improvement made in the statement, if not belying the version or setting up a counter or different version, does not amount to falsify the case. Improvements contrary to the real version, are different from the substantiation or explanation of the version before the Court vis-a-vis the statement under section 161, Cr.P.C. The latter is cursory statement to enable the Investigating Officer to make the mind as to whether the case is fit for being challenged or not. Any narration of the facts or events in addition to that as recorded under section 161, Cr.P.C. Is not an improvement amounting to contradiction and making the version false, neither can such a witness be said as not reliable. If a witness contradicts his earlier statement or makes a statement which is inter se inconsistent or contradicted by the other or others, the same may reasonably be treated as not acceptable and witness as not reliable. No such contradiction or inconsistency is either pointed out nor recorded by the Shariat Court. A part of the statement or event not finding place in statement under section 161, Cr.P.C., but being in the statement before the Court, is not an improvement, but a substantiation of the case, which, if not being contrary or against the earlier statement, is reliable without any I blemishes. There was no ground to hold the witnesses as not reliable or version as doubtful. The other contention of the learned counsel for the respondents that as the statements of the witness are not accepted to the extent of Muhammad Rafique and Abdul Karim, acquitted accused, these be rejected as a whole, can also not be accepted firstly for the reason that the role of these accused-respondents is very beginning and does not inspire or categorically reveal that they had any commonality of interest or intention with the rest of the accused-respondents and secondly for the reason that Court has to sift the grain from the chaff and hold a person responsible to the extent of his role only on the basis of that portion of evidence which can be legally relied upon. It is held in Muhammad Sharif v.
The State PLD 1978 SC (AJ&K) 146:-- "The conviction recorded by the High Court is also condemned on the ground that the evidence against Abdul Rashid (acquitted accused) when disbelieved, it was not safe to sustain the conviction of the appellant on the same evidence. The maxim falsus in uno falsus in omni bus (false in one particular false in all) is a dangerous one especially in this part of the country for if whole body of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witness might be dispensed with. There is always embroidery to a story, however, true in the main. When main part of the deposition is true it should not arbitrarily be rejected because of want of veracity on perhaps some very minor point (Fields Law of Evidence in British India, 8th Edition XL and XLI). Therefore, where a witness is stated to have given false evidence to implicate some innocent persons, besides the real culprits, his whole deposition may not be rejected when the main portion of evidence, which rings true can be legally relied upon."
13. It is held in the case of Khalid v. The State 1983 PCr.LJ 761:-- "Besides, discrepancies on minor points are not really a proof of case being false, instead these are bound to happen in case of truthful witnesses, parrot like narration of the story can only be expected of from the tutored witnesses. Minor discrepancies are bound to be there as the power of observation, perception and retention varies in case of each individual. If the evidence on material particular is clear and convincing then misdescription or misstatement on minor points are really of no significance. Similar view taken by the learned Judges of the Supreme Court."
14. The other ground finding favor with the Shariat Court for reversing the judgment is that best evidence available, i.e. Shopkeepers of the vicinity, Dr. Walayat, where the injured persons got injuries, Sooti Jalal who was in the shop, were not produced as witnesses, who were natural witnesses, thus, adverse presumption under section 117, of Qanun-e-Shahadat is drawn against the prosecution. It is the celebrated principle of evidence that the best evidence if available has to be produced. But it is not always obligatory that each and every C person witnessing the occurrence or present in the vicinity should be produced in the Court. Only two competent witnesses are the requirement of law to prove the offence of Qisas or Hudood and Taazir or any other punishment can be awarded on the basis of circumstantial evidence even. The prosecution has produced seven witnesses, who are all natural and actual witnesses of the occurrence. Two of them are injured persons, one Ismail is the person who was in the shop of Dr. Walayat when firing took place and he personally intervened with request to the accused party not to resort to firing. The presence of others, was also natural and undisputed as they were a party to the civil and criminal litigation filed by respondent No.1 and the cases were fixed for that fateful day. There is no doubt about the produced witnesses as being natural and best available evidence. As for the shopkeepers of the vicinity are concerned, they, no doubt, could also be the witnesses, but it was not obligatory for the prosecution to cite or produce them as witnesses, as the business community or for that matter persons not connected or concerned with an event ordinarily do not engage themselves in the litigation for various reasons. The business community, even for the sake of preserving their clientage do not undertake the risk of siding or opposing anybody and always avoid becoming witnesses. It is perhaps, because of this nature of business community, that Dr. Walayat is dropped by the prosecution and the prosecution might have been forced to do so by Dr. Walayat himself for avoiding the animosity of the accused party for the sake of his business. Their non-production does not cast any doubt upon the prosecution story which is proved by the other available natural witnesses. Dilating upon the similar situation, it is held in the case of Yaqoob Shah v. The State PLD 1976 SC 53 that:-- "About the main argument of learned counsel, that the petitioner's conviction rests entirely on the ' independent' witness has been produced in the case, although the incident has taken place during busy hours in the main Bazar, all that we need say is that this brings to a focus the tragedy of the general apathy in our society and absence of sense of civic duty to the fellow beings. It is a frequent experience of Criminal Courts that many a gruesome tragedy is enacted, with scores of onlookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that. These ' independent' onlookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic Injunctions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest of their kith and kin. This indeed is one of the principal causes of delay in decision of criminal cases. In this case, the conduct of Pordil Khan is in keeping with the general pattern of behavior in the society. But that should scarcely be a reason to doubt the veracity of the three police officials who appeared as the main witnesses to the incident, or the capture of the petitioner as he was trying to flee from the spot. Rather their grit and the sense of duty, is praiseworthy. "
15. In the cases referred by the learned counsel for the respondent on this point, i.e. Sikandar v. The State PLD 1963 SC 17, Wasimullah v. Mirza Ali PLD 1963 SC 25 and Thoba v. The State PLD 1963 SC 40, the withholding of the best evidence was held fatal when none of the eye-witnesses was produced and those produced were interested and partisan and not supported by strong corroborative evidence. The case is otherwise here, where the injured persons whose presence was natural and an independent witness, Ismail, whose testimony rings unrebutably true, viewed from any angle, are produced, coupled with the recoveries of licensed fire-arms at the instance of accused- respondents. If the shopkeepers of the vicinity or Dr. Walayat had anything other to say than the prosecution story, or if the defence had any other version of the occurrence, why has it not produced these best witnesses and refused to adduce defence evidence in their statement under section 342, Cr.P.C., twice? The adverse presumption can otherwise also be drawn, in view of the proven prosecution case, when the defence was afforded the opportunity, but refused, and had the occasion, but not availed.
16. The learned Shariat Court recording that empties and two live cartridges alongwith revolver recovered from the shop of Dr. Walayat were not sent to Fire-arms Expert, hence the adverse inference is drawn against the prosecution that the empties recovered were not fired by the revolver nor the live cartridges could be fired from it. The learned Shariat Court has also drawn adverse inference against the prosecution on the ground that the other fire-arms which were recovered at the instance of accused persons were not sent to Fire-arms Expert for his opinion.
17. The entire case of the prosecution depends upon the eye-witnesses account not upon the circumstantial or corroborative evidence. In the presence of witnesses two of whom are injured and others having personally seen the accused attacking upon the complainant party, the opinion of the Firearms Expert or Ballistic Expert etc. Matters least. The opinions of Firearms Experts, Ballistic Experts and Chemical Examiners is necessary in the case when the occurrence is not witnessed by the eye-witnesses and the case entirely depends upon circumstantial evidence. The opinions and reports of these experts are always to support or corroborate the other evidence if direct evidence is not available. In the case in hand, the occurrence did not IG require any corroboration as the direct evidence itself was available. It was the case of broad daylight firing in the very busy Chowk witnessed by the prosecution witnesses and all others, who could be produced in defence by the respondents if the matter was otherwise. The following dictum from the case of Muhammad Hanif v. The State 1983 PCr.LJ 225 may be advantageously reproduced:-- "(10)Due consideration was given to the arguments. Whether a witness is to be believed depends on the circumstances and facts of each case. Assessment of interested and partisan evidence is, of course, a difficult matter which engaged the attention of superior Courts time and again. The first thing which is of paramount importance is to see whether the witness is a natural witness and if the Courts come to the conclusion that the witness is a natural witness then in the case of testimony of such a witness, law does not make incumbent upon the Courts to ask for corroboration before relying on the testimony of such a witness. Evidence of such a witness, however, is required to be scrutinised with great care and caution in order to eliminate any possibility of doubt and Courts must also determine as to whether or not he is a witness on whose words implicit reliance can be placed without independent corroboration. Nevertheless, no inflexible rule can be formulated in this behalf. In such case the evidence of witnesses has to be evaluated on merits and if it rings true in the context and circumstances of the case, free from any fault and uncontradicted by any cogent circumstances emerging from the case, it must be relied upon as the basis for conviction without any corroboration. In a case where the statement of an interested but natural witness can be believed with implicit faith without difficulty, corroboration is not to be insisted upon as a rule of law or as a rule of prudence and evidence will not be rejected merely because the witnesses are related with the deceased and inimical towards the accused.
The safe administration of criminal justice demands that Court should draw its own inference flowing from evidence and circumstances and not be deterred by reason of incompleteness of tale given by each party. It, therefore, follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration. Here in this case due scrutiny of the statements of eye-witnesses of truth and conviction can safely be recorded on the basis of their evidence without any further corroboration."
18. The occurrence from the prosecution story as well as the record available on the file of the Court does in no way seem to be doubtful or concocted. The presence of the parties on the day of occurrence in view of their criminal and civil litigation in the Courts is established on record in view of Exhs.P.Z./1 and P.Z./2, the copies of interim order sheets of the Courts seized with the cases. It is customary in our society that the persons involved in litigation and their aids and associates attend the hearings in the Courts so as to express sympathy with the party with whom they side with. The case between the parties was fixed for the same day in which most of the complainant and prosecution witnesses were a party. Muhammad Aslam being complainant in the case could also not be expected alone in the Court as usual in our society, and as per record, all the accused- respondents are his closest. Similarly the complainant party and their witnesses are inter se related and in view of their proceedings before the Court on that date, their presence is not doubtful, neither can their eye version account of the occurrence be deemed as doubtful. In the presence of these circumstances, any circumstantial evidence, like Fire-arm Experts etc. Doe's in no way affect the truthfulness of the story of the prosecution. Preferring the direct evidence over the expert or confirmatory evidence it is held in the case of Yaqoob Shah v. The State PLD 1976 SC 53:-- "As to whether the evidence of the Ballistic Expert can outweigh the direct evidence of the two eye- witnesses, the learned Judges have given cogent reasons for not accepting the expert's evidence.
According to the learned Judges, his examination of the case was not scientific enough to inspire confidence. It is 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 for any reason deficient in quality. This case, in our opinion is not of that kind."
' It is held in the case of Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146:-- "Where ocular evidence is reliable and satisfactory conviction in law can be recorded on such evidence alone without any further corroboration. "
' The learned Shariat Court has held the prosecution story doubtful for this reason as well that as to how Muhammad Riaz was let alive and escaped uninjured when he was in the shop of Dr. Walayat where Mahroof and Khalid were injured by the accused party. The assumption is imaginary.
Whatever the accused-respondents could do, they did i.e., they indiscriminately started firing. If anybody in the surrounding is left uninjured it is good luck to him. The possibility of accused respondents having Assumed after indiscriminate firing that everybody in the shop has died, can also be there and it may be for the sake of avoiding the danger of being attacked back by the victim party or for avoiding the arrest, that they might have left the place without being sure that everybody is dead which culminated in Riaz's being left alive. It is also on record that Riaz is not the only survivor who escaped from the firing of respondents' party, but Dr. Walayat and Soofi Jalal also escaped uninjured. The nature had also to play its role to bring the assailants to book by keeping someone alive to narrate the occurrence.{{URDU TEXT}}
20. The Shariat Court without anything being on record has propounded the idea that occurrence might be the outcome of cross-firing, which fact according to the learned Shariat Court, was concealed by the prosecution. It is not the case of any party that there was a cross-firing between the parties or that the complainant party was also armed or assailant. There is total denial of the occurrence by the accused, while categorical and affirmative accusation against the accused- respondents by the complainant party. The assumption of cross-firing by the Shariat Court is totally unwarranted. Had there been a case of cross-firing, the accused-respondents might have also registered a counter-case as usual in such eventualities. This assumption is engineered without anything on record I and even without any counter-version by respondents.
20. Another reason based on the arguments of the Advocate appearing for the accused- respondents which found favour with the Court is that some third party might have fired the stray bullets which caused death and injuries to the complainant party, this assumption is also not borne out from the record. Similarly, the argument that medical report reveals a head injury with blunt weapon upon deceased does not mean that there was no firing. The injury can be caused by a fall even after being hit by bullet and this injury is not the cause of death. These are rightly said as conjectures and surmises by the learned Advocate for the appellants which are made the basis for averting the prosecution story. The doubts, benefits of which have to be given to the accused party, must be reasonable and bona fide doubts going to the root of the prosecution case. The doubts created or assumed on the basis of one's own imagination do not falsify or belie the otherwise proved case. Justice A.R. Cornelius (Chief Justice) in the case Siraj Din v. Kala and another PLD 1964 SC 26 held that "doubts should be doubts arising out and inhering in evidence and circumstances of case and not doubts of artificial character residing more in minds of Court rather than in matters established by evidence " .
21. The learned Shariat Court's proposition of drawing adverse inference for the failure of complainant party to report the matter to the police when they saw the accused party sitting in the office of Chaudhry Muhammad Sharif Tariq, Advocate, in an angry mood is also against the practical behavior of every one including ourselves, and then to blame others for their failure to become the informer. It is no doubt the duty of every good citizen to report to the police or administration about the commission of an offence or likelihood of any such commission, but it is simply a pious wish incorporated in the law books. For the fear of being dragged to become a witness or bear the brunt of the accused party or at times to become itself an accused, everybody avoids fulfilling the pious wish of Legislature. This ground could hardly be made a reason for casting doubt upon the prosecution story. The learned Shariat Court has given weight to speculative assumptions, but not taken notice of the fact that except the acquitted respondents, rest were convicted twice by trial Court. This, no doubt, does not give rise to presumption of the respondent's being guilty, but the appreciation of evidence by the trial Court, which had the occasion to conduct the trial at the very station of occurrence, observe the conduct of the witnesses and accused amongst the inhabitants of the place of occurrence where one can hardly speak against true facts and the same conclusion twice drawn by the trial Court cannot be. simply brushed aside and ignored by hypothetically perceived critical analysis in an artificial manner. The appellate Court is obliged to give due weight to the finding of the trial Court and must have sound reasons to disturb its finding.
24. The Shariat Court has ignored the other aspects of the case as well and not even hinted towards them even though the record of the case was self-speaking, e.g., the prompt lodging of the F.I.R., absconsion of the accused, their remaining fugitive from law after obtaining concession of bail and not I L appearing before the Court till now, except respondent No.1, who also appeared after about twelve years etc. In the following cases, it is held that where the F.I.R. Is lodged without loss of time, the same has to be treated as a genuine document, thereby entirely eliminating probability of falsification or false implication. Reference in this behalf may be made to Yaqoob Shah v. The State PLD 1976 SC 53, Khalil Ahmad alias Khalil and another v. The State 1975 SCM R 442, Muhammad Ashraf v. The State 1989 PCr.LJ 2211.
25. Though the ascendance by itself is no evidence of involvement of the absconders in the occurrence, but the same provides sufficient corroboration of the ocular account, especially in this case, where the respondents absconded after obtaining release order on bail and never appeared thereafter except respondent No.1; while the Shariat Court not only acquitted him, but all others who had not even filed the appeal, were fugitive from law and are still so. The trial Court did not punish them for being fugitive or for their abscondence, but after recording the entire prosecution evidence in the second round of trial and after recording the statements of accused second time under section 342, Cr.P.C. On 3-8-1980. The trial Court kept case against them pending after their ascendance, though it was not obliged to do so, as in their statements under section 342, Cr.P.C. All of them refused to lead defence evidence and only judgment remained to be announced. The fugitive from law loses most of the rights under law, though no right was left to be conferred on them after their statements under section 342, Cr.P.C. The leading case on the point of right of absconded accused or the fugitive from law, followed by right of other authorities, is the case of Muhammad Sadiq v. Muhammad Ali PLD 1981 SC 265. The following may be reproduced from the above leading judgment:-- "There is considerable weight in the argument that when a convict becomes fugitive before filing petition for leave to appeal, his petition itself would not be properly constituted. This can be noticed as one line of reasoning in the case of Gul Hussain. The second proposition submitted by the learned counsel is also correct, because it flows from the first one. If a convict after filing a petition becomes fugitive and does not surrender, he deprives himself of the relief claimed in the petition.
Similarly there would be no difference if he absconds after obtaining special leave to appeal, or after obtaining a bail order. It is not possible to agree with Mr. Zafar that in this situation the absconder can get the benefit of his appeal being kept pending sine die till he surrenders. Nor will there be any justification for the proposition that if there are more convicts/appellants, the appeal of the absconder should be separated in case he cannot be benefited on the hearing of the appeal of his co-appellant. There is no basis or principle for adopting this suggestion as a normal course by this Court; and if that is done, it would be placing premium on the negative conduct of the absconding appellant if he is allowed to- remain fugitive from justice and also benefited by deciding his appeal in his favour when hearing the appeal of his co-convict. Such a course, if adopted as a normal routine, would not only encourage abuse of process of this Court, but would also disturb the fabric of administration of justice at the appellate stage. However, there is considerable force in the argument of Mr. Zafar that an acquitted accused cannot be convicted by the Supreme Court without a decision on merits, justifying the reversal of judgment of acquittal.
And although in an appeal against acquittal it would not be of an acquitted accused who is on bail, it is not so far a fugitive. It would be the negative of the principles enunciated by this Court (that a fugitive from justice loses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuses its process), if, while he remains fugitive, he is allowed to be represented by another person so that his plea might be heard. In order to maintain consistency, in such a situation, although the Court would be obliged itself to examine the merits of the case for setting aside the acquittal, if need be the absconding acquitted accused would not be entitled to be heard, even though a counsel. It is a different matter if the Court for its own benefit seeks assistance from one or the other counsel appearing for the parties before it, including a co- accused of the absconding respondent, or from any other counsel, but the absconding accused would not be entitled, as of right, to a hearing. Reliance of the learned counsel on the provisions contained in section 512, Cr.P.C. Is of not much help in this behalf. While the present controversy relates to the hearing of or otherwise determination of an appeal, section 512, Cr.P.C. Deals with trials. Moreover, the said provision is not attracted to the form and procedure of this Court. It would not be possible at all to adjourn an appeal against acquittal even against a single acquitted accused/absconding respondent, for an indefinite period, although the office of the Court would make efforts to secure his surrender/arrest in obedience to the process of the Court, for a reasonable period before fixing the appeal for hearing; and if he remains fugitive, the .Court would proceed to determine the appeal in his absence. If after examination of the case the acquittal merits to be reversed, there would be no impediment to decide the appeal accordingly, but in case the judgment of acquittal merits to be maintained, the same would not be reversed on account of the abscondence of the accused/respondent. This would apply to both the situations whether the appeal is against one acquitted or more. The submission of the learned counsel that while dealing with the controversy the Court should keep in view its power to do complete justice is undoubtedly weighty, but as already indicated, this power is concomitant with the power of the Court to pass such orders as are necessary for the ends of justice and process of the Court. These aspects of rendering justice cannot be visualized and considered in isolated water tight compartments. They have to be put in juxtaposition because they react upon each other and that is the only course to keep the stream of justice flowing uninterrupted and unsullied.
' The principle laid down in the cases of Chan Shah and Gul Hassan do not in any way merit review.
Rather, some of them need to be reiterated and reaffirmed. The Court would not act in aid of a person who is fugitive from justice; the inherent power cannot be invoked in his favour because it is essential condition of the administration of justice; that the person concerned should submit to the due process of justice; where an individual seeks interference of the sovereign to obtain the reversal of a judicial order, he cannot succeed if he himself is engaged in setting that judicial order at naught; the Court would in order to avoid taking drastic action of the dismissal of a matter on account of such a conduct of the person concerned, would afford opportunity to him through some adjournments in the expectation that he might be induced to surrender; this all being in accord with the basic principles governing administration of criminal justice, it is the duty of the person representing the accused, to secure, so far as it is within his power, the appearance of the accused before the Court on the first day of the hearing and, thereafter, if so advised, to seek an order for bail or suspension of sentence, if it is an appeal by the convict. Apart from the foregoing principles laid down in the case of Chan Shah, these aspects were further elaborated in Gul Hassan's case; if a person is fugitive from justice and is in the state of ascendance, an appeal cannot be filed on his behalf on the basis of a power of attorney executed by him before his ascendance and the same would apply to a power of attorney executed during ascendance; that a fugitive in effect, in view of the principles laid down in the case of Chan Shah, is also a contemnor and further that he is not entitled to hearing; that even if it is a case of confirmation of death sentence under section 374, Cr.P.C. If the convict decamps, he thereby forfeits the right of audience and the High Court would in such a situation be competent to consider the case of confirmation of his death sentence and confirm the same even in his absence the confirmation of course will have to be on merits of the case; and this Court would not hesitate even after grant of leave to appeal on the application of such a person, to rescind the leave. It may be clarified here that in the case of Gul Hassan leave to appeal having been obtained on the basis of an incompetent petition for leave to appeal, it was thought advisable to adopt the course of rescinding the leave granting order. Applying the principles which are now being reiterated and reaffirmed, it would not be necessary in all the cases to adopt the same procedure, as the Court would be competent when such an occasion arises, to dismiss the appeal itself."
' This case is followed by the cases of Habibur Rehman v. The State 1992 SCM R 1625, Mst. Rohida v.
Khan Bahadur 1992 SCM R 1036 and Saiful Malook v. The State 1992 SCM R 1597. The District Criminal Court was right to decide the case on merits in the absence of the decamped accused in the similar way as the High Court is competent to confirm the death sentence in view of above dictum of law.
26. The Shariat Court, without looking in or dilating upon this aspect of the case, acquitted all the accused-respondents including those who had filed no appeal. The powers of the appellate Court to acquit or discharge an accused can be exercised only with regard to a person who has preferred an appeal against his conviction and sentence. The words of section 423(1) that "after perusing such record, and hearing the appellant or his pleader, if he appears...." are clear enough to suggest when read with section 423(1)(b) that only an appellant/convict has the right of hearing, and acquittal or discharge depends upon the merits of the case if appeal filed by him. We may refer here the case In re: Jadayandi and another AIR 1963 Mad. 38:-- "It is clear from the wording of section 423(1)(b) that the powers of the appellate Court to acquit or discharge or order retrial could be exercised only with regard to a person who has preferred an appeal. A Sub-Divisional Magistrate has, therefore, no jurisdiction in an appeal preferred by some of the accused to set aside the conviction also of the co-accused who have not preferred an appeal and order their retrial."
' The order of a Court of competent jurisdiction is an order enforceable under law, even if it is voidable, which has to be determined by a competent higher Court on appeal or revision if filed within limitation. It will be proper to refer to the case of Ghulam Hussain v. Member Board of Revenue 1995 SCR 355:-- "We have heard the respective contentions raised by the learned counsel for the parties and perused the record made available with care. In our view the findings recorded by the High Court as well as by the Member Revenue Board that in cases of illegal orders, the consideration of limitation is immaterial, is not warranted by law. This Court has held in various cases that even the void orders are subject to the law of limitation provided the same are challenged by an aggrieved person within a reasonable time. Out of many cases it is deemed expedient to quote here the case of Mirza Lal Hussain v. Custodian of Evacuee Property and others 1992 M LD 1280, wherein it was opined by this Court at page 221 that 'these judgments do not lay down the proposition canvassed by Ch. Muhammad Sharif Tariq that there is no limitation so far as a void order is concerned.
However, it is not a universal rule which may be necessarily applied in every case without regard to the consequences. While this rule would not apply to cases where a person who is adversely affected by such an order does not come to know of its existence and has had no occasion to challenge that order. There is no warrant for the conclusion that a void order should be left unchallenged. If a person comes to know of a void order which adversely affects him but still he does not challenge it within a reasonable time the Courts may validly refuse to ignore it on the ground of laches, acquiesence or estoppel."
27. Judgment of the Shariat Court to the extent of the convict-respondents not filing the appeal and remaining continuously fugitive from law is, therefore, I Q abuse of process of Court giving premium to the fugitives for default. The question as to whether the fugitives-respondents can be convicted in their absence by a Court is left open to be decided, if at all, the same falls for determination in some appropriate proceedings. As this point is neither taken nor argued, we, therefore, refrain from commenting upon it.
' For the above stated reasons, we are satisfied that the reasons recorded by the learned Judges of the Shariat Court in allowing the appeal are not supported by record and law and the conclusion drawn from the appraisal of prosecution evidence is not in consonance with the true perspective of administration of criminal justice. The appeal is accordingly accepted, judgment and order of the learned Shariat Court, dated 20-6-1996 is set aside and that of the trial Court dated 23-11-1994 is restored. Muhammad Saleem, respondent No.1, shall be forthwith taken into custody and committed to jail for undergoing the terms of his imprisonment.