' SAIYED SAEED ASHHAD, J.--- This petition seeks leave to appeal against the judgment of Peshawar High Court, Peshawar dated 9-6-2004 in Criminal Appeal No,150 of 2003 whereby the appeal of the petitioner was dismissed maintaining the conviction and sentence awarded to the petitioner by the trial Court. The trial Court has convicted the petitioner vide order, dated 15-3-2003 under section 302, P.P.C. On two counts for committing the murder of Sultan Muhammad and his son Saleh Muhammad to imprisonment for life and under section 13 of the Arms Ordinance to imprisonment for seven years.
2. The brief facts of the case as per F.I.R. Registered on the statement of complainant Niaz Muhammad son of deceased Sultan Muhammad which was recorded by Muzahir Shah, Sub- Inspector in the Casualty Department of Khyber Teaching Hospital, Peshawar reproduced from the judgment of the Peshawar High Court as under:- "(3) The complainant has alleged that he along with his father, was a Government Grain Contractor, brother, Saleh Muhammad, and driver Pervez went to the office of the Food Director situated at Khyber Colony Tehkal to participate in the tenders for the supply of grains. That while leaving the office after finishing their work Israr Bacha, son of Said Naqibullah, resident of Mardan, Safir Jan son of Ghulam Jan, resident of Regi Malakand Dher and Noor Muhammad son of Painda Muhammad, an Afghan refugee, resorted to firing at them, as a result of which the complainant's father Sultan Muhammad and the brother Saleh Muhammad sustained serious injuries whereas the complainant and the driver Pervez escaped unhurt. It is further mentioned in the F.I.R. That the firing attracted D.S.P. Circle, Amanullah Khan to the spot. That he arrested Noor Muhammad along with 8 mm rifle and a charger and took into custody a Land Cruiser bearing Registration No,5-SWU.
That both these injured succumbed to their injuries on the way to the hospital. The motive for the incident was some controversy between the parties pertaining to the tenders for the foodgrain."
3. After lodging of above F.I.R. Investigation of the case was undertaken by Inspector Ikhtiar Gul, S.H.O. Of University Town Police Station. After completion of investigation he submitted challan against petitioner Noor Muhammad and absconders Israr Bacha son of Said Naqibullah and Safeer Jan son of Ghulam Jan. Petitioner Noor Muhammad was charged for committing murder of deceased Sultan 'Muhammad and Saleh Muhammad son of Sultan Muhammad to which he pleaded not guilty. The prosecution to prove its case examined 14 witnesses. The complainant/P.W.2 Niaz Muhammad and P.W. 3 Pervez Khan are the eye-witnesses of the occurrence. The remaining evidence consists of recovery of blood-stained earth; crime-empties and bullets; recovery of 8 mm Rifle No,953124 from petitioner Noor Muhammad; report of Ballistic Expert with 7 empties fired from 8 mm rifle secured from petitionef Noor Muhammad; arrest of petitioner from the place of incident; a Land Crusier which was parked at the scene of incident; copy of licence of kalashnikov in favor of absconder Muhammad Israr; two copies of licences, one of kalashnikov and other of 9 mm also in the name of absconder Muhammad Israr Bacha were recovered which were also taken into possession. Petitioner examined two witnesses in defence namely Iqbal Khan and Afridi Khan. On the basis of above evidence the trial Court came to the conclusion that the prosecution succeeded in proving its case beyond any shadow of doubt, thus convicting and sentencing the petitioner as stated above.
4. Feeling aggrieved and dissatisfied with the above judgment of the trial Court the petitioner assailed the same by way of appeal before the Peshawar High Court who vide its judgment dated 9-6-2004 dismissed the appeal maintaining the judgment of the trial Court; hence this petition for leave to appeal.
5. We have heard the arguments of Malik Rub Nawaz Noon, Senior Advocate Supreme Court on behalf of the petitioner. None appeared on behalf of the respondents though caveat was filed.
6. Malik Rub Nawaz Noon, vehemently assailed the judgment of the learned Sessions Judge, Peshawar as well as of the Peshawar High Court on the following grounds:--
(i) that from the evidence produced before the trial Court it was evident that it was a case of free fight between two parties resulting in indiscriminate firing from both the sides/cross-firing in which besides deceased Sultan Muhammad and Saleh Muhammad having lost their lives one Afridi Khan also received injuries and in view of the above it was incumbent for the trial Court to determine as to who was the aggressor party and who was the aggrieved party;
(ii) that according to the Ballistic Expert's report empties/bullets recovered from the scene of occurrence were fired from seven different weapons which contradicts the prosecution case, according to which the petitioner and two absconding accused had opened fire at the complainant party and at the most empties/bullets fired from three fire-arm weapons ought to have been secured from the place of incident;
(iii) that the presence of eye-witnesses namely complainant/P.W.2 Niaz Muhammad and P.W.3 Pervez Khan is highly doubtful in view of the prosecution case that indiscriminate firing was made by the petitioner and two absconding accused but these two witnesses did not receive any injury;
(iv) that complainant/P.W.2 Niaz Muhammad is son of deceased Sultan Muhammad and brother of deceased Saleh Muhammad whereas P.W.3 Pervez Khan was the driver of deceased Sultan Muhammad, as such they are interested witnesses whose evidence could not have been relied upon without stroiig corroboration which is lacking in this case; and
(v) that the prosecution had acted with mala fide intention and dishonestly as it refused to register an F.I.R. Of counter-version of the incident wherein the complainant party had opened fire at the petitioner/absconding accused, Israr Bacha and Safir Jan in which Afridi Khan received injuries.
7. We have given due consideration to the arguments of Malik Rub Nawaz Noon and perused the material on record including the judgments of Sessions Judge, Peshawar and Peshawar High Court.
8. With regard to the contention that both the eye-witnesses i,e, complainant/P.W.2 Niaz Muhammad and P.W.3 Pervez Khan are interested witnesses. It is to be observed that it is a well- settled principle that mere relationship or close association of prosecution witnesses with the deceased in the absence of established hostility, animosity or any other motive to depose falsely would not be sufficient to hold them to be interested witnesses and their testimony would not be discarded on this ground. From the material on record it has been established that no previous enmity, hostility or grudge existed between the complainant party and the accused persons. It will not be out of place to refer to the case of Munawar Ali v. The State 2001 SCM R p.614. Complainant/ P.W.2 Niaz Muhammad being the son of deceased Sultan Muhammad and brother of deceased Saleh Muhammad would not allow the real murderer to go scot-free and to falsely implicate somebody else in place of the original culprit. Even otherwise substitution is a rare phenomenon as held by this Court in the case of Muhammad Iqbal v. The State PLD 2001 SC 22. This contention, therefore, is devoid of force and is repelled.
9. Relative to the contention that presence of two eye-witnesses namely Niaz Muhammad and Pervez Khan is highly doubtful as in spite of indiscriminate firing by the petitioner and two absconding accused they did not receive any injury is without any substance. It is not the first case of its kind wherein some of the persons who were under attack by the opposite party did not receive any fire-arm injury whereas others received one or more than one fire-arm injuries. There cannot be a presumption or rule that all the persons who were under attack from firearms ought to have received injuries and the mere fact that some of them did not receive injuries would not make their presence at the place and time of incident doubtful. This contention is also devoid of force and is repelled. In support of the above proposition judgment in the case of Mehboob Sultan and 2 others v. The State 2001 SCM R 163 is referred.
10. Taking up the contention relative to the free fight or indiscriminate firing from both the sides/cross-firing as was suggested by Malik Rub Nawaz Noon, it is to be observed that this issue was raised before the Peshawar High Court and the learned Division Bench of the High Court thoroughly considered and examined the same and had given very cogent and plausible reasons for discarding the same. It would be appropriate to reproduce the relevant passages from the judgment of the Peshawar High Court dealing with this issue:-- "(18) The learned defence counsel had tried to make out a case of cross-firing. For this proposition he relied upon the site plan and the opinion of the Fire-arm Expert as well as the testimony of D.W.2 Afridi Khan. In the site plan the deceased are shown at points Nos.1 and 2, which are to the south of points 5 and 6 where the two absconding accused had allegedly fired. Point 7 where the appellant was present is further down South of Points Nos.1 and 2. The two witnesses are at points Nos.3 and 4 to the east of points Nos.1 and 2 in front of the entrance to the office of the Food Directorate. Bullet marks had been noticed at points A, D, E and F. Point A is the gate of Bungalow of Abdur Rashid Khan and is to the North-West of point 7 and South-West of points 5 and 6. The learned counsel for the defence submitted that these bullet marks at point A could have been caused only if there had been cross-firing. We find ourselves unable to agree with this argument. Point A falls in between points 5 and 6 on the one hand and point 7 on the other and so also the deceased were in between these points. There is every likelihood that the fire-shots from points 5, 6 on the one hand and point 7 on the other and so also the deceased were in between these points. There is every likelihood that the fire-shots from points 5, 6 and 7 could have hit the gate of the Bungalow of Abdur Rashid Khan, particularly when it falls within the firing range from point 7 to point 2. Similarly, points D, E and F, J, K which are in close proximity to one another, fall within the firing range from points Nos.6 to 1, 3 and 4. The site plan, therefore, does not indicate cross-firing."
"(19) According to the Fire-arms Expert's opinion the 7.62 mm bore crime-empties had been fired from 5 different weapons. On the face of it this may indicate the use of 5 weapons. However, it would not be per se sufficient to establish that there was a cross-firing between the complainant and the accused. The defence throughout the cross-examination had tried to built up a case that there had been cross-firing between the complainant party and one Akbar Ali and his companions. Interestingly, the defence did not disclose either through cross-examination of the eyewitness or by other means as to who this Akbar Ali was and as to what was the reason for the cross-firing between the said Akbar Ali and the complainant party. As far the record is concerned Akbar Ali appears to be an imaginary person. The defence had neither although in cross- examination or in the statement of the accused under section 342 even made an attempt to give any indication that the accused and the complainant party were locked in cross-firing. Without there being some evidence to that effect mere report of the Fire-arm Expert that 5 weapons had been used would not be enough to show that there probably was cross-firing between the two parties."
' From bare perusal of above passages from the impugned judgment it can safely be concluded that learned Division Bench had fully examined and discussed the issue of cross-firing and had rightly come to the conclusion that from the facts and circumstances of the case the possibility thereof was ruled out.
11. With regard to the ground that the prosecution has concealed and suppressed very material facts and the fact that empties/bullets recovered from the place of incident were fired from seven different fire-arms would suggest that the complainant party was also armed with fire-arms which would support the contention of cross-firing. This ground is devoid of force as it is merely based on conjectures and surmises that complainant party was also armed with fire-arms and had opened fire at the petitioner and others, resulting in injury to Afridi Khan. As regards the injury to Afridi Khan since his presence at the spot is admitted from the evidence on record, it might have been caused by a stray bullet fired from the fire-arm weapons used by the petitioner and the absconding accused. It may also be mentioned that the opinion formed by the Ballistic Expert, by no means is sacrosanct and the possibility of error in opining that the empties/bullets secured from the scene of incident were fired from seven different fire-arms cannot be ruled out. No hard and fast rule can be laid down as regards the weight to be given to the Experts report. In a case which otherwise stands proved against the accused by reliable, truthful and confidence inspiring evidence then the report of the Expert loses its value. This Court while faced with the similar situation in the case of.
Muhammad Hanif v. The State PLD 1993 SC 895 pronounced that in presence of direct evidence, Expert's evidence, might it be medical or that of Ballistic Expert was entirely in the nature of confirmatory or explanatory or other circumstantial evidence. It was further observed that direct evidence, which was definite and trustworthy, the confirmatory evidence was not of much significance and cannot in any case, outweigh the direct evidence.
12. The report of the Fire-arm Expert has expressed two opinions, firstly that in this case seven empties of 8 mm rifle secured from the place of incident were found to have been fired from the 8 mm rifle recovered from the petitioner. This opinion being in accord with the prosecution evidence, that petitioner had fired from 8 mm rifle would be acceptable as confirmatory or corroborative evidence. However, the opinion to the effect that seven different fire-arms were used on account of the empties/bullets recovered from the place of incident not being consistent with the prosecution evidence which has been found to be reliable, truthful and credible would not outweigh the reliable and credible prosecution evidence.
13. With regard to the contention that the prosecution had acted with mala fide intention and dishonestly in refusing to record counter-F.I.R., which was sought to be lodged by the petitioner, it is suffice to say that, admitting for the sake of arguments that the prosecution has refused to record the F.I.R., then three remedies were open to him. He could have approached the Sessions Judge under sections 22-A and 22-B, Cr.P.C.; he could have approached a Magistrate under section 156(3), Cr.P.C. He could have filed a direct complaint under section 200, Cr.P.C. It was submitted by Malik Rub Nawaz Noon that the petitioner was arrested from the spot immediately after the occurrence, initially remained in police custody and thereafter remanded to judicial custody which deprived him from having recourse to the aforesaid remedies. The explanation advanced by Malik Rub Nawaz Noon is not at all impressive. Petitioner even when in judicial custody could have availed of anyone of the above remedies. It is a matter of record that he had authorized an Advocate to conduct his above case in Court and he could have instructed his said Advocate to have recourse to anyone of the above three remedies.
14. Malik Rub Nawaz Noon had also vehemently- contended that both the Courts did not take into consideration the defence evidence of D.W.1 Iqbal Khan and D.W.2 Afridi Khan. This contention is not supported from the material on record. We have gone through the evidence of two defence witnesses. D.W.1 Iqbal Khan in his evidence did not make any statement, which could raise suspicion or doubt on the veracity of prosecution evidence. On the' contrary he had deposed that both deceased Sultan Muhammad and Saleh Muhammad were fired at. From the cross- examination of this witness it transpired that he was working as driver of deceased Sultan Muhammad for 10/11 years but on account of misappropriation of Rs,10,000 he was removed from service. A suggestion was made to him that he deposed falsely at the instance of Israr Bacha, who had bribed him, which of course was denied by him. He also admitted in cross-examination that he was removed by the complainant from service prior to the occurrence. In view of the admission his statement that he had driven the Pajero in which deceased Sultan Muhammad and Saleh Muhammad had gone to the office of Director Food is absolutely false statement. No reliance can be placed on the evidence of such a witness. With regard to evidence of Afridi Khan the learned Division Bench of Peshawar High Court, discarded the same as he was found to be a liar witness As contradictory statements were made by him in his 161, Cr.P.C. Statement before the police, as he was one of the prosecution witnesses and in the evidence before the trial Court, therefore, his evidence was rightly' discarded from consideration in determining the guilt or otherwise of the petitioner.
15. For the foregoing reasons and discussion it is absolutely clear that both the trial Court and the Peshawar High Court did not commit any illegality in convicting the petitioner for the offence of murder of two deceased persons and their judgments do not suffer from misreading or non- reading or misconstruing the prosecution evidence. Both the Courts had apprised the evidence in accordance with the principle of appraisal of evidence in criminal case. This petition for leave to appeal does not merit consideration. Accordingly it is dismissed and leave to appeal is refused.