'JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 1-6-2000 passed by a learned Division Bench of Lahore High Court (Rawalpindi Bench) whereby judgment dated 30-11-1998 passed by learned Additional Sessions Judge, Islamabad, has been kept intact.
2. Briefly stated the facts of the case as enumerated in the impugned judgment are "that on 22-11- 1994 complainant Elahi Bux (P.W.7) alongwith Abdur Razzaq son of Juma Khan (P.W.10) were returning after watering their buffaloes from a Nala at about 12-30 noon and had reached near the house of Liaqat son of Muhammad Zaman. They noticed that Muhammad Sadiq son of Ghulam Mehdi of the same village was proceeding towards Nala for watering his cattle. Towards the right side of the house of aforementioned Liaqat, Rabnawaz, Abdur Rehman, Muhammad Nawaz, Muhammad Ayub and Muhammad Bashir armed with 7-MM rifles were present. Rabnawaz raised Lalkara that Muhammad Sadiq be not allowed to go alive. Thereupon, Muhammad Sadiq ran towards the house of Liaqat and took refuge in his courtyard. All the five aforementioned accused firing in the air and raising Lalkara chased Muhammad Sadiq and entered in his (Liaqat's) courtyard. Rabnawaz fired with his 7-MM rifle which hit Muhammad Sadiq upon his head who fell down and died on the spot. Rabnawaz and others thereafter decamped from their firing in the air".
After completion of usual investigation the petitioner was sent up for trial alongwith other co- accused persons (since acquitted) and on conclusion whereof he was convicted under section 302, P.P.C. And sentenced for life imprisonment with fine of Rs,30,000 and in case of default to suffer S.I. For six months with benefit of section 382-B, Cr.P.C. Being aggrieved an appeal was preferred which has been dismissed vide impugned judgment, hence this petition.
3. We have heard Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court on behalf of the petitioner at length who mainly contended that the statement of Ellahi Bukhsh (P.W.7) should have been discarded as he was not present at the place of occurrence and moreso, he attempted to suppress the inter se relationship with that of deceased and moreso it was impossible for him to have witnessed the occurrence from the place where he was shown present in the site plan. It is also contended that allegedly 7-MM rifle was recovered but subsequently the prosecution has shown that a .12 bore gun was recovered from the petitioner and on this score alone the impugned judgment is liable to be set aside specially in view of the negative report furnished by Forensic Science Laboratory. Much stress has been laid down on site plan (Exh.P.M) and the statement of Muhammad Akram, Draftsman (P.W.4) with the submission that it was physically impossible for Ellahi Baldish (P.W.7) to see the occurrence as stated by him. It is urged with vehemence that the statement of Muhammad Mumtaz (P.W.8) has not been appreciated in its true perspective who mentioned in a categoric manner that Ellahi Bukhsh (P.W.7) was in Pakistan Institute of Medical Sciences Hospital at the time of occurrence and in such view of the matter his statement should have been kept out of consideration which on the contrary has been relied heavily by the Courts below which resulted in serious miscarriage of justice. It is vehemently argued that four accused were acquitted and, therefore, the question of conviction of Rabnawaz (petitioner) on the same evidence which was never believed in case of acquitted accused, does not arise.
4. Mr. Muhammad Ilyas Siddiqui, learned Advocate Supreme Court appeared on behalf of Ellahi Baldish (petitioner) and vehemently opposed the view-point as canvassed by Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court by arguing that prosecution has substantiated the accusation by producing cogent and concrete evidence. In this regard the statements of Ellahi Bukhsh (P.W.7) and Abdur Razzaq (P.W.10) were referred.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the judgment dated 30-11-1998 of learned trial Court as well as the impugned judgment. Let we mention here at the outset that prosecution has proved the case beyond shadow of doubt by producing worthy of credence and irrefutable evidence. The statement of Ellahi Bukhsh (P.W.7) duly corroborated by Abdur Razzaq (P.W.10) could not be brushed aside on flimsy grounds. The abovenamed by witnesses stood firm to the test of cross-examination and nothing advantageous could be elicited in spite of searching questions. Though Eiiahi Bukhsh (P.W.7) had shown some reluctance to admit the inter se relationship with the petitioner but on this score alone his version which otherwise is confidence-inspiring cannot be discarded. Insofar as his absence from the place of occurrence is concerned as per the statement of Muhammad Mumtaz (P.W.8) that is not convincing for the simple reason that no definite timings whatsoever was mentioned by Muhammad Mumtaz (P.W.8) but probable time has been mentioned and on the basis of mere probability the statement of an eye witness cannot be thrown away. It may be mentioned here that incident occurred at 12-30 noon while F.I.R. Got lodged at 1-30 p.m. With promptitude by assigning a specific role to Rabnawaz petitioner and question of any padding or fabrication does not arise. We are not persuaded to agree with the main contention that 7-MM rifle was recovered from the petitioner and murder of deceased was not committed with the same as per report of Forensic Science Laboratory and that Rabnawaz (petitioner) deserves benefit of doubt as a matter of right and not grace for the reason that Ellahi Bukhsh (P.W.7) and Abdur Razzaq (P.W.10) have stated in an unambiguous manner that deceased was done to death by means of firing made by Rabnawaz (petitioner) and received fire-arm injuries which resulted into death of deceased and their version has been supported by the medical evidence. It thus hardly matters as to whether .12 bore gun was used or a 7-MM rifle which culminated into the death of deceased. There is no denying the fact that death occurred due to fire-arm injury. Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court has also pointed out that the distance as mentioned by Ellahi Bukhsh (P.W.7) from where the alleged tiring was made was 30 to 40 feet while it was not supported by medical evidence, according to which the alleged firing was made from a distance of few inches.
The said contention hardly deserves any consideration for the reason that a medical expert cannot be allowed to play the role of fire-arm expert and furthermore in the state of sensation and panic it is not justified to expect from a witness that he would mention the distance with exactitude as nobody bothers for any measurement in such a situation. It may not be out of place to mention here that it was not possible to mention exact distance as Rabnawaz (petitioner) fired when the deceased was in running condition and being chased by Rabnawaz (petitioner). The statement of Dr. Muhammad Naseer (P.W.13) regarding probable distance would have no bearing on the merits of the case. We have also examined the statement of Abdur Razzaq (P. W.10) which is consistent, worthy of credence and has rightly been believed by learned Courts below and there is no justification whatsoever to discard his version. We have also examined the esteemed view of Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court that it was physically impossible for Ellahi Bukhsh (P.W.7) to see the place of occurrence as he was shown to have been standing on a long distance. In this regard site plan (Exh.P.M at page 147 of the paper book) has been referred with specific mention to point No,1 and point No,4. It is worth mentioned that in fact the site plan is Exh.P.0 (page 133 of the paper book) wherein it has been clarified that the place of occurrence was without a boundary wall and accordingly Ellahi Bukhsh (P.W.7) was in a position to see point No,4 (place of occurrence) from point No,1 (place where Ellahi Bukhsh was present). In this regard we have also perused carefully the statement of Ellahi Bukhsh (P.W.7) and cross-examination conducted by learned defence counsel which makes it abundant clear that Ellahi Bukhsh (P.W.7) was never confronted with site plan (Exh.P.C) and, therefore, the said contention deserves no consideration. Even otherwise the site plan is not a substantive piece of evidence and can be ignored when the witness was not confronted with it. In this regard we are fortified by the dictum laid down in cases titled Mst. Shamim Akhtar v. Fiaz Akhtar (PLD 1992 SC 211), Muhammad Ahmad v. State (1997 SCM R 89) and Muhammad Iqbal v. Muhammad Akram (1996 SCM R 908). We have also adverted to the contention of Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court that on the basis of same evidence Rabnawaz (petitioner) could not have been convicted but it has been ignored while raising the said contention that the case of acquitted accused is absolutely on a different and distinct footing as no specific role whatsoever was assigned to them which has been attributed to Rabnawaz (petitioner) in a categoric manner. In such an eventuality the credibility of Ellahi Buskhsh (P.W.7) and Abdur Razzaq (P.W.10) could not be said to have been shattered due to the said acquittal. It is well-settled by now that the maxim "falsus in uno falsus in omnibus" has no universal application and it is bounden duty of the Court to sift the grain from the chaff. In this regard reference can be made to Khairu v.
State (1981 SCM R 1136). A thorough scrutiny of the entire evidence would reveal that the statements of prosecution witnesses are consistent, confidence-inspiring and in consonance with the probability in the case and fitted in with other evidence and circumstances of the case and being worthy of credence could not have been brushed aside. The prosecution, in our considered opinion has substantiated the allegation beyond shadow of doubt and accordingly Criminal Petition for Leave to Appeal (108/2001) being devoid of merit is dismissed.
6. Criminal Petition for Leave to Appeal bearing No,160 of 2000 preferred on behalf of Ellahi Bakhsh for enhancement of the sentence of Rabnawaz is being disposed of by means of this order having arisen from common judgment. The conviction and sentence as awarded by learned trial Court duly concurred by learned High Court does not call for any interference in view of peculiar circumstances of the case and the occurrence which had taken place prior to the incident whereby Mst. Guddo has allegedly been teased by Muhammad Banaras which resulted in exchange of hot words between Muhammad Banaras and Mst. Rubina and subsequently a compromise was made due to the intervention of elders of the family and respectables of the vicinity. Due to said incident Rabnawaz had also caused injuries to Muhammad Banaras who is brother of Muhammad Sadiq (deceased). In peculiar circumstances of the case enhancement in sentence from life imprisonment which was awarded on 30-11-1998 would not be proper. In our considered view the sentence of life imprisonment would meet the ends of justice. The Cirminal Petition for Leave to Appeal (160/2000) is rejected.