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Criminal Appeal No. 16 and Criminal Miscellaneous 152 of 1972, docid9d 9q 23rd November 1972,
----S. 154-Fist informa tion report entered after start of investigation by police-Not admis sible in evidence-Prosecution case on that score, however, cannot be thrown out.
-----S. 114 (g)-Prosecution under no obligation to examine a witness won over-Open for defence to examine such witness as its own witness or as Court witness-Defence not availing such remedies-No adverse inference can be drawn against prosecution.
Nawab Ali v. The State P L D 1962 Dacca 278 rel.
Israr Gul v. The State P L D 1963 Posh. 124 and Muhammad ullah v. The State P L D 1963 Posh. 161 ref.
----"Falsus in uno falsus in omnibus" (false in one particular, false in all)-Practice and procedure-Entire evidence not to be thrown out merely because prosecution witnesses difer on some minor details.
Emperor v. Muzafar Hussain A I R 1944 Lab. 97; Shihab Din v. The State P L D 1964 S C 177 and Israr Gul v. State P L D 1963 Posh. 124 rel.
------S. 302-Sentence-Enhancement Trial Court not awarding capital sentence on ground that accused was a Government servant and prosecution witness (alleged wife) played false to accused and made a statement against him-Accused using an automatic pistol and continuing firing till its magazine exhausted' resulting in death of one and injuries to other prosecution witnesses Held: A fit case for awarding capital punishment-Sentence of life imprisonment enhanced to death in circumstances of case.
Sardar Muhammad Ibrahim Khan for Appellant.
Raja Muhammad Khurshid Khan, A: G. for the State.
Date of hearing: 28th October 1972.
.-Ali Asghar Khan aged 30 years was put up before the Sessions Judge, Muzaffarabad by the Muzaffarabad police to stand his trial for the alleged murder of Sultan Ahmad and the attempted murder of Iftikhar Ahmad. Karam Dad and Mst. Badar Johan P. Ws. The learned Judge found him guilty and convicting him under section 302, Penal Code sentenced him to life imprisonment and a fine of Rs. 50 in default of payment of fine he was ordered to undergo rigorous imprisonment for 6 months. He was' also convicted under section 307, Penal Code and sentenced to 7 years' R. I. and a fine of Rs. 50 by his order dated. 15-8-1972. In default of payment of fine he was ordered to undergo further R. I. for 6 months. The sentences were ordered to run concurrently. The accused has appealed against his convictions and sentences while the Government has moved a revision petition for enhancement of the sentence of life imprisonment to death under section 302, Penal Code. Notice was given of this revision petition to the accused. We proceed to dispose of both the appeal and the revision petition by the same judgment.
The prosecution story, briefly stated, is that Mat. Badar Johan P. W. the sister of Iftikhar Ahmad P. W. was married to her cousin Basher but the marriage proved a failure. It appeals that she used to visit the house of the accused as her step-mother is the aunt of the accused. On 15-6-1971 Ali Asghar Khan got a case registered with the Afzalpur Police against Iftikhar Ahmad and others under sections 364/366, 498, Penal Code alleging that Mst. Badar Jehan his lawfully wedded wife has been abducted by Iftikhar Ahmed and others. The police after inquiry struck off the case as untrue. Thereafter the appellant filed an application under section 491, Cr. P. C. in the High Court alleging that Iftikhar Ahmed, Karam Dad P. Ws. and Sultan Ahmed deceased were keeping Mst. Badar Jehan in wrongful confinement. The High Court issued notice to Iftikhar Ahmed and others to produce Mst. Badar Jehan in the High Court on 24-7-1971 but lftikhar Ahmed learned of this order rather late and he along with Mst. Badar Jehan, Sultan Ahmed deceased, Karam Dad P. W. and Rehmat Khan P. W. reached Muzafarabad on 25-7-1971. They lodged Mst. Badar Jehan at the house of Munshi Ghulam Qadir Clerk of Sh. Abdul Haiy, Advocate but the other three stayed at the Gillani Hotel, Muzaffarabad. On 26-7-1971 Iftikhar Ahmed produced Badar Jehan in the High Court. A learned Single Judge of this Court after recording the statement of Mst. Badar Jehan dismissed the habeas corpus petition and issued a show-cause notice to Ali Asghar Khan appellant to show cause on 27-7-1971 as to why he should not be prosecuted for perjury since Mst. Badar Jehan had denied the allegations of the appellant. After the dismissal of the case by the High Court the same day Iftikhar Ahmed, Karam Dad Khan, Mst. Badar Jehan P. Ws. and Sultan Ahmed deceased drove in two Rickshaws to the city. They got down at the Chowk Dhaki Adda and then ascended the road which leads towards the District Courts, Muzaffarabad. As they had reached a spot a little this side of the Yasrib Hotel, Ali Asghar Khan appellant is alleged to have come up after them with a pistol in his hand and challenging Iftikhar Ahmed and party said that they could not escape him and fired a shot at Iftikhar Ahmed who ducked and the fire missed him. Then the accused is alleged to have caught hold of Sultan Ahmed deceased and fired two shots at him-one hitting him in his belly and the other in his chest. Sultan Ahmed fell down. Then the accused fired two shots at Karam Dad which hit him on his left arm. Karam Dad started bleeding and his clothes became blood-stained. Then the accused fired a shot at Badar Jehan which hit her on her foot near the small toe. The bullet pierced the shoe that Badar Jehan was wearing. The appellant fired second shot at Badar Jehan which did not hit her but hit one Rafique a passer by on his right thigh. Rafique also fell down and started bleeding. Then Iftikhar, Karam Dad and Rehmat Khan P. Ws. tried to catch hold of the accused but the accused being a powerfully built man, they could not overpower him. In the meanwhile Malik Ghulam Ali P. W., Muhammad Rafique and Abdul Hamid came up and Malik Ghulam Ali wrested the pistol from the hands of Ali Asghar Khan accused. The police are also alleged to have come up on the spot. Raja Ali Akbar Khan S. H. O. alongwith some constables was returning to the Police Station after making a round of the Secretariat when he reached the spot just after the incident. The injured persons were sent to the C. M. H. in the vehicles of Sh. Abdul Haiy, Advocate and Malik Muhammad Aslam, Custodian of Evacuee Property who also happened to come up on the spot immediately after the incident. The police took into possession the pistol, the weapon of the offence and also recovered four empty cartridges, two missed cartridges and a shoe of Sultan Ahmad from the spot. The bloodstained clothes of Sultan Ahmed and Karam Dad and the shoe of Mst. Badar Jehan were taken into possession at the hospital. The police also took into possession two bullets-one extracted from the arm of Karam Dad and the other from the foot of Badar Jehan P. W. Iftikhar Ahmed lodged the first information report with the police.
The accused in his statement recorded under section 342, Cr. P. C. stated that on 26-7-1971 when after getting himself shaved he was coming out of the barber's shop to go to the Taxation Office to get his leave extended, he saw Sultan Ahmed, Iftikhar Ahmed, Karam Dad, Mumtaz and others going down on the lower road and thought that they must have brought Badar Jehan for production in the High Court. He then dressed up and took out from the pocket of the pant the papers regarding the case which also contained his licence for the pistol but then he gave this licence to his companion Nawaz saying that his pistol was lying in the attached-case which he could not carry into the Court. Then he went into the High Court where he saw the above-mentioned persons with Mst. Badar Jehan in the High Court compound. When the case was called and Mst. Badar Jehan was produced into the Court, the accused also went into the Court room alongwith his counsel, Mr. B. A. Farooqi. Learned Judge gave Badar Jehan a respite of half-an-hour and then recorded her statement. Badar Jehan denied the allegations of the appellant and stated that she wanted to go with her brother. Then the learned Judge called upon the appellant to appear in Court on 27-7-1971 and show cause why he should not be prosecuted for making a false application. The accused then came out and having been advised by his counsel to come up to -the District Courts where they would prepare a defence to the show-cause notice, he got into a Rickshaw and left for the District Courts. He got down from the Rickshaw at Dhaki Adda and started ascending on foot. The accused stated that when he was ascending the steps he got sight of Sultan Ahmed, Mumtaz, Karam Dad, Iftikhar Ahmed, Badar Jehan and Rehmat and when he passed by them, Sultan Ahmed making a taunt pointed out towards Badar Jahan and said "Here is your mother for whom you have been striding and now we are taking her away" and before the accused could make any reply Sultan Ahmed whipped out a pistol and challenging the' accused said that "Today you can't escape from us". The accused stated that he caught hold of the wrist of Sultan Ahmed and diverted the pistol and so he escaped being hit by the fires of Sultan Ahmed. From the other side Iftikhar Ahmed also took out a pistol and shouted to finish the accused. The accused was pressed down by the complainant party and both pistols were being fired from. The accused heard the shots but be could not say as to who was bit and by whom. Then Malik Ghulam Ali, Rafique Head Constable and Hamid and others came up and rescued him from the clutches of the complainant party. The accused denied that he had any arm with him. He denied that he fired at Sultan Ahmed and said that he had no pistol with him.
The defence case as argued by the learned counsel for the appellant was that shots were fired from pistol by Sultan Ahmed deceased and Iftikhar Ahmed P. W. and that the police taking the pistol P. 1 of the accused from the Gillani Hotel where he was staying, fired shots from this pistol and showed it as the weapon of offence.
Learned counsel for the appellant argued that the police had produced only the relatives of the deceased and that they had given up independent and disinterested witnesses. Mlle showed that in the Kham Challan Kala, Khani Zaman and Hafeezullah were cited as prosecution witnesses but in the Pacca Challan their names were omitted. These three persons are shopkeepers who vend their goods from open stalls near the place of occurrence. Learned counsel also argued that the prosecution had dropped Hamid and Rafique who came up on the spot with Malik Ghulam Ali. Learned counsel also argued that the injury statement of Sultan Ahmed is not on the file and that the first information report was entered after the police had started investigation. Learned counsel pointed out that it had been admitted by the learned Sessions Judge that the report had been entered after the investigation had started and that the injury statements of the P. Ws. were prepared not on the spot but in the hospital though it is entered in the F. I. R. that the injury statements were prepared on the spot and then the injured persons were sent to the hospital. The injured persons had been taken to the hospital by Sheikh Abdul Haiy and Malik Muhammad Aslam in their vehicles before the arrival of the police. Learned counsel cited P L D 1964 S C 26 which lays down that: -
"The first information report is undoutedly a most important document in a criminal case, which has been investigated and eventually prosecuted in Court by the police. It rpay not be evidence by itself, but it certainly furnishes a clue to the possible truth of the allegations against the accused."
The learned Advocate-General argued that the S. H. O. no doubt should have entered the report on his own behalf but he could not get out of the rut of daily practice of entering reports from the mouths of other persons and then showed that he had prepared the injuries statements on the spot and sent the injured persons to the hospital whereas they had already been sent to the hospital before the arrival of the police. The learned Advocate-General argued that this is only an error of procedure and would not affect the merits of the case because the presence of Sultan Ahmed, Karam Dad, Iftikhar, Badar Jehan and Rehmat Khan is admitted by the accused on the spot though it is different that according to his version Sultan Armed and Iftikhar Ahmed 6 red shots and that the accused did not fire any shot and that he had no pistol with him at all. It is no doubt correct that is entered after the police had started the when the F. I. R. investigation, the first information report is not admissible into Spat, evidence but this cannot mean that we can throw out the prosecution case on the score of the first information report having been entered after, the start of the investigation by the police.
As regards the non-production of Hafeezullah, Khani Zaman and Kala and dropping their names from the Pacca challan, the explanation of the S. H. O. was that these persons did not make any statement with regard to the incident, therefore, their names were dropped. According to the prosecution these three persons disowned having witnessed the incident. The prosecution naturally would not examine them. If the defence thought that these three persons had witnessed the occurrence, they could have examined them. The case of Abdul Hamid and Rafique who allegedly came on the spot alongwith Malik Ghulam Ali but were not examined stands on a different footing: The prosecution did not examine them saying that they had been won over.
He argued that Hafeezullah, Khani Zaman, Rafique, Sh. Abdul Haiy and Malik Muhammad Aslam not having been produced by the prosecution an inference should be drawn against the prosecution that they would not have supported the prosecution if produced. Learned counsel also argued that the learned Sessions Judge had repelled this argument by saying that they could have been produced by the defence but the prosecution has to prove its own case beyond doubt and it is no duty of the defence to examine such witnesses as are dropped by the prosecu tion. The learned Advocate-General replying said that Kala, Hafeezullah and Khani Zaman as explained by the S. H. O. did not depose about the incident, therefore, they were dropped and that it was unnecessary for the prosecution to examine them in the trial Court. As regards Malik Muhammad Aslam and Sh. Abdul Haiy, the reply of the learned Advocate-General was that they had reached the spot after the incident. They bad only helped in carrying the injured persons to the hospital and they could tell nothing about the incident, therefore, they were not included in the list of prosecution witnesses. As regards Abdul Hamid and Rafique who allegedly came on the spot with Malik Ghulam Ali, the stand of the learned- Advocate-General was that the prosecution was under no obligation to examine the witnesses who had been won over. He cited P L D 1962 Pesh. 91 which lays down that:-
"It is the duty of prosecution to bring all available evidence on record. Prosecution, however, is under no obligation to examine a witness it considers false or unnecessary."
This authority also lays down that adverse inference can be drawn against prosecution for dropping such witness but the presumption, however, does not extend to the point that testimony of such witness would necessarily have supported the defence version and that the defence is at liberty either to examine such witness as its own witness or to have him examined as a Court witness and that failure of the defence to avail of either of two remedies open to him would neutralise the initial adverse inference against the prosecution. We agree with the learned Advocate-General that the prosecution is under no obligation to examine a witness whom they consider to have been won over and it is open to the defence to examine such witness as their own witness or to request the Court to examine such persons as Court witnesses. The defence not having availed of these two remedies, no adverse inference can be drawn against the prosecution for their failure to examine Rafique and Abdul Hamid.
Learned counsel for the appellant cited P L D 1963 Kar. 893 which lays down that where there is undue delay in sending crime weapons and crime empties to Ballistic Expert as well as absence of evidence to show that crime weapon and empties were made into sealed parcels at spot, it is unsafe to place any reliance on such evidence of recovery. Learned counsel argued that the pistol P. 1 and the crime 'empties had been sent to the Ballistic Expert very late, therefore, their recovery loses value. The incident took place on 26-7-1971. The pistol P. 1 and the crime empties and the missed cartridges were recovered the same day and were sealed into parcels on the spot the same day. These parcels were forwarded to the Ballistic Expert on 3-8-1971. The sealed parcels were prepared at the time of the recovery and the parcels were forwarded on the 3rd of August on the 9th day. There has been no considerable delay in forwarding the pistol and the crime empties to the Ballistic Expert, therefore, we do not agree with the learned counsel for the appellant that the recovery loses all value.
Learned Counsel for the appellant argued that where there are two different stories-one by the prosecution and the other by the defence and where both are possible, the story favourable to the accused should be accepted. The defence story is that Iftikhar and Sultan had fired pistols and that the accused did not fire any pistol, rather he had no pistol. Learned counsel referred to the statement of Malik Ghulam Ali P. W. who stated that the recovery memo of pistol Exh. P. 1 prepared on 26-7-1971 had been torn out and a new one prepared by the police on which again the witness's signatures were secured. Exh. P. B. is the recovery memo. of the pistol P. 1 which is the weapon of offence. It was prepared on 26-7-1971. Malik Ghulam Ali tated that on 26-7-1971 while ascending the road to the District Courts he heard two fire shots from above while he was near the Photo Studio. He made a dash for the spot but before he reached the spot four or five shots had been fired and four or five persons were grappling with each other and one man had fallen into the drain and that two more shots were fired when he reached the spot one of which hit Mst. Badar Jehan and the other hit Rafique but the witness did not see as to who had fired these shots but witness then stated that the pistol was taken from the hands of the accused. Malik Ghulam Ali no Doubt stated that the original recovery memo prepared on 26-7-1971 had been torn out and that he had signed a duplicate but then he could not say as to what was the difference between the contents of the one torn out and the one he had signed again on 2E-7-1971. Malik Ghulam Ali supported the main prosecution story. He stated that the man who had fallen in the drain was wounded in his stomach and also in his chest and that one of the persons grappling with the accused was injured in the arm. He did not state that he saw any pistol in the hand of the man who had been shot in his stomach and the chest. He did not also see any pistol in the hands of the other person who was grappling with the accused but he clearly stated that he saw the pistol in the hands of the accused when he was trying to wriggle out from under the persons grappling with him. Malik Ghulam Ali, no doubt, tried to help the accused by creating confusion when he stated that he saw a man on the spot who had a. pistol dangling from his neck but stated at the same time that he could not say if he was a passer by or was one from amongst the persons grappling with the accused. Malik Ghulam Ali saw the pistol in the hands of the accused. Then why could not he see the pistols in the hands of Iftikhar Ahmad and Sultan Ahmed if they had any We are not prepared to believe this part of the statement of Malik Ghulam Ali.
Malik Ghulam Ali also stated in cross-examination that when the pistol was taken from the hands of the accused, he' stated that this was not his pistol and that his pistol was lying in room No. 3 of the Gillani Hotel. The accused might have said that the pistol in his hand was not his and that his own pistol was lying in room No. 3 of the Gillani Hotel but then we have to see if this was correct. The accused in his statement under section 342, Cr. P. C. stated that while going to the High Court he took out his licence for the pistol P. 1 from the papers in his pockot and gave it to his companion Nawaz and told Nawaz that his pistol was lying in his attached-case in the Hotel. He stated that he knew that it was not permissible to take a pistol into the court-room but where was the impediment in the way of taking the licence for the pistol into the court room. He could prove his version of the parallel story by examining Nawaz but he did not examine Nawaz. Under clause (G) of section 114 of the Evidence Act the Court can presume that Nawaz who could be produced but has not been produced by the defence, if produced, would not corroborate the accused. Malik Ghulam Ali went to the length of saying that the S. H. O. had detailed a constable Muhammad Ashraf to keep a watch over room No. 3 of Gillani Hotel where the accused was staying but then Ghulam Murtaza Shah P. W. Manager of the Gillani Hotel was not asked by the defence if the police had detailed Muhammad Ashraf Constable or any other constable to steep a watch over room No. 3' of his Hotel where the accused was staying. The Manager of the Hotel was not even asked if the police had made any recovery of a pistol from the baggage of the accused lying in room No. 3 of his Hotel and we think they dared not put these questions to the Manager of the Hotel because the accused had left the Hotel before going to the High Court on 26-7-1971. We may refer to the entries of the Hotel register wherein are entered the names and particulars of the guests staying at the Hotel. At Serial No. 757 is entered the name of Ali Asghar Khan accused. He came to the Hotel on 23-7-1971. The signatures of Ali Asghar Khan accused appear in column No. 13 which is meant for the signatures or thumb impressions of the guests staying at the Hotel. At S. No. 765 appears the name of M. Sultan deceased. He came to the Hotel on 25-7-1971 alongwith three other persons and those other persons were Iftikhar, Karam Dad and Rehmat Khan as has been stated by them and the Manager of the Hotel also stated that Sultan had come to stay on 25-7-1971 alongwith three other persons. This entry has not been signed by Sultan or any of his companions. It is clear from this that Ali Asghar Khan had left the hotel on 26-7-1971 and naturally must have taken away his baggage. Sultan and his companions had not yet left the Hotel, therefore, their entry bears no signatures. It appears to us from the entries in the register that the guests staying at the Hotel put their signatures when leaving the Hotel. We are convinced that the accused had no baggage and no pistol in room No. 3 of the Gillani Hotel at the time of the occurrence. As regards the tearing out of the recovery memo of the pistol P. 1 prepared on 26-7-1971, we are not prepared to believe the version of Malik Ghulam Ali that the recovery memo originally prepared was torn out and a new one was prepared and his signatures secured thereon on 28-7-1971. Iftikhar Ahmed and Rehmat Khan P. Ws. are the other witnesses of the recovery memo. Exh. P. B. It was not asked from them if it was a fact that the original recovery memo of pistol P. 1 prepared on 26-7-1971 had been destroyed and a new one prepared instead. If Malik Ghulam Ali's signatures were secured on a new recovery memo. Iftikhar and Rehmat Khan the other witnesses would also have signed the freshly prepared recovery memo. Since no question was put to Iftikhar and Rehmat Khan P. Ws. about the preparation of a new recovery memo. we are not prepared to believe that the original recovery memo prepared on 26-7-1971 was destroyed and a new one prepared in its place. Ghulam Murtaza Shah P. W. 10 Manager of the Gillani Hotel, Muzaffarabad also tried to help the accused by creating confusion when he stated that Sultan and three others came to stay at his Hotel in the evening and in the morning he had seen two pistols with two of his companions but where did those two pistols go Malik Ghulam Alt did not see any pistol in the hands of Sultan Ahmed the injured person lying in the drain or in the hand of Karam Dad the injured person grappling with the accused nor did he see any pistol in the hands of Iftikhar. If there had been any pistol other than the pistol P. 1 which was taken from the hands of the accused, why could not Malik Ghulam Ali snatch those pistols from the hands of the other persons. Learned counsel for the appellant also argued that more than one pistol had been used in the occurrence and for this he relied on the statement of M. Sarwar a Fire-arm Expert from the Forensic Laboratory, Lahore who stated that the bullets B. I and B. 2 (recovered from tl1c bodies of Karam Dad and Badar Jehan P. Ws.) had not been fired from pistol Exh. P. 1. In the first place it is doubtful if M. Sarwar U. W. 2 was the Fire-arm Expert who examined the pistol P. 1, the crime empties and the crime bullets etc. The report bears the signatures of A. H. Bajwa Examiner of the Fire-arms Forensic Laboratory, Lahore. The Director of the Forensic Science Laboratory Punjab Police, Lahore while forwarding the report to the S. P. Muzaffarabad wrote in his endorsement that the opinion of the expert of this Laboratory is forwarded. The Director did not write that that the opinion of the experts is forwarded' herewith. Under signatures of A. H. Bajwa appears his description, Examiner of the Fire arms, Forensic Laboratory, Lahore. It is not put down there "Examiners" of the Fire-arms Forensic Laboratory, Lahore. A. H. Bajwa was the witness cited by the prosecution though they gave him up as having been won over. Now let us examine the opinion of M. Sarwar Fire-arm Expert, examined by the defence on merits. The reason given by him that bullets B. 1 and B. 2 had not been fired from the pistol P. 1 is that the measurement of the wound found on the person of Sultan Ahmed is less than the dimension of the crime bullets. The D. W. stated that he has based this opinion on reading the dimension of the injuries as mentioned in report Exhs. P. Z. and P. O. P. Z. is the injury statement of Mst. Badar Jehan. P. O. is the injury statement of Karam Dad P. W. The D. W. also stated that injuries of Sultan deceased are not with pistol .32 bore and are with pistol of a lesser bore. These medical reports had not been sent to the Ballistic Expert and when he gave his opinion -that the bullets B. 1 and B. 2 had not been fired from the pistol P. 1 he was making a shot in the air. The D. W. 2 is belied by Modi who says on page 210 of his Medical Jurisprudence and Toxicology, 10th Edition that the wound of entrance is usually smaller than the projectile from the elasticity of the skin. M. Sarwar D. W. admitted that the crime empties had been fired from pistol P. 1. We sent for the pistol. and the missed cartridges, the crime empties and the bullets recovered from the person of Karam Dad and Badar Jehan P. Ws. The crime bullets fitted into the crime empties. Dimensions of the wounds are no doubt less than the dimension of the bullets, but then Modi says that the wound of entrance is usually smaller than the projectile from the elasticity of the skin. The difference in the measurement of the wounds of the deceased and the P. Ws. is also due to the distance from which the shots were fired and not due to the weapon of offence being different.
The learned Advocate-General argued that it was asked from Iftikhar P. W. 1 if it was not a fact that he had fired the shot that hit Sultan Ahmed. The witness no doubt denied the suggestion of the defence but then the accused in his parallel story revealed in his statement recorded udder section 342, Cr. P. C. did not state that the shots fired by Iftikhar had hit Sultan Ahmed. The witness may tell lies but the circumstancedo not. The P. Ws. state that the accused fired the first shot at Iftikhar P. W. but then he ducked and the shot Went astray. Then the accused caught hold of Sultan and f red two show of him. Dr. Ihzar-ul-Haq, I). M. O. who performed the post -mortem examination on the dead body stated that the skin around the wound No. 1 found on the dead body of Sultan was mildly black in colour. Even his Chadar which was taken into possession vide recovery memo. Exh. P. G. bore black spots caused by gunpowder. Dr. Ihzar-ul-Haq also stated in cross-examination that the fire-arm had been fired within a distance of four feet. According to the site plan Iftikhar was at a distance of 7 feet from the accused and naturally he must have been at a distance of 7 feet from the deceased if not more since the deceased had been caught hold of by the accused. The shots that hit Sultan deceased could not have been fired by Iftikhar because black marks of gun powder were observed on the Chadar of the deceased and there can-be no black gun powder spots in case of a shot fired from a distance of more than 4 feet. We rule out the possibility of more than one pistol having been used in the occurrence and the parallel story stated by the accused falls flat.
Learned counsel for the appellant also attacked the recovery of the licence of pistol P. 1 from his house in his village. The accused no doubt stated in his statement recorded under section 342, Cr. P. C. that he had the licence in his pocket and that he had given it to Nawaz while going into the court-room but then Nawaz was never examined by the defence. Otherwise also why should the prosecution have shown the recovery of the licence from the house of the accused if it was available on the spot. It is undenied that the Pistol P. 1 is a licensed pistol and the licence stands in the name of the accused. The prosecution could not have-made the case any the stronger by showing the recovery of the licence from the house of the accused.
Learned counsel for the appellant also attacked the evidence of absconding of the accused soon after the occurrence. Malik Ghulam Ali P. W. stated that after the pistol had been taken away from the hands of the accused and the witness had pulled him out from under the P. Ws., the accused asked him to release him which he did and that the accused then ran away and the witness chased him to a distance of about a hundred yards and caught him from near the garrage of Col. Adalat Khan. Rehmat Khan P. W. no doubt stated that the accused did not run away but then the defence put it to Iftikhar P. W. in cross examination whether it was not a fact that you fired at the accused while he was running and the shot hit Rafique P. W. The witness denied the suggestion of the defence but then it was the defence case, as put to Iftikhar P. W. 1 in cross-examination, that the accused did run away and Malik Ghulam Ali may not be wrong when he says that when he released the accused, the accused ran away and he chased him and caught him from a distance of 100 yards. The running away of the accused was due to a guilty conscience. He had been released from the clutches of the P. Ws. People had collected on the spot and there was no danger to him from the P. Ws. We have seen the accused. He is of a Herculean build. The P, Ws. could not overpower him and they could not do him any damage when he had been rescued by Malik Ghulam Ali and others. It was naturally his guilty-conscience that made him run away and his running away would be the evidence of his conduct. The learned Sessions Judge has rightly relied on this evidence of his absconding.
Rafique P. W. no doubt stated that he was not hit by the accused. He did not see as to who had fired the shot. lie went to the extent of saying that he did not see any pistol in the hands of the accused. The witness was declared hostile. He also stated that he had seen a pistol in the hands of the brother of the girl and that he fired one or two shots and that the tall man had given an abuse to the accused and had also taken out a pistol and had also fired shots. The witness appears to have been won over. He did not say as to who fired the shot that hit him. He says that the brother of the girl, of course meaning Iftikhar P. W. 1, had fired one or two shots but cannot tell as to who was hit by these shots. He also stated that the tall man meaning Sultan Ahmed had also fired two shots but then he cannot say as to who was bit by these shots. We have already observed above that there were no pistols other than pistol P. 1 used in the occurrence. If there had been any, these would have been seen in the hands of the P. Ws. and would have been taken away from them. Rafique P. W. is clearly making a false statement.
Learned counsel for the appellant also argued that the prosecution had examined only interested witnesses and had given up tripe independent witnesses, therefore, the story of the prosecution becomes doubtful and the accused should be given the benefit of doubt. The learned Advocate-General argued that an interested witness is one who has motive to implicate the accused and he argued that Rehmat Khan Lambardar P. W. was a disinterested witness who had no motive to falsely implicate the accused. The learned Advocate-General cited P L D 1963 Kar. 92) which lays down that:-
"The expression interested witness' has been explained by the Supreme Court to mean a witness who has a motive for falsely implicating an accused person."
It was further laid down in this judicial judgment (P L D 1963 Kar. 92I at page 100 that:-
"The fact that a witness is related to the injured party does not necessarily make him an interested witness in the sense in which it is understood in law. The fact of relationship is only one of the considerations but the main consideration is-whether he had 8 motive for falsely implicating the accused."
Rehmat Khan has been described by P. W. 1 Iftikhar as a relative. Rehmat Khan may be said to be a relative of the complainant and the deceased but then nothing has been brought on the record to show that he had a motive for falsely implicating the accused.
The Supreme Court in P L D 1960 S C 387 laid down that:-
"Whenever interested persons claiming to be eye-witnesses of on occurrence charge persons against whom they have sows motive for false implication, with the commission' of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of any thing making it unsafe to do so, be accepted without corrobora tion, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exag gerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circum stance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However, the circumstance itself must be proved beyond all reasonable doubt."
Applying this test it is certain that the P. Ws. saw the occurrence and were in a position to identify the culprits. They have charged only one person with the commission of the offence. Their evidence, therefore, can be accepted without corroboration. The defence version that Iftikhar P. W. and Sultan deceased fired shots and hit each other is hard to digest. It cannot be believed that two of the prosecution party were firing shots and none hit the accused. If Iftikhar's shot bad hit Sultan Ahmad he would have desisted from firing and there would have been no second shot that could injure the deceased. Could it be believed that Iftikhar would fire at his own sister and that if be had mistakenly hit her, he would fire a second shot at her which inadvertently hit a passer by.
The learned Advocate-General also cited P L D 1962 Dacca 278 which lays down that where a prosecution witness is declared to have been won-over by accused, adverse inference cannot be drawn against prosecution for non-examination of such witness. The learned Advocate-General also cited P L D 1963 Pesh. 124 and P L D 1963 Pesh. 161. It has been laid down in P L D 1963 Pesh. 124 that some prosecution witnesses distorting facts and suppressing truth cannot discredit prosecution case if it be other wise supported by trustworthy evidence. Statements of such witnesses cannot bind prosecution although they may not have been declarod hostile. It was held by Muhammad Daud Khan, J. in P L D 1963 Pesh. 161 that where a prosecution witness is declared hostile, his statement normally loses; all evidentiary value and can neither be used in favour nor against prosecution. This is a case where a difference of opinion occurred between Orkcheson, J. and Muhammad Daud Khan, J, though not on this point and the case was then laid before Anwarul Haq, J. whose judgment is reported as P L D 1963 Pesh. 77. Even Anwarul Haq, J. laid down that in case of interested witness corroboration need be of same probative force as in case of accomplice and that the corro boration need not necessarily be by oral testimony of another independent witness and further any circumstance may afford such corroboration for example the absconding of the accused soon after occurrence can be used as corroborative circumstance. In the present case the medical evidence, the black spots on the chadar of Sultan Ahmad and the running away of the accused provide corroboration.
Learned counsel for the appellant argued that where the statement of a witness has been found to be false in parts his entire statement should be discredited. The learned Advocate General in reply cited P L D 1958 Pesh. 182 (D. B.) which lays down that the rigid application of the maxim 'falsus in uno falsus io omnibus (false in one particular, false in all)' is not always desirable. Monir, the learned Commentator, in his book Principles and Digest of the Law of Evidence' writes at page 394, 4th Edition that :-
"The maxim falsus to unv falsus in omnibus (false in one particular, false in all) is everywhere a somewhat dangerous maxim, but it is especially dangerous in this country ; for if 4 whole body of testimony were to be rejected because the witness was evidently speaking untruth in one or more particulars, it is to be feared that witnesses might be dispensed with, as, in the great majority of cases, the evidence of a witness will be found tainted with falsehood. There is almost always a fringe or embroidery to a story, however, true in the main.
The Court must sift the evidence, separate the grain from the chaff and accept what it finds to be true and reject the rest. On the same principle, an entire history should not be thrown aside because the evidence of some of the witnesses is incredible or untrustworthy."
It has been laid down by Abdur Rahman and Munir, JJ. in A I R 1944 Lah. 97 that: -
"If a witness is not found to have told the truth iv one or two particulars, the whole of his statement cannot be ignored. The Court must sift the evidence, accept what it findsto be true and reject the rest. It has to separate the grain from the chaff. In doing so, it is justified in looking, upon a witness with suspicion if he is not found to be true in some material respect. But this does not justify it to throw away the whole of the statement although it is natural that it must examine the rest with greater care."
Commenting on these authorities we laid down in Criminal Appeals Nos. 11, 10 and Criminal Revision No. 5 of 71 (Gul Tasab Khan and another v. Sarkar and Sarkar v. Rajasab Khan that the practice in our Court has consistently been to sift the evidence so as to separate the grain from the chaff. We can throw out the entire evidence merely because the prosecution witnesses differ on some very minor details.
The learned Advocate-General also cited P L D 1964 S C 177 which laid down that: --
"Relationship does not necessarily render statements doubtful and where presence of witnesses at occurrence is proved (by fact of injuries on their persons) and number of persons accused not out of proportion to nature of enterprise and results pro duced, the witnesses are entitled to be believed."
In the case before us the presence of the P. Ws. on the spot is admitted by the accused.
It was observed in P L D 1963 Pesh. 124 at page 126 of the report that: -
"The situation thus presented in this case is not uncommon in the trial of criminal cases or of the administration of justice in this country, where sometimes the Courts are confronted with a divided house from the prosecution side, some witnesses supporting the prosecution case in. its entirety and the others partially so, and till others not at all, in an effort, direct or indirect, to destroy the prosecution case. In such circumstan ces, a greater analytical effort is needed by the Courts to discover the truth, to sift the grain from the chaff. The effort turns on the assessment and appreciation of the evidence in the case as a whole, accepting the statements of those witnesses as true which have an inherent merit of veracity, in accord with the proved circumstances of the case, furnishing a corroborative value, of and rejecting those which lack the ring of truth and bear marks of tainted testimony. To accept the view that where a witness from the prosecution let down the prosecution case by distortion of facts or suppression of truth, wholly or in part, the whole of the prosecution case must fall down as a house of cards would amount to giving a powerful lever to the defence to be quite freely employed to win over some prosecution witness to deal the doom of the prosecution case. The best approach in such situations is to reject the discredited witness but not to discredit the prosecution case if it is otherwise supported by trustworthy evidence."
Rafique P. W. has been won over and Malik Ghulam Ali has also been won over to some extent. But then they have been falsified by the circumstances and other reliable evidence in the case. The story narrated by Iftikhar, Karam Dad, Rahmat Khan. Badar Jehan is convincing and bears the ring of truth and we cannot condemn the prosecution because the accused has succeed ed in winning over some witnesses. The fact of the relationship of the P. Ws. with the deceased is by itself no ground for throw ing out their testimony. We are convinced that the accused had fired the fatal shots at Sultan. Ahmed deceased and he also fired at Iftikhar to murder though he escaped and also fired at Karam Dad and Badar Johan P. Ws. The convictions have been rightly recorded. The appeal fails.
Now we take up the revision petition filed by the State for enhancement of the sentence of life imprisonment to that of death. The reasons given by the learned Sessions Judge for not awarding the capital punishment under section 302, Penal Code are that -
(1) he is an Inspector in the Taxation Department;
(2) that Mst. Badar Jehan had played false to him; and
(3) that Mst. Badar Johan made a statement against the appellant in the High Court which enraged him and he lost control of his senses and committed the crimes in this mental condition.
The fact of the accused being an officer of the rank of an Inspec tor in the Taxation Department is no good ground for not awarding the capital punishment. Mst. Badar Jehan, no doubt, appears to have been carrying on with the accused and had at cer tain times made statements that she was married to him but then in the High Court in section 491, Cr. P. C. case she stated that she had no relationship with Ali Asghar Khan appellant and that she is married to her cousin Bashir. Her marriage took place 8 or 9 years back. It appears that Mst. Badar Johan has not been divorced by her husband Bashir. If she had any illicit relation ship with the appellant, we cannot put any premium on such relationship. It is not believable that Sultan Ahmad deceased who was the uncle of Mst. Badar Johan would taunt the accused by referring to Badar Jehan and saying that "Here is your mother for whom you have been trying so much and now we are taking her away". Any lover may say so but not an uncle. Even if the accused had resented the conduct of Badar Jehan, he had no justification for firing shots on Sultan Ahmed, Karam Dad and Iftikhar. He fired shots from an automatic pistol which has a magazine and continued firing till the magazine was exhausted o We find that this is a fit case for the award of the capital punish ment. Therefore, accepting the revision petition, we enhance the sentence of life imprisonment to that of death. The appellant shall be hanged from the neck till he is dead.
Appeal dismissed.
Sentence enhanced.
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