' CH. EJAZ YOUSUF, J.--- This Judgment will dispose of Criminal Appeal No,24/K of 2000 filed by Suhail son of Abdul Waheed Pathan, Criminal Appeal No,25/K of 2000 filed by Atique son of Iqbal Rajput, Criminal Appeal No,26/K of 2000 filed by Naeem alias Bholla son of Muhammad Jamil and Criminal Appeal No,27/K of 2000 filed by Daud son of Sarwaryar Ahmadzai, as all these appeals arise out of the same judgment, dated 31-3-2000 passed by the learned Sessions Judge, Nawabshah whereby the appellants have been convicted under section 396 read with section 149, P.P.C. And sentenced to undergo life imprisonment each alongwith a fine of Rs,1,00,000 (one lac) each or in default, to further undergo R.I. For two years each. Benefit of section 382-B, Cr.P.C. Has, however, been not extended to the appellants. It has been directed that the amount of fine on recovery shall be paid to the legal heirs of the deceased.
2. Facts of the case, in brief, are that on 7-1-1996 report was lodged by one Syed Sikandar Shah at Police Station "A" section, Nawabshah wherein, it was alleged that the complainant, alongwith his brother namely Syed Shabir Shah alias Naveed Shah, Taimur Shah and father namely Syed Bashir Shah were living in one and the same house. In the night between 6-1-1996 and 7-1-1996, at about 9-00 p.m. The complainant alongwith his father, after taking evening meals went to the Mohallah Mosque for offering Nawafils of Shab-e-Barat. His aforenamed brothers, however, slept in the house. At about 1.30 a.m. On 7-1-1996 after the prayers, when the complainant and his father returned to their house, they saw that outer gate of the house was open and tube-light was on (luminating). No sooner they entered the courtyard than, five youngsters who were already present there, took them on pistol points and asked them to raise their hands up. The culprits, who were residents of their Mohallah, were identified by the complainant as Suhail Pathan, Atique Rajput, Habib Shaikh, Naeem alias Bhola and Dawood. It was further alleged by the complainant that accused Atique took out five currency notes of Rs, 1,000 denomination each and National Identity Card from the pocket of his father whereas, accused Suhail snatched from him, a sum of Rs, 15,000 in the shape of Rs, 1,000 denomination currency notes, National Identity Card and a Seiko wrist watch whereon his name was scribed. On commotion, complainant's brothers were attracted and they also identified the culprits. Since backsides of the accused persons namely Atique and Suhail were towards the complainant's brothers therefore, they caught hold of them. Syed Taimur Shah apprehended accused Atique whereas Syed Shabir Shah caught hold of accused Suhail. His father tried to apprehend the remaining culprits. Complainant's father was ahead of him. The remaining three culprits fired at them, which hit his father, who fell down. In order to rescue their companions, they also fired at his brother. On hearing the gun shot reports as well as cries of the P.Ws.
Neighbours were attracted whereupon, the three culprits, leaving behind their companions, fled away. In the meantime P.Ws. Fazal Karim, Mumtaz and others came at the spot and they saw complainant's father who had sustained fire-arm injuries on his right arm, elbow and neck. Shabir Shah alias Naveed Shah had also sustained injury above his left ear and he was bleeding. On enquiry, he disclosed that accused Habib in order to rescue accused Suhail from his grip, had fire at him, and the bullet hit Suhail accused on foot. Accused Dawood gave him a blow on his head with butt of a pistol and the bleeding was the result of the injury. Taimur Shah told him that accused Naeem alias Bhola in order to rescue accused Atique had fired at him and the bullet hit accused Atique in the stomach. The apprehended accused persons alongwith their pistols, were detained in the Otak. The injured were immediately shifted to the hospital where, complainant's father expired. On the stated allegations a formal F.I.R. Bearing No, 6 of 1996 was registered at the said police station under section 17(4)(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") and investigation was carried out in pursuance thereof. On the completion of investigation the accused persons were challaned to the Court for trial.
3. Charge was accordingly framed, to which the accused/appellants pleaded not guilty and claimed trial.
4. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the accused/appellants, produced eight witnesses, in all. P.W.1 Syed Sikandar Ali Shah is the complainant. He, at the trial, while reiterating the version contained in the F.I.R deposed that the culprits present in Court were the same who had committed the offences of murder and dacoity in their house. He produced in Court the F.I.R. As Exh.13-A. He also produced his own N.I.C., the N.I.C. Of his father and a sum of Rs, 20,000 cash alongwith a wrist watch as Articles A-1, A-2, A-3 and Exh.A-4 respectively. In the course of his cross-examination he disclosed that his father was fired at, from a distance of 4/5 feet. He, however, denied the suggestion was incorrect that some unknown dacoits had tried to commit dacoity in their house, as a result whereof his brother fired from the upper storey of the building which hit his father and his brother also received injuries in the panic. He also denied the suggestion as incorrect that accused Atique was already lying in injured condition, in the hospital, when he had taken the injured to the Hospital. He also denied the suggestion as incorrect that the accused persons Atique and Suhail, both had received injuries in the fire works and not in the incident. P.W.2 Syed Shabir Shah alias Naveed Shah is an eye-witness of the occurrence. He deposed that on 7-1-1996 he was present in his house. His father and brother Syed Sikandar Shah had gone to the Mohallah mosque to offer Nafal prayer as it was Shabe-Barat.
He slept in the house. His younger brother Taimur Shah was also sleeping in another room having common door. Taimur Shah awakened him by telling that there was a commotion in the house.
They came out of the room and saw that the accused persons were present in the courtyard. He also saw his father and brother Sikandar Shah standing with raised arms as they had been taken on pistol points by the accused persons, Accused Suhail took out money as well as N.I.C. From the pocket of the shirt of his brother Sikandar and also removed his wrist watch, whereas accused Atique Rajput took out money and N.I.C. From the pocket of his father. He further deposed that he caught hold of accused Suhail from backside whereas, his younger brother namely Taimur Shah caught hold of accused Atique by his arms. His father in order to apprehend the remaining accused persons advanced towards them whereupon, he was fired at. His father received fire- arms injuries on his neck, chest and elbow and in consequence, he fell down. The accused persons directed them to release the apprehended accused persons and in order to rescue their companions, accused Naeem alias Bhola fired towards accused Atique Rajput who was apprehended by his younger brother Taimur Shah whereas, accused Habib Shaikh fired towards accused Suhail. He further stated that accused Suhail received bullet injury on his foot, as a result of firing made by Habib Shaikh whereas, accused Dawood Pathan gave butt blow to him, on the head. They raised cries which attracted Mohallah people. They apprehended the accused persons with the help of inhabitants of the area and detained them in Baithak of the house. Since he and his father were bleeding, therefore, both were taken to Hospital in the vehicle of Matloob Khan. In the Hospital, doctor disclosed that his father was dead. In the course of his cross-examination he denied the suggestion as incorrect that some unknown dacoits had committed dacoity in their house and his father died as a result of firing made by Taimur Shah. He also denied the suggestion as incorrect that accused Atique was already lying in the Hospital, in injured condition, when they reached there and that accused persons Atique and Suhail had received injuries in fire works on the occasion of Shab-e-Barat. He also denied the suggestion as incorrect that accused persons had neither trespassed into their house nor had they, tried to robe them nor made firing and that the witness and the deceased had received injuries in panic. He also denied the suggestion as incorrect that the accused persons Suhail and Atique were not arrested alongwith the weapons of offence from their house, nor currency notes, N.I.Cs. And wrist watch were recovered from their possession P.W.3 Syed Taimur Shah, at the trial corroborated the statements of P. Ws. 1 and 2 in all material particulars. In the course of his cross-examination he stated that the accused persons fired at them from a distance of 2/3 feet. He denied the suggestion as incorrect that they had, prior to the incident, altercation with accused Naeem as he had fired crackers in front of their house P.W.4 Mumtaz Ali is a witness of the locality. He deposed that on the day of occurrence, in the night, he was offering prayers as it was Shabe-e-Barat. At about 1.30 a.m. He heard gun shot reports as well as noise which was coming from the house of the deceased. He went mining towards the place of incident and saw that light in the house was on and accused persons namely Dawood, Habib and Naeem alias Bholla armed with pistols, were coming out from the house. They approached the place of occurrence from western side whereas, the accused persons fled towards eastern side of the house of Syed Bashir Shah. He saw the deceased lying in injured condition. P.W. Naveed Shah .Had caught hold of accused Suhail whereas, P.W. Taimur Shah had apprehended accused Atique. Both the accused persons were armed with pistols. On inquiry P.W.
Sikandar Shah disclosed to him that the dacoits, who were five in number had entered their house, two of them were apprehended, whereas, the rest were able to make good their escape. He was further told by Sikandar Shah that the dacoits had robbed, a sum of Rs,15,000 from him, and a sum of Rs,5,000 alongwith a Seiko wrist watch and N.I.C., from Syed Sultan Shah alias Bashir Shah. The witness further deposed that he had seen accused persons namely Atique and Suhail in injured condition. Accused Atique had injury on the left side of his chest whereas, accused Suhail had injury on his right foot. They took the accused persons Atique and Suhail to a room and locked them therein. Sikandar Shah brought police, at the house, at 2.45 a.m. Police took into custody the culprits alongwith pistols and also effected other recoveries. P.W.5 Dr. Saeed Ahmed Medical Officer, P.M.C.H. Nawabshah had on 7-1-1996 at 2-00 a.m. Examined injured Syed Shabir Shah and found as under:-- "(1) Contusion 3 c.m. x 3 c.m. With central laceration and oozing of blood at posterior part of left perietal region."
' He was of the opinion that nature of the injury was simple and caused by hard blunt substance and it was fresh. He produced in Court Medico-legal Certificate concerning the above, as Exh.18. On the same day at 3-00 a.m. He examined accused Atique and found the following injuries on his person:--- "(1) of left side of chest/margin inverted, wound of entry.
' Fire-arm discharge punctured wound 1 c.m. x 1 c.m. At lower part
(2) Fire-arm discharge punctured wound 1 c.m. x 1-1/2 c.m. At lower part of back of chest margin inverted laterly wound of exit. During Surgery spleen was found ruptured, Gastic performation, diaformatic tear was repaired alongwith spleenictony."
' He produced in Court, Medico-legal Certificate concerning the above as Exh.19. On the same day he had also examined accused Suhail and found as under:--
(1) Fire-arm discharge punctured wound 1 c.m. x 1 c.m. At back of Medial Aspect of Right Heelo, entry wound margin inverted.
(2) Fire-arm discharge punctured wound 1-1/2 c.m. x 1/12 c.m. On lateral aspect of back of right Heel margin inverted wound Exit.
(3) Lacerated wound 4 c.m. x 1/2 can. Muscle deep on right parital region. .
(4) Lacerated wound 4 c.m. x 1-1/2 c.m. Muscle deep on interparital Region, X-Ray shows fracture of the Celcancoms Bone of Right Foot."
' He produced certificate regarding accused Suhail as Exh.20. He also conducted post-mortem examination of deceased Syed Bashir Ahmed and found as under:---
(1) One fire-arm discharge punctured wound oval in shape about 1-1/2 c.m. x 1-1/2 c.m. In diameter at mid of the right side of neck with bleeding margin inverted. Wound of entry.
(2) One fire-arm discharge wound 2 c.m. x 2 c.m. Oval shape margin inverted on Mid of left side of neck wound of Exit.
(3) Fire-arm discharge punctured wound 1-1/2 c.m. x 1 c.m. Diamter oval in shape margin diverted on right shoulder. Deep up to apex of right lung.
(4) Fire-arm discharge punctured wound 1-1/2 c.m. x 1-1/2 c.m. In diameter oval in shape at back of right elbow joint margin inverted wound of entrance.
(5) Fire-arm discharge punctured wound 2 c.m. x 2 c.m. Margin inverted on/front of right elbow joint. Wound of Exit. On internal examination he found:---
(1) Neck on deep dessection the blood vessel Nerve Cervical vertex. Trachea and aesophagus were found ruptured and trachea and aesophagus full of blood. Shoulder on deep dessection bullet damaged the right shoulder joint and apex of right lung plural cavity full of blood. Elbow joint, on deep dessection bullet damaged the bone of right elbow joint."
' He was of the opinion that cause of death of the deceased was haemorrhage and shock due to rupture of blood vessels, Nerv, Cervical vertibery of Neck and injury to lung. He confirmed that the injuries were caused by fire-arm weapon. He produced post-mortem report as Exh.21. In the course of his cross-examination he sated that the accused persons Atique and Suhail, were brought to him by police. P.W.6 Mehboob Ali Shah is a witness of the memo. Of arrest of the accused persons namely Suhail and Atique and the recovery of weapons from their possession. He is also a witness of the inquest report as well as arrest of accused persons Naeem alias Bhola and Dawood. He produced the same in the Court as Exh.28 and Exh.29 respectively. P.W.7 Yar Muhammad Tapedar had prepared site plan sketch of Wardat. He produced the same in Court as Exh.31. P.W.8 Bashir Ahmed, Sub-Inspector is the Investigating Officer of the case. He deposed that on 7-1-1996, on the report made by Sikandar Shah, he had registered F.I.R. Exh.13-A whereafter, he proceeded to the place of occurrence and arrested accused persons namely Atique and Suhail and also recovered crime weapons from their possession. He further deposed that he had also sent the aforenamed accused persons to Hospital and also effected recoveries of the robbed property. He had also arrested Naeem alias Bhola on 7-1-1996 and recovered pistol on his pointation. He also produced in Court the Chemical Examiner as well as Ballistic Expert reports as Exh.36 and Exh,37, respectively. In the course of his cross-examination he denied the suggestion as incorrect that weapons of offence were not recovered from the possession of accused persons and it were foisted on them.
5. On the conclusion of the prosecution evidence the accused persons were examined under section 342, Cr.P.C. In their above statements, they denied the charge and pleaded innocence. In answer to the question as to why P. Ws. Have deposed against them, accused Suhail stated that he had exchange of hot words, in the evening of Shab-e-Barat, with the complainant party over Atish Bazi, in the street, in front of complainant's house and he was implicated falsely on account thereof.
Similar was the stand taken by rest of the accused persons. All the accused persons denied the recovery of crime weapons as well as other articles from their possession. Accused persons namely Suhail and Atique, in their above statements, further stated that they were injured during Atish Bazi in the evening of Shab-e-Barat, in the street. They also denied their arrest at the residence of the complainant in injured condition. Accused persons further stated that the dacoity had been committed by some unknown persons and they were implicated falsely due to exchange of hot words as well as on suspicion. Except accused Naeem none of the accused persons got examined themselves on oath. However, accused Atique produced his brother namely Muhammad Toufeeq as D.W.1 and cousin namely Saleem Raza as D.W.
2. Accused Naeem deposed that in the night of occurrence at 9.00 p.m. They were firing crackers.
Complainant, Sikandar Ali Shah and P.W. Naveed Shah came there and forbade them from making noise. On their refusal, complainant Sikandar threatened them for dire consequence. They continued playing fire crackers uptil 10 p.m., whereafter he returned to his house. In the morning he was arrested from his house. He further stated that he did not produce any revolver or bullets before the police. He refuted the suggestion as incorrect that accused Atique had received injury while committing dacoity in the house of the complainant. He also denied the suggestion as incorrect that accused Atique was arrested in the house of Syed Bashir Shah. He also denied the suggestion as incorrect that he was deposing falsely. D.W.2 Muhammad Toufeeq deposed that accused Atique was his younger brother. In the night of Shab-eBarat, at 1.00 a.m. He and another boy namely. Muhammad Saleem came out of Akbari Mosque and observed that people had gathered in front of the Mosque. He went there and saw that Atique accused was lying on the ground in injured condition and blood was oozing out of his body. He was unconscious. He i.e, the witness hired tonga of Muhammad Saleem and took the injured to the hospital for treatment. He further stated that accused Atique was admitted in the Hospital. D.W.3 Saleem Raza deposed that accused Atique was his cousin. In the night of Shab-e-Barat he and Toufeeq came out of the mosque after prayers and saw Atique accused lying on the ground in injured condition. He was unconscious. Since he used to ply tonga, therefore, he brought his tonga and took the injured to, the Hospital where, he was admitted.
' On the application filed by Mr. Noor Nabi Memon, Advocate, D.W.4 Dr. Muhammad Ismail, Additional Medical Superintendent P.M.C.H. District Nawabshah was also called and examined. He produced certificate dated 28-8-1997 as Exh.50, concerning accused Atique. In the course of his cross-examination he stated that he had based the certificate on the endorsement made by C.M.O. And it contained the date as 13-4-1996, of P.M.C. Nawabshah. He, however, clarified that the Register does not show arrival time of the patient in the Hospital. D.W.5 Dr, Saeed Ahmad Khan was examined as D.W.5 who produced in Court photocopy of page 70 of the Ward Register as Exh.54 containing Entry No, 1055. He also produced photo copy of the O.P.D. Register (in Door) containing entry, dated 6-1-1996 as Exh.55 and dated 7-1-1996 as Exh.56. He also produced Register OPD (Out Door), dated 6-1-1996 and 7-1-1996 as Exhs.57 and 58, respectively.
6. After hearing arguments of the learned counsel for the parties the learned trial Court convicted the accused/appellants and sentenced them to the punishment as mentioned in the opening para. Hereof.
7. We have heard Mr. Noor Nabi Memon, Advocate, learned counsel for the appellants, Shaikh Ghulam Sabir Niazi, Advocate, learned counsel for the complainant, Mr. Jawed Akhtar, Advocate, learned counsel for the State and have also perused the entire record with their assistance.
8. Mr. Noor Nabi Memon, Advocate, learned counsel for the appellants has raised the following contentions:--
(1) That the appellants could not have been convicted and punished on the basis of ocular testimony of highly interested witnesses.
(2) That there was unexplained delay in despatching the crime weapons to Ballistic Expert thus, the delay had marred evidentiary value of the recoveries.
(3) That the prosecution witnesses particularly eye-witnesses were not subjected to Tazkiyah-tul- Shuhood, therefore, the appellants could not have been punished on the basis of their testimony.
(4) That testimony of P.W.4 Mumtaz Ali, being hearsay was inadmissible.
(5) That no corroboratory evidence from any independent source was available so as to believe the occurrence.
(6) That the trial Court has gravely erred in ignoring glaring and material infirmities in the prosecution case.
(7) That the statutory benefit of section 382-B, Cr.P.C. Was illegally withheld by the learned trial Court.
9. Shaikh Ghulam Sabir Niazi, Advocate, learned counsel for the complainant, on the other hand, while controverting the contentions raised by the learned counsel for the appellants submitted that since guilt of the appellants was fully brought home, at the trial, by the prosecution, through independent and reliable evidence, therefore, the impugned judgment was unexceptionable. He added that in the instant case the F.I.R. Was lodged promptly and not only names of all the accused persons were mentioned therein but specific roles were also attributed to them. Besides, the incident in detail was also described therein and names of the witnesses were also given, therefore, the possibility that it was lodged after deliberations was ruled out. He further submitted that though eye-witnesses were related to the deceased yet, neither they had any enmity with the accused persons nor had they any motive to falsely implicate them, therefore, their testimonies were rightly believed by the learned trial Court. He maintained that arrest of the accused persons namely Atique and Suhail, at the place of occurrence and recovery of crime weapons from their possession established the fact that the prosecution version was true and the appellants were responsible for the offences. He submitted that recovery of stolen property from the possession of the accused persons further lends support to the prosecution version.
10. Mr. Jawed Akhtar, Advocate, learned counsel for the State, while adopting the arguments advanced by the learned counsel for the complainant submitted that since guilt of the appellants was substantially and materially brought home at the trial through reliable and independent evidence, therefore, they were rightly convicted by the learned trial Court.
11. In furtherance of his first contention that the appellants could not have been convicted and punished on the basis of ocular testimony of highly interested witnesses, the learned counsel for the appellants submitted that in the instant case, statements of the eye-witnesses i.e, Syed Sikandar Shah, Syed Shabir Shah alias Naveed Shah and Syed Taimur Shah, being real sons and closely related to the deceased, could not have been believed by the learned trial Court, in recording conviction against the appellants because they were interested in their prosecution. It appears that the learned counsel for the appellant has raised the contention perhaps, under a misconception because it is well-settled that mere relationship of a witness with the deceased or the complainant would not make him an interested witness if he had otherwise, no motive of his own to involve the accused. In this view we are fortified by the following reported judgments:--
(1) Saeed Akhtar and others v. The State 2000 SCM R 383 and (2) Allah Wasaya and another v. The State 2000 SCM R 746.
' It may be mentioned here that in the case of Iqbal alias Bala and two others v. The State reported as 1994 SCM R 1 the proposition has been authoritatively answered by the Honourable Supreme Court of Pakistan and it would be instructive to reproduce the relevant observations from the above judgment which reads as follows:-- ' "The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State PLD 1962 SC 269. In the present case P.W.10 is not an interested witness as nothing has been brought on record to show that he had motive for falsely implicating the appellants or was personally involved in any act of enmity between the parties. In Khalil Ahmad v. The State 1976 SCM R 161 the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent corroborated by the presence of injuries on his person, human blood-stained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State 1970 SCM R 734 the testimony of four P.Ws. Out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses."
' What to speak of related witnesses, it has been held, in a number of judgments that testimony of interested witness even, cannot be brushed aside unless it is proved that the witness had involved the accused for ulterior motive. Reliance in this regard may be placed on a recent judgment of the Honourable Supreme Court of Pakistan delivered in the case of Sarfraz alias Sappi and two others v. The State reported as 2000 SCM R 1758. Further, in the case of Muhammad Sarwar v. The State 1999 SCM R 2428 the evidence of inimical witness, even without corroboration, was believed when instrinsic worth of the testimony inspired confidence and led to the belief that the witnesses had seen the occurrence. In the case of Abdul Ghafoor v. The State reported as 2000 SCM R 919 as well, it was held that evidence furnished by interested witnesses, related to the victim or the deceased cannot be discarded merely because of the relationship. As a sequel to the above, it may be recounted here that an interested witness is one who has of his own, a motive to falsely implicate an accused, is partisan or predisposed towards a party and swayed by a cause against the accused.
' Since, in the instant case, it has not been shown that the eye-witnesses, named above, were inimical towards the appellants or had, prior to the incident, any motive to falsely implicate the accused persons in the offence, therefore, they by no stretch of imagination, can be termed to be interested witnesses.
12. In furtherance of his next contention that unexplained delay in despatching the crime weapons to the Ballistic Expert had marred evidentiary value of the recoveries, the learned counsel for the appellants submitted that occurrence, in the instant case, took place on 7-1-1996 and two of the appellants namely Suhail and Atique, as per prosecution version, were apprehended at the spot and the crime weapons i.e, pistols were also recovered from their possession instantly. The empties too, from the place of occurrence, were taken into possession on 7-1-1996. Weapons from the possession of the accused/appellants Naeem and Dawood were allegedly recovered on 17-1-1996, whereas the incriminating material, as per Ballistic Expert's Report reached his office on 11-3-1996 after about two months of the recovery. Since at the trial, no plausible explanation regarding delay in sending the incriminating material to the Ballistic Expert was offered, therefore, the recoveries could not have been taken into consideration in convicting the appellants. In order to ascertain as to whether or not there is substance in the contention, we have carefully gone through the record of the case. It reveals that pistols from the possession of appellants Suhail and Atique were recovered at the time of their arrest. The empties, thirteen in number, were also collected from the place of occurrence on 7-1-1996 and were accordingly taken into possession vide recovery memo.
Exh.24. Pistols from the possession of appellants Naeem and Dawood were recovered by the police on 17-1-1996 and were accordingly taken into possession vide the recovery memos. Exh.24 and Exh.25. P.W.8 Bashir Ahmad, in the course of his cross-examination has confirmed that the weapons as well as the empties were sealed in different parcels, at the spot.
' It is not evident on record as to how long the articles in question remained with the police but at the most it may be uptil 11-3-1996 when as per Ballistic Expert's Report it reached his office. Thus, though there is/was a delay in sending the incriminating material to the Ballistic Expert yet, the same in our view is/was not destructive. It is well-settled that the delay simpliciter in sending the incriminating material to an Expert is always not fatal to the prosecution case. (Anwar-ul-Hasan v.
The State 1980 SCM R 649) particularly, when neither any tampering is alleged nor proved on record. In the instant case, an iota of evidence is not available on record, to infer that the parcels containing the incriminating material were either tampered with or contents thereof were substituted by the prosecution. Exh.36 i.e, the Ballistic Expert's Report is indicative of the fact that when the parcels were delivered in the office of the Expert, the seals were intact. Record shows that the recovered articles were sealed in separate parcels, in presence of the witnesses and were accordingly taken into possession at the spot. P.W.8 Bashir Ahmad, P.W.6 Mahboob Ali Shah and P.W.4 Raja Mumtaz all have testified the above fact. None of the above said witnesses have at the trial, been suggested that the parcels in question were either tampered with or the seals were broken, thus, the report in question was rightly believed by the learned trial Court. In this view, we are fortified by the observations of the Honourable Supreme Court of Pakistan made in the case of Mian Khan v. The State reported as 1982 SCM R 629. The contention, therefore, has no force.
13. As regards the next contention of the learned counsel for the appellants that since in the instant case, the process of Tazkiyah-tul-Shuhood was not resorted to, therefore, the appellants could not have been punished on the basis of the statements of the P.Ws., it may be pointed out here that though the record does not indicate that the requirements of Tazkiyah-alShuhood as envisaged by section 7 of the Hudood Ordinance, in the case were satisfied yet, the fact remains that statements of the witnesses which otherwise were, recorded on oath, could not have been straightaway rejected. No doubt, Tazkiya-tul-Shuhood is a condition precedent to impose the sentence of Hadd, yet, it cannot be said that Ta'zir punishment, cannot be inflicted on an accused, if it has not been undertaken. Since, every Muslim is a competent witness and he is ordained to speak the truth (Mumtaz Ahmad and another v. The State PLD 1990 FSC 38, therefore, his testimony, so far as Ta'zir punishment is concerned, cannot be discarded, if it is otherwise, believable. In a number of cases, where the requirements of Tazkiyah-tulShahood, were not fulfilled testimonies of the witnesses were believed, by the Courts, to award Ta'zir punishments. Reference in this regard may usefully be made to the case of Arshad Ali v. The State 1993 PCr.LJ 2540, in which case the Honourable Supreme Appellate Court, in a case of Harrabah liable to Hadd, in view of the fact that the requirements of Tazkiyah-tul-Shuhood, were not fulfilled, was pleased to inflict ten years' R.I. With fine on the appellants. In the case of Ghulam Ali v. The State PLD 1986 SC.741 too, the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan in the absence of requisite proof as required by section 7 of the. Hudood Ordinance and the fact that the witnesses had not satisfied the requirements of Tazkiyah-tul-Shuhood, so as to be adjudged as truthful persons, was pleased to award a punishment of three years' R.I. For committing theft in a mosque. In the case of Sanaullah v. The State PLD 1991 FSC 186 too, in view of the fact that the requirements of Tazkiyah- tulShuhood were lacking, the appellants were convicted and sentenced to five years' R.I. The sentence of Hadd was, however, set aside. In the case of Muhammad Yaseen alias Seema v. The State a Full Bench of this Court was pleased to lay down that, though Tazkiyah-tul-Shuhood is must in a Hadd case yet, non-compliance of the requirements regarding Tazkiyah-tulShuhood of the witnesses, would not culminate in acquittal of the accused persons and they can be awarded punishments as Ta'zir. In the case of Riaz Ahmad v. The State PLJ 1990 SC 105 too, the Honourable Supreme Court of Pakistan was pleased to lay down that the requirement of Tazkiya-tulShuhood is obligatory only in cases punishable with Hadd and/or Qisas, but not in cases punishable with Ta'zir and the view has been affirmed by the Honourable Supreme Court of Pakistan in the judgment delivered recently in the case of Abdul Salam v. The State 2000 SCM R 338. We are, therefore, unable to subscribe to the contention of the learned counsel for the appellants that since the requirements of Tazkiah-tul-Shahood were not fulfilled, therefore, appellants could not have been convicted on the basis of the statements of the P.Ws.
14. In order to supplement his next contention that the testimony of P.W.4 Mumtaz Ali being hearsay was inadmissible Mr. Noor Nabi Memon, Advocate, learned counsel for the appellants vehemently argued that since, P.W. Mumtaz Ali, at the trial, has stated that on hearing gunshot reports when he reached at the place of occurrence P.W. Sikandar Shah told him that the dacoits, who were five in number had entered their house and committed robbery, therefore, his statement being, primarily hearsay could not have been relied upon by the learned trial Court. We are afraid, this argument cannot prevail because statement of the P.W.4 has two parts. In the beginning of his statement the witness has stated that when on hearing gun shot reports he rushed towards the place of occurrence, he saw that light of the house was on and accused persons namely, Daud, Habib, and Naeem alias Bhola armed with pistols, were coming out of the house. Subsequently, he disclosed that on entering the house he saw that the deceased was lying in injured condition. P.W. Naveed Shah had caught hold of accused Suhail whereas, P.W. Timor Shah was holding accused Atique and both the accused persons were armed with pistols. This portion of the statement is based on personal observation and knowledge of the witness, therefore, cannot be regarded as hearsay. In the middle of his examination-in-chief the witness has stated that on query, P.W. Sikandar Shah disclosed to him that the dacoits who were five in number, had entered their house two of them were apprehended whereas, the rest were able to make good their escape and that the dacoits had also robbed certain amounts as well as other articles from him and, his brother. This portion of his statement is though not based upon personal knowledge of the witnesses yet, it cannot be said that it was inadmissible, because statements made under immediate influence of a transaction being res jesdae are admissible under Article 19 of the Qanun-eShahadat Order, 1984. The relevant provision reads as follows:-- "Article 19. Relevancy of facts forming Dart of same transaction.---Fact which though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."
' In order to crystalize the proposition it would be advantageous to also reproduce hereinbelow illustration (a) to the above Article which reads as under:-- "(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by- standards at the beating, or, so shortly before after or it as to form part of the transaction, is are relevant fact."
A bare perusal of the above provision as well as the illustration tagged thereto would lead to the inference that hearsay testimony would be admissible if it is proved that the object of the maker of the statement was to elucidate and explain the circumstances connected with the same transaction provided the possibility of concoction or distortion, to the advantage of the maker or to disadvantage of the accused, is ruled out. Since rest of the statement of P.W.4 is also based on personal knowledge of the witnesses, therefore, we do not find any force in this contention of the learned counsel for the appellants, as well.
15. In furtherance of his next contention that since no evidence from any independent source was available to believe the occurrence, therefore, appellants could not have been convicted, the learned counsel for the appellants has stated that in the case, prosecution in order to prove the charge has examined only close relatives of the deceased and since their statements do not find support from other sources, therefore, the appellants could not have been convicted on the basis of the same. To our mind this objection is also misconceived, because in the instant case, the prosecution, in addition to the eye-witnesses of the occurrence, have also examined P.W.4 Taimur Shah who is quite an independent witness. He has though not claimed to have seen the occurrence himself yet, has confirmed that he had seen three of the culprits namely, Naveed alias Bhola, Daud and Habib (the absconding accused) fleeing from the place of occurrence. He has further confirmed that on entering the house had seen the deceased lying in injured condition and appellants Suhail and Atique were caught hold of by Naveed Shah and Taimur Shah, respectively.
He has also confirmed that both the accused persons, at the relevant time, were armed with pistols. Thus, his testimony renders sufficient corroboration to the testimony of the eye-witnesses on material points. It would be worthwhile to mention here that P.W.4 is a witness of the locality and not only he knew the complainant and his family members previously but the appellants as well as the absconding accused, being residents of the same Mohallah were also known to him. Arrest of the accused persons namely Suhail and Atique from the place of occurrence and recovery of pistols from their possession instantly, lends further support to the prosecution version. The recovery of crime weapons from the possession of other appellants also strengthens the prosecution case because the Ballistic Expert in his report has confirmed that at least three .22 bore crime-empties marked as C-1 to C-3, two .32 bore crime-empties marked as C-4 and C-5 and six .30 bore crime-empties marked as C-6 to C-8 and C-9 to C-11, were fired from the pistols recovered from the possession of the appellants. As per prosecution version accused persons namely, Suhail, and Atique had also sustained injuries in addition to Syed Shabir Shah and the medical evidence furnished at the trial, his confirmed the above fact. Thus, by no stretch of imagination it can be said that no corroboratory piece of evidence was available to corroborate the statements of eye-witnesses.
16. In furtherance of his next contention that the trial Court has erred in ignoring the glaring and material infirmities in the prosecution testimony Mr. Noor Nabi Memon, learned counsel for the appellants has submitted that as per prosecution version appellants Atique and Suhail were caught hold of by P.Ws. Taimur Shah and Shabir Shah from backside and rest of the dacoits made firing for their rescue and as a result, appellant Atique sustained bullet injury through and through.
He added that in the situation, as to how it was possible that P.W. Taimur Shah, who had allegedly caught hold of appellant Atique from behind escaped. The learned counsel for the appellants maintained that, in the circumstances, presence. Of P.W. Taimur Shah at the place of occurrence was doubtful. In order to ascertain as to whether or not there is substance in the contention we have ourselves carefully gone through the record of the case. No doubt, it has been stated by the witnesses that accused Atique at the time of occurrence was caught hold of by P.W. Taimur Shah and that the culprits, made firing for his release and a bullet also hit appellant Atique and it went through and through. It is also an admitted fact that Temore Shah was not injured yet, to our mind, in the given situation it was not improbable. The learned trial Judge, in the judgment, has observed that since appellant Atique was fired at from a .22 bore pistol, therefore, the possibility that velocity of the bullet having been decreased, could not have caused injury to the said P.W., cannot be ruled out, but as per our estimation, there may be another reason, as well. Though, it has come in evidence that appellant Atique was apprehended by Temore Shah from backside yet, it has not come on record that both remained static throughout. The very fact that though P.W. Taimur Shah was fired at yet, appellant Suhail sustained injury in his place suggests that there was a struggle between the two, Suhail appellant might have been trying to get himself free from the clutches of P.W. Taimur Shah and in the process sustained the injury and angle of firing may be such that Taimur Shah might not have come in the line. Regarding presence or otherwise of the eye- witnesses at the place of occurrence it may be pointed out here that appellant Atique was examined at 3-00 a.m. And it has been mentioned in the medical certificate that he had sustained bullet injury in the chest. Prosecution witnesses have also deposed that when Taimur Shah was fired at, the bullet hit appellant Atique in the chest. There is no improvement in the statements of the P.Ws., regarding the seat of the Injury. It has also come in the statement of Investigating Officer that statements Of P.Ws. Under section 161, Cr.P.C. Were recorded instantly, therefore, the only inference possible to be drawn is that the P.Ws. Were present at the place of occurrence and they had seen the incident themselves otherwise they would have not been able to know as to where, appellant Atique was hit by the bullet. Learned counsel for the appellants has also tried to canvass that since in the statement of P.W. Sikandar Shah it has come that after the incident Shabir Shah had told him that he was also injured in the incident, therefore, presence of the complainant at the place of occurrence was doubtful. He added that if the complainant would have been present at the spot himself, he would have certainly not inquired from Syed Shabbir Shah as to what happened to him? We are afraid, the argument advanced by the learned counsel for the appellants in this regard too, cannot prevail because a number of persons were involved in the incident (i.e, five accused persons, three P.Ws. And one deceased). The situation, on record is that at the time of receiving injury by P.W. Shabbir Shah, P.W. Teimur Shah had caught hold of appellant Atique whereas, Shabir Shah was holding appellant Suhail. According to the complainant, he and his deceased father at the relevant time, also tried to apprehend the other culprits and as a result his father having sustained bullet injuries, fell down. So, naturally, attention of the complainant would have been diverted to his father. Thus, if soon after the incident, he having seen the P.W.
Bleeding, had enquired from him, his conduct was quite natural. In the circumstances presence of the complainant at the place of occurrence cannot be doubted.
17. In the instant case, benefit of section 382-B, Cr.P.C. Has not been extended to the appellants and while withholding the benefit, the learned trial Judge has remarked that since the offences committed by the appellants were heinous in nature, therefore, they could not have been the beneficiaries. It appears that the learned trial Court has not comprehend the relevant provision properly because, in our view, nature and kind of the offence, for which an accused is charged, is not the determining factor for the grant or refusal of the benefit as law-makers have themselves taken care of the situation by providing separate and appropriate sentences for different offences.
In order to grasp the import of section 382-B, Cr.P.C. It would be advantageous to have a glance at the relevant provision which reads as follows:-- "382-B. Period of detention to be considered while awarding sentence of imprisonment.--- Where a Court decides to pass a sentence of imprisonment on an accused for an offence it *shall take into consideration the period, if any, during which such accused was detained in custody for such offence."
' The underlining is our.
' A bare perusal of section 382-B, Cr.P.C. Would lead to the inference that primarily it has been enacted keeping in view "the period during which an accused is detained in custody as under-trial prisoner for such offence" and the length of sentence of imprisonment inflicted on him in respect of any offence has to be treated as reduced by "such period". It may be mentioned here that in the provision, as it was originally promulgated, in place of the underlined word "shall" the word "may" was used. However, it was substituted by the word "shall" vide Ordinance LXXI of 1979 i.e, Criminal Procedure Code (Second Amendment) Ordinance, 1979. In our view the word "may" used in the provision was thoughtfully substituted by the word "shall" so that discretion with regard to its application is not left with the Court. This view receives support from the cases reported as Ghulam Murtaza v. The State PLD 1998 SC 152 and Muhammad Rafiq v. The State 1995 SCM R 1525.
In the above-referred case of Ghulam Murtaza v. The State the Honourable Supreme Court of Pakistan was pleased to clearly lay down that object imbeded in section 382-B, Cr.P.C. Was to compensate the accused for the delay in conclusion of trial, due to various factors, generally not attributable to him as the State was supposed to provide speedy justice. In the case of Javed Iqbal v. The State 1998 SCM R 1539 the Honourable Supreme Court while referring the case of Mukhtaruddin v. The State 1975 SCM R 55 was pleased to reaffirm the above view that; the object of section 382-B, Cr.P.C. Was to compensate the accused for the delay in the conclusion of his trial. It was further observed by the Honourable Supreme Court in the above-referred case that beneficial provisions were required to be construed liberally. Needless to point out that in the cases of Ramzan v. The State PLD 1992 SC 11 as well as Qadir and another v. The State PLD 1991 SC 1065, the Honourable Supreme Court of Pakistan was pleased to further lay down that benefit of section 382- B, Cr.P.C. Was extendable even in cases of life imprisonment and the contention that since the offence of murder was gruesome, therefore, the accused persons as of rule, were not entitled to the benefit was also repelled in the case of Ghulam Murtaza v. The State. Since in the instant case, record does not indicate that appellants had in any manner delayed the proceedings or obstructed the trial, therefore, in our view, benefit of section 382-B, Cr.P.C. Could not have been withheld by the learned trial Court. Resultantly, benefit of section 382-B, Cr.P.C. Is allowed to all the appellants.
18. In the instant case, occurrence took place on 7-1-1996 in the night of Shab-e-Birat at about 1-30 a.m. The occurrence as well as its date and time has not been disputed by the defence. The F.I.R.
Was lodged at 2-15 a.m. On the same day at the police station which is about a furlong from the place of occurrence. Thus, there was hardly any delay in lodging the F.I.R. Even otherwise, it has come on record that soon after the occurrence complainant had taken his injured father and brother to hospital and on coming back he immediately lodged the report, therefore, the possibility that it was lodged after deliberation is ruled out. The eye-Witnesses namely Syed Sikandar Shah, Syed Shabir Shah alias Naveed Shah and Taimur Shah being closely related to the deceased and residents of the same house are natural witnesses. Their statements in all material particulars have been corroborated by Mumtaz Ali P.W., who is an independent witness of the locality and had arrived at the place of occurrence instantly. The fact that all the brothers were residing in one and the same house, has not been disputed by the defence, therefore, their presence at the place of occurrence cannot be doubted. Further, neither any enmity has been alleged with the complainant party nor any motive for false implication of the appellants has, at the trial been proved, therefore, statements of the P.Ws. Were rightly believed, Further, since substitution of an accused is a rare phenomena, therefore, it is not conceivable that relatives of the deceased would have implicated the appellants in place of the real culprits just for nothing or to settle the score on account of petty grievances. The accused persons are admittedly residents of the same Mohalla and were previously known to the eye-witnesses. Not only their names at the very outset were given in the F.I.R. But specific roles were attributed to each of them. Therefore, to our mind, the defence plea that the appellants were falsely implicated in the offence, in place of unknown dacoits, is without substance. The medical testimony has also confirmed the injuries on the person of the deceased as well as P.W. Syed Shabir Shah, as narrated in the F.I.R. Above all, the very fact that two of the accused persons namely Atique and Suhail were apprehended at the spot alongwith pistols lead to the inference that the prosecution version was true. Though, at the trial, both the accused- appellants namely Suhail and Atique have tried to establish that they were not apprehended at the place of occurrence and were arrested subsequently from elswhere yet, the defence plea on the face, appears to be sham. It would be pertinent to mention here that appellant Atiqu in order to prove that; he was neither arrested at the spot nor having been injured in the incident was taken to hospital by the police, has examined Dr. Muhammad Ismail yet, the original slip of treatment i.e, Exh.59 produced by P.W. Saeed Ahmad does not contain, therein the endorsement that appellant Atique was already in hospital. Thus, the learned trial Judge was justified in concluding that the defence plea qua admission of the appellant, in the hospital, was false.
14. The upshot of the above discussion is that the appeals filed by Suhail son of Abdul Waheed Pathan, Atique son of Iqbal Rajput, Naeem alias Bholla son of Muhammad Jamil and Daud son of Sarwaryar Ahmadzai are dismissed. The conviction of the appellants under section 396 read with section 149, P.P.C. Is maintained. Sentences of life imprisonments recorded against appellants Naeem alias Bholla and Daud son of Sarwaryar Ahmedzai are also maintained. However, since it has not been established on record that appellants Suhail son of Abdul Waheed Pathan and Atique son of Iqbal Rajput were directly responsible for causing death of the deceased namely, Syed Bashir Ahmad as they, at the relevant time, were apprehended by the eye-witnesses, therefore, we are inclined to reduce their sentences from life imprisonment each to that of ten years rigorous imprisonment each. The sentences of fine or quantum of sentences in default thereof inflicted on the appellants, shall remain the same. Benefit of section 382-B, Cr.P.C. As stated above, is extended to the appellants.
' These are the reasons for our short order of the even date.