' The present criminal appeal has been directed against the judgment, dated 10-5-1993, whereby the learned Sessions Judge, Kasur, had convicted the appellant under section 302, P.P.C. And sentenced him to imprisonment for life and a fine of Rs,2,000 or in default thereof to undergo S.I. For one year and had also directed him to deposit a sum of Rs,20,000, to be paid to the legal heirs of the deceased, Ghulam Haider, or in default thereof to suffer further S.I. For six months, while acquitting his co-accused, Yahyah of the offences charged.
2. Brief facts leading to the present criminal appeal are that the complainant Muhammad Ishaque on 3-9-1992 at about 7-30 p.m. Lodged the complaint Exh.P.F./1 alleging that on that day at about 6-00 p.m. When he and his brothers Ghulam Haider, Muhammad Ashraf and Muhammad Azam, while on their way to see the Kabaddi match in a Mela, used to be celebrated in their village at the Urs of Baba Sheikh Lal Shah, had reached near a Tibba in the fields, all of a sudden Muhammad Yaqoob and Yahyah armed with a mouzer and a .12 bore gun respectively, emerged at their back and challenged Ghulam Haider to be taught a lesson; whereupon Yahyah accused fired an ineffective shot and to save themselves, the complainant and others sat down, but the second shot fired by Muhammad Yaqoob accused hit at the back of the head of Ghulam Haider. The noise attracted so many persons from Kabaddi fields and on seeing the said persons, the accused ran away from the spot while firing in the air. The complainant tried to shift his brother Ghulam Haider to hospital by a wagon, but he died of the injury while passing the revenue limits of village Sattoki.
' The motive for the occurrence, as stated in the complaint, was that 15/16 days prior to the occurrence, a Kabaddi match participated by both the accused from one side and one Tariq son of Ghulam Haider deceased from the other side, was held in the village, in which Tariq captured the accused persons and their annoyance resulted in a scuffle and Ghulam Haider deceased, present there, had interfered, whereupon the accused persons had threatened him with dire consequences.
3. Qutab-ud-Din, S.-1. Recorded the statement of the complainant Exh.P.F./1, sent it to the police station for registration of case and himself taking up the investigation, reached the place, where the dead body was lying in the area of village Sattoki, prepared the injury statement Exh.P.J. And inquest report Exh.P.K. And despatched the dead body to the mortuary for post-mortem examination. Thereafter, he reached the place of occurrence, inspected the spot, collected the blood-stained earth, vide memo. Exh.P.B., and finding there a pair of shoes of the deceased P.3/1-2, took the same into possession vide memo. Exh.P.C. He also prepared the rough site plan of the 'place of occurrence Exh.P.L. And recorded the statements of the witnesses. On 4-9-1992 he took into possession the last worn blood-stained clothes of the deceased, shirt P.1 and Chadar P.2, vide memo. Exh.P.A., got prepared the site plan of. The place of occurrence Exh.P.G. And Exh.P.G./1 from Nasir Ahmad Revenue Patwari and deposited the sealed parcels relating to the instant case with the Moharrir concerncii. On 14-9-1992 he arrested Yagoob and Yahyah accused and obtained their personal remand. On 19-9-1992 he got recovered mouzer P.4 on pointing out of Yaqoob accused from his house vide memo. Exh.P.D. And prepared the rough site plan of the place of recovery Exh.P.D./1. On 25-9-1992 he got recovered gun. P.5 on pointing out of Yahyah from his cattle shed, vide memo. Exh.P.E. And prepared the rough site plan of the place of said recovery Exh.P.E./1. After completion of the investigation, he challaned the accused.
4. At the trial, the prosecution examined as many as fourteen witnesses to prove its case. P.W.1 Mushtaq Ahmad F.C., P.W.2 Muhammad Shafique F.C., P.W.3 Tisawar Ali, H.C., P.W.4 Suleman, P.W.5 Muhammad Mushtaq, P.W.6 Abdul Rehman, P.W.7 Ghulam Muhammad, P.W.8 Muhammad Tufail H.C. And P.W.10 Nasir Ahmad Patwari, being the formal witnesses, had deposed about the roles performed by them respectively, in the instant case.
5. P.W.9 Muhammad Tariq had deposed about the motive that in a Kabaddi match he had participated from one side, whereas the accused persons from the other side and on his having captured the said accused, they caught hold of him and gave him fist blows, whereupon his father Ghulam Haider deceased interfered with and the accused had left the spot threatening him with consequences.
6. P.W.12 Muhammad Ishaque, being the complainant in the instant case had supported the case of the prosecution by reiterating the contents of his statement Exh.P.F./1. P.W.11 Muhammad Ashraf, being an eye-witness of the occurrence had corroborated the statement of the complainant, while incriminating Yahyah accused for having fired ineffective shots and Yaqoob accused for having effectively fired a shot hitting at the back of the head of Ghulam Haider deceased, which proved fatal.
7. P.W.13 Dr. Zohair Masood had conducted the post-mortem examination on the dead body of Ghulam Haider deceased on 4-9-1992, brought to him by Mushtaq F.C. And identified by Suleman P.W., and had found the following injury on it:--
(1) A circular lacerated wound 1.5 c.m. In diameter inverted margins on the middle occipital bone of the skull.
' On dissection, he found that the left temporal and occipital bones of the skull were extensively damaged with multiple fracture under injury No, 1 . Brain cavity was full of blood and brain soft tissues were damaged under injury No,1. A metallic bullet was found in the brain tissue. Right side of the heart was empty whereas the left side contained blood. Stomach contained semi-digested food, small and large intestines contained gasses and faecal matter and bladder contained urine.
' In his opinion, death in this case had occurred as a result of shock and haemorrhage due to injury No,1, which was ante-mortem, caused by fire-arm and was sufficient to cause death in the ordinary course. Probable time between injury and death was 15 minutes and within death and post-mortem examination 15 hours.
8. The prosecution had given up Yasin, Sali, Nazir Ahmad F.C. And Arif P.Ws. Being unnecessary, whereas Saeed P.W., as having been won-over and had tendered in evidence the reports of the Chemical Examiner and Fire-arm Experts, Exh.P.M. And Exh.P.N. Respectively and closed its case.
9. In his statement recorded under the provisions of section 342, Cr.P.C. The appellant had denied the allegations against him and claimed to be innocent by deposing that the incident in question was the result of an accidental fire shot from some participant of the Kabaddi match in the dark of night, as the persons present there were boosting the winners with firing; and that he was involved in the case falsely due to enmity. His acquitted co-accused Yahyah had also taken the same plea.
The appellant had tendered in his defence copies of F.I.Rs, Nos.81 of 1986, 108 of 1982 and 79 of 1986, as Exhs.D.A., D.B. And D.C., but he did not get recorded his statement under the provisions of section 340(2), Cr.P.C.
10. The learned trial Court, taking into consideration all the facts and circumstances of the case, convicted and sentenced the appellant, while acquitting his co-accused by extending the benefit of doubt, as stated above.
11. Before proceeding further, the following facts regarding the instant appeal need to be recorded:- - ' 'The present record of the instant appeal includes affidavits submitted by all the adult legal heirs of the deceased, except his mother Mst. Fatima Bibi, at an earlier stage of the pendency of the present appeal, contending for the disposal of the appeal on the ground that they, had forgiven the appellant for the murder of the deceased Ghulam Haider, who was the husband of Mst.
Hamida Begum widow, and real father of the adult children namely, Muhammad Tariq, Mst.
Shakooran Bibi, Mst. Safooran Bibi and Nazar Muhammad whereas amount of Diyat payable had been deposited in the bank accounts opened in the names of the minor children of the deceased namely, Tayyab Ali, Mst. Maryam Bibi, Musaeyab Ali and Mst. Shagufta Bibi. There is also an affidavit by the Vice-Chairman of the Union Council, namely, Muhammad Ashraf, verifying that the said widow and the children of the deceased were his only legal heirs. Pursuant to the appearance of the said legal heirs and the Vice-Chairman before the Court to confirm the contents of the affidavits submitted by them respectively, the Court had allowed the appeal in accordance with the provisions of section 345, Cr.P.C. Read with section 323, P.P.C. And had consequently acquitted the appellant from the offences charged and ordered that he be set at liberty, if not required in any other case.
' But very soon thereafter, a petition Criminal Miscellaneous No,307/M of 1994 was moved on behalf of Mst. Fatima Bibi, the real mother of the deceased, Ghuiam Haider, contending for recall of the judgment, dated 1-2-1994 acquitting the accused/appellant Muhammad Yaqoob, as the same had been obtained by suppressing the existence of the said legal heir, i,e, the real mother of the deceased, and thus, the case in question not having been compounded in accordance with the provisions of section 345, Cr.P.0 because of the non-- association of the said Mst. Fatima Bibi mother of the deceased, no composition of the offence could be allowed.
' Pursuant to the notices issued, the adult legal heirs i,e, widow, sons and daughters of the deceased, as stated above, had put in appearance alongwith the Vice-Chairman, the appellant and his father, namely, Muhammad Riaz, who had played the necessary role in effecting the compromise and claiming the offence having been compounded on behalf of the appellant, and duly confirmed that the petitioner in Criminal Miscellaneous No,307/M of 1994 namely, Mst. Fatima Bibi, was the surviving real mother of the deceased Ghulam Haider.
Therefore, the Court had recalled the said order of compromise-composition vide its order, dated 13-10-1996, while holding that the criminal appeal shall be deemed to be pending, by invoking its jurisdiction under the provisions of section 561-A, Cr.P.C., as the order of acquittal had been obtained fraudulently, thus, relying upon the settled principle of law that fraud vitiates the most solemn transaction and proceedings and no party is to be allowed to take advantage thereof; that the fraud cannot be sanctified or protected and every Court, Tribunal or Authority has the inherent jurisdiction to review the record to undo the cases of fraud; and that the Courts are competent to suo motu recall orders obtained by fraud. The said principle of law has been repeatedly upheld by the Honourable Supreme Court of Pakistan and by all the High Courts of our country. In this respect reliance is placed upon the following:-- ' Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710, ' Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782, ' Mst. Athar Jabeen and another v. Deputy Settlement Commissioner, Circle III, Lahore and another PLD 1993 Lah. 842, ' Ghias-ud-Din v. Iqbal Ahmad and 5 others PLD 1975 Lah. 780, ' Mahmood Anwar v. D.C. And others 1985 CLC 2569, Mobina Begum v. The Joint Secretary and 2 others 1994 MLD 1441.
12. 'On the criminal appeal being taken up for hearing, the learned counsel for the appellant argued for his acquittal and in this respect emphasised that the motive as set up has not been proved, the place of occurrence stated to be the very field in which Kabaddi match was being played and there were a large number of people present, yet no independent witness had been produced by the prosecution to prove its case beyond reasonable doubt. Further argued that the two eye- witnesses being very close relative, their testimony could not be relied upon without independent corroboration, which was lacking, as pointed out and that furthermore, the medical evidence totally contradicts the two eye-witnesses namely, Muhammad Ashraf P.W.11 and Muhammad Ishaque P.W.12, which further weakens the case of the prosecution. Further submitted that the recoveries effected, specially the alleged weapon of offence i,e, .Mouzer P.4, have no consequence whatsoever, as neither any crime empty was recovered from the spot nor the bullet recovered from the injury to the deceased had been sent to the Ballistic Expert for his report. Finally, argued that the'giving up of Azam P.W., the brother-in-law of the deceased and the eye-witness, and nonacceptance of the prosecution story in toto because of the acquittal of the co-accused Yahyah, further weakens the case of the prosecution and the benefit thereof should go to the appellant.
13. Whereas the learned counsel for the State opposed the acquittal of the appellant and submitted that the maxim "falsus in uno falsus in omnibus" is not applied in dealing with the cases in our Courts and that often the grain has to be sifted from the chaff as repeatedly held by the Honourable Supreme Court and the High Courts of our country. Further submitted that the defence had failed to prove any enmity between the parties despite having made an attempt to that effect during the cross-examination of the eye-witriesses and that, therefore, in the absence of any enmity for involving the accused/appellant in the serious case of homicide, the testimony of the eye-witnesses is an unexceptionable and in fact fully confidence inspiring that can be relied upon to sustain the conviction of the appellant. Further argued that minor discrepancies in the prosecution case cannot lead to brushing aside the testimony of natural eye-witnesses in respect of a day time occurrence.
14. To deal with the contentions raised by the learned counsel for the appellant and the State, it may be observed at the very outset that the maxim "falsus in uno falsus in omnibus" is not recognised in the Courts in Pakistan and to arrive at a just conclusion, it is bounden duty of the Court to sift grain from the chaff. In this respect, reliance is placed on recent judgments of the Honourable Supreme Court in Muhammad Ahmad and another v. The State and others 1997 SCMR (January Part) 89 and Sheraz Asghar v. The State 1995 SCMR 1365. Therefore, while accepting the contentions raised on behalf of the appellant to the effect that the recoveries are of no consequence for the reason stated i,e, neither any crime empty was recovered from the spot nor bullet recovered from the fatal injury caused to the deceased had been sent to the Ballistic Expert for his report and further conceding that the motive set up has not been proved and the statement of P.W.9 Muhammad Tariq son of the deceased in that respect has to be ruled out of consideration as his statement under section 161, Cr.P.C. Had been recorded after a delay of 15/16 days, as admitted by him during his testimony, in accordance with the principle laid down in Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Asfandyar Wali v. The State PLD 1978 Pesh. 38, and further accepting that the post-mortem report Exh.P.H. And the testimony of Dr. Sohair Masood P.W.13, are not totally in confirmity, as the doctor has opined that the fire shot that caused the fatal injury to the deceased may have been fired by a person from a higher height than the height of the deceased, as the seat of the said fatal injury, yet the Court is constrained to observe that two natural eye-witnesses' testimony i,e, P.W.11 Muhammad Ashraf and P.W.12 Muhammad Ishaque, cannot be totally ignored, nor the fact that the occurrence had taken place in day time in an open field, where a Kabaddi match was being played, especially as no mala fide intention or enmity has been proved against the said eye-witnesses to falsely implicate the accused/appellant in a murder case, who are otherwise from their Bratheri, being distant relative, as admitted by P.W.11 Muhammad Ashraf. Hence. It is further observed that in the instant case the Court has not only to sift grain from the chaff, but even otherwise should not be deterred from drawing proper inference from the evidence and circumstances of the case as parties do not generally come out with the true story, and the Court has to make an effort to arrive at a just conclusion on the basis of the evidence on the record, as held by the Honourable Supreme Court in Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502. The dictum laid down in the said case has been faithfully followed by the superior Courts of Pakistan in scores of cases subsequently.
15. The upshot of the above discussion is that while applying the principle of sifting the grain from the chaff to the testimony of the eye-witnesses P.W.11 Muhammad Ashraf and P.W.12 Muhammad Ishaque, the Court is of the considered view that their testimony is reliable to the extent of holding the appellant to be responsible for causing the death of their brother Ghulam Haider deceased, but without any motive or any deliberate intention to cause his death under the circumstances highlighted i,e, that neither the appellant had any motive to cause death or bodily harm to the said deceased, nor do the evidence of the prosecution is sufficient or without any discrepancy. And contradiction to prove the case against the appellant as charged.
16. To sum it up, the Court is of the considered view that the appellant was one of the persons, who had been indulging in firing their weapons at the time when a Kabaddi match was taking place in the field, where the fateful occurrence in question had taken place and during the indiscriminate firing by the appellant a shot had unintentionally hit the deceased, thus causing him fatal injury that had resulted in his death. The conclusion thus drawn is fully supported by the contents of the affidavits submitted by the grown-up sons and daughters, Muhammad Tariq, Nazar Muhammad, Mst. Shakooran Bibi and Mst. Safooran Bibi, and the widow of the deceased, Mst. Hamida Begum, that form a part of the record of the present appeal, as they had been made part thereof in accordance with law; and as the said legal heirs stood by the averments made in the affidavits submitted on their behalf, contents of every affidavit that needs to be highlighted is to the effect that the-death of the deceased was an accidental {{URDU TEXT}} ' and as the accused is always the favourite child of law, therefore, anything that has come on the record in a legal manner shall be taken into consideration to extend him the benefit thereof. The logical conclusion to be drawn therefrom is to the effect that the death of the deceased, Ghulam Haider, was not the result of pre-planned, deliberate, intentional or wanton act of the appellant, but that the death of the deceased had taken place at the hands of the appellant by accident, as the appellant had been indulging in celebratory firing at the time of the holding of Kabaddi match that was admittedly taking place at the relevant time in the very field where the deceased had suffered the fatal injury caused by a fire-arm shot. Therefore, it is hereby held that the appellant had been guilty of causing the accidental death of the deceased, Ghulam Haider, further observing to the effect that the offence thus committed is covered under the provisions of section 319, P.P.C. For convenience sake the said section 319, P.P.C. And section 318, P.P.C.; wherein the offence of accidental death i,e, Qatl-e-Khata is defined, are reproduced herein below:-- "318. Whoever, without any intention to cause death of, or cause harm to, a person, causes death of such person either by mistake of act or by mistake of fact, is said to commit Qatl-e-Khata.
319. Whoever commits Qatl-e-Khata shall be liable to Diyat: ' Provided that, where Qatl-e-IChata is committed by any rash or negligent act, other than rash or negligent driving, the offender may, in addition to Diyat, also be punished with imprisonment of either description for a term which may extend to five years as Ta'zir."
Hence the appellant is found guilty of Qatl-e-Khata and is convicted accordingly, while setting aside his conviction and sentence awarded under section 302, F P.P.C., vide the impugned judgment.
17. Resultantly, pursuant to his conviction in the alternative under the provisions of section 319, P.P.C.
Stated above, the appellant is hereby sentenced to the maximum punishment for the said offence i,e, R.I. For five years in addition to .The payment of Diyat to the extent of the respective shares of the minor legal heirs of Ghulam Haider deceased, namely, Tay) ab Ali, Musaeyab Ali (sons), Mst.
Maryam Bibi and Mst. Shagufta Bibi (daughters) and his surviving mother Mst. Fatima Bibi, the only adult legal heir, who had refused to compound the case against the appellant for having caused the death of her son Ghulam Haider deceased, in accordance with law applicable, .As the rest of the adult legal heirs had stood by the affidavit submitted by them earlier as stated above, which are not only the part of the record of the case, but the contents whereof:- to the effect that they have forgiven the appellant in the name of the Almighty Allah without any Badl-e-Sulah and that the death of the deceased was accidental "" have been reiterated by the said legal heirs time and again before the Court. The amount already deposited in the accounts of the minor legal heirs named above shall be taken into consideration while determining the amount of Diyat that is payable to them. The total amount of Diyat payable under the law pursuant to the notification S.R.O.614(l)/96, dated the 3rd July, 1996, issued by the Government is Rs,2,12,664.09 (Rupees two lac twelve thousand six hundred sixty-four and nine paisa only). From the total amount of Diyat of Rs,2,12,664.09, the shares of every legal heirs are determined as follows:-- Mst. Fatima Bibi (mother) Rs,35,444.00 Mst. Hamida Begum (widow) 22,152.50 ] Forgiven Muhammad Tariq (son) 25,845.00.] in the Mst. Shakooran Bibi (daughter) 12,923.00 ] name of Mst. Safooran Bibi (daughter) 12,923.00 ] .Allah.
Nazar Muhammad (son) 25,845.00 ] Tayyab Ali (minor son) 25,845.00 Mst. Maryam Bibi (minor daughter) 12,923.00 Musaeyab Ali (minor son) 25,845.00 Mst. Shagufta Bibi (minor daughter) 12,923.00 ' The legal heirs mentioned at serial Nos.2 to 6 have forgiven the appellant in the name of Allah without any Badal-e-Sulah, whereas the amounts of the shares of rest of the legal heirs shall be deposited in their respective accounts by taking into consideration the amount already deposited in the accounts of minor legal heirs, as directed above.
18. In accordance with the terms stated above, the present criminal appeal stands disposed of.