SH. IJAZ NISAR, J.---These criminal appeals with the leave of the Court are directed against the judgment dated 24-6-1996, passed by the High Court of Balochistan, Quetta, in Criminal Appeal No,158 of 1994.
2. Khair Jan son of Ellahi Bux, Khawand Bux son of Gella, Sabz Ali son of Kella and Bangui Khan son of Jam Khan were tried for the murder of Sallal Akbar Bugti. By judgment, dated 17-11-1994, Special Judge for Suppression of Terrorist Activities Court, convicted them under section 302 read with section 120-B/34, P.P.C. And sentenced them to death. They were also convicted under section 324, P.P.C. And sentenced to 7 years' R.I. Plus a fine of Rs,50,000 each to be paid to the legal heirs of the deceased, or in default thereof they were ordered to undergo further S.I. For one year each.
3. On appeal, a learned Division Bench of the High Court of Balochistan, Quetta, by means of judgment dated 24-6-1996 set aside the conviction and sentence of Bangul Khan, but maintained the conviction and sentences of the other accused.
4. The judgment of the High Court was challenged by the convicts as also by the State and Mrs. Sallal Akbar Bugti, widow of the deceased.
5. Leave was granted by this Court on 4-10-1996 to consider whether sufficient corroboration was available warranting conviction of the convicts named above after disbelieving the ocular testimony qua Bangui Khan accused-respondent. Leave was also granted to the State and widow of the deceased to see whether the acquittal of Bangui Khan was justified. Since the above matters arise out of the common judgment, the same are being disposed of by this consolidated judgment.
6. The prosecution case, in brief, is that on 2-6-1992, at about Mughrib prayer time Sallal Akbar Bugti deceased accompanied by Piyara Bugti P.W.15, Irsala Khan P.W.16 and Mussa Farman P.W.17, was proceeding on Jinnah Road, Quetta, in the car bearing Registration No,DB-7, driven by him. When he reached near Farah Chawk, eight armed persons riding a black Datsun started firing at him and other inmates of the car, as a result of which, Sallal Akbar Bugti died on the spot while Piyara Bugti P.W. 15 and Massa Farman P.W.17, received injuries. The injured persons also fired at the accused but they succeeded to flee. Khurshid Alam, A.S.I. Of Traffic Police, P.W.8, who was performing duty at Farah Chowk at that time, witnessed the occurrence. He immediately informed the higher police officials about the occurrence and got his statement Exh.P/8-A, recorded before Malik Rasham Khan, S.H.O., Police Station City Quetta, P.W.24 who had immediately reached the place of occurrence. According to him, some of the accused were wearing levies uniform and growing beards.
7. After recording the Fard-e-Biyan Exh.P/8-A of Khurshid Alam, A.S.I., Malik Rasham Khan, S.H.O.
Conducted the preliminary investigation and despatched the dead body of the deceased for post- mortem examination. Piyara Bugti injured was also sent to the hospital for medical examination.
The S.H.O. Inspected the spot and secured 42 empties of Kalashnikov and made them into a sealed parcel. He also secured blood-stained earth from there. A pistol and rifle along with magazines of cartridges were also recovered from the car. Vehicle No,D.B.-7 was also seized vide recovery memo. Exh.P/9-A. He got prepared the site plan of the place of occurrence from Sardar Khalid Mahmood P.W.18.
8. The S.H.O. Also examined Mr. Muhammad Nawaz Marri, the then Advocate and took into possession documents Exh.P/24-A produced by him. He also got the confessional statement Exh.P/21-B of Bangui Khan accused (since acquitted) recorded by P.W.21 Mr. Mazhar Mehmood, M.I.C. On 7-6-1992. He also arranged identification parade of the accused under the supervision of Shabbir Ahmed Shah, E.A.C. P.W .A on 16-6-1992.
9. Amanullah Khan, S.I. P.W.14 and Sheryab Ali, D.S.P., P.W.26, arrested the accused on 2-6-1992 i,e, on the day of occurrence, from the office of Mir Muhammad Nawaz Marri, Advocate, situated at Jinnah Road, Quetta, and recovered Rifle No,310658 '223 bore along with 86 cartridges and 3 magazines from the possession of Khair Jan, appellant vide memo. Exh.P/14-B. A China-made 7.62 m.m. Rifle No,1509827 and 199 live cartridges were recovered from the possession of Khawand Bukhsh vide recovery memo. Exh.P/14-B. A China made Rifle No,10031446, 7.62 m.m. Along with 104 live cartridges was recovered from the possession of Sabz Ali appellant vide recovery memo. Exh.P/14-C. No recovery was effected from Bangul Khan, accused (since acquitted). The fire-arms recovered from the possession of the appellants were made into separate sealed parcels and sent to the Ballistics Exert for comparison with the crime empties recovered from the spot. The Expert reported vide Exh.P/26-1 that the fire-arms alleged to be recovered from the possession of Khawand Bukhsh and Sabz Ali appellants matched with the crime empties, while rifle 223 bore said to be recovered from Khair Jan was found to have been fired.
10. Rasool Bakhsh, S.H.O. P.W.22 also seized a double door black pick-up from the house of late Amir Hamza Bugti, situated in Railway Housing Society, Quetta on the same day vide recovery memo.
Exh.P/2-C. The pick-up in question was said to have been used by the accused in the commission of the crime. Rafiullah Shah, P.W.23 recorded the statements under section 161, Cr.P.C. Of Musa Farman, Arsalla Khan and Shahnawaz Khan, P.Ws. At Dera Bugti on 6-6-1992.
11. The motive for the commission of the offence was that Amir Hamza Bugti son of Haji Wadera Khan a relative of the accused had been murdered on 7th May, 1992. Haji Wadera Khan held Saleem Akbar Bugti son of Sardar Akbar Khan and his father responsible for the murder of his son.
The accused are alleged to have avenged the murder of Hamza Bugti by killing Sallal Bugti deceased son of Sardar Akbar Bugti.
12. Dr. Amin Mangal, P.W.7 conducted the post-mortem examination of the deceased and found the following injuries on his body:-- "(i) One ovo-circular wound directing from left to right on the right cheek prominence, two centimetres from the right eye conthus. (Enterance). The edges were inverted 1-1/2" in diametre.
(ii) Wound of exit on the same side of skull posteriorly brusting the whole perioto- accipital part, with brain matter out along with fragments of skull bone, measuring 10 centimeter in length edges everted and irregular.
(iii) One guttur wound 5 centimetres Muscle deep in mid right clevicular region.
(iv) One ovo-circular wound 1-1/2 centimetres in the fourth intercostal space just above the right nipple with inverted edges (Entrance wound).
(v) Exit wound was below the inferior angle of right scapular. 5 centimetres in diameter with averted and torned edges, adjacent to the dorsal spine on the same side.
(vi) One guttur wound 1-1/2 centimetres, skin deep on the base of right thumb dorsum.
(vii) One incised wound 2 centimetres 1/2 centimetre lateral to the wound No,l."
According to him, the cause of death was injuries on the vital organs of the body by fire-arm, haemorrhage and shock.
13. Dr. Ahmed Saeed, P.W.19 medically examined Piyara Bugti, P.W.19 on 2-6-1992 and found the following injuries on his person:--
(i) Lacerated wound on the left side on neck, lateral aspect 4" x 2" in size.
(ii) Gunshot wound 1-1/2" x 1" on left hand dorsel. The patient was operated upon by Neurosurgeon, General Surgeon and Orthopaedic Surgeon.
Note of Neuro Surgeon.--(1) Bullet injury in the head of left side of neck, bullet penetrated epicoonium on examination patient was conscious and pupils reacting to light." According to him, the patient was admitted on 2-6-1992 and discharged on 15-6-1992. The nature of injuries was grievous and were fresh in type.
14. To prove its case the prosecution produced 26 witnesses. Of them, Khurshid Alam, A.S.I. P.W.8, Piyara Bugti P.W.15, Arsalla P.W.16. And Mussa Farman P.W.17 furnished the ocular account.
Muhammad Tariq, S.I., P.W.3, Sultan Ali, S.I., P.W.9, Amanullah, S.I. P.W.14, Rasool Bakhsh, S.H.O., P.W.22, Rafiullah Shah, S.I. P.W.23, Malik Rasham Khan, S.H.O. P.W.24, Ghualm Farid, S.I., P.W.25 and Sheryab Ali, D.S.P., P.W.26, had investigated the case. Shabbir Ahmad Shah, E.A.C. P.W.4, had supervised the identification parade of the accused, in which Khurshid Alam, S.I. P.W.8, is reported to have identified Khawand Bakhsh, Sabz Ali and Khair Jan appellants. Mazhar Mahmood, M.I.C. P.W.21 had recorded the confessional statement of Bangul Khan accused-respondent on 7-6-1992. Syed Abdullah Shah P.W.20, Chemical Examiner had detected human blood on the carpet of the vehicle of the deceased and the clothes worn by him. Malik Muhammad Ismail, Advocate, P.W.5 and Muhammad Ijaz P.W.11 deposed about the visit of armed men to the office 9f Mir Muhammad Nawaz Marri, Advocate after the firing. The said armed persons were later found to be involved in the murder of Sallal Akbar Bugti deceased.
15. The appellants and Bangui Khan accused-respondent denied the prosecution allegations.
Khawand Bakhsh appellant made the following statement under section 342(2), Cr.P.C.:-- "My relative Humza was murdered at Sui by Saleem Bugti. We remained present at Sui for about few days in order to take Fatiha from the people. Thereafter, we came to Quetta and visited the then Chief Minister Mir' Taj Muhammad Jamali and then visited the then Governor Gul Muhammad Khan Jogazai in connection with the murder case of late Amir Humza Bugti. Absconding accused Azizullah on phone took appointment from Mir Muhammad Nawaz Marri, Advocate in order to consult him about the murder case of late Amir Humza Bugti. In consequent upon the said appointment we reached the office of Mir Muhammad Nawaz Marri before Maghrib Prayer for consultation and handed over him some papers including an application addressed to the Chief Justice High Court of Balochistan by the late Amir Humza Bugti wherein it was mentioned that whenever he is murdered, Nawab Akbar Khan Bugti and his son Saleem Bugti will be responsible for his murder. Meanwhile there was a call of Maghrib prayer and I asked one of the colleagues of Mir Muhammad Nawaz Marri for providing me Jae-e-Namaz and then I stood for offering my Maghrib Prayer and as soon as I stood for prayer we heard gunshots outside the office on Jinnah Road, Quetta. After the said firing Mir Muhammad Nawaz Marri, Advocate directed us to leave this office but we :fused that there is firing outside the office. Thus, he himself left his office we remained present in his office for about 15 minutes and bolted his office from inside. After 15 minutes Mir Muhammad Nawaz Marri knocked the door of his office from outside and asked me in Balochi for opening the door, so I opened the door. Mir Muhammad Nawaz Marri along with Police entered into his office and Police arrested me and the other accused persons present in the Court. We are not the murderer of late Sallal Akbar Bugti and the murderer of Sallal Akbar Buti was someone else from whom the revenge has already been taken by the heirs of late Sallal Akbar Bugti 'as in this regard Saleem Akbar Bugti stated in his interview given to B.B.C. And the news of same was published in daily Mashriq, Quetta, dated 3-3-1994. I produce the same news item as Exh.D/1-A (subject to objection of A.D.A.). The rifle recovered from me was legally possessed by me under Randari permit No,841 dated 9-6-1991. I produce the original Randari of the same as Exh.D/1-B. I am innocent and falsely been implicated in this case." The other accused also adopted the above statement. Khawand Bakhsh and Sabz Ali appellants admitted the recovery of the fire-arms from their possession and stated that the same were legally kept by them under Randari permits. No defence evidence was led by any of the accused.
16. Relying on the evidence adduced by the prosecution the learned trial Court convicted and sentenced all the accused under section 302 read with sections 120-B/34, P.P.C. And 324, P.P.C.
However, on appeal a Division Bench of the High Court of Balochistan set aside the conviction of Bangui Khan, but maintained the conviction and sentence of the other accused.
17. Challenging the conviction and sentence of the appellants, the learned counsel representing them have made the following contentions:-
(a) That none of the accused is named in the F.I.R. And further that it looses its evidentiary value because it was recorded at the spot after preliminary investigation;
(b) that the eye-witnesses produced by the prosecution were interested against the accused and were examined by the police after a considerable delay without any sufficient cause. Their evidence is, thus, *unworthy of credence;
(c) that the incriminating articles were sent to the laboratories after a considerable delay without any justification;
(d) that the prosecution did not examine the police officials, who had kept the sealed parcels in their custody or had taken the same to the laboratories; () that the identification parade was delayed one and except the accused no other person was made to participate in it;
(f) that no independent witness from the locality was examined to prove the occurrence;
(g) that the confessional statement of Bangui Khan accused-respondent was recorded very late and was the result of duress and coercion;
(h) that Bangui Khan respondent was proved to be present in the office of Mir Muhammad Nawaz Marri, Advocate at the relevant time and not at the spot as alleged by the prosecution;
(i) that the appellants have been falsely involved on account of enmity; and
(j) that the eye-witnesses examined by the prosecution having been disbelieved in respect of Bangui Khan accused could not be relied upon against the other accused.
18. There is no dispute about the date, time and place of occurrence, nor about the murder of a relative of the accused named Hamza Bugti, about a month before the murder of Sallal Bugti deceased and the suspicion entertained by Hamza Bugti deceased against Nawab Muhammad Akbar Khan Bugti and his son of his murder, whenever committed. The arrest of the accused along with the fire-arms from the office of Mir Muhammad Nawaz Marri, the then Advocate, situate dose to the scene of occurrence by the police is also not disputed. Being injured, the presence of Piyara Bugti P.W.15, Mussa Farman, P.W.17 in the vehicle' of the deceased can also not be doubted. Arsalla Bugti P.W.16, bodyguard of the deceased, is another eye-witness, who was accompanying them at the relevant time. The statements made by them are consistent and coherent with regard to the manner of the occurrence. The mere fact that they were examined by the police a few days after the occurrence will not materially detract anything from their evidence particularly in the wake of the admission of the accused that they had no personal animus against them. They cannot, thus, be dubbed as interested witnesses.
19. The delay in the examination of the eye-witnesses stands reasonably explained. Piyara Bugti P.W. Could not be examined earlier because he remained admitted in the hospital for 10/12 days, likewise the other P.Ws. Had left for Derra Bugti, probably, to participate in the funeral rites of the deceased and were examined by the police on 6-6-1992 i,e, 4 days after the occurrence. Since they were not the residents of Quetta they left for Sui/Deri, their place of abode and were examined when the police contacted them.
20. No doubt, the names of the accused do not find mention in the Fard-eBiyan Exh.P/8-A of Khurshid Alam, A.S.I., but the other details of the occurrence given by him fully correspond to the ones given by the other eyewitnesses. He had mentioned in his Fard-e-Biyan that some of the assailants were wearing lavies uniform which fact stands corroborated by the arrest of the accused immediately after the occurrence clad in lavies uniform. Furthermore, 'he had. Stated in the Fard-e-Biyan that he was in a position to identify the accused if he had a chance to see them.
He was subjected to identification test supervised by Shabbir Ahmed Shah, E.A.C. P.W.4 on 16-6- 1992 and he correctly picked up Khawand Bakhsh, Khair Jan and Sabz Ali appellants. No weight can be attached to the contention of the learned counsel for the defence that in the identification parade no dummy persons were joined and there was none else except the accused at the time of the said parade. In this context, a reference may be made to the statement of Shabbir Ahmed Shah, E.A.C., who had conducted the identification parade. He categorically stated that he had joined 8 or 9 dummy persons in the identification parade. The delay in conducting the identification parade appears to be insignificant because of the claim of Khurshid Ali, A.S.I., P.W.8 immediately after the occurrence that he could identify the accused. Lack of any objection by the accused to have been shown to the witness prior to the identification parade also lends corroboration to the said piece of evidence. Since all the necessary formalities were observed by Shabbir Ahmed Shah, E.A.C., before conducting the parade, no defect can be found in the same.
21. The arrest of the accused from the office of Mir Muhammad Nawaz Marri, Advocate, by Shehryab Ali, D.S.P., P.W.26 with fire-arms is another strong circumstance going against them. According to Sheryab Ali, D.S.P., on the information supplied by Mir Muhammad Nawaz Marri, Advocate, about the presence of some persons belonging to Bugti Tribe in his office, he visited his office and found the door bolted from inside which was opened at the asking of Mir Muhammad *Nawaz Marri, Advocate and from there the accused were arrested along with fire-arms. The fire-arms recovered at the instance of Khawand Bakhsh and Sabz Ali had matched with the crime empties recovered from the spot. They have admitted their recovery in the statements made by them at the trial. The mere fact that they were in possession of Randari permits would not justify their use in the occurrence. The rifle recovered from the possession of Khair Jan though not found to match with the crime empties was found to have been used by the Ballistics Expert. The statements of Malik Muhammad Ismail, Advocate, P.W.5 and Muhammad Ejaz Hussain P.W.11 who were present in the office of Mr. Marri, at the relevant time corroborate Shehryab Ali, D.S.P. About the arrest of the accused from there.
22. The evidence examined by the prosecution shows that when immediately after the firing some persons in malitia uniform entered into the office of Mr.Mir Muhammad Nawaz Marri, Advocate, carrying fire-arms. Mr. Marri asked them to leave but they declined, on which he went downstairs and informed the police. The police immediately reached there and arrested them. According to the said D.S.P., they were the present accused. They have also not denied in their statements under section 342(2), Cr.P.C., their visit to the office of Mr. Marri, Advocate on the said date and time or having been arrested from that place. According to the accused, they had visited the office of Mir Muhammad Nawaz Marri, Advocate, to consult him about the murder case of late Mir Humza Bugti and had handed over some papers to him in that connection. This fact is not supported by any convincing material. If that was so, they should have examined Mr.Marri or any other person in this behalf but they did not do so. No such suggestion was put to Malik Muhammad Ismail, Advocate P.W.5 when he appeared in the witness-box. If it had been so, why Mr.Marri should have asked them to leave his office and his informing the police about the presence of the some persons belonging to Bugti Tribe in his office and facilitating the police in their arrest. The accused should not have hesitated in going out if they were not involved in the occurrence in any manner. On the other hand, they bolted the door from inside of Mr. Marri's office after his departure and had unwillingly opened the same at the instance of Mr. Marri when he brought the police there.
23. It appears from the evidence that Bangui Khan accused respondent was already present in the office of Mr. Marri when the firing had taken place at Jinnah Road. No recovery was effected from him at the time of his arrest. He was also not identified in the identification parade by Khurshid Alam, A.S.I. The judicial confession made by him was not accepted by the learned High Court for valid reasons. In this view of the matter, his participation in the occurrence appears to be doubtful.
He was, therefore, rightly acquitted by the learned High Court. We see no reason to differ with the conclusion arrived at by the learned High Court about his participation in the occurrence, nor find that any miscarriage of justice has been taken place by his acquittal. In consequence the State Appeal (Criminal Appeal No,250 of 1996) and Criminal Appeal No,302 of 1997, filed by Mrs. Sallal Akbar Bugti, are dismissed.
24. So far as Khawand Baldish and Sabz Ali (appellants in Criminal Appeal No,249 of 1996) are concerned, they were identified in the identification parade, the fire-arms recovered from them were found to have matched with the crime empties recovered from the spot. They are named by the injured eye-witnesses accompanying the deceased at the relevant time. They had a motive against the deceased. They were, therefore, rightly convicted and properly punished. Their appeal is dismissed. The principle of falsus in uno falsus in omnibus would not be applicable to their case because of availability of sufficient corroboratory material against them. The rule about the indivisibility of the testimony of a witness is that ordinarily if he is found to have falsely implicated an accused person, he should not be relied upon with regard to the other accused in the same occurrence, but if his testimony stands corroborated by strong and independent circumstances regarding the other, the reliance might then be placed on him for convicting the other accused.
The Courts are required to separate grain from the chaff by considering whether the same tainted evidence stands corroborated from some independent and strong circumstance or evidence. The following cases may be cited where the circumstances in which the principle of falsus in uno falsus in omnibus and its applicability in Pakistan in different situations was elaborately discussed:--
(i) Tawaib Khan and another v. The State PLD 1970 SC 13,
(ii) The State v. Mushtaq Ahmad PLD 1973 SC 418,
(iii) Muhammad Shafi and 4 others v. The State 1974 SCM R 289, (it+) Aminullah v. The State PLD 1982 SC 429, and (v) Muhammad Nawaz v. ' The State 1984 SCM R 190. The delay in dispatching the crime weapons and empties also does not appear to be of any significance because according to the report of the Ballistics Expert seals on the parcels were intact when the same were received by him, and further that no suggestion was made to the concerned prosecution witnesses that the crime empties or fire-arms were tampered with at any stage, nor were they cross-examined as to the reason for the delay in dispatching the sealed parcels to the Ballistics Expert. In this behalf, a reference may be made to Sikandar and 2 others v.
The State PLD 1981 SC 477, at p.483 where the above principle was enunciated. The relevant portion is reproduced below:-- "As in the case of Noor Alam, the evidence in the present case is that the articles found stained with blood were secured under a proper Mushirnamas and properly sealed and there was not even a suggestion of any tampering. The Investigating Officer was also not cross-examined as to the delay in sending the parcels to the Chemical Examiner. The High Court was, therefore, not in error in relying on the recoveries as corroboration of the ocular evidence."
However, the case of 'Chair Jan (appellant No,3 in Criminal Appeal No,249 of 1996) appears to be distinguishable from Khawand Bakhsh and Sabz Ali appellants because the rifle recovered from him was not found to have matched with any of the crime empties recovered from the spot but was only found in have been fired without specifying the period of its use, therefore, considering it to be an extenuating circumstance, we think that the ends of justice will be met if he is awarded the lesser sentence provided for the offence of murder. We , and alter his death penalty to imprisonment for life plus a fine of Rs,50,000, or in default to undergo further R.I. For one year with benefit of section 382-B, Cr.P.C. However, his conviction and sentence under section 324/34, P.P.C.
For causing injuries to the injured P.Ws. Is maintained. Both the sentences shall run concurrently.
With this modification in the sentence his appeal is otherwise dismissed.
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