1. ' RAJA FAYYAZ AHMED, C.J.-Appellant Haji Shaiikat Ali has been convicted under section 302(c), P.P.C. And sentenced to twenty five (25) years' R.I. And to fine of Rs,1,00,000 in default of payment of fine to further undergo S.1. For three years vide judgment dated 30-9-1999 passed by the learned Additional Sessions Judge-IV, Quetta in Sessions Case No,61 of 1998.
2. ' Criminal Revision No,157 of 1999 has also been filed by the father of the deceased lady namely Abdul Razzaque against the impugned judgment seeking for enhancement of the sentence awarded to the appellant to that of death penalty in accordance with law, therefore, by this common judgment, we intend to dispose of this Criminal Appeal as well as the Criminal Revision.
2. Brief facts of the case are that on 24-6-1997 on receipt of information by IP/S.H.O., Police Station, Saddar Quetta Malik Muhammad Ali (not produced at the trial) that a woman in injured condition has been brought to the Civil Hospital, Quetta he alongwith Abdul Aziz S.I./A.S.H.O., Abid Hussain A .S.I., Constables Police Abdul Ghaffar and Muhammad Ibrahim as per 'Roznamcha' entries proceeded to Casualty Department of Civil Hospital, Quetta, where he found a woman lying in injured condition in the Casualty Department of the hospital, whose name after their arrival was disclosed to be Mst. Kauser Razzaque wife of Amir Muhammad, Caste Raisani and on bodily inspection of the injured I.P./S.H.O. As per Murasila Exh.P/9-A sent to the Police Station, found two bullet wounds on the right leg and abdomen of the lady about which according to the Police Officer he came to know that on the said date about 8-45 a.m. Haji Shaukat Ali who happens to be the brother of her husband on account of a domestic dispute injured the lady by means of firing.
3. He accordingly; prepared the injury report and handed over the same to the duty Doctor, who admitted the injured woman for treatment in the ward. It has further been noted in the Murasila Exh.P/9-A that Mst. Kauser Razzaque was found to be unconscious and thus; was not in position to give statement and at 10-15 p.m. On the same date murasila was sent tothe police station for registration of the case under section 324, P.P.C. Against accused Haji Shaukat Ali.
3. P. W . Abdul Aziz S I P /Pol ice Station Saddar was entrusted with the investigation of the case after registration of the F.I.R. He prepared sketch of Wardat after inspecting the site and on receipt of information that Mst.Kauser Razzaque has succumbed to injuries he proceeded to the hospital and prepared inquest report of the deceased and sent the dead body of the deceased for post- mortem examination and; on application of the husband of the deceased lady namely Amir Muhammad without postmortem examination dead body was handed over to him under orders of the Assistant Commissioner/SDM. During the course of investigation Haji Shaukat Ali allegedly made disclosure to Investigating Officer pursuant to which he affected recovery of a revolver and an Arms licence, taken into possession by the Investigating Officer, who also took into possession four empties on unloading the revolver and prepared relevant memos: relating to the recoveries etc. And recorded statements of P.Ws. Under section 161, Cr.P.C. The revolver and empties were sent to Fire-Arm Expert, Karachi for examination and report, whereas: the blood-stained clothes of deceased were also sent to F.S.I,. For examination and report by the S.H.O. On receipt of expert report from F.S.L., Quetta and death certificate issued by the Medical Officer, incomplete challan was filed in Court. On receipt of expert report complete challan was finally submitted in the Court, after completion of the investigation.
4. The learned Sessions Judge, Quetta consequent upon submission of the challan and papers of the case, transferred the same to the file for learned Additional Sessions Judge-II, Quetta ' and thereafter, during pendency of the trial, the case was transferred to the file of learned Additional Sessions Judge-IV, Quetta. The learned transferee Court hereinafter referred to as the learned trial Court indicted the accused on the charge under section 302, P.P.C. In the light of accusation as contained in the FIR., on account of the injured having succumbed to wounds, to which he pleaded not guilty and the prosecution to substantiate the accusation preduced nine (9) witnesses namely Dr.Khalid Hamayun, Medico-legal Officer, Casualty Department, Civil Hospital, Quetta (P.W.1), Syed Abdul Jabbar, Chemical Expert, F.S.L., Quetta (P.W.2), Abdul Razzaque (father of deceased, P.W.3), Amir Muhammad (husband of deceased, P.W.4), Haji Sher Muhammad (father of accused, P.W.5), Ghulam Farid, Constable/Police Station Saddar (P.W.6), Abid Hussain A.S.I. (one of Mushirs, in whose presence bloodstained clothes of the deceased were taken into possession by the S.I.P., P.W.7), Muhammad Naseem, police constable (in whose presence allegedly revolver and empties etc. Were taken into possession, who statedly accompanied the Investigating Officer and Malik Muhammad Ali I.P./S.H.O. To Civil Hospital, Quetta on receipt of information and is also the witness relating to the recovery of revolver etc. P.W.8) and Abdul Aziz, S.I.P./Investigating Officer (P.W.9).
4. ' After close of the prosecution evidence, accused was examined under section 342, Cr.P.C. In the light of the accusation and the incriminating pieces of evidence. He did riot opt to record his statement on oath within the .Purview of section 340(2), Cr.P.C. And produced only one witness in defence namely Ahmed Jan. After close of the parties 'case, the learned trial Court vide judgment impugned herein convicted and sentenced the accused as herein aforementioned.
5. PROSECUTION EVIDENCE.
5. ' Khalid Hamayun, Medico Legal Officer, Casu/lty Department, Civil Hospital, Quetta.
6. ' According to the Medical Officer on 24-6-1997 he was on duty in the Casualty Department of Civil Hospital. Quetta when at about 10-00 p.m. a woman in injured condition namely Kauser Razzaque was brought to him for medical examination which he conducted and found the following injuries on her person:-- "INJURIES:
1. An opening of about 3 x 2 c.m. Lateral side of right thigh on upper region.
2. An opening of about 3 x 3 c.m. Just below the umbilical' on mide line containing omentum with fatty tissues.
7. 3.An entrance of about 1 x 1 c.m. With tattoo marks on left side of abdomen.
4. Bruise on all lower abdominal region.
5. Abrasion with tattoo marks of about 3 x 1 c.m. With skin removed just like bullet on upper most region of left thigh anteriorly located.
6. Abrasion line shaped vertically located just medial to first mentioned wound on left thigh enteriorly."
8. ' The Medical Officer deposed further that emergency treatment was provided to the lady in the Casualty Department and IV route maintained and; her general condition was not satisfactory therefore, she was referred to female surgical unit where she did not improve and expired at 11-30 p.m. On the same night. Her death was certified by the Doctor on duty in Female Surgical unit. As per Opinion of the Medical Officer the possible cause of death was the injury to the abdominal cavity of the lady e.g. Internal and external, bleeding, shock and death. Dr.Khalid Hamayun further deposed that as per X-ray report multiple fractures were observed on pubosacral bone on either sides. He produced the M.L.C. Issued by him under his signature after examination of the injured as Exh.P/1-A .
9. ' Sved Abdul Jabbar, Chemical Expert, F.S.L., Quetta (P.W.2).
10. ' He has produced the Chemical Expert report issued by him under his signature as Exh.P/2-A. He deposed that on 1-8-1997 a sealed parcel of blood-stained 'Shalwar' and 'Qameez' was received in F.S.L. From Police Station Saddar, Quetta and on chemical analysis of these articles he came to the conclusion that the same were stained with human blood.
11. ' Abdul Razzaque son of Amir Bakhsh (P.W.3).
12. ' He is father of deceased Mst. Kauser Razzaque. He stated that on 24-6-1997 at 9-00 p.m. He was present in his house situated at Arbab Ghulam All Road when his sister-in-law namely Sakina Bibi told to him that she was informed by Haji Sher Muhammad that Haji Shaukat Ali (accused) was cleaning his revolver when it went off and the bullet hit on the leg of Kauser Razzaque. He explained that Mst. Kauser Razzaque was her daughter and wife of Amir Muhammad and that Mst. Sakina is also the sister-in-law of Haji Sher Muhammad and wife of his uncle as well as happens to be his aunt (mother's sister). He further deposed that he was told that his daughter Mst. Kauser Razzaq had been shifted to General Hospital and he should reach there (objection to the admissibility of such part of the statement of the witness was taken by the learned defence counsel being hearsay on the ground that Mst. Sakina was not cited as prosecution witness in the calendar of witnesses).
13. ' Further P.W.3 stated that he alongwith his son Shahid Razzaque left for General Hospital in a Rickshaw and saw that her daughter Mst. Kauser was being shifted in ambulance by her husband Amir Muhammad including mother of Amir Muhammad and other ladies and proceeded to Civil Hospital, Quetta and he also in the vehicle of Amir Muhammad left for Civil Hospital, Quetta and when she was being removed from the ambulance, he approached to his daughter and asked as to what had happened to her, to which in very weak voice, according to the Witness, she stated that she had done nothing and; did never use/apply amulet etc. And for no justification she has been fired at by Shaukat Ali. Father of the injured, further stated that she was shifted to ward but succumbed to injuries at 11-30 p.m. The witness stated that his daughter was in senses and also asked for water to her husband Amir but the Doctor did not allow and; her dead body was received by Amir Muhammad and on the next day she was buried. He identified the appellant as the accused.
14. ' Amir Muhammad son of Haji Sher Muhammad (P.W.4), ' According to him deceased Mst. Kausar Bibi, who was his aunt's daughter, was married to him on 20-5-1990 and; out of wedlock three children took birth and; on the date of incident on 24-6-1997 at 8-00 p.m. After meal he went to a shop situated near to his house and after half an hour a child came to him and informed that he has been called to home and when he went to his house he found his wife lying injured in the veranda and did not see who had injured her.
15. ' At this stage, the learned State counsel requested that the witness may be declared hostile on the ground that he was concealing the facts. The learned Court after hearing the parties' counsel declared the witness as hostile and afforded opportunity to the State counsel to cross-examine the witness, which opportunity he availed. The learned defence counsel did not avail the right of cross- examination despite opportunity.
16. ' Haji Sher Muhammad son of Abdul Ghafoor (P. W .5).
17. ' He deposed that on 24-6-1997 he was not present in his house and came back at 10-00 p.m. And found that his children were weeping and; on being asked he was told that their 'Bahbi' wife of Amir Muhammad was lying injured in the veranda due to firing and on being further asked, the children told to him that they did not see anybody as having resorted to firing.
18. ' At this stage, on the request of learned A.D.A. This witness was also declared hostile by the learned trial Court after hearing the parties, accordingly; opportunity of cross-examination was afforded to the State counsel, who availed the same. Also; the learned defence counsel cross-examined the witness.
19. ' Ghulam Farid, Constable Police Station, Saddar, Quetta (P.W.6).
20. ' According to him on 3-7-1997 he was posted in Police Station Saddar and on the said date, accused Shaukat Ali was in police custody, who was taken to his house situated in Deba by Aziz S.I.
21. Accompanied by Irfan and by the witness and the accused from his residential room situated towards north produced a revolver from an with arms licence issued in the name of his father, Haji Sher Muhammad. The witness further added that the accused disclosed that he killed his 'Bahbi' by means of the same revolver (admissibility of the such part of statement of the witness was objected to by the learned defence counsel). The witness further stated that Abdul Aziz, S.I.
22. Prepared memo: on which he and Irfan inscribed their signatures as 'Mushirs', but does not remember as to how many other articles were taken into possession by the Police Officer and that parcel of the recovered revolver was prepared. He produced the memo: as Exh . P/6- A .
23. ' The learned counsel for the complainant Mr.Akhtar Zaman pointed out to the Court that deliberately false statement has been made by the witness that he and Irfan inscribed their signatures on the . Parcel although; on the memo: as well as on the parcels Muhammad Naseem had inscribed signatures as one of the 'Mushirs' and similarly he dishonestly mentioned about the room other than from which the revolver was recovered. The learned trial Court after hearing the parties' learned counsel and the learned State counsel declared the witness as hostile and afforded opportunity of cross-examination to them. The learned counsel for the complainant under instructions from A.D.A. Availed the opportunity of cross-examination and also the witness was cross-examined by the learned defence counsel.
24. ' Abid Hussain A.S.I./Police Station the then Police Station Saddar, Quetta (P.W.7).
25. ' He along with S.H.O./Police Station Saddar and Tasleemul Hassan on 25-6-1997 went to the house of Haji Sher Muhammad for collecting blood-stained clothes of the deceased lady which were handed over to the S.H.O. By Haji Sher Muhammad, who took the same into possession vide memo: Exh.P/7-A produced by the witness bearing his signatures as one of the 'Mushirs'. He produced the blood-stained clothes and the parcel in which these were sealed in his presence as articles, in Court.
26. ' Muhammad ' Naseem, the then Constable Police, the Police Station Saddar, Quetta (P.W.8).
27. ' According to him on 26-9-1996 he was on duty in Police Station Saddar when Aziz Buzdar S.I.P.
28. Called them to the room of S.H.O. And in their presence during interrogation made by Aziz Buzdar S.I., accused Haji Shaukat Ali, disclosed that he can lead to the recovery of the revolver, with which he killed his 'Bahbi' and thereafter, S.H.O. Took the accused along with them to Deba road and they entered in the house and from iron almirah of residential room of the house accused took out a revolver and produced the same to Aziz Buzdar and on being unloaded four empties were recovered from the revolver. He added that the revolver and the empties were sealed into parcels and memo: was prepared by the Police Officer in his preience on which he put his signatures as one of the 'Mushirs'. He produced the memo as Exh.P/6-A and the parcel along with its contents e.g. Revolver and the empties as articles.
29. ' Abdul Aziz, S.I.P./Investigating Officer (P.W.9).
30. ' On 24-6-1997 he was posted in Police Station Saddar, Quetta and according to him I. P. /S. H .0.
31. Malik Muhammad Ali informed to him that a lady has been brought to Civil Hospital in injured condition therefore, he along with the S.H.O. Left for the hospital, where a lady namely Mst.Kauser Razzaque was found lying in injured condition and; thereafter, the S.H.O. Sent murasila to the police station for registration of case under section 324, P.P.C. Which he produced as Exh.P/9-A by identifying the signature of Malik Muhammad Ali the then S.H.O. (since deceased). He was entrusted with the investigation of the case. According to the witness he found bullet wounds on the person of Mst. Kauser Razzaque, who was admitted in the ward by the Doctor and from the hospital he left for the place of incident i,e, house of Haji Sher Muhammad and carried out inspection of the site and prepared the sketch of Wardat which he produced as Exh.P/9-B bearing his signature and also recorded statement of Haji Sher Muhammad. He added that when he was present at the place of incident information was received that Mst. Kauser succumbed to injuries therefore, he left for the hospital and prepared inquest report which he produced as Exh.P/9-C and the dead body was shifted to mortuary for postmortem examination and on application of the husband of lady namely Amir Muhammad, dead body was handed over to him without conducting postmortem under the orders of the Assistant Commissioner/S.D.M. He also produced application moved by Amir Muhammad as Exh.P/4-A wherein' according to the witness it was mentioned that his wife has been killed by his brother Haji Shaukat 411. The witness deposed that search for accused Shaukat Ali was made but he was not traceable and ultimately; was arrested on /9-6- 1997 and on 3-7-1997 during course of interrogation accused disclosed in police station that he can lead to the recovery of revolver with which he killed his 'Bahbi' therefore, they along with accused went to his house, who produced a 32 bore revolver with its licence issued in the name of Haji Sher Muhammad from the almirah of a residential room of his house and on unloading the revolver four empties were recovered, which were sealed into parcel in his presence and were taken into possession by memo Exh.P/6-A. He produced the revolver, licence and the empties and the parcels as articles in Court. After recovery of the revolver Murasila was sent to the police station for rejstration of the case against. Accused section 13-E of Arms Ordinance, 1965. He also sent the blood-stained clothes of the deceased and the empties for examination and test analysis to the laboratory. He explained that since the microscope available with the F.S.L. Was not in order, therefore, he sent the revolver and the empties to FireArms Expert, Karachi for examination and report and on 15-7-1997 case file was handed over to the S.H.O. For preparation of incomplete challan. He produced the incomplete challan prepared by S.H.O. Malik Muhammad Ali (since dead) as Exh.P/9-D by identifying the signature of late S.H.O. Subsequently report of articles from F.S.L.
32. Was received and supplementary challan was prepared by the then S.H.O., which he produced as Exh.P/9-D and on receipt of death certificate of deceased Mst. Kauser Razzaque the third incomplete challan was submitted in Court and on receipt of report of Fire-Arms Expert on 23-6- 1998 complete challan was submitted in Court on 23-6-1999. He tendered in evidence report of the Fire-Arms Expert, Karachi as Exh.P/9-G and the complete challan was produced as Exh.P/9-H prepared by the then S.H.O./Police Station Saddar. He identified the appellant as the accused.
6. DEFENCE EVIDENCE ' Ahmed Jan son of Khudai Rahim, Shopkeeper, Killi Deba, (D.W.1).
33. ' He deposed that he is a shopkeeper by profession in Killi Deba and knows accused Haji Shaukat Ali, present in Court, whose house is situated at a distance of 10/12 ft: from his shop. According to him he (D.W.) used to sit in his shop from the morning at 6-00 a.m. To 4-00/5-00 p.m. He further stated that he does not remember the exact date, but it was in the month of June and after 8/10 of death of the wife of Amir Muhammad whet police came to his shop, Haji Sher Muhammad also came out of his house with whom the police had talked at the door; during process whereof; Haji Sher Muhammad handed over a revolver to the police along with a book having yellow colour. He stated that the police after having taking over the revolver went back.
7. Mr. Muhammad Aslam Chishti, for the appellant, Mrs. Ashraf Abbas, Advocate for the State and Mr.Akhtar Zaman Advocate for the complainant have been heard at length. The learned counsel for the appellant contended that:--
(A) Postmortem of the deceased was not conducted and the cause of death of deceased Mst.
34. Kauser Bibi has not been exactly determined.
(B) There is no ocular witness of the incident which allegedly took place inside the house and the circumstantial evidence produced by the prosecution does not qualify the test that no inference except the guilt of the accused to be spelt -out, recovery of crime weapon and the empties having been allegedly made pursuant to the alleged disclosure made by the accused and at his instance is doubtful and the evidence produced in such behalf by the prosecution cannot be made subject of implicit reliance, inasmuch as; one of the recovery witnesses P.W. Ghulam Farid was declared hostile, which consequently; render the report of the Ballistic Expert (Exh.P/9-G) as inconsequential.
35. Possibility of tampering with the alleged recovered revolver and empties cannot be excluded in view of delayed dispatch of articles to expert.
(C) After a considerable delay revolver and the empties were sent to the Expert and; in this regard no explanation has been offered by the Investigating Officer, casting serious doubt about genuineness of the crime empties.
(D) P.W. Sher Muhammad (father of appellant) on demand by the Police Officer/Investigating Officer produced his licensed revolver supported by evidence of D.W.1 makes the case of the prosecution highly doubtful as regards the recovery of the revolver having been allegedly made at the instance of accused and pursuant to his stated disclosure.
(E) The attributed dying statement of deceased lady appears to be doubtful and does not withstand the test of its being true and genuine and more particularly for the reason that in view of serious gunshot injuries suffered by the lady and on account of professed bleeding she cannot be found to have the capacity to disclose about the incident.
(F) Evidence of P.Ws. Amir Muhammad (husband of deceased lady), Sher Muhammad (father of accused) and Ghulam Farid, Police Constable is Worthless in absence of independent corroboration, which lacks in the instant case.
(G) Source of information which consequently led the Police Officer to visit the Casualty Department of the Civil Hospital, Quetta has not been disclosed nor the Police Officer (author of murasila) which formed basis for registration of the F.I.R., was produced by the prosecution.
(H) Statement made by the accused during examination of P.Ws. Ghulam Farid and Abid Hussain with regard to the admission of certain facts does not constitute offence of Qatl-i-Amd and secondly; the same stands explained by the accused while under examination by the Court under section 342, Cr.P.C., therefore, the same does not improve the case of the prosecution on such score.
(J) Charge against the accused was not established beyond shadow of any reasonable doubt.
(K) The learned trial Court by misconstruing and misappreciating the evidence of the prosecution wrongly and illegally held the accused to be guilty on the charge.
(L) The prosecution evidence being not free from doubts, cannot result into conviction of the accused, who thus; is entitled to be extended the benefit of doubt in his favour.
36. ' Mr. Muhammad Aslam Chishti placed reliance on the reported judgments i,e, PLD 1976 Pesh. 90; 1987 MLD 2638 and PLD 1982 Lah.
37. 577.
8. Mr.Akhtar Zaman contended that:--
(A) The prosecution has successfully proved that the deceased lady succumbed to injuries on account of gunshot injuries suffered by her through medical evidence who was removed to the hospital by P.W. Amir Muhammad immediately after the incident.
(B) Through unimpeached testimony of P.W. Abdul Razzaque genuineness and truthfulness of the dying statement of the deceased lady was proved and the same can be safely relied upon for the purpose of recording conviction.
(C) There was no on the part of the father of the deceased lady to falsely depose against the accused and to substitute real culprits.
(D) Recovery of the revolver and empties pursuant to disclosure made by the accused during the course of investigation and at his instance has been proved beyond doubt and the same was produced from the almirah of a residential room of the house in which the accused was residing with his father and brother, was known only to accused, supported by the positive report of the Ballistic Expert excludes possibility of recovery being doubtful in the given facts and circumstances of the case and one of the 'Mushirs' e.g. Ghulam Farid, Constable though; declared hostile by the learned trial Court does not adversely affect the recovery of the revolver and empties as having been made, as a result of disclosure made by the accused and at his instance in view of independent corroboration through P.Ws. Muhammad Naseem Constable and Abdul Aziz S.I.P./Investigating Officer.
(E) The Medical Officer was subjected to cross-examination on behalf of the accused, but the defence failed to show or indicate that the deceased lady had no capacity at the relevant time on account of the injuries suffered by her to make statement to her father about the incident and therefore, in absence of any such material it cannot be assumed that she was not capable to make any statement.
(F) Statements made by the accused on his own during the trial are admissible and due weight and consideration to be attached to such admissions being relevant facts as well as being the first version of the accused, coming before the Court.
(G) The circumstantial evidence produced by the prosecution withstand the test in view of the settled principles of criminal administration of justice and being true, straightforward and convincing deserves to be given due weight.
(H) Delay in recording statement of P.W. Abdul Razzaque (father of the accused) has been explained by the Investigating Officer and even by the witness, hence; his evidence in the circumstances of the case can be safely relied upon.
(J) Application (Exh.P/4-A) promptly filed by P.W. Amir Muhammad (husband of the deceased lady and brother of accused) lends further support to the case of the. Prosecution.
(K) In absence of any or motive on the part of the police to falsely implicate the accused, delay per se in despatching the revolver and the empties to Expert and more particularly for the reason that the same were recovered at the instance of the accused, will not be fatal to the case of the prosecution.
38. (L)Conduct of the accused soon after the incident in view of the evidence of his father and real brother (P.Ws. Amir Muhammad and Sher Muhammad) being substantially relevant needs due consideration and weight to be attached to.
(M) The prosecution version/accusation as contained in the murasila based upon the information gathered by Police Officer on reaching to the hospital is admissible in evidence as res justae.
(N) Evidence of P.Ws. e.g. Amir Muhammad, Sher Muhammad and Ghulam Farid declared hostile by the learned trial Court, to the extent the same rings true and corroborated by other evidence can be safely relied.
(P) That prosecution has successfully established the charge beyond any reasonable doubt which could not be impeached, discredited or rebutted by the defence hence; on proper appraisal of evidence the trial Court found the accused as guilty on the charge.
(Q) There being no mitigating circumstances, hence; the appellant is liable to normal penalty of death for committing Qatl-i-Amd by way of Ta'zir under section 302(b); P.P.C. And his conviction wrongly recorded by the learned trial Court under section 302(c), P.P.C., liable to be converted to that of under section 302(b), P.P.C. By modifying the impugned judgment and; the criminal revision may in the interest of law and justice be accordingly; allowed.
39. ' Mr.Akhtar Zaman in support of his arguments placed reliance on the reported judgments e.g. 1092 SCMR 1625; PLD 1996 (Qta.) 4b; 1996 PCr.L.J. 1689; PLD 1982 (Lah.) 180; AIR 1940 (Sind) 53; 1998 PCr.L.J.
40. 216; 1982 SCMR 53; PLD 2001 SC 107; 1989 PCr.L.J. 373; 1998 PCr.L.J. 837; PLD 2000 SC 12 and 1995 SCMR 1776.
9. Mrs. Ashraf Abbas, the learned Advocate, who appeared for the State adopted the arguments of Mr.Akhtar Zaman.
10. We have considered the contentions put forth on behalf of the parties in the light of the record of the case, gone through carefully including the impugned judgment. The case-law cited by the appellant's learned counsel as well as Mr.Akhtar Zaman, the learned counsel for the complainant have been considered in view of their respective pleas as well as facts of the case.
41. ' Prosecution case... Compress of the following pieces of evidence:-
(i) Medical evidence.
(ii) Recovery of revolver and empties pursuant to diclosure made by accused and on his pointation.
(iii) Ballistic Expert Report.
(iv) Dying statement of the deceased Mst. Kauser Bibi, and;
(v) Circumstantial evidence. (i) MEDICAL EVIDENCE.
42. ' According to P.W. Khalid Humayun, Medico Legal Officer, Casualty Department, Civil Hospital, Quetta on 24-6-1997 at about 10-00 p.m. When he was on duty in the Casualty ' Department of the hospital a woman in injured condition namely Kauser Razzaque was brought to him for medical examination, which he conducted and found the following injuries on her person:-- "INJURIES:--
1. An opening of about 3 x 2 c.m. Lateral side of right thigh on upper region.
43. 2 An opening of about 3 x 3 c.m. Just below the umbilical on mid line containing omentum with fatty tissues: ' An entrance of about I x 1 c.m. With tatoo mark on left side of abdomen.
44. ' Bruise on all lower abdominal region.
45. ' Abrasion with tatoo mark of about 3 x 1 c.m. With skin removal just like bullet on upper most region of left thigh enteriorly located.
46. 6.Abrasion line shaped vertically located just medial to first mentioned wound on left thigh anteriorly."
47. Except the injury noted at S.No,4 above, all other injuries as per medical evidence appear to have been caused by fire-arm. Since general condition of the injured was found not satisfactory by the Medical Officer therefore, he provided emergency treatment to the injured lady in the Casualty Department besides maintaining IV route, and thereafter; she was referred to Female Surgical Unit where she did not improve and on the same day expired at 11-30 p.m. Her death was certified by the Doctor on duty in Surgical Female Unit. P.W. Dr.Khalid Humayun further stated that possible cause of death of the injured lady was the injuries to abdominal cavity e.g. Internal and external, bleeding, shock and death. The Medical Officer further deposed that as per X-ray report multiple fracture were observed on pubosacral bone on either sides and he produced the M.L.C. Issued by him under his signature after examination of the injured as Exh. P/1-A. On cross-examination by the learned defence counsel, the Medical Officer explained that the injured lady was brought to the Casualty Department by her relatives and he cannot give the name of any of her relatives nor he has brought the X-ray report. He further stated that he does not remember as to which of the Doctor certified her death 'and voluntarily stated that after death of the deceased he had himself examined the dead body. It has been brought on record during cross-examination that the injured lady Mst.Kausar Razzaque was brought to the Casualty Department of the hospital in injured condition by her relatives and as regards findings of the Medical Officer is concerned that he after examination of the lady noted the above-mentioned injuries on her person and that possible cause of death was on account of the injuries suffered by the lady on her abdominal cavity internal as well as external bleeding, shock and death has not been challenged or disputed by the defence, therefore, it can be safely inferred from the medical evidence that the deceased had suffered the fire-arm injuries mentioned in the M.L.C., out of which the injuries caused to her on abdominal cavity resulted into excessive internal and external bleeding, on account of which she went into shock and died, despite emergency treatment given to her by the Casualty Medical Officer. In our considered view, as it appears from the medical evidence that the injuries sustained by the deceased lady to her abdominal cavity in the ordinary course of nature were sufficient to cause her death. No other cause of death of deceased lady could be shown by the defence and there is nothing on record to suggest that the deceased did not meet a violent death. Abdul Aziz, S.I.P./Investigating Officer (P. W .9) accompanied I. P . /S . H. 0 .
48. Malik Muhammad Ali to Civil Hospital, Quetta and found Mst. Kauser Bibi admitted in the ward by the Doctor, had suffered bullet wounds and from the hospital he left for the place of incident i,e, house of P.W. Haji Sher Muhammad and carried out the inspection of the place of incident and prepared sketch of Wardat and also recorded statement of Haji Sher Muhammad, when information was received that Mst. Kauser Bibi has succumbed to injuries, therefore, he left for hospital and prepared inquest report which produced as Exh.P/9-C and the dead body was shifted to mortuary for postmortem examination. Perusal of the inquest report reveals that the Investigating Officer also found that the deceased lady had suffered fire-arm injuries, out of which two fire-arm injuries have been noted by him as seated on vital part of her body (left and right side of chest). It has further been observed in the inquest report that a sufficient quantity of blood had oozed out from the wounds. From the material produced by the prosecution at the trial it has been abundantly proved that the Mst. Kauser Bibi had sustained fire-arm injuries and through medical evidence as above discussed it has been successfully proved by the prosecution that she succumbed to such injuries which in the ordinary course of nature were sufficient to cause her death, therefore, the plea urged before us by Mr. Muhammad Aslam Chishti that postmortem of the dead body was not carried out, hence; cause of her death was not exactly determined; appears to us to be not sound, because apparently and in view of the medical evidence referred to above there cannot be any second opinion with regard to the cause of death of the deceased lady nor the defence at the trial has disputed the same, hence; in absence of any other material available on record it cannot be assumed that she died due to some other factor and not on account of gunshot wounds.
(ii) RECOVERIES.
49. ' In order to prove that the revolver and the empties were recovered by the Investigating Officer (P.W.9) pursuant to the disclosure made by the accused during investigation of the case and; on his pointation, P.Ws. Ghulam Farid, Muhammad Naseem, Constables of Police Station Saddar Quetta and Abdul Aziz S.I.P./Investigating Officer (P.W.9) were produced by the prosecution and out of these P.Ws. Ghulam Farid constable was declared hostile by the learned trial Court. With regard to the recovery of the crime weapon and the empties, the learned counsel for the appellant contended that the same was doubtful and the evidence produced in such behalf by the prosecution cannot be made subject to implicit reliance, inasmuch as; one of the recovery witnesses P.W. Ghulam Farid was declared hostile which consequently; render the report of the Ballistic Expert Exh.P/9-G as inconsequential. Reverting to the evidence of these P.Ws. It may be seen that according to P.W. Ghulam Farid constable on 3-7-1997 accused Shaukat Ali was in police custody and was taken to his house situated in Deba by Abdul Aziz S.I. Accompanied by Irfan and by the witness and the accused from the almirah of a residential room of his house, situated towards north produced a revolver with arms licence issued in the name of his father Haji Sher Muhammad. Also, P.W. Ghulam Farid added that accused disclosed that he killed his 'Bhabi' by means of the same revolver (admissibility of the such part of statement of the witness was objected to by the learned defence counsel). The witness further deposed that Abdul Aziz, S.I.
50. Prepared memo: on which he and Irfran inscribed their signatures as 'Mushirs', but does not remember as to how many other articles were taken into possession by the Police Officer and that parcel of the recovered revolver was prepared. He produced memo Exh.P!6-A prepared in his presence by the Investigating Officer bearing his signature; at this stage the learned counsel for the complainant pointed out to the Court that deliberately false statement is being made by the witness that he and Irfan inscribed their signatures on the parcel, although; on the memo: as well as on the parcels Muhammad Naseem had inscribed signatures as one of the 'Mushirs' and the same were not signed by constables Irfan, moreover; similarly the witness dishonestly mentioned about the room other than from which revolver was recovered. It may be noted that the learned trial Court after hearing the learned State counsel as well as the counsel for the parties declared the witness as hostile and; under instructions from the learned State counsel, Mr.Akhtar Zaman, learned counsel for the complainant cross-examined the witnesses. The 'learned defence counsel also cross-examined the witnesses. Before dilating upon the evidence of this witness and the other prosecution witnesses relating to the recovery of revolver and empties it would be appropriate to consider as to whether evidence of a hostile witness is liable to be discarded and excluded from the consideration straightaway or can it be considered to any extent which rings true and is corroborated by other independent evidence. It is a well-settled principle of law that deposition of a hostile witness can be taken into consideration subject to corroboration and there is no rule of law which provides that no weight or importance to be attached to the evidence of a hostile witness, rather; evidence of such witness needs to be scrutinised with great care and caution with a view to find out truth and to come to a just conclusion before placing any reliance on the evidence of a hostile witness or a part of evidence of such witness, provided it finds support from other evidence and rings true, thereto subject to such qualification, evidence of a hostile witness can be acted upon and is not liable to be thrown out of consideration, 1996 PCr.L.J. (Qta.) 1689-ref ' P.W.Ghulam Farid in cross-examination admitted that Abdul Aziz Buzdar, Investigating Officer had interrogated the accused in his presence and that of Naseem Constable during the course whereof the accused admitted (disclosed) th4t he can lead to the recovery of revolver with which he has killed his 'Bhabi' (admissibility of the such part of evidence objected to by the learned defence counsel). The witness further admitted in the cross-examination that afterwards he, Irfan, Muhammad Naseem and Abdul Aziz Buzdar (Investigating Officer) along with the accused went to his house and the accused after entering into his house went to his residential room and from an almirah took out a revolver, Arms licence and four empties, which he produced to the police.
51. ' On cross-examination by the learned defence counsel the witness stated that they went to the house of the accused at 10-45 a.m. And also he explained about the boundaries and location of the house of the accused. Further the witness on cross-examination by the learned defence counsel stated that in his presence accused was interrogated by Abdul Aziz, S.I. And prior to 3-7- 1997 interrogation/investigation was not done in his presence. He admitted the suggestion put by the defence as correct that accused while producing the revolver had stated that it was the same with which he has killed his 'Bhabi'. On question by the defence the witness stated that the revolver was recovered from a room of the house situated in the north and from an iron almirah and that parcel . And 'Fard' of the revolver were prepared in the said house. He denied that the accused did not go with them to his house and that the accused did not produce the revolver. He further denied the defence suggestion as not correct that the revolver with its licence was produced by the father of the accused namely Haji Sher .Muhammad.
52. ' The other witness produced by the prosecution with regard to the revolver and empties, is P.W.
53. Muhammad Naseem, Constable Police. According to this witness he was on duty in Police Station Saddar when Aziz Buzdar S.I.P. Called them to the room of the S.H.O. And; in their presence the accused, on interrogation by Aziz Buzdar, S.I. Disclosed that he can lead to the recovery of the revolver, with which he killed his 'Bhabi' and thereafter' the S.H.O. Took the accused alon with them to Deba road where the accused entered into his house and from an iron almirah lying in a residential room of the house, took out a revolver and produced the same to Aziz Buzdar (Investigating Officer) and on being unloaded four empties were recovered from the revolver, which were taken into possession by the Police Officer and sealed into parcels prepared in their presence, on which he as one of the 'Mushirs' inscribed his signature. He produced the recovery memo. As Exh.P/6-A. The witness also produced the revolver, empties and parcels as articles in Court. On cross-examination by the learned defence counsel the witness stated that the parcel and 'Fard' was prepared in the house which belonged to Haji Sher Muhammad and that disclosure memo: of accused for recovering the revolver was prepared and; signed by him. The witness further explained in cross-examination that disclosure was made at about 10-30 a.m. And at that time P.W. Ghulam Farid and Muhammad Irfan were also present, who also signed the same. On further cross-examination by the defence he stated that the almirah from which revolver was taken out, was not locked and he also signed the sketch of the revolver and that the room in which almirah was lying was situated in the north. He further explained on question by the defence that two 'Fards' regarding empties and revolver were prepared and he denied that. No disclosure about the recovery of revolver was made by the accused. He also denied that the revolver was produced by Haji Sher Muhammad. He denied the suggestion that on unloading the revolver four empties were not recovered.
54. ' P. W Abdul Aziz Buzdar S.I.P./Investigating Officer deposed that on 29-6-1997 he arrested accused Haji Shaukat Ali, who on 3-7-1997 during interrogation disclosed to him in the-Police Station that he can lead to the recovery of the revolver, with which he has killed his 'Bhabi' where after, he along with accused went to his house in the official vehicle and on reaching to the destination the accused alighted from the vehicle and went ahead of them and entered into his residential room and produced a revolver 32 bore No,818408 with its licence in the name of Haji Sher Muhammad from the almirah lying in the room and produced the same to the witness. P.W. Aziz Buzdar further stated that on unloading the revolver four empties were recovered. The revolver, empties and the licence, produced by the accused were taken into possession vide memo: Exh.P/6-A, whereas; the revolver and empties were sealed into separate parcels which he produced as articles in Court and murasila was sent for registration of the case against the accused under section 13-E of the Arms Ordinance, 1965. The witness on cross-examination stated that on 1-7-1997 in presence of S.H.O. Accused was interrogated but he did not say any thing about crime weapon. On further questions by the defence, the witness stated that on 3-7-1997 at 11-05 a.m. Accused disclosed about the crime weapon in presence of Ghulam Farid and Muhammad Naseem Constables, while during such disclosure Irfan was not present and certainly afterwards for effecting recovery accused was taken along to his house. The witness stated that disclosure memo: was not prepared and that no one was associated to witness the recovery. He explained that place of recovery was the house of Haji Sher Muhammad and accused was jointly living with his father. He demed that the arms licence- and the revolver was produced by Haji Sher Muhammad. On further question by the defence the witness stated that the almirah was not locked and that Exh.D/1 is the sketch of house and room from where recovery was made.
55. ' From the careful scrutiny of evidence of P.W. Muhammad Naseem Constable (P.W.8) and Abdul Aziz S.I.P./Investigating Officer (P.W.9) it appears that the accused during course of interrogation on 3-7-1997 disclosed that he can lead to the recovery of the revolver, with which he has killed his 'Bhabi' (Mst. Kauser Bibi) 'and at that time P.W. Ghulam Farid, Constable Police and Nasim were also present. Irfan, Constable has not been produced by the prosecution, however; the remaining witnesses regarding stated disclosure made by the accused and relating to the recovery of the revolver and empties as above said were produced at the trial. P.W. Muhammad Naseem, Constable in cross-examination stated that disclosure memo: was prepared in his presence and he signed the same, whereas; the Investigating Officer did not admit in cross-examination with regard to the preparation of any disclosure memo: nor any disclosure memo: was annexed with the challan and it appears that P.W. Muhammad Naseem for reason best known to him made incorrect statement in the cross-examination about the preparation of the disclosure memo and both of these witnesses despite lengthy cross-examination are corpistent op the point that during course of interrogation by the Investigating Officer the accused disclosed on 3-7-1997 that he can lead to the recovery of the revolver, with which he has killed his 'Bhabi', but such fact has not been mentioned by P.W. Ghulam Farid, Constable, who was declared hostile by the learned trial Court, however; evidence of these three witnesses are also consistent on the point that the accused was taken to his house by the Investigating Officer, accompanied by P.Ws. Ghulam Farid and Muhammad Naseem Constables and the accused led them to a residential room of the house, situated in the north and from an iron almirah he produced a revolver and on unloading the revolver four empties were recovered, also arms licence of the revolver in the name of the father of the accused (P.W. Haji Sher Muhammad) was produced and the same was taken into possession vide recovery memo: Exh.P/6-A, produced by the witness, who also identified the revolver, empties and the arms licence. These witnesses were also consistent on the point that the revolver and empties were sealed into separate parcels in their presence on spot where also the recovery memo: was prepared. Also; P.W. Ghulam Farid, according to P.Ws. Muhammad Naseem and Abdul Aziz was present at the time when stately the accused made the disclosure to the effect that he can lead to the recovery of the revolver with which he killed his but P.W. Ghulam Farid did not mention about the disclosure, however; he categorically stated that the accused led the police to his housg and from an iron almirah he produced a revolver to the Investigating Officer, which were taken into possession. However; on cross-examination by the learned defence counsel, P.W.
56. Ghulam Farid stated that in his presence interrogation was made by the Investigating Officer from accused prior to 3-7-1997 and during such period the accused did not say anything about the revolver. The witness on further cross-examination admitted that police had brought accused to his house to Killi Deba and the accused while producing the revolver had stated that it is the same revolver with which he killed his wife. From the trend of cross-examination, conducted by the defence counsel on P.W. Ghulam Farid it appears that the defence did not dispute that the revolver was not produced to the Investigating Officer by the accused brought to his house by the Investigating Officer and he out of his own led to the recovery of the revolver and thus; even the statement of P.W. Ghulam Farid indicates that the accused had made some voluntary offer to the Investigating Officer pursuant to which he was brought to his house by the Investigating Officer and he effected recovery of the revolver and secondly; he categorically stated that the accused entered into a residential room of his house situated on the north and from an unlocked iron almirah he produced the revolver. This witness also identified the pistol and the empties and; produced the recovery memo: in his deposition and merely non-mentioning about the disclosure during the course of interrogation by the witness, in view of the evidence of P.Ws. Muhammad Naseem and Abdul Aziz it cannot be said that the accused did not make any disclosure for effecting recovery of the revolver or that for such reason the evidence of the remaining witnesses to be discarded. To the contrary it appears that P.W. Ghulam Farid deliberately did not disclose about the fact regarding disclosure of accused, which otherwise has been proved through the evidence of P.Ws. Muhammad Naseem and Abdul Aziz, S.I.P., which on the point are consistent and convincing. No or grudge has been attributed to either of these witnesses by the defence about false involvement of the accused or creating fabricated evidence against him. From the evidence of these two P.Ws. It has been proved by the prosecution beyond shadow of doubt that during interrogation from accused .That he can lead to the recovery of the revolver, with which he killed his 'Bhabi' Kauser Bibi) and pursuant to such disclosure the accused was taken to his house and on reaching there from an iron almirah he produced the revolver which was unloaded and four empties were recovered besides the Arms licence of the revolver produced by the accused.
57. Testimony of the hostile witness (Ghulam Farid) also gets independent corroboration from the evidence of the remaining P.Ws. On the point that the accused was brought to his house by the Investigating Officer, who thereafter from the almirah lying in a room situated in the north produced a revolver along with arms licence and on unloading the revolver four empties were also recovered. Moreover; P.Ws. Ghulam Farid also identified the revolver, empties and the arms licence and produced the same as articles in Court .Including the recovery memo: bearing his signature as one of the 'Mushirs' therefore, to such an extent even the evidence of P.W.6 can be safely relied upon, as it gets due corroboration from the evidence of P.Ws. Muhammad Naseem and Abdul Aziz S.I.P./Investigating Officer. There appears a minor confliet with regard to the exact timing of the disclosure made by the accused to affect recovery of the revolver, in the evidence of these P.Ws., but the same in the light of the qualitative and consistent evidence per se does not adversely affect the prosecution evidence with regard to the disclosure made by the accused and recovery of the revolver, hence; in our considered opinion, the prosecution successfully proved that pursuant to the disclosure made by the accused during interrogation that he can lead to the recovery of the revolver with which he has killed his 'Bhabi', revolver was produced by the accused and the same was taken into possession by the Investigating Officer vide memo: Exh.P/6-A and such part of statement in the shape of disclosure which led to the recovery of the revolver being admissible in evidence has rightly been acted upon by the learned trial Court. iii) Ballistic Expert Report (Exh.P/9-G).
58. ' Abdul Aziz S.I.P./Investigating Officer, in his evidence at the trial tendered report of the Ballistic Expert with regard to the recovered revolver and empties as Exh.P/9-G. He deposed that the revolver and the four empties including arms licence of the revolver were taken into possession by him vide memo Exh.P/6-A and the same were initially sent to F.S.L., Quetta for examination and report of the Fire-Arm Expert but as the microscope of the laboratory was out of order, therefore, he sent the same to the Fire-Arm Expert, Karachi for examination and report. In the cross-examination he explained that he himself had gone to F.S.L. For the purpose, but the parcels were returned to him on the same day and on 17-12-'1997 the revolver and the empties were sent to Karachi for examination and report. On further questions by the defence during cross-examination, the witness stated that from 1-8-1997 to 17-121997 revolver was kept in 'Malkhana' under the charge of 'Moharer' and at the moment he is not in possession .Of the record indicating that he had obtained the revolver from the 'Moharer' and explained that the same has been recorded in the 'Roznamcha'.
59. The witness further in cross-examination stated that Hukumat Ali H.C. Had taken the revolver and empties to Karachi and were also brought back by the same Head Constable.
60. ' Before dealing with the contentions of the appellant's learned counsel with regard to the possibility of tampering/manipulation of these articles it would be appropriate to refer to the report of the Fire-Arms Expert (Exh.P/9-G) which shows that on 20-12-1998 two sealed parcels with intact seals were received by the expert from S.S.P., Quetta through H.C. No,348 (Hukumat Ali) in respect of case Crime No,103 of 1997 of Police Station Saddar registered under section 302, P.P.C., out of which the parcel containing 32 bore Revolver No,818408 had 3 seals and the other parcel containing four empties of 32 bore had two seals including five live cartridges of 32 bore for test purposes. As per report the butt of the revolver was signed by the Expert and the empties were marked as C-1 to C-
4. Exh.P/9-G reveals that after examination the crimes empties marked as C-1, C-2 and C-3 were found to have been fired from the above mentioned 32 bore Revolver No,818408 and 32 bore crime empty marked as C-4 was not fired from the above-mentioned 32 bore revolver and one 32 bore test empty was sent back in the sealed parcel of above mentioned fire-arm. It may be noted that report of the Fire-Arms Expert has been tendered in evidence by the Investigating Officer without any objection by the defence and secondly; no request by the defence was made at the trial for summoning the Expert on any point for the purpose of cross-examination, consequently; due consideration and weight has to be attached to such piece of evidence.
61. ' It may be seen that no suggestion with regard to any alleged manipulation or tampering with these articles was given to the witness by the defence during cross-examination and no ill will or motive has been attributed or suggested to the Investigating Officer for tampering with sealed parcels of the revolver and the empties. Moreover; in absence of any material or even any suggestion given to the witness by the defence, delay per se in sending the articles to the Expert for examination and reported in the circumstances of the case will not adversely affect on such piece of corroboratory evidence nor would it make the recovery of the revolver and the empties as doubtful. For the reasons as hereinabove discussed, it has been proved by the prosecution that pursuant to the disclosure made by the accused during investigation, the revolver and. The empties were recovered on his instance and were sealed into two separate parcels, prepared on the spot by the Investigating Officer and the same were received by the Expert with intact seals.
62. The Investigating Officer also explained in the cross-examination that the sealed parcels were kept with the 'Moharer' of the police station and were collected by him for the purpose of examination by the Fire-Arms Expert. Report of the Expert confirms that the sealed parcels were received by hand through H.C. Hukumat Ali and were returned to him duly sealed by the Expert, which at the trial were produced by the witnesses containing the empties and the revolver, recovered at the instance of the accused, therefore, there is no reason to believe that the empties or the revolver were not the same which were produced by the accusqd himself to the Police Officer. It has been held by the Hon'ble Supreme Court in the case of Muhammad Iqbal v Muhammad Tahir and others reported in PLD 1985 SC 361 that recovery of the crime weapon (knife) from the house of the accused, on his pointation, concealed in a pile of rubbish, about which the accused had the exclusive knowledge as to where it was lying, consequently; the delay of sixteen months in sending the recovered knife to the Chemical Examiner per se was not treated as sufficient ground to reject it as corroboratory piece of evidence. While considering mere delay in sending the incriminating article for comparison to Ballistic Expert it has been held by the Hon'ble Supreme Court in the case of Mubarak v. The State 1982 SCMR 531 that delay by itself would not imply recovery being doubtful, and; in the case reported in 1997 PCr.L.I 280 (Khawand Bakhsh and three others v. The State) it has been held that value of report of Chemical Analyzer/Fire-Arms Expert would not become inconsequential when no mala fides is attributed to prosecution for the delayed despatch of incriminating articles. In the instant case the revolver and the empties were taken into possession on the pointation of accused at the same time, therefore, the case law cited by the appellant's learned counsel e.g. PLD 1982 Lah. 577 is quite distinguishable on facts in which initially the empty was recovered and the same was kept lying with the police until the recovery of the gun and thereafter, both the articles remained in the custody of police and were sent together to the F.S.L.
63. For examination and report, hence; the learned Court held that no reliance can be placed on the report of the Expert as the possibility of the substitution of the empty cannot be excluded, moreover; in the said case, as it appears that no explanation was offered by the prosecution as to why till recovery of the gun the empty was kept in custody of the police and was not went to the Expert. Similarly the facts of the case reported in 1987 MLD 2638 relating to the recovery of incriminating articles and delay in sending the same to the F.S.L., referred to by the appellant's learned counsel are not identical and the Hon'ble Court rejected the recoveries and the report of the Expert on the ground that at the time of recovery of pistol and the empties many other persons were present on the spot but Sub-Inspector still selected relatives of the deceased and cited them as recovery witnesses for which no reason was assigned and secondly; the crime empties were recovered much earlier to the recovery of the pistol, produced by the appellant and after a considerable delay both the incriminating articles were sent to the F.S.L. For Expert, Report, therefore, the Hon'ble Court in consideration of these facts held that possibility of tampering with the recovered articles cannot be excluded. In the instant case the recovery of the empties and the revolver was made on the pointation of the accused from his house at the same time where no outsider was present, inasmuch as; even the defence failed to bring any material on record to show if any other male family member of the accused was present at the time of recovery therefore, the case law cited on the point, is of no help to the contentions of the appellant's learned counsel. Also; the facts of the case reported in PLD 1976 Pesh. 90 on the point are quite different in the light whereof the Hon'ble Court held that the recoveries and the delay in sending the articles to the Expert for report to be inconsequential for the reasons that the rifle was recovered on 8-10-1974 at 12-30 a.m. On visit to the spot by the A.S.I., whereas; on the following morning on revisit to the place, the police officer recovered the crime empty and such conduct of the Investigating Officer raise suspicion and thereafter, the delay in sending both the -recovered incriminating articles to the Expert for report without any explanation, even renders the positive report of the Expert as inconsequential, but, the reason -found-favour with the learned Court in rejecting the recoveries and the expert report are wanting in the instant case, hence, this reported judgment also, is of no avail to the plea of the appellant's learned counsel that on account of delay per se report of the Expert is liable to rejection. Since we have already held that the prosecution has successfully established that the recovery of revolver and the empties were made on the pointation of the accused, who himself produced the same to the Investigating Officer pursuant to the disclosure made by him during investigation from the place which could not have been known to the Investigating Officer, therefore, for such reason as well report of the Expert cannot be discarded merely on the ground of delay in sending the incriminating articles to the Expert for examination and report and; reliance is placed on the reported judgments referred to above.
64. ' It is worthwhile to note that as per report of the Fire-Arms Expert (Exh.P/9-G) crime empty Mark- C/4 was not fired from the crime weapon of 32 bore Revolver No,818408 about which nothing has been said in the impugned judgment nor the appellant's learned counsel raised plea or made any submission. Also; the learned State counsel nor the learned counsel for the complainant attended to such aspect of the matter and it appears that it escaped from notice and attention of all the concerned including the learned trial Court. In our considered view since the prosecution has successfully established that the accused voluntarily pursuant to the disclosure made by him effected the recovery of the revolver from a residential room of the house lying in the almirah and produced it to the Investigating Officer and four empties on unloading the revolver was recovered on the spot in presence of the P.Ws., therefore, explanation, if any; to be offered was for the accused to make because he must be knowing as to how the empty not fired from the revolver was kept/found on unloading the revolver in his presence in respect whereof obviously no explanation or reason could have been given by the prosecution. Undisputedly; in the house only the accused, his brother and father was jointly living including the deceased, out of whom his father (Haji Sher Muhammad) and brother namely Amir Muhammad (husband of deceased lady) have appeared as prosecution witnesses and none of them have even deposed that the room in which the steel almirah was lying from where the accused produced the revolver to the Investigating Officer was not exclusively occupied by the accused or that they were also jointly living in the said room, hence in such view of the matter it can be assumed that no other person except the accused had the knowledge about the empty not fired from the revolver. As above noted the accused even did not opt to record statement on oath in which he could have offered explanation in such behalf. Also; with regard to such aspect of the case even nothing was asked by the defence from the Investigating Officer, who tendered the report of the Expert in evidence, therefore, in our view the empty found to have not been fired from the revolver as per expert report will not have any adverse effect on the recoveries nor would be of any avail or benefit to the defence. Iv) DYING STATEMENT OF DECEASED MST.KAUSER BIBI.
65. ' The only prosecution witness to prove dying statement of the deceased is P.W. Abdul Razzaque, who is father of the deceased lady therefore, before dilating upon the validity, truthfulness, genuineness of the attributed dying statement of the deceased it would be proper to take into account entire evidence of the witness and to scrutinise the same in the overall facts and circumstances of the case particularly with reference to the conduct of P.Ws. Amir Muhammad (brother of accused and husband of the deceased) and P.W. Haji Sher Muhammad (father of the accused).
66. ' Abdul Razzaque (P.W.3) father of deceased Mst. Kauser Razzaque deposed that on 24-6-1997 when he was present in his house at 9-00 p.m., his sister-in-law namely Sakina Bibi informed to him that she was told by Haji Sher Muhammad that Haji Shaukat Ali (accused) was cleaning his revolver during the process whereof it went off and the bullet hit on the leg of Mst. Kauser and further he was told that his daughter Mst.Kauser had been removed to General Hospital and that he should reach there (it may be noted that Mst. Sakina was not - produced as prosecution witness nor has been cited in the calendar of prosecution witnesses). According to the witness after having received said information he along with his son Shahid Razzaque left for General Hospital in a Rickshaw and on reaching there, saw that his daughter Mst. Kauser was being put in an ambulance by her husband Amir Muhammad including mother of Amir Muhammad and other ladies and proceeded to Civil Hospital, Quetta. The witness explained that he along with Amir Muhammad in his vehicle left for Civil Hospital and on reaching there when his daughter was being removed from the ambulance, he approached to her and asked her as to what had happened to her and in response thereto in a very feeble voice, according to the witness; she stated to him that she had done nothing and did never use/applied amulet and for no justification she has been fired upon by Shaukat Ali. He further deposed that Mst. Kauser Razzaque was admitted in the ward, who succumbed to injuries at 11-30 p.m. On the same day. He explained that his daughter was in senses and also asked for water from Amir Muhammad, but the Doctor did not allow and her dead body was received by Amir Muhammad and buried on the next day.
67. ' P.W. Abdul Razzaque in cross-examination stated that within 10/15 minutes he reached to the hospital from his house and it was about 9-00 or 9-15 a.m. When he reached there. He admitted that police reached to the Civil Hospital in his presence where F.I.R. Was chalked and explained that since he was perturbed therefore, he did not know as to by whom the report was made. He further stated that between 9-15 p.m. To 1000 p.m. He reached to the General Hospital and then to Civil Hospital and that he gave statement to the police after the third day of occurrence and for the purpose police had come to his house, but he was not present then afterwards he himself went to the police station. The witness when confronted to his statement recorded under section 161, Cr.P.C.
68. It has been noted by the learned trial Court that in his previous statement he had stated that at 9- 40 p.m. On 24-6-1997 he had come to his house. On being further confronted with his previous statement recorded under section 161, Cr.P.C. It has come on record that he did not state that he inquired from his daughter about the occurrence when she was being placed on stretcher from the ambulance. He denied that Mst. Kauser Bibi was unconscious and that no conversation between them had taken place. It appears that in the light of the cross-examination and answers being given by the witness, the learned defence counsel with reference to his previous statement put a specific question to the witness for inviting answer and the same were recorded, which are reproduced herein below:-- '
69. ' Question: Had you told to Police that when we reached to Civil Hospital, where treatment of Mst.
70. Kauser was started, adequate blood was oozed out from her body she told him that "I had not done such amulet/Ta'viz on Shaukat. I had been injured by fire being innocent."
71. ' Answer: When I reached to General Hospital Mst. Kauser Bibi was being given drip and the treatment had started. She was shifted to Civil Hospital in condition having dripped in ambulance.
72. The treatment of Kauser had started from General Hospital.
73. ' The witness admitted the suggestion put to him by the learned defence counsel that he had stated to the police as mentioned in the above noted question. The witness while answering in cross-examination stated that he does not remember if he had stated to the police, regarding pistol or revolver being cleaned by Shaukat Ali during process whereof the bullet hit Kauser and added that probably he had stated regarding the pistol.
74. ' The defence has not disputed that on receipt of information by P.W. Abdul Razzaque when he was present in his house through Mst. Sakina, his sister-in-law that his daughter Kauser Razzaque in injured condition has been removed to General Hospital, Quetta and he thereafter alongwith his son Shahid Razzaque went straight to General Hospital in a Rickshaw and found that the injured was being removed in an ambulance to Civil Hospital, Quetta nor the defence has challenged that P.W. Abdul Razzaque alongwith P.W. Amir. Muhammad (husband of the injured) went to Civil Hospital, Quetta, therefore, the fact deposed by the witness that on receipt of information he reached to General Hospital and found that her daughter Mst. Kauser Bibi is being shifted to Civil Hospital in an ambulance and that he accordingly; went to Civil Hospital, Quetta having not been challenged by the defence will be deemed to have been admitted by the defence. The witness stated that when he saw that his injured daughter was being put on a stretcher from ambulance he inquired as to what had happened to her, has also not been challenged in the cross- examination and therefore, such a deposed fact also goes unchallenged at the trial. All that suggested to the witness in cross-examination is that he did not state in his previous statement recorded under section 161, Cr.P.C. That he inquired from his daughter when she was being put on the stretcher from ambulance and on being confronted, it has come on record that he did not mention in his previous statement that such inquiry was made by him from his daughter at the time when she was being put on a stretcher from ambulance on reaching to Civil Hospital. Limited challenge to the version of the witness that he did not inquire from his daughter at the time when she was put in the stretcher, will not mean that he in fact did not make any inquiry from his daughter about the incident rather; in all probabilities it looks very rational, reasonable and normal for a father in the given situation to ask about the incident from his own injured daughter. To further challenge the version of the witness with regard to the attributed dying statement of the deceased it was suggested to the witness by the defence that Mst. Kauser was unconscious but the witness answered in negative mean thereby that on the one hand presence of the witness at the relevant time is not disputed by the defence and secondly; the witness did not admit that she was unconscious, moreover; P.W. Abdul Razzaque stated that in response to the inquiry made by him from the injured daughter, who in a feeble voice responded that she had 'done no wrong nor used any amulet but for no justification she has been fired at by Shaukat Ali; leads any prudent person to believe that the pitch of the voice of the injured being feeble to be very natural on account of the bullet injuries, suffered by her and; rings true as well, otherwise there was no reason for her father to have spoken that his daughter answered in a feeble voice. Also; before finally believing or discarding the evidence of the P.W. Abdul Razzaque on the point of attributed dying statement of the deceased, it will be appropriate to attend to the other related aspects. P.W. Abdul Razzaque in cross-examination stated that he made statement to the police after third day of the occurrence and does not remember the day on which he made statement to the police. He in answer to the question in cross-examination stated that police had come to him but he was not present and then afterwards he went to the police station for statement. In this context suggestions were put by the defence to the Investigating Officer (Abdul Aziz P.W.9) in cross-examination. The Investigating Officer demed the suggestion put by the defence that he did not go to the house of the father of the deceased before 27-6-1997, but no further details have been asked from the Investigating Officer as to on which particular date he for the first time went to the house of P.W.
75. Abdul Razzaque for recording his statement and the answer given by the Investigating Officer will lead to believe that prior to 27-6-1997 the Investigating Officer had gone to the house of the father of the deceased and thus; it can be safely inferred that on any day after the incident prior to 27-6- 1997 the Investigating Officer had gone to the house of the P.W. Abdul Razzaque only once and therefore, it can be believed that P.W. Abdul Razzaque has truly stated in cross-examination that police had come to his house but he was not present and afterwards he himself went to the police station. Also; P.W. Abdul Razzaque in cross-examination stated that he was perturbed, therefore, cannot say as to on whose report F.I.R. Was registered and such state of mind obviously in the given situation appears to be very natural. The Investigating Officer in cross-examination stated that statement of father of deceased (P.W. Abdul Razzaq was recorded by him on 27-6-1997 and in cross-examination about the delay in recording statement of P.W. Abdul Razzaque he stated that he went to the house of the father of the deceased for recording his statement, but on that day he was worried/disturbed and busy in 'Fateha Khawani' therefore, he did not record his statement and the explanation for recording delayed statement of P.W. Abdul Razzaque has been invited and brought on record by the defence itself. Moreover; no or any motive for false implication of the accused on the part of the Abdul Razzaque has been attributed or suggested even to the Investigating Officer, inasmuch as; P. Ws. Amir Muhammad and Haji Sher Muhammad, who respectively happen to be brother and father of the accused have not alleged any motive oragainst P.W. Abdul Razzaque to depose falsely against them, therefore, ' mere delay in recording the statement of P.W. Abdul Razzaque on the third day of occurrence i,e, 27-6-1997 by the Investigating Officer, which also stands explained as above noted, will not be fatal to the case of the prosecution. Yet an other aspect which needs examination in view of the defence plea suggested to P.W. Abdul Razzaque during the course of cross-examination that the injured when shifted to Civil Hospital, Quetta from the General Hospital was unconscious and secondly according to the appellant's learned counsel on account of the fire-arm injuries it cannot be expected that the injured was capable to make any statement particularly in view of the medical evidence, therefore, the version of P.W. Abdul Razzaque that the injured made the statement to him in the Civil Hospital cannot be believed and is liable to be excluded from consideration. Admittedly; the deceased at 11-30 p.m. On the date of incident succumbed to injuries in Civil Hospital, Quetta and the incident appears to have occurred at about 8-00 or 8-30 p.m. Inside the house of P.W. Amir Muhammad (husband of the deceased lady) according to whom on 24-6-1997 at 8-00 p.m. After taking meal he had gone out from the house and was sitting in a nearby shop when after about half an hour a child came to him, who stated/conveyed the message that he has been called in the home and when he entered in his house he saw his wife lying in injured condition in the veranda and he did not see the person, who had injured his wife. At such stage of proceedings the witness on the request of the learned State counsel was declared hostile and; on cross- examination by the learned counsel for the complainant under the instructions from the State counsel, he stated that when he returned home he saw his wife in injured condition lying in the veranda and his mother was also present there and he took his wife to the hospital in his own vehicle along with his mother. Although; the witness was declared hostile, but these facts have not been controverted or disputed by any party nor any other material is available on record to suggest that the injured was removed to the hospital by any other person except by P.W. Amir Muhammad and shifting of the injured to hospital by P.W. Amir Muhammad at about 8-30 p.m.
76. Cannot be disbelieved. Medico Legal Officer, Casualty Department, Civil Hospital, Quetta (Dr. Khalid Hamayun) has simply deposed that on 24-6-1997 injured Mst. Kauser Razzaq was brought to him in the Casualty Department for examination in injured condition and in cross-examination he stated that injured was brought to him by her relatives, hence, in absence of any other material available on record it has to be believed that the injured was removed to the hospital by her husband and such fact also finds support from the version of P.W. Abdul Razzaq that when he reached to the General Hospital on receipt of the information about his daughter having been taken to General Hospital in injured condition, he found P.W. Amir Muhammad present there, with whom he left for Civil Hospital, Quetta to which the injured was being shifted in an ambulance. Thus; it can be safely concluded in view of available evidence that the incident of firing in which Mst. Kauser Bibi sustained bullet wounds had occurred between 8-00 p.m. To 8-30 p.m. And in a couple of minutes she was removed initially to General Hospital where she was provided initially emergency treatment and thereafter in the ambulance was taken to Civil Hospital, Quetta. The Medical Officer (Dr.Khalid Hamayun) was subjected to cross-examination and about her state of being unconscious or otherwise he was not examined by the prosecution nor the defence put any question to the Medical Officer. As hereinabove noted from the medical evidence of P.W. Khalid Hamayun it appears that the deceased had suffered two bullet wounds, to her abdominal cavity causing internal and external damage and her general condition when brought to the hospital was not satisfactory, therefore, she was referred to the Female Surgical Unit where she did not improve and expired at 11-30 p.m.
77. As per medical opinion on account of bleeding resulted due to bullet injuries sustained to her abdomen and thighs she went into shock which consequently; caused her death. Bare perusal of the medical evidence reveals that at the time when the injured was examined by the Medico Legal Officer she was not in shock although; her general condition was unsatisfactory to whom emergency treatment was given in the Casualty Department of the hospital and IV Route was maintained by the Medical Officer,' but some time thereafter, may be after a minute or some time thereafter when she was referred to Female Surgical Unit she went into shock on account of loss of blood due to fire-arm injuries and particularly on account of the internal and external damage to the abdominal cavity, but prior to such time when she was brought to the Casualty Department of Civil Hospital, Quetta there is nothing on record to suggest or believe that she was not capable to speak even in a feeble voice on account of the injuries she suffered and no hard and fast standard can be fixed or prescribed in case where a person suffered such like injuries and to determine as to whether the injured was capable to speak or respond to any question which in fact varies from case to case and depends on the particular facts and circumstances of each case, therefore, in this particular case as hereinabove discussed it cannot be believed even in view of medical evidence that the injured had no capacity or was incapable to answer to any question prior to her having been attended to/examined by the Medical Officer in the Casualty Department of Civil Hospital, Quetta. Moreover; such a conclusion also gets support from the medical evidence that she was not found unconscious otherwise, there was no reason for the Medical Officer to have had not recorded the finding that the injured lady was brought to him in unconscious state. Also; a question arises that as to why the injured if was capable to speak did not disclose about the incident to her husband (P.W. Amir Muhammad) on his returning to the house within a couple of minutes after the incident, the position appears to be if it be believed that had her husband was not present in the house at the relevant time and she having been injured by the brother of her husband (accused), she might not have opted to disclose about on account of inter se relationship of the accused and her husband and secondly; even if she had disclosed to her husband that she was injured by means of firing by his brother, it can be expected that her husband would not depose about such disclosed fact at the trial against his own brother, accused on charge of the murder. From the evidence of P.W. Amir Muhammad and Haji Sher Muhammad it appears abundantly that the deceased lady with her husband (P.W. Amir Muhammad) and father-in-law (Haji Sher Muhammad), mother-in-law and brother-in-law (accused) were jointly living in the house including the children in which the incident of firing took place but the Investigating Officer appears to have dishonestly not cited the other inmates of the house as witnesses. Reverting to the point it is note-worthy that P.W. Amir Muhammad, who soon after the incident shifted his wife to the General Hospital initially and thereafter, until death of the injured remained present in Civil Hospital, Quetta did not mention that his wife until she went into shock or at the time when she was being put on the stretcher from ambulance when brought to Civil Hospital, was' unconscious or otherwise, therefore, in the given circumstances of the case merely on account of the injuries suffered by Mst. Kauser it cannot be said that at the relevant time when she was being put on stretcher from ambulance in the Civil Hospital she was not capable to speak or that she was unconscious. Consequently; there is no reason to disbelieve that Mst. Kauser Bibi prior to her having taken to Casualty Department of the Civil Hospital on inquiry by her father made the attributed statement about her having been subjected to firing by accused Shaukat Ali. At the cost of repetition it is worthwhile to note that apart from the marital relations between the deceased and P.W. Amir Muhammad the parties were already related to each other and such fact has been confirmed by P. Ws. Amir Muhammad and Haji Sher Muhammad in their respective depositions, therefore, in absence of any strong motive or between the parties there seems to be no reason for the father of the deceased (P.W. Abdul Razzaque) to have falsely deposed about the dying statement of his daughter and would thus; let off the real culprits and secondly; in the ordinary course a father would not like to attribute a false statement to his dying daughter and to invite curse of Omnipotent 'Allah' to himself as well as a burden on his conscious. We have attended to all the relevant aspects of the case pertaining to this piece of evidence and have come to the conclusion that the dying declaration was made by the deceased to her father holding the accused to be responsible in subjecting her to firing for no justification and reason and such fact was also corroborated by the recovery of revolver at the instance of the accused pursuant to the disclosure made by him coupled with medical evidence and the report of the Fire-Arms Expert, which also gets added support from the circumstantial evidence P.Ws. Amir Muhammad and Haji Sher Muhammad relating to the conduct of accused as well as that except the accused and P. Ws.
78. Abdul Razzaque and Amir Muhammad no other male adult member of the family was living in the house in which the incident had occurred and evidence of these P. Ws. Comes under discussion in the next following paragraph. For such reasons we are convinced that the dying statement of the deceased was true, genuine and voluntarily made by the deceased to her father in response to the inquiry made from her by P.W. Abdul Razzaque at the given time and the same has been deposed correctly and simply in straightforward words by P.W. Abdul Razzaqe, free from any other consideration or influence, therefore, such statement of the deceased made to her father only a few hours before she succumbed to injuries can be safely relied upon, which also withstands the test and the principles laid down in the reported judgments i,e, 1996 PCr.L.J. (D.B.) (Qta.) 1689 and 1981 SCMR 61.
(v) Circumstantial Evidence (P.Ws. Amir Muhammad, Haji Sher Muhammad, Abdi Hussain, A.S.I., Syed Abdul Jabbar, Chemical Expert, F.S.L., Quetta and Abdul Aziz Buzdar, Investigating Officer).
79. ' P.W. Amir Muhammad has deposed that Mst. Kauser Bibi was his aunt's daughter and was married to him in the year 1990 and out of wedlock three children took birth. According to him on the date of incident at 8- 00 p.m. After taking meal he went to a shop situated near to his house and after half an hour a child came to him and informed that he has been called back to home and when he went to his house he found his wife lying in injured condition in the veranda and did not see who had injured her. The witness was declared hostile on the request of learned State counsel, who cross-examined him and the learned defence counsel did not avail the right of cross-examination despite opportunity afforded to him by the learned Court.
80. ' The witnesses in the cross examination-stated that on the date of incident he had come to his house at about 7-30 p.m. Or 8-00 p.m. And took the meal which was served by his wife, who also brought water for him. He stated that after ten/fifteen minutes of having the meal he had gone outside the house and when he returned home his wife was lying in injured condition in the veranda and his mother was present with her and did not see any one else nor his father and brother accused present in Court was present there (vernacular portion of evidence). He further stated in the cross-examination that he took his wife to the hospital in his personal vehicle along with his mother, but did not see his mother present in the hospital and that accused Shaukat had not come to the hospital and till death of his wife he was present in the hospital. He further stated that he has no knowledge if his father or brother accused Shaukat Ali came to the hospital till death of his wife or not and that after the death he did not take/bring the dead body of his wife and that he had asked from his mother as to who killed his wife but she answered that she knew nothing and he made probe with regard to the incident but could not find any clue. He admitted that his brother had not come to home for four/five days after the incident and he did not see his brother until fourth day of the incident. He also admitted that he and his mother were taking Fateha in their house for three days. He admitted the suggestion put by the learned State counsel that for receiving dead body of his wife he had submitted an application to the S.D.M. Which he produced as Exh.P/4-A bearing his signature. He denied that he had mentioned/written in the application that Shaukat (accused) had killed his wife by means of firing. He admitted that after one year of death of his wife he contracted second marriage and denied the suggestion that second marriage was contracted by him after four months of the death of his wife. He denied that he had stated to the police in his statement recorded under section 161, Cr.P.C. That hip wife was sent out to bring water and on being confronted with his previous statement it has been noted that he had stated so in his previous statement. He denied that after having gone outside at 8-30/8-45 p.m.
81. Three/four fires were made in the veranda on which the children started weeping and such statement was made by him to the Investigating Officer, to which he was confronted and the learned trial Court noted that he stated so. He denied that he had stated in his statement to police that he immediately came out and saw his wife lying in pool of blood, who told to him that his brother Shaukat has fired upon her. To such part of his attributed statement recorded under section 161, Cr.P.C. He was confronted with and it has been noted by the learned trial Court that he did state so in his previous statement. However, the witness voluntarily stated that she was unconscious. He was further confronted to his previous statement and it has been found that he stated to the police that in the meanwhile his father also came out from the room and they both took Mst.Kauser in the vehicle to General Hospital. He was further confronted yet to an other part of his previous statement recorded under section 161, Cr.P.C. And it has been noted by the learned trial Court that he had stated in such statement that his wife has been killed by his brother Shaukat by means of firing. He denied that since accused happened to be his brother, therefore, he has deposed falsely and concealed true facts from the Court.
82. ' As herein fore noted this witness and his father P.W. Haji Sher Muhammad including Ghulam Farid constable were declared hostile by the learned Court. Evidence of hostile witness P.W. Ghulam Farid constable has been dealt with hereinabove, which relates to the recovery of the crime weapon. As regards the evidence of hostile witnesses is concerned, we have already expressed hereinabove that the same is not to be discarded straightaway, rather; such evidence can be considered to the extent which rings true and is corroborated from other pieces of evidence. He categorically admitted in the cross-examination part of his statement, that after death of his wife he submitted an application (Exh.P/4-A) to the S.D.M., Quetta requesting for return of the dead body of Mst.
83. Kauser Bibi to him bearing his signature and perusal of the contents of this application reveals that he had mentioned in the application that on 24-6-1997 his brother Haji Shaukat son of Haji Sher Muhammad on account of domestic dispute has seriously injured his wife by means of firing, who subsequently succumbed to injuries, therefore, dead body of his wife be directed to be given to him without postmortem. From the close scrutiny - of evidence of this witness mentioned hereinabove it transpires abundantly that immediately after the incident of firing he rushed to the spot (veranda of his house) either from outside the house where he was statedly sitting in a shop situated at a distance of a few paces from his house or from a residential room of his house and found his wife lying in injured condition in a pool of blood, who stated to him that she has been fired at by his brother Shaukat. However; the witness on his own added that she was unconscious. It is an admitted position in view of the evidence of this witness, Haji Sher Muhammad, Abdul Razzaque and Investigating Officer that the accused, his brother and father (P.Ws. Amir Muhammad and Haji Sher Muhammad) including the deceased and the children and mother-in-law of the deceased were living jointly in the house in which the incident had taken place. P.W. Amir Muhammad has admitted in cross-examination that a couple of minutes before the incident he was served with food in the house by his wife and when confronted to his preious statement it has come on record that he had stated to the Investigating Officer that he asked his wife for water, who went out of the room and in the meantime three/four fires were made and when he came out, he saw his wife lying in pool of blood, who told to him that she has been fired at by his brother 'Shaukat'. It is an admitted position that a couple of minutes before taking food, served by the deceased, P.W. Amir Muhammad was present in his house, but according to him he thereafter, went to the shop situated near to his house, to us appear to be not convincing as abruptly after taking food there was no occasion in the normal course for the witness to have had left for the shop, inasmuch as; he has also not mentioned that as to why he immediately after taking food left for shop, rather; the chain of facts suggest that he was present in a residential room of his house and when he heard fire reports he immediately came out of the room and saw his wife lying in pool of blood in the veranda, who also told to him that she has been subjected to firing by his brother Shaukat and further the contents of the application (Exh.P/4-A) admittedly; moved by Amir Muhammad to S.D.M. Confirms to such fact that in all probabilities his wife must have stated to him that she was subjected to firing by the accused otherwise, there was no reason on the part of the witness to have had accused his own brother to be responsible for the firing. Application (Exh.P14-A) was promptly moved by P.W. Amir Muhammad to the S.D.M. On the date of incident after the death of his wife, therefore, it can legitimately be understood that the same was made without any prior consultation and contained truth without foreseeing the consequences of accusation made therein. As this application was moved immediately after death of the lady therefore, it appears that there can be hardly any reason that it was tainted with any outside influence or contained the twisted version of facts. It is noteworthy that witness while being confronted to his previous statement during the course of cross-examination by the learned State counsel he on his own stated that when he reached to the veranda of his house he found his wife as unconscious, but such part of his own added statement during cross-examination in all probabilities does not appear to be true and possible for the reason that from what ever angle it is seen, reaching of the witness to the spot whether from outside the house from a shop situated at a distance of few paces from his house or his having reached to the place of incident from inside the house, the fact remains that he in a couple of minutes after the incident came to the place of incident and found his wife lying in injured condition therefore, it is hardly conceivable, as well as in view of the reasons mentioned above relating to the capacity of the injured to have had disclosed to her father about the incident, that she was unconscious when P.W. Amir Muhammad reached to the veranda. The witness on all material particulars was confronted to his previous statement recorded during the course of investigation, noted above, which shows that he deliberately on account of his being the real brother of the accused concealed true facts from the Court in order to save the skin of his brother but he after the death of his wife and until examined by the Investigating Officer spoke the truth relating to the events but subsequently; having realised the consequences of his having disclosed facts, after lapse of time turned hostile, obviously for the reason that he took it impossible to depose truly on a capital charge against his brother. He also admitted in cross-examination that he did not see his brother accused Shaukat present in the house when he saw his wife lying injured in the veranda nor thereafter in the hospital till fourth day of occurrence and such a conduct on the part of the accused appears to be most unnatural, as in case he was innocent and did not resort to firing on his 'Bhabi' he should not have acted so abnormally. Undisputedly, as well as from the evidence of P. Ws. Abdul Raz7aque and Haji Sher Muhammad it appears that the injured lady was first removed to the General Hospital by P.W. Amir Muhammad and thereafter was shifted in an ambulance to Civil Hospital, Quetta, therefore, evidence of P.W. Amir Muhammad (hostile witness) to such an extent gets sufficient corroboration moreover; he himself before having been declared hostile by the Court stated that he on the call through a child went to his house and found his wife lying in injured condition in the veranda of the house confirms the fact that in a couple of minutes, according to his own version he reached to his house from shop, situated only a few paces away from his house and secondly; having been confronted with his previous statement it has been proved by the prosecution that when he came to the spot his wife disclosed to him that she has been fired at by the accused and thirdly the dying statement of the deceased brought on record through the mouth of P.W. Abdul Razzaque also gets corroboration from the fact that the deceased immediately after the incident as per previous statement of P.W. Amir Muhammad, told to him that she has been injured by means of firing by accused Shaukat and therefore, understandably P.W.
84. Amir Muhammad, accused his brother to be responsible for firing in the application submitted by him to the S.D.M. Soon after the death of his wife.
85. ' According to P.W. Haji Sher Muhammad, father of the accused (declared hostile) he was not present in the house on the date of incident, however; he came back at 10-00 p.m. And found that his children were weeping and on being asked told to him that their 'Bhabi' wife of Amir Muhammad was lying injured in the veranda due to firing, who further told to him that they did not see any body as having resorted to firing. Bare reading of his evidence reveals that there was no occasion for the children to have had not spoken the truth to him about the incident, but deliberately he has suppressed the facts and stated that children did not disclose to him as to the person who made firing, although; the children were present in the house including his wife but none of them has been cited as prosecution witness and it appears that the investigation was dishonestly conducted by the Investigating Officer. According to P.W. Amir Muhammad, his father P.W. Haji Sher Muhammad was present when he came/reached to the place of incident, but Haji Sher Muhammad denies such fact and it appears that at the time of incident inmates of the house e.g. Accused (Shaukat Ali), his father (Haji Sher Muhammad), mother of accused, the children of Haji Sher Muhammad, children of deceased and P.W. Amir Muhammad were all present and in all probabilities they had seen the incident which took place within the house and in the veranda, but deliberately on account of close relationship with the accused the cited witnesses have not deposed truly at the trial and the others were dishonestly not cited as witness by the Investigating Officer to extend undue benefit to the accused.
86. ' It is worthwhile to note that during examination of P.W. Ghulam Farid, Constable accused on his own stated that he was cleaning the revolver and during such process as bullet was fired which accidentally hit to his 'Bhabi' (deceased Kauser Bibi) and while P.W. Abid Hussain, A.S.I. (P.W..7) was under examination in the witness box the accused again stated and reiterated that he had deposed on the previous date before the Court that pistol was being cleaned and the bullet accidentally hit his 'Bhabi' and thus; she died therefore, his decision should be made soon. In respect of such statements twice made by him on his own during examination of P.Ws., specific question was put to him while being under examination by the Court under section 342, Cr.P.C. To which he explained that since his case was not being decided and he was told by the police that in case he makes such statement, he will be set free. The explanation afforded by the accused while being examined by the learned trial Court under section 342, Cr.P.C. Seems to be afterthought and misconceived as well, for the reason that firstly he was represented and defended by a very senior Advocate at the trial and secondly he could have easily brought on record in response to the charge the true facts relating to the incident but he did not opt to do so. Undisputedly; during the course of trial while the above said P.Ws. Were under examination in the witness box, the accused on his own and voluntarily introduced a fact/a circumstance that he was cleaning revolver and during such process a bullet hit his 'Bhabi' and she died; as being the first version of the accused introduced by the accused himself, although; being defended by his counsel at the trial becomes admissible in evidence as a relevant circumstance in respect whereof he could not give any plausible explanation in his statement recorded under section 342, Cr.P.C. Nor he opted to appear as his own witness in disproof of the charge within the purview of section 340(2), Cr.P.C. And therefore, introduction of a relevant fact or circumstance by the accused at the trial is admissible in evidence, AIR 1940 (Sind) 55; PLD 1982 (Lah.) 180 and 1998 PCr.L.J. 216 which thus can be validly considered while appreciating the circumstantial evidence. The prosecution evidence with regard to the recovery of revolver, empties, Fire-Arms Expert report, dying declaration of the deceased, disclosure made by the injured to her husband (P.W. Amir Muhammad) that she was fired by Shaukat Ali, from the fact introduced by the accused himself at the trial that at the relevant time he was present in the house and was having revolver with him from which a bullet hit the deceased/went off and hit the deceased (not truly stated as the deceased suffered multiple gun- shot wounds) leads to the guilt of accused. The medical evidence also lends support to the fact that the deceased suffered fire-arm injuries, moreover; we feel that the accused since found himself in a difficult position to satisfactorily explain about his position as it emerged from the version introduced by him on his own at the stage of prosecution evidence, to which he might have been confronted with in cross-examination had he appeared as his own defence witness, therefore, did not opt to record his statement on oath.
87. ' Reverting to the evidence of hostile witness P.W. Haji Sher Muhammad. He in cross-examination admitted that his wife and wife of P.W. Abdul Razzaque (father of deceased) are sisters and that when he returned to home on the day of incident at 10-00 p.m. His son Shaukat was present there and stated that he did not go to the hospital nor Shaukat went to the hospital. He further stated that the children told to him that they were watching T.V. And when came out from the room they saw that their 'Bhabi' in injured condition in veranda and about the occurrence he did not ask from his son Shaukat, because he was not present at the time of incident. He admitted that he had not informed to the police about the incident nor lodged report and voluntarily stated that he informed to the police on telephone. Again he on his own stated that on the second day at 8-00 a.m. Police came to their house and he did not ask the police as to against whom the case has been registered. He admitted that when police came to his house they asked for his son Shaukat to be handed over/produced but he did not hand over his son Shaukat to the police and since police threatened to arrest him therefore, after two/three days he handed over his son to the police. He admitted that he and Abdul Razzaque separately were taking 'Fateha Khawani' and that Akbar Raisani, D.S.P. Is his cousin and the wife of Shaukat is niece of D.S.P. Akbar Raisani (2nd wife). He also admitted that Akbar Raisani did not come to offer 'Fateha' and police had not come to their house on the night of occurrence. He admitted that they had washed out the blood from the courtyard of the house and that he had sent many people to P.W. Abdul Razzaque for compromise and denied that he heard firing and came out of the room and saw his son Shaukat having revolver in his hand. On cross-examination by the learned defence counsel the witness stated that he has a licensed pistol and a revolver and that he handed over his revolver to the police on their demand.
88. ' According to this witness he came to his house on the date of incident at 10-00 p.m. Whereas; according to P.W. Amir Muhammad when he reached/came to veranda of his house he saw his wife lying in injured condition and his mother was present there, and did not see accused as present in the house, but according to P.W. Sher Muhammad, accused was present in the house, however; at the time of occurrence accused was not present in the, house therefore, he did not ask about the incident from his son accused Shaukat. The witness admitted that he nor his son went to the hospital, although; he admitted that he came to know that his daughter-in-law Mst. Kauser was taken to the hospital in injured condition by his son Amir Muhammad (husband of the lady).
89. He also admitted that he was not willing to hand over his son Shaukat to the police and when he was threatened to be arrested he produced his son to the Police Officer. The conduct of this witness also appears to be that he deliberately concealed true facts in order to save the skin of his son and intentionally stated that at the relevant time he was not present in his house despite of the fact thy according to P.W. Amir Muhammad he found his father present in the house, moreover; shall he be believed, the fact remains that he did not go to the hospital although; in the normal course, had his son was not involved with the commission of the crime he besides accused should have gone to the hospital and secondly if he knew or was satisfied that the accused was innocent there was no reason for him to have not handed over the accused to the Police for the purpose of investigation etc. He admitted that Muhammad Akbar Raisani, D.S.P. *pens to be his cousin and therefore, on account of such relationship it appears that under the influence of D.S.P., the Investigating Officer did not effectively collect further important pieces of incriminating evidence and it cannot be believed in the circumstances of the case that none of the inmates of the house had not seen the incident but dishonestly the true facts have been concealed by P.Ws. Amir Muhammad and Haji Sher Muhammad. Even from the evidence of this witness it transpires that the incident had taken place inside the house and the inmates of the house after removal of the injured to General Hospital washed out the blood nor he having statedly come to know about the incident lodged any report nor even he ever asked or inquired from the police about the incident or the person responsible causing fire-arm injuries to his daughter-in-law and such an abnormal and exceptional conduct on the part of the witness sufficiently indicates that he very well knew that his son Shaukat was responsible for committing the offence otherwise there was no reason for him to have had not proceeded to the hospital or to have not registered the report of the incident or made any effort to know about the real culprit, therefore, from his evidence it can be inferred safely that his son Shaukat was responsible for the act of firing, else; he would not have acted very exceptionally and against normal human conduct in the given circumstances.
90. ' Last piece of circumstantial evidence relates to the recovery of blood-stained clothes of deceased and to prove the same the prosecution has produced two witnesses namely Abid Hussain, A.S.I. (P.W.7) and Abdul Aziz Buzdar S.I.P./Investigating Officer (P.W. 9). According to P.W.7 on 25-6-1997 he alongwith S.H.O./Police Station Saddar, Abdul Aziz Buzdar and Taslimul Hassan, A.S.I.
91. Went to the house of P.W. Haji Sher Muhammad and he was asked about the blood-stained clothes of the deceased whereafter, Haji Sher Muhammad handed over/produced the blood-stained clothes of Kauser Razzaque to Abdul Aziz Buzdar, who took the same into possession vide memo: Exh.P/7-A produced by the witness bearing his signatures as one of the 'Mushirs'. The witness stated that the bloodstained clothes were sealed in two separate parcels on which he put his signature.
92. He produced the parcels as Art. P/7-A and the blood-stained clothes including sample of the seal were also exhibited as articles in Court, identified by the witness. The Investigating Officer (P.W.9) deposed that the bloodstained clothes of the deceased were sent to the F.S.L., Quetta for examination and report on receipt of report of the Chemical Expert through incomplete cpallan the same was submitted in Court. Syed Abdul Jabbar, Chemical Expert (P.W.2) produced his report as Exh.P/2-A and stated that on 1-8-1997 sealed parcel of blood-stained 'Shalwar' and 'Qameez' was received in F.S.L. From Police Station Saddar and on chemical analysis of these articles he came to the conclusion that the same were stained with human blood. These P.Ws. Were subjected to cross-examination but their evidence remained firm and consistent. Also, in view of the prosecution evidence discussed hereinabove, particularly with reference to the evidence of P.W.
93. Amir Muhammad the fact stands proved that the incident had taken place inside the house and as undisputedly the deceased sustained injuries resulting into excessive bleeding therefore, it can be safely concluded that the clothes worn by the deceased at the relevant time must have been stained/soaked with blood. Although; it has been denied by P.W. Amir Muhammad in cross- examination that he received the dead body of his wife from the hospital yet it has been proved by the prosecution as well as admitted by the said P.W. That he moved an application (Exh.P/4-A) to the S.D.M. For receipt of the dead body and through the evidence of P.W. Abdul Aziz Buzdar (P.W.9) it has been proved that the dead body was received by P.W.4 therefore, in the given facts of the case and in absence of any evidence to the contrary it can be safely concluded that the blood-stained clothes of the deceased were in the possession of the inmates of the house in which Haji Sher Muhammad was also residing and being the head of the family produced the same to the Investigating Officer, who took these clothes into possession in presence of P.W. Abid Hussain and were sealed into parcel. Subsequently; the Investigating Officer sent these articles to the F.S.L., Quetta for examination and report produced by P.W. Abdul Jabbar as Exh.P/2-A. Evidence of these witnesses on the point could not be discredited in cross-examination nor the learned counsel for the appellant in view of the admitted position that the deceased suffered gun shot wounds inside the house disputed during arguments such piece of evidence which limited support to the prosecution case.
94. ' During the course of arguments it was urged by the appellant's learned counsel that the informant Malik Muhammad Ali the then S.H.O./Police Station Saddar was not produced at the trial nor the source of information regarding the murder of deceased lady over a domestic dispute as contained in the murasila Exh.P/9-A was disclosed which makes the prosecution story to such an extent as doubtful. It may be seen that from the evidence of P.W.9 it is abundantly clear that some time after preparation of incomplete challan Malik Muhammad Ali, the then S.H.O./Police Station Saddar had died and such disclosed fact has not been challenged or disputed by the defence, therefore, the plea in such behalf remains inconsequential, and; secondly about source of information referred to in murasila produced by the Investigating Officer as Exh.P/9-A no question was put to the witness by the defence, who accompanied the then S.H.O. Malik Muhammad Ali to the hospital on receipt of information that a lady has been brought to the hospital in injured condition, hence; non-availability of any further detail about source of information regarding causing injury to Mst. Kauser Razzaque on account of some domestic matter as mentioned in the murasla will not have any adverse effect on the prosecution case and thirdly; since these facts remained undisputed and unchallenged at the trial, therefore, such information gathered by the author of the murasila on reaching to the hospital that accused over a domestic dispute injured the lady (Mst. Kauser Razzaque) by means of firing will be admissible as res-gestae 1992 SCMR 1625 ref: consequently; the plea raised by Mr.Muhammad Aslam Chishti is without substance.
11. Adverting to the defence evidence, it is worthwhile to note that the accused did not opt to record his statement as his own witness in defence within the purview of section 340(2), Cr.P.C. Nor in response to Question No,7 put by the learned trial Court regarding recovery of the revolver on pointation of the accused pursuant to the disclosure made by him, the accused offered any explanation in respect of his introduced plea that the revolver and the arms licence was handed over to the Investigating Officer by his father (P.W. Haji Sher Muhammad). As regards the only defence witness (Ahmed Jan), produced by the accused is concerned, the D.W. Stated that he knows accused Haji Shaukat Ali whose house is situated at a distance of 10/12 ft; from his shop, and; stated that he (D.W.) used to sit in his shop from morning at 6-00 a.m. To evening at 4-00/5- 00 p.m. The defence witness further added that after 8/10 days of the death of wife of Amir Muhammad police came and parked the vehicle in front of his shop where after Haji Sher Muhammad also came out from his house and he noticed that the police and Haji Sher Muhammad were talking at the door during course whereof, Haji Sher Muhammad handed over a revolver to police along with a book of yellow colour where after the police left the place. The witness in cross-examination stated that his shop opens towards south and door of the house of Sher Muhammad has its opening towards east. The defence plea about handing over of the revolver by P.W. Haji Sher Muhammad to the Investigating Officer was put to P.Ws. Ghulam Farid, Muhammad Naseem, Mushirs of recovery memo: Exh.P/6-A and to the Investigating Officer, but each denied and disputed the same as not correct. Whereas; P.W. Haji Sher Muhammad (declared hostile), on cross-examination by the learned defence counsel stated that he handed over his revolver to the police on demand and that he had a licensed pistol and a revolver, but this witness did not mention that he also allegedly handed over the license of the revolver to the police officer and secondly; he too, though being the father of the accused did not say that he handed over the revolver at the door of his house nor has stated that when he statedly handed over revolver to the police officer on demand D.W. Ahmed Jan was visible to him in the shop and on the other hand, to show that the defence evidence could be probable or true, the defence witness has stated in cross-examination that his shop opens towards south whereas; opening of the house of Haji Sher Muhammad falls towards east, hence, in such view of the matter it cannot be believed that D.W.
95. While sitting in his shop could have seen that on arrival of the police in front of his shop P.W. Haji Sher Muhammad came out of his house and handed over a revolver and a book in yellow colour to the police officer. Also, the defence witness did not state that he left the shop and went to the place/outer door where Haji Sher Muhammad allegedly handed over the revolver and a book to the police officer. Moreover; to none of the P.Ws. It was suggested by the defence that in presence of or within the visibility of D.W. Ahmed Jan revolver and a book was handed over to Haji Sher Muhammad to the Investigating Officer. We have put the defence plea and prosecution evidence in juxta position discussed hereinabove on the point and have come to the conclusion that in view of the over-whelming prosecution evidence regarding recovery of the revolver and the empties including the licence, the defence evidence including the plea introduced to P.Ws. Appear to be not even probably true in the given facts and circumstances of the case, hence, the same has been appropriately discarded by . The learned trial Court.
12. In view of the above-mentioned reasons and discussion of entire evidence, we are of the considered view that the prosecution successfully established the charge of Qatl-i-Amd of deceased Mst. Kauser Razzaque beyond shadow of any reasonable doubt against the appellant and the defence failed to rebut the same, hence, he is liable to normal sentence of death in absence of any mitigating circumstance, by way of Ta'zir under section 302(b), P.P.C. Talib Hussain and others v. The State 1995 SCMR 1776; Abdus Salam v. The State 2000 SCMR 338; and Muhammad Afzal v. Ghulam Asghar PLD 2000 SC 12 ref. He be hanged till he is dead. Conviction of the appellant under section 302(c), P.P.C. And sentencing him to twenty five years' R.I. And fine of Rs,1,00,000 by the learned trial Court vide impugned judgment being illegal and improper on finding him guilty on the charge of Qatl-i-Amd stands converted to that under section 302(b), P.P.C. And as above said death penalty stands awarded to the appellant. Consequently; the impugned judgment to the above-noted extent stands modified and the sentence of fine imposed by the learned trial Court is, accordingly set aside. The result is that this Criminal Appeal being devoid of any substance is dismissed and Criminal Revision succeeds.
96. ' Copy of judgment be supplied to the convict through Superintendent Central Jail, Machh and; also copy of the same be sent to the Superintendent Central Jail, Machh and to S.S.P., Quetta to take notice of the conduct of the investigation of the case by P.W. Abdul Aziz Buzdar and of P.W.
97. Ghulam Farid Constable in the light of the observations recorded hereinabove and to proceed with the matter in accordance with law.