RAJA FAYYAZ AHMED, J.--- This criminal appeal has been directed against the judgment, dated 1- 11-2002 passed by the learned Single Judge in Chambers of the Lahore High Court, Lahore, whereby Criminal Appeal No,974 of 2001 filed by the appellant against his conviction and sentence of imprisonment for life under section 302(b), P.P.C. Awarded by the learned Additional Sessions Judge, Bhakkar vide judgment dated 12-6-2001 has been dismissed.
2. Vide above mentioned judgment of the learned trial Court, Haq Nawaz appellant and Muhammad Khan co-convict both sons of Ghulam Sarwar were found guilty for causing the death of Muhammad Ashraf and sentenced to imprisonment for life each under section 302(b), P.P.C., as well as found liable to pay Rs,50,000 each as compensation to the legal heirs of the deceased or in default whereof to further undergo S.I. For one year. Benefit of section 382-B, Cr.P.C., however, was extended in their favour. Their co-accused Riaz Hussain alias Raza, Niaz Hussain and Fida Hussain were acquitted of the charge by extending benefit of doubt in their favour, whereas; Muhammad Ashraf absconder accused was declared as proclaimed offender, and his perpetual non-bailable arrest warrant was issued by the learned trial Court vide above mentioned judgment.
3. The criminal appeal filed by both the above said convicts to the extent of appellant Haq Nawaz was dismissed and accepted to the extent of Muhammad Khan by the learned Single Judge in the High Court in view of his plea of alibi supported by documentary evidence, accordingly he was acquitted of the charge vide judgment impugned herein by the appellant against the dismissal of his appeal.
4. Leave to appeal has been granted by this Court vide order, dated IA 5-7-2004 to reappraise the entire evidence.
5. The relevant facts of the prosecution case are that on the written complaint of Muhammad Hayat (P.W.8) case F.I.R. No,365 dated 27-8-1997 (Exh.P.9) was registered at Police Station Bhakkar under section 324/34, P.P.C. It was alleged by the complainant that at about 12 noon on the above said date his nephew (sister's son) namely, Muhammad Ashraf was to irrigate his land from the tube-well, while the complainant along with his brother Khizer Hayat and Sarfraz son of Allah Dad had come to the site to help Muhammad Ashraf who in order to irrigate sugarcane fields erected/made Nakka, while the complainant along with the above said two persons were present near to the Khal, when all of a sudden from towards south Muhammad Ashraf, Muhammad Khan alias Manda respectively armed with .30 bore pistol and kalashnikov both sons of Ghulam Sarwar and Muhammad Riaz alias Raza armed with .30 bore pistol emerged from the sugarcane crops.
Muhammad Khan raised Lalkara that they have come to take revenge of the murder of his sons Mumtaz and Shah Jahan and simultaneously Muhammad Ashraf (P.O.) fired with his pistol at Muhammad Ashraf son of Abdul Rehman, which landed on the back of his left shoulder. The second fire made by Muhammad Riaz hit Muhammad Ashraf at his right wrist and after that Muhammad Khan fired with his kalashnikov, which hit on the right shoulder of Muhammad Ashraf, thereafter, Haq Nawaz fired at Muhammad Ashraf, which landed at the back of his right shoulder.
On receiving fire-arm injuries Muhammad Ashraf fell down and all the accused thereafter made indiscriminate firing and fled away. Muhammad Ashraf in injured condition was shifted to the D.H.Q.
Hospital Bhakkar where the complainant made statement before Rohtas Khan, A.S.-I. (P.W.7) who had reached to the hospital on receipt of information about the occurrence. The injured expired in the hospital on the same date after five hours and the offence was altered to that of under section 302, P.P.C. Read with section 34, P.P.C.
' The motive behind the occurrence was that 10/11 months prior to the present occurrence, Mumtaz and Shah Jahan sons of Muhammad Khan co-convict (acquitted on appeal by the learned High Court) were murdered. Abdul Rehman father of deceased Muhammad Ashraf and Muhammad Bakhsh grandfather of the deceased along with others were accused in the said double murder case.
6. After completion of the investigation in the case, report under section 173, Cr.P.C. Was submitted in the trial Court. The appellant and his co-accused were indicted in view of the accusation and the incriminating material produced with the report in the trial Court to which they did not plead guilty. The prosecution in order to substantiate the accusation produced 11 witnesses; namely; Muhammad Amir (P.W.1), he identified the dead body of deceased Muhammad Ashraf at the time of post-mortem examination. Dr. Khalid Javed M.O. THQ Hospital, Mankera (P.W.2) conducted post- mortem examination of the dead body of deceased. Muhammad Arif FC (P.W.3) escorted the dead body of the deceased to the mortuary of THQ, Hospital, Mankera, for post-mortem examination, after autopsy, the M.O. Handed over to him the dead body, last-worn clothes of the deceased and the post-mortem report, which he delivered to the Investigating Officer who took the same into possession through memo. In his presence and he is the marginal witness of the seizure memo.
Muhammad Bashir, Patwari (P.W.4) on the pointation of P.Ws. And under the instructions of the Investigation Officer prepared site plan on 12-9-1997 which has tendered in evidence as Exh.P.8.
Fakhar-uz-Zaman, H.C. Moharrer, Police Station Saddar Bhakkar (P.W.5) on receipt of the complaint sent by P.W. Muhammad Rohtas Khan, A.S.-I. On 27-8-1997 recorded the formal F.I.R., he produced the original F.I.R. Register bearing his signatures on the report recorded by him in the register and attested copy thereof produced by the witness was tendered in evidence as Exh.P.9. On the same day, he was informed by the M.O. THQ Hospital that Muhammad Ashraf injured has expired, so he informed to the concerned Police Officer about such fact and also incorporated section 302, P.P.C.
In the F.I.R. On 28-8-1997, Amjad Hussain S.-I./Investigating Officer handed over to him sealed parcels containing blood-stained earth, two sealed parcels containing empties to be kept in safe custody for onward transmission to the concerned offices. On 2-9-1997, he handed over the parcels to Muhammad Ashraf Constable to be delivered to the concerned officer for the purpose of examination and analysis. The above said S.-I./ Investigating Officer handed over to him on 28-8- 1998, the last-worn clothes of the deceased to be kept in safe custody in the Malkhana.
Muhammad Mumtaz A.S.-I. (P.W.6), stated at the trial that the police file and the judicial portion of the case file were produced by him on 24-9-1998 in the Court of his Lordship Mr. Justice Iftikhar Hussain Chaudhry of Lahore High Court in the bail matter of accused Haq Nawaz to whom bail was granted by the learned High Court and after that when he was coming out of the main gate of the Lahore High Court towards Mall Road, the procession of Sipah-e-Sahabah, which by that time had reached to the said site caused damage to the High Court Building furniture and other articles within its premises. The witness further deposed that the members of the procession also caused injuries on his person and other police staff present on the duty. The police file and the judicial portion of the file held by him was snatched and destroyed, in respect whereof case F.I.R. No,256 dated 24-9-1998 under sections 344/ 186/427/188/506/392/337(h)-2/148/149, P.P.C. 13/20 of the Arms Ordinance, 1965, 16 M.P.O. And section 9 of the Anti-Terrorism Act, 1997 was registered at Police Station Purani Anarkali, Lahore. According to the witness, he had been admitted in the Mayo Hospital Lahore for medical treatment and he also informed to the S.P. Bhakkar on telephone about the incident and about the destruction of the above said file. He further stated that on 1-10-1998, S.H.O. Muhammad Ramzan Shahid sought permission from the S.P. Bhakkar for preparing the duplicate challan and the police file, which accordingly was allowed. He referred to the original application so submitted by the S.H.O. Available on the case file, which he produced with permission of the Court as Exh.P.10 being familiar with the signatures and handwriting of the said S.H.O. The site plan and the duplicate challan initially prepared by the Investigating Officer and subsequently, reconstructed by him were admitted in evidence as Exh.P.11. According to the witness, the site plan was true copy of the original prepared by Amjad Hussain, S.-I. (since dead) and the duplicate recovery memo. Of blood-stained earth was also admitted in evidence as Exh.P.12, whereas; the duplicate recovery memo. Of the crime-empties (originally prepared by Amjad Hussain, S.-I.) prepared by the witness was admitted in the evidence as Exh.P.13. Attested copy of the inquest report of Muhammad Ashraf deceased obtained from DHQ Hospital, Bhakkar, prepared by the witness was admitted in his evidence as Exh.P.14. Scaled site plan got prepared by the said witness on 24-2-1999 was already admitted in evidence as Exh. P.8.
' Muhammad Rohtas, A.S.-I. (P.W.7) brought the original police file from the police record room of the office of the S.P. Bhakkar. On receipt of information of the incident, he proceeded to the Civil Hospital where the complainant produced to him MLR of Muhammad Ashraf injured bearing No,371 of 1997. The complaint submitted to him by P.W. Muhammad Hayat was sent to the Police Station Saddar Bhakkar for registration of the case through Muhammad Muzaffar Khan. He also submitted application to the Medical Officer for permission to record the statement of Muhammad Ashraf injured but as the said injured was unconscious, therefore, his statement could not be recorded.
After that P.W. Visited to the place of occurrence and when he reached near to the Adda Razai Shah was informed by Amjad Hussain S.-I. About the injured having been succumbed to the injuries. He entrusted the investigation of the case to Amjad Hussain, S.-I. (since dead).
' Muhammad Hayat complainant (P.W.8) and Sarfraz (P.W.9) are the eye-witnesses of the occurrence. Muhammad Anwar (P.W.10) deposed that he overheard, while sitting in the hotel of Ghulam Hassan Pawali, that Muhammad Khan Niaz, Riaz, Haq Nawaz, Fida Hussain having asked Muhammad Ashraf absconder accused to take revenge of the murder of his nephews to which Muhammad Khan, Niaz, Riaz, Fida Hussain agreed. Muhammad Ashraf F.C. (P.W.11), delivered the sealed parcels containing blood-stained earth and the sealed parcels of crime-empties in the office of Chemical Examiner, Lahore and Forensic Science Laboratory, Lahore, which were handed over to him by P.W. Fakhar Zaman Moharrar/H.C. Of Police Station Saddar Bhakkar.
7. The cited P.Ws. Khizar Hayat, Muhammad Aslam Khan, Muhammad Ali Inspector (Legal), Tariq Masood Yaseen S.P. And Muhammad Anwar S.-I. Were given up by the learned A.D.A. Amjad Hussain S.-I./Investigating Officer of the case could not be produced as he was murdered in a police encounter in Sargodha District:
8. After close of prosecution evidence, the accused facing trial were examined by the learned trial Court under section 342, Cr.P.C. In view of the incriminating pieces of evidence, which they denied and disputed.
' Haq Nawaz appellant produced only one witness in defence namely, Allah Bukhsh son of Faqir Muhammad as D.W.1. The present appellant in his statement under section 342, Cr.P.C. In answer to question No,4 took the plea of alibi by stating that on the day of alleged occurrence he was at Dariya Khan in connection with the treatment of the fracture of the arm of his son from Jarah for the whole day and in support of his plea stated to have produced sufficient evidence before the police, which was verified and he was found to have not participated in the occurrence. He further stated that the P.Ws. Were interested, related inter se and inimical towards him, deposed against him and his brother Muhammad Khan co-accused, as well as; the complainant party had involved them in different false criminal cases previously due to enmity.
' D.W. Allah Bukhsh son of Faqir Muhammad deposed that he had gone to Dariya Khan to collect his medicines from Ghulam Nabi Jarah, where at 11-30 a.m. He met with Haq Nawaz who remained present with him till 2-30 p.m. On 27-8-1997.
9: The impugned judgment reflects that mother and father respectively of Muhammad Ashraf deceased during pendency of the trial compromised with the co-accused Riaz Hussain and Niaz Hussain sons of Allah Bukhsh by forgiving them in the name of Almighty Allah who also made statement to such effect before the learned trial Court. The compromise effected between the parties was accepted by the learned trial Court, which accorded permission to compound the offence. Accordingly, they were acquitted of the charge by the learned trial Court.
10. The learned Advocate Supreme Court for the appellant contended that the recovery memos, particularly pertaining to the alleged crime-empties, site plan stated to have been prepared by the Investigating Officer during investigation of the place of occurrence and got prepared through draftsman by the Investigating Officer of the case admitted in evidence are fake and manipulated documents on which no reliance can be placed, besides all other documents subsequently prepared after destruction of police case file along with the judicial portion of the said file (submitted with the duplicate challan) and such facts stand proved through the testimony of Muhammad Mumtaz A.S.-I. (P.W.6). The eyewitness account furnished by P.W.8 Muhammad Hayat and P.W.9 Sarfraz was in conflict with the medical evidence and it could not be proved through the prosecution evidence that the fire-arm injuries attributed to appellant Haq Nawaz and Muhammad Khan (acquitted by the learned High Court) independently were sufficient to cause death of the deceased in the ordinary course of nature, hence; no implicit reliance could have been placed for the purpose of conviction of the appellant on the evidence of the eye-witnesses. The learned counsel for the appellant, while referring to the medical evidence during the course of arguments submitted that in fact medical evidence contradicts the ocular account of the incident as given by the above said P.Ws. The learned counsel next contended that on the plea of alibi, co-convict Muhammad Khan was acquitted by the learned High Court, whereas; on the similar defence plea duly substantiated, conviction of the appellant was maintained. According to the learned Advocate Supreme Court in the overall facts and circumstances of the case, as it emerged from the evidence available on record, the prosecution story suffers from substantial doubts, therefore, the impugned judgment deserves to be reversed to the extent of the appellant. In support of his contention with regard to the motive part of the prosecution story, conflict between the medical evidence and the ocular evidence reliance has been placed on the judgment of this Court reported as Abdullah Jan and others v. Tila Muhammad and others 1985 SCM R 95.
11. The learned counsel for the State vehemently argued that both the learned Courts i,e, the learned trial Court and the Honourable High Court have concurrently found the appellant as guilty on the charge in view of the unimpeached and unrebutted prosecution evidence comprising of ocular account of the incident furnished by P.Ws.8 and 9, motive and medical evidence which was duly appraised by both the learned trial Courts in juxtaposition with the defence plea of alibi to which no exception could be taken. He further submitted that even be believed that the memos.
Relating to the recovery of crime-empties etc. Including site plan, after destruction of the above said file, submitted with report under section 173, Cr.P.C. ;before the learned trial Court, as per evidence of P.W.6 were not worthy of any credence would not carry any adverse effect on the guilt or innocence of the appellant for the simple reason that the conviction of the appellant was based on the above said pieces of evidence and not on the recovery memos. And site plans etc. Prepared subsequently on account of the destruction of the record, hence; the impugned judgment is unexceptionable.
12. We have heard the learned counsel for the parties at length in the light of the evidence available on record gone through carefully with the assistance of both the learned counsel including the impugned judgment. The prosecution and the defence plea has been reappraised, scanned and scrutinized in depth. Undisputedly conviction of the appellant was based on the ocular account of the occurrence furnished by Muhammad Hayat complainant (P.W.8) and Sarfraz (P.W.9), who have also deposed about the motive as set up in the report made by P.W. Muhammad Hayat. The motive part of the prosecution story mentioned hereinabove as given in the F.I.R. Was not disputed or controverted during the course of arguments being advanced by the learned Advocate Supreme Court for the appellant. It was contended that the same being a double-edged weapon operated on both sides. This principle obviously has always been applied in criminal cases, where motive of the like nature or enmity existed between the parties, hence; the entire evidence in the instant case particularly the eye-witness account furnished by the P.Ws. Had to be scrutinized and appraised with care and caution before placing reliance on the testimony of the eye-witnesses, which in our considered opinion as regards the appellant has been made by both the learned Courts in its true perspective and; while doing so no material part of the evidence on the point was misappraised or omitted from consideration. The venue and time of the occurrence was not disputed including the motive part of the prosecution story with regard to the enmity between the complainant and the accused party. Nothing was brought on record by the defence to reasonably convince that on account of enmity between the parties, it would not be safe to place reliance on the evidence of the above said eye-witnesses, which otherwise fits in the circumstances of the case, as well as; worthy of credence, hence; testimony of the eye-witnesses having withstood the test of cross-examination could not have been discarded or disbelieved.
13. We have carefully and minutely gone through the medical evidence and post-mortem report in view of the attributed fire-arm injuries caused to the deceased by co-convict Muhammad Khan (acquitted by the learned High Court) and appellant Haq Nawaz in view of the above noted contentions of his learned counsel. It was alleged that appellant Haq Nawaz fired with kalashnikov at the deceased which landed on the right shoulder of the deceased. The medical evidence which rests on the post-mortem report Exhs.P.2 to P.4 showed that besides the other noted fire-arm injuries, the deceased had suffered a fire-arm entrance wound of 1/2 x 1/2 c.m. 4 c.m. Below the tip of right shoulder joint. On dissection of the seat of above said wound i,e, right shoulder joint, it was found by the Medical Officer that the right lung of -the deceased was smashed, throac cavity was full of blood with fracture of 2nd thorac rib of right side. According to the opinion of the Medical Officer, the multiple fire-arm ante-mortem wounds were sufficient in the ordinary course of nature to cause the death of the deceased. The firearm wound suffered by the deceased below the tip of his right shoulder joint admittedly smashed the right lung of the deceased and their being only one external seat of injury below right shoulder joint would not exclude the possibility of the second fire, if believed, made by the other accused as having not hit on the same seat of injury as a co- incident of two fires particularly when the evidence of the eye-witnesses to be believed, but in the instant case, eye-witness account was believed only to the extent of the appellant by the learned Division Bench of the High Court and was disbelieved as regards his co-convict Muhammad Khan in view of his defence plea. A fire-arm injury on right shoulder of the deceased, which was also attributed to co-accused Muhammad Khan, who has been acquitted by the learned Division Bench of the High Court on reappraisal of prosecution and defence evidence, therefore, in view of eye-witness account of the above said P.Ws. It cannot be said that the fire made by the appellant did not land at the right shoulder of the deceased which was confirmed through the medical evidence as well. We are not convinced that the medical evidence was in conflict or contradicted the eye-witness account of the above said P.Ws., therefore, no benefit was accruable to the appellant on the point.
14. As regards the question of subsequent preparation of the site plan and the recovery memos.
Pertaining to the crime-empties by Muhammad Mumtaz A.S.-I. (P.W.6) on account of the destruction of the police file and judicial portion of the file, did not carry any adverse effect on the prosecution case/evidence produced at the trial mentioned above for the reason that the appellant was not convicted and sentenced in view of the above said documents lost/destroyed by the precisionists but was found guilty on the charge mainly in view of evidence of the eye- witnesses, medical evidence coupled with the motive part of the prosecution story. The case-law relied upon by the learned counsel for the appellant is distinguishable to the facts and circumstances of the instant case.
15. Both the learned Courts i,e, the learned trial Court and the Honourable High Court in our considered opinion have appraised the entire evidence including the defence version in its true perspective to which no exception could be taken, hence; the findings of guilt arrived at by both the learned Courts are not open to any interference by this Court. Thus; for the foregoing reasons, this criminal appeal being without any substance is dismissed.