1. ' JEHANZAIB RAHIM, J.---This appeal is directed against the judgment dated 31-5-2005 passed by the learned Judge, Anti-Terrorism Court, Abbottabad whereby he convicted Atif Khan son of Anwar Khan under section 302(b), P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 and sentenced him to death with a fine of Rs,2,50,000 (Rupees two lac and fifty thousand only) or in default thereof to undergo 2 years simple imprisonment. The fine, if recovered, shall be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. He was also convicted under section 324, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 and sentenced to 2 years' rigorous imprisonment with a fine of Rs,50,000 (rupees fifty thousand) or in default thereof to suffer 3 months' simple imprisonment. The amount of fine, if recovered, be given to the complainant. The other co-accused namely, Haji Muhammad Riaz Moheen Ullah Khan and Arshad Khan were acquitted of the charges levelled against them.
2. ' Brief facts of the case are that complainant, Sajjad son of Shah Nawaz reported to the police that he, along with his cousin Nasim Khan was brought by the police from District Jail, Abbottabad to the Court of Sessions Judge, Abbottabad to face trial in case F.I.R. No,131 dated 21-5-2004 and were made to sit in the verandah on a bench. In the meanwhile, appellant Atif along with Moheen Ullah, Arshad Khan and Riaz Patwari appeared and the appellant, on the instigation of Moheen Ullah and Arshad Khan, drew out the Kalashnikov from beneath his Chaddar and started firing at them and as a result, Nasim Khan was hit and sustained injuries. He also suffered injury on the middle finger of right hand as they both were tied in the same handcuffs. The occurrence was witnessed by Police Officials present on duty and the staff of Sessions Court. The appellant along with kalashnikov was arrested. The motive for the occurrence was blood-fued enmity between the parties.
3. ' The investigation in pursuance of the above was carried out. Fazal Dad Khan, A.S.-I. On receipt of information reached the spot. He drafted the murasila and sent to Police Station for registration of F.I.R. Accordingly, a formal F.I.R. No,37 dated 8-2-2005 under sections 302/324/34, P.P.C., read with sections 6/7 of the Anti-Terrorism Act, 1997 was registered against the appellant, etc., at Police Station, Abbottabad. He prepared the injury sheet of the complainant and sent him to the hospital for treatment. He also prepared the injury sheet and inquest report of Nasim Khan, deceased and sent his body to the mortuary for autopsy. He prepared the site-plan, took into possession blood through cotton from the spot, one empty of 7.62 bore, one kalashnikov, one magazine having 26 live rounds, one empty of 7.62 bore from the chamber of Kalashnikov, one woollen chaddar worn by the appellant at the time of occurrence. He received post-mortem and Medico-legal reports, blood-stained clothes of deceased, two spent bullets recovered from the dead body. He sent the blood, blood-stained clothes to the FSL and received the. Serologist report in positive. He also sent empties of 7.62 bore and Kalashnikov to the FSL and received Fire-arm Expert report in positive. He recorded the statements of witnesses.
4. ' After completion of investigation, he handed over the file to the S.H.O., who submitted complete challan in Court. The copies of the relevant documents as required under section 265-C, Cr.P.C.
5. Were supplied to the appellant, etc. The charge was accordingly framed against the appellant, etc., to which they pleaded not guilty and claimed trial.
6. ' The prosecution, at the trial, in order to prove the charge and substantiate the allegations levelled against the appellant, etc., produced thirteen witnesses. Aurangzeb (P.W.1) had identified the dead body of the deceased. Dr. Haroon (P.W.2) had examined the complainant, Exh.P.W.2./1 and found a small abrasion over the dorsal aspect of the middle finger of right hand. Muhammad Parvez,' HC (P.W.3) had brought the original daily diary register and produced DDs Nos.4, 6 and 8 dated 8-2- 2005, Exh.P.W.3/1 to Exh.P.W.3/3. Muhammad Tariq, IHC (P.W.4) was marginal witnesses to the recovery memo. Exh.P.C. Vide which the Investigating Officer took into possession blood through cotton from the spot, one empty shell of 7.62 bore, one kalashnikov with magazine having 26 live round of 7.62 bore, one empty shell of 7.62 bore recovered from the chamber of kalashnikov and recovery memo. Exh.P.C./1 vide which the Investigating Officer took into possession one chaddar.
7. Azram Khan, FC (P.W.5) was marginal witness to the recovery memo. Exh.P.C./2 vide which the Investigating Officer took into possession blood-stained garments of the deceased with corresponding bullets cut marks and a sealed phial containing 2 spent bullets. He took the sealed blood-stained clothes, blood-stained cotton and delivered to the Chemical Expert. He also took two sealed empties of 7.62 bore, Kalashnikov and handed over to the Fire-arm Expert. Mushtaq, F.C.
8. (P.W.6) had escorted the dead body to the mortuary and, after postmortem examination, brought the clothes of the deceased, a phial containing 2 spent bullets and handed over to the Investigating Office. Shaheen Khan, Moharrir (P.W.7) had handed over the case property to Azram, F.C. And incorporated the murasila in F.I.R., Exh.P.A. Dr. Niamatullah Khan (P.W.8) conducted the post-mortem examination of the deceased, Exh.P.D./3 and found an entry wound on the right side below the armpit causing fracture of the underlying rib and fracture of the rib on the left side, and entry wound on the right side behind the Injury No,1, a bluish discoloration on left side below the armpit. One bullet was recovered from the armpit and scratch wound on right knee anterior. The second bullet was recovered from the inner surface of left side cavity. Sajjad (P.W.9), the complainant had reiterated the contents of F.I.R. On oath. Abdul Salam, FC (P.W.10), and other police officials had brought the deceased, Nasim Khan, Sajjad and one Tariq Mehmood to the Sessions Court Abbottabad, arrested the appellant with the help of Shiraz FC, took into possession one Kalashnikov from the appellant and handed over to Fazal Dad Khan, A.S.-I. Naseer Ahmed, DFC (P.W.11) was entrusted the warrants of arrest issued against co-accused, namely, ,Haji Muhammad Riaz, Moheen Ullah and Arshad and returned the same Exh.P.F./1, Exh.P.F./2, Exh.P.F./3 as unserved with reports. Fazal Dad Khan, A.S.-I. (P.W.12) recorded the murasila Exh.PA/1, prepared the injury- sheet of Sajjad Exh.P.D., injury-sheet Exh.P.D./1 and inquest report Exh.P.D./2 of Nasim, prepared the site-plan Exh.P.B., prepared the recovery memo. Exh.P.C. And P.C./1, sealed the blood-stained garments of the deceased Exh.P.C./2, sent the blood recovered from the spot and blood-stained garments to the FSL vide application Exh.P.E. And received its report, Exh.P.W.12/l and vide application, Exh.P.E./1 sent the crime empties and crime gun to the FSL and received its report Exh.P.W.12/2, placed copies of DDs.Nos.4, 6 and 8 of traffic police Exh.P.W.3/1 to Exh.P.W.3/3, obtained warrant under section 204, Cr.P.C. Proclamation notices under section 87 ibid, recorded the statements of P.Ws., obtained challan in F.I.R. No,131 dated 21-5-2004 Exh.P.W.12/5, order-sheet Exh.12/6, arrested the appellant on the spot and other co-accused on 12-2-2005, placed copies of F.I.R.No,38 dated 8-2-2005, Exh.P.C./2 and No,131, Exh.P.W.12/7 and after completion of the investigation handed over the file to the S.H.O. Ejaz Ahmed, S.-I. (P.W.13) on completion of investigation submitted complete challan to the trial Court.
9. ' After the conclusion of prosecution evidence, the appellant, etc., were examined under section 342, Cr.P.C. They, in their statements, denied the charge and pleaded innocence. They did not opt to lead any evidence in their defence or to appear themselves as their own witnesses in terms of section 340(2), Cr.P.C. The trial Court, after hearing the parties and appraising the evidence, convicted the appellant in terms above stated and acquitted the co-accused. Feeling dissatisfied with the conviction and sentence, the appellant has come to this Court in the instant appeal while the complainant has filed Criminal Appeal No,66 of 2005 against acquittal of accused-respondents. The learned Judge Anti-Terrorism Court has referred Murder Reference No,5 of 2005. The above causes have arisen out of the same judgment, therefore, we propose to dispose of all the three by this single judgment.
10. ' We have heard the learned counsel for the appellant, learned counsel for the State assisted by learned counsel for the complainant and have gone through the record with their able assistance.
11. ' The learned counsel for the appellant vehemently contended that it was a case of dishonest investigation in which the appellant being innocent had been substituted with the actual culprits Nazir, who was arrested on the spot along with weapon of offence, and the recoveries so effected had been falsely planted against the appellants; the Investigating Officer had not shown the wall in the site-plan on which the appellant had allegedly scaled over and entered the Court premises; independent eye-witnesses, police officials on duty and under-trial prisoners were not produced at the trial to have narrated the actual occurrence in the Court premises; the chaddar was not proved to have belonged to the appellant; the story of the prosecution is not plausible and should be discarded and appellant be acquitted of the charge.
12. ' On the other hand, learned counsel for the complainant/State argued that it was a broad- daylight occurrence and the report was promptly lodged; the appellant had been charged for firing at the deceased and complainant while the acquitted co-accused were charged for abetment/conspiracy; the ocular account provided by P.W.9 and P.W.10, being natural witnesses of the occurrence, had supported the prosecution story; the appellant was arrested along with weapon of offence from the spot; the empties recovered from the spot as per FSL report were fired from the weapon recovered from the appellant; the motive was admitted by the appellant in his statement under section 342. Cr.P.C. And proved by placing a copy of F.I.R. No,131 dated 21-5-2004 in which the complainant and the deceased were among the panel of accused and were under- trial prisoners. The prosecution has proved the case against the appellant beyond all reasonable doubt and the conviction and sentence recorded by the trial Court is legal and warrants no interference.
13. It is evident from the record that the ocular account of the occurrence was provided by complainant, Sajjad (P.W.9) who deposed that he and Nasim Khan deceased were in handcuffs when the appellant came from the ladies waiting place, took out the kalashnikov from beneath his chaddar, fired, killed Nasim Khan and injured him. No doubt, the witness was admittedly inimical
(sic) but he was duly supported by Abdul Salam HC (P.W.10), who had escorted them from the Jail and being independent police official having no enmity to depose falsely against the appellant, had reiterated the same version and further testified that he caught hold of the appellant with the help of Shiraz, FC along with the Kalashnikov, took him to the record room and on the arrival of Investigating Officer (P.W.12), handed over to him along with the weapon of offence.
14. The ocular account of P.W.9 and P.W.10 was supported by motive as alleged by Sajjad, P.W.9 and proved at the trial through depositions of P.Ws., copy of F.I.R. No,131 dated 21-5-2004, Exh.P.W.12/7 and admission of appellant under section 342, Cr.P.C. In the above F.I.R., Shahzad, the brother of appellant was murdered and Pervez, brother of Arshad Khan, the acquitted co-accused was injured for which, Nasim Khan deceased and the complainant along with four others were charged and were brought in handcuffs as under-trial prisoners to the Sessions Court for the trial on 8-2- 2005, where the occurrence had taken place. The admitted motive had undoubtedly linked the appellant with the crime as deposed by the P.Ws. But the motive by itself had not proved the above assertions conclusively but it had assumed importance because the direct evidence in the case is reliable and of unimpeachable character.
15. The recoveries from the appellant and from the spot had further corroborated the ocular account.
16. As per Serologist/FSL report, Exh.P.W.12/1 the recovery of blood from the spot and the blood-stained garments of the deceased, after chemical analysis, were found to be stained with human blood of the same group. Similarly, the Fire-arms Expert-report, Exh.P.W.12/2 would show that the crime empties of 7.62 bore i.e,, recovered from the spot and extracted from the chamber of kalashnikov were fired from 7.62 bore SMG crime rifle (kalashnikov), which was taken over from the appellant at the time of arrest. There was no delay in sending the crime empties and the crime rifle recovered/taken over in the presence of witnesses to the FSL as the occurrence had taken place on 8-2-2005 and the crime articles were sent and received in FSL on 11-2-2005. There is hardly any possibility that the same having been tampered with or manipulated, therefore, it is safe to place reliance on such recovery.
17. The post-mortem report. Exh.PD/3 had further supported the ocular version provided by P.W.9 and P.W.10. Dr. Naimatullah Khan (P.W.8) in post-mortem examination had found two entry wounds of similar dimension on the corps of Nasim Khan and recovered two spent bullets from the dead body. The ribs in the line of injuries were found fractured. The bullets after striking the ribs entered the body cavity and could not make the exits. The contention of the learned counsel that the deceased was fired at with kalashnikov from the distance of 6/7 paces but the bullets could not make the exit and remained inside the body, has clearly suggested that the deceased was fired at from a long distance, therefore, the bullets as such could not make the exits. The contention of the learned counsel has no force and could not be accepted for two reasons. One that it could not be justified to expect from a witness in the state of sensation and panic that he would mention the distance with exactitude, as nobody bothers for any measurement in such a situation ; Elahi Bakhsh v. Rab Nawaz (2002 SCM R 1842). Second that two spent bullets, during post-mortem examination, were recovered from the body cavity and could not make its exits after ricochet. Keith Simpson at page 74 in the 7th Edition of his book titled 'Forensic Medicine' had expressed the view; "The exit wound will consist merely of a hole in the skin---torn to a degree dependent upon the momentum of the bullet leaving the body, its lie (nose-on, wobbling, or turning over and over) and the amount of bone splinter it carries away with it Where the momentum of the bullet is reduced, as at the end of its course or after striking bone, there may be no exit wound.
18. ' The course of the projectile is traced by a line commencing at the entry wound and running into the body along the track of the missile so long as it continues on a straight course. As soon as the bullet meets dense tissues, like bone, capable of deflecting it, the projectile may suffer a violent change of direction. Portions of bullet jacket may be torn off in striking bone or teeth and these may be flung in different directions".
19. ' This Court in Kifayatullah v. State (PLD 1975 Pesh. 131) has observed; "generally a bullet fired from a fire-arm has a tendency to continue in straight line from the point of entrance to the point of wound of exit but very frequently such wound is not straight but curved and in the opinion of Dr. Taylor contained in his book titled 'Principles and Practice of Medical Jurisprudence', the reason for such wound being curved is that the missile is deflected from its original course by slightest obstacle such as bone etc."
20. ' This Court had reiterated the above view in Noor Khan v. State PLD 1975 Pesh. 164 and had observed that a bullet fired from a fire-arm may take any unpredictable course on impact with bones, tissues etc., and many other variables while relying on the following passage from Taylor's 'Principles and Practice of Medical Jurisprudence' at page 446 of Volume-1; "The deflection of projectiles may occur not merely when they came in contact with bone, but when they meet skin, muscles, tendons or, membranes; the bullet then takes its course in the spaces between these different structures. A bullet which entered at the ankle has been known to make its exit at the knee; and another, which entered at the back of the left shoulder, passed around the inside of the scapula and was found below the right ear. This deflection of bullet by slight obstacles has been ascribed partly to the obliquity with which it strikes, and partly to the rotary motion in its axis. The same deviation has been found to occur when the bullet was fired near or at a distance provided that it was fired from an old fashioned firearm, or was a rounded missile. The modern small-bore rifle bullet has a much greater tendency to preserve its course, though there are many published cases which indicate that deflections are frequent."
21. ' The Hon'ble Supreme Court has approved the above view taken by this Court, followed the same in Muhammad Ahmad v. State 1997 SCM R 89 and had observed; "The authorities on Medical Jurisprudence and the Forensic Ballistics are agreed that a bullet fired from a fire-arm may take any unpredictable course on impact with bones, tissues etc. Modi has also expressed the view that in some cases, it is difficult to determine the direction from which the weapon was fired "as the bullet is so often deflected by the tissues that its course is very irregular".
22. ' The learned counsel for the appellant next contended that three police constables particularly Safdar FC, under-trial prisoner Tariq Mehmood, who was brought to the Court along with the complainant and deceased and was sitting with them, and other eye-witnesses of the occurrence were not produced at the trial. The contention of the learned counsel could not be sustained for reasons that, (i) the witnesses of occurrence are generally refrained from joining the investigation in criminal cases and, for obvious reasons, are reluctant to appear in Court as prosecution witnesses. Their non-appearance would neither justify the Courts to draw adverse inference nor destroy the evidence of eyewitnesses. See; Yaqoob Shah v. State PLD 1976 SC 53 and Muhammad lqbal v. State PLD 1976 SC 291; (ii) where eye-witnesses mentioned in the FIR were produced and others were not because it was considered unnecessary and of no use multiplying the testimony of one witness with that of other eye-witnesses. See; Riaz Ahmad v. State 1986 SCM R 1460; (iii) the prosecution is not bound to produce all the eye-witnesses of occurrence but only those witnesses, which are necessary and likely to give true evidence as it is always the quality of evidence having unimpeachable character and dispelling all doubts and not the quantity of witnesses which counts with the Court; Dildar Hussain v. Muhammad Afzaal alias Chala PLD 2004 SC 663 and (iv) the appellant, if knew that the statement of a particular police official or a fellow prisoner or an eye- witness was imperative for his defence and to prove him innocent, then he should have applied for his examination under section 540, Cr.P.C. And the trial Court, for the ends of justice was bound to have summoned him for recording his statement but the appellant had made no such endeavour and he at this stage could not make it a base for securing acquittal. Therefore, non-production of witnesses present on the spot, in view of above, is neither fatal nor reflect adversely on the prosecution case and no importance could be attached to non-production of disinterested witnesses/person present on the spot if the other witnesses of occurrence are confidence-inspiring and have no motive to implicate falsely to the innocent in criminal cases.
23. The learned counsel for the appellant had given much emphasis on the site-plan and vehemently argued that the wall on which the appellant was allegedly scaled over was not shown in the site- plan as the wall is of such a height that no one with kalashnikov could possibly climb. The contention of the learned counsel has no merit. It is not obligatory on the Investigating Officer either under the provisions of Cr.P.C. Or the Police Rules to show every possible conceivable thing in the site-plan as it is only a supporting document to understand the location of the incident. The omission in the site-plan would not falsify the ocular account as apex Court had repeatedly observed that the site-plan is not a substantive document to be used to contradict or discredit unchallenged evidence of prosecution and cannot be given preference over the direct evidence of the eye-witnesses. Abdur Rauf v. State 2003 SCM R 522.
24. The learned counsel further argued that the prosecution has failed to prove the chaddar, which the appellant was allegedly wearing at the time of occurrence. This contention equally, has no substance as the same was proved to have belonged to the appellant. Sajjad (P.W.9) and Abdul Salam (P.W.10) had deposed in clear terms that appellant had taken out kalashnikov from beneath his chaddar and fired at them. Fazal Dad, A.S.-I. (P.W.12) had taken Chaddar, etc., from P.W.10 and prepared the recovery memo. In the presence of Muhammad Tariq (P.W.4), Ex/PC/1, and exhibited at the trial as P-1 of the above memo. Even otherwise the chaddar is not a crime article, which is used in the commission of the crime in Riaz Ahmad v. State 2004 SCM R 988 where the submission before the Hon'ble Supreme Court was that "the blanket was not taken into possession as case property where under the accused, at the time of arrest, had concealed five kilograms of Charas in a shopper bag. The Hon'ble Court had found the submission without any substance and had held that the blanket was not the case property. The case property in this case was Charas, which had been recovered and report of the Chemical Examiner in this regard was positive in nature".
25. ' The acquitted co-accused, Arshad was a police official, whose brother Pervez was injured in the case FIR No,131, Ex.P.W.12/7, had tried to twist the version of occurrence. He on the day of occurrence had entered his departure from the Police Station in DD No,4 dated 8-2-2005, Exh.P.W.3/1 and reported his arrival in DD No,6, Exh.P.W.3/2 wherein he had stated that he was present in the Sessions Court when he heard the report of fire-shots and had come to know that deceased, who was in police custody, was fired at by someone and the police had arrested Nazar who, in order to cross the case, had fired at his own companion and had been arrested by Safdar, FC along with kalashnikov. The appellant, his cousin brother being innocent, on report of fire-shots had gone near the injured, where he was arrested and the police lodged a false report against him. Arshad could not substantiate the twisted version of the occurrence through any evidence and had not even appeared in terms of section 342(2), Cr.P.C. In the witness-box to have testified his version of the occurrence. Similarly, his absentee report from the office was recorded in DD No,8 at 1400 hours, Exh.P.W.3/3. According to Muhammad Pervez, HC (P.W.-3), the DD Nos.4 and 8 were written by him whereas DD No,6 was recorded by Arshad in his presence. The above daily diaries were not signed or verified by any superior police officer. The learned trial Court had observed that Arshad had used the daily dairies of police, made entries for manipulating false story adverse to the true facts with the view to screen out himself, co-accused and the appellant and recommended departmental action against him for his criminal misconduct. The observations of the learned trial Court are well-founded and hereby approved/upheld. Besides, the appellant, with the connivance of police officials on duty, managed to take the kalashnikov through the main gate of Court's premises. There is no other entrance in the Court premises through which the appellant could enter with kalashnikov for killing under-trial handcuffed adversaries. The entire premises of the Court were surrounded by walls well above the man height, which is difficult for an armed person to scale over and enter the premises. The appellant had abused the sanctity of the Court, endangered the lives of litigant public and the Court officials by use of force, which had created a sense of fear and insecurity in Court premises. Had an empty not stuck up in the chamber of kalashnikov, the indiscriminate firing might have resulted in much causalities. Therefore, we are constrained to further direct that enquiry be made and the police officials responsible for conniving with the appellant and guilty of criminal negligence/misconduct shall strictly be dealt with under the Law and Rules.
26. We have gone through the entire evidence and found no material contradiction, which could affect the merits of prosecution case. The other inconsistencies referred by the learned counsel for the appellant are neither material nor of any consequence and could not be made grounds for securing acquittal as the same with the passage of time are bound to creep up in the depositions of the P.Ws. The Hon'ble Supreme Court in Allah Bakhsh v. Ahmed Din 1971 SCM R 462 had observed; "minor inconsistency in depositions of prosecution witnesses of inconsequential nature cannot reasonably be considered as good grounds in disbelieving independent and disinterested witnesses. If importance be given to such insignificant inconsistencies there can, hardly be any conviction, for seldom is there a witness whose evidence does not suffer from such inconsistencies".
27. For the foregoing reasons, we are of the view that the findings of the learned trial Court could not be shown to have been passed on misreading or non-reading of evidence. The trial Court has appraised the evidence existing on the record thoroughly on the principles for appraisal of evidence in criminal cases for safe administration of criminal justice. The impugned judgment is based on correct application of law and proper evaluation of evidence and, therefore, we see no reason to interfere in the findings of the learned trial Court.
28. ' Consequently, this appeal having no merits is hereby dismissed with modification that the fine imposed by the trial Court shall be construed as compensation under section 544-A, Cr.P.C. And shall be recovered as arrears of land revenue from the property of the appellant. The Murder Reference No,5 of 2005 sent by the trial Court for confirmation of the death sentence of the appellant is answered in the affirmative while Criminal Appeal No,66 of 2005 titled Muhammad Saleem v. Arshad Khan against the acquitted co-accused is dismissed for the reason recorded herein above.
29. ' Above are the reasons for our short order dated 14-12-2005.