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Criminal Appeal No. 265 of 1977, decided on 29th June, 1981.

(On appeal from the judgment dated 9th August 1976 of the Sind & Baluchistan High Court, Karachi in Confirmation Case No. 20 of 1975).

‑‑ S. 302/34‑[Murder‑case]‑Prosecution case established beyond any doubt‑Witness natural and cousin of both parties‑Not an interested witness‑Statement of such witness, in absence of any motive to give false evidence, held, can implicitly be relied upon and sufficient to bring home guilt in circumstances‑[Witness].

----S. 164 and Penal Code (XLV of 1860), S. 302‑Statement under S. 164 recording of‑Contention that witness, supposed to be independent witness being only prosecution witness whose statement not recorded under S. 164, Cr. P. C. shows prosecution having considered him to be their own man‑,Held : Such explanation too fantastic Crime having occurred in otaq of P. W. he could naturally have consid ered himself in some measure responsible for tragedy and could not depart from true state of affairs‑Recording of his statement under section 164, Cr. P. C. in circumstances not necessary.:‑[Confession].

‑‑‑ S. 27‑[Murder‑case]‑Recovery evidence‑Mere delay in sending crime empty and weapon for comparison to Ballistic Expert, held, cannot by itself imply recovery being doubtful.‑[Delay‑Recovery].

Muhammad Bilal, Advocate Supreme Court for Appellant.

Saeed A. Sheikh, Advocate‑General (Sind) and S. M. Abbasi, Advocate on‑Record (absent) for the State.

Date of hearing : 29th June 1981.

.‑This appeal by special leave is directed against the judgment passed in Confirmation Case No. 20 of 1975 by a Division Bench of the Sind & Baluchistan High Court at Karachi dated 9‑8‑1976.

The facts which form the background are that on 17‑10‑1973 Mauj Ali P. W. had called some of his relations to his otaq to partake of the goat which had been sacrificed by way of khairat. Accordingly Mohammad Rahim, now deceased, his brother Kajlo complainant. Nihal and Wali Dad P. Ws. who are all related to the deceased, collected at the otaq of Mauj Ali P. W. in Deh Abdullah Mahesar at t1pahri time. The appellant Mubarak armed with a single barrel gun also suddenly came there and fired at the deceased, who received the injury near his mouth and died instantaneously. Some contro versy exists whether he was accompanied by Daroo, as according to the statement of some of the witnesses he also came to the spot and fired ineffec tively in the air.

The F. I. R. with regard to this incident was lodged by Kajlo P. W., brother of the deceased at Police Station Punhoon Bhatti at 7‑35 p.m. on the same day within two hours of the incident. The usual investigation was then made and it is important to mention that a crime‑empty was recovered at the spot. The appellant was arrested on 19‑10‑1973 by the Investigating Officer from the house of his father and secured an unlicensed single barrel gun from his possession. As such, a separate case under section 13‑D of the Arms Ordinance, 1965, was registered against him in addition to the case under section 302, P. P. C. for the murder of Muhammad Rahim deceased.

The learned Sessions Judge, Jacobabad, relying upon the ocular evidence furnished by the P. Ws. Kajlo, Nihal, Walidad and Mauj Ali, the evidence of motive (which was to the effect that about eight years ago Mubarak's brother Lashkaran was murdered by Muhammad Rahim deceased and the com plainant party had given 32 jaribs of land to his father by way of compensation but after his death the complainant party wanted to get back this land from the appellant who smarting as he was under the earlier incident decided to take revenge thereof. i.e. the murder of his brother and, therefore, murdered Mohammad Rahim) and the medical evidence, found the appellant to be guilty and convicted him under section 302, P. P. C. and sentenced him to death.

On apeal and reference for confirmation, a Division Bench of the Sind & Baluchistan High Court found that all the eye‑witnesses were related to the appellant as well as to the deceased and belonged to the same tribe and there was no reason why they would falsely implicate the appellant in a murder case as they were quite disinterested and independent witnesses. In fact, it was observed that the statement of Mauj Ali alone was sufficient for the conviction of the appellant. The learned Judges also relied upon the recovery of the single barrel gun from the possession of the deceased and empty cartridge from the vardat which, according to the evidence of the Ballistic Expert, was fired from the gun that was recovered from the possession of the appellant. The learned Judge also found no mitigating circumstance and in fact held that it was a cold‑blooded murder. The appeal was, accordingly, dismissed and the sentence confirmed.

The appellant filed a petition through Jail and leave was granted by this Court. It was observed in the order granting leave that the Sessions Judge had discarded the positive report submitted by the Ballistic Expert for the reason that the recovered articles were sent to him after about three months but the High Court had altogether failed to notice this aspect. . Furthermore, the veracity of the evidence of Kajlo, Nihal and Walidad P. Ws. stood con siderably shaken for their having falsely implicated Daroo co‑accused. It. was, accordingly observed that the case appeared to rest on the solitary testimony of Mauj Ali P. W. and the question was whether in the final analysis it would be safe to maintain the conviction of the appellant on his evidence alone

We have gone through the record of the case with the assistance of the learned counsel for the parties and find that the case of the prosecution stands established beyond any doubt. Mauj Ali P. W. was a natural witness. He is cousin of both the parties and cannot be called an interested witness. It was only if he had some personal enmity of his own against the appellant or wanted to save his own skin by implicating someone else that there could be any possibility of some doubt arising about the correctness of his statement, Even the learned counsel for the appellant admits that there is no allegation that the true culprit has been substituted by some one and no such suggestion was put to any prosecution witness. The statement of Mauj Ali P. W. can therefore, be implicitly relied upon. In fact, even the statements of the remaining P. Ws. could also be relied upon and the discrepancy about the presence of Daroo with the appellant does not affect the merits of the case because Mubarak appellant has been named by them all as the perpetrator o the crime and their attempt to exclude Daroo at later stage appears to have been made to save him, as they perhaps believed that he took no part in the actual crime. Be that as it may, the evidence of Mauj Ali P. W. in the circumstances of the case was sufficient to bring home the guilt of the appellant.

Mr. Bilal, however, attempted to argue that Mauj Ali P. W. should no be relied upon because he was the only witness whose statement had not been recorded under section 164, Cr. P. C. which showed that the prosecution considered him to be their own man and could rely upon him. This explana tion is too fantastic. The crime had occurred in the otaq of Mauj Ali P. W. and he would naturally have considered himself in some measure responsible for the tragedy and could not depart from the true state of affairs. Consequently, his statement under section 164, Cr. P. C. was not necessary.

We are further of the view that the recovery of the crime empty from the vardat which matched with the gun which was recovered when the appellant was arrested could also be relied upon. No doubt, the learned Sessions Judge did not rely upon this recovery on the reasoning that the crime empty and the gun were sent to the Ballistic Expert after about three months and the positive report about the matching of the crime empty was not of much value. Mere delay in sending the crime empty and the weapon for comparison to the Ballistic Expert cannot by itself imply that the recovery is doubtful. This inference can follow only after examining all the attendant circumstances, such as whether any doubt existed about the recovery of crime empty from the spot ; whether any suspicion arose that it had been substituted, etc. As no such suspicious circumstance has been pointed out in this case and, therefore, the recovery of the gun from the appellant could rightly be used as a corroborative circumstance. The learned Judges in the High Court were therefore, right in relying upon this piece of evidence.

The overall conclusion is that the appeal is without any force and must, therefore, be dismissed.

Appeal dismissed.

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