1. ' IFTIKHAR HUSSAIN BUTT, J.---As the above captioned appeals arise out of the single judgment of Additional District Criminal Court Hattian Bala, District Muzaffarabad; therefore, I propose to dispose of the same by this judgment.
2. ' Brief facts of the case, as unfolded in the F.I.R., are that Abdur Rehman, complainant, filed a written report at Police Station Leepa, on June 6, 2006 at 12-00 noon alleging therein that he was not present at home during the intervening night of 5th/6th June, 2006. His nephew Abdul Aziz informed him that he, Mst. Bakhti, Mst. Shakeela and Mst. Hanifa Bibi were sleeping in the house when Sajjad Hussain Shah, accused, armed with a pistol, committed lurking house trespass. On seeing pistol in his hand, the immates of the house made hue and cry, whereupon the accused fired a shot, which hit Mst. Hanifa Bibi on her throat, who died instantaneously. Sajjad Hussain Shah, accused, fled away along with his companions who were standing outside the house. The complainant has full belief that the accused committed the occurrence along with his companions in furtherance of their common object. The incident was witnessed by Abdul Aziz, Mst. Bakhti and Mst. Shakeela. It was further contended that delay in lodging F.I.R., occurred because the complainant has been investigating the matter himself.
3. ' On the aforesaid report, a Case No,18/2006 under sections 302, 452, 109 and 34, A.P.C. Was registered.
4. ' On June 6, 2006 Raja Muhammad Ishaq, S.1. Police (P.W.15) prepared the injury form of Mst. Hanifa Bibi. Exh.PF and inquest report Exh.PL. On the same day, he also took into possession bloodstained clay and a mat vide recovery memo. Exh.PC, an empty vide recovery memo. Exh.PD and two bolts vide recovery memo. Exh.PF from the place of occurrence, in presence of Ghulam Ahmed Lone.
5. (P.W.5) and Maqbool Ahmed Mir (P.W.6).
6. ' After autopsy, the blood-stained clothing of the deceased were taken into possession by Raja Muhammad Is'haq Khan S.-I. Police on 7-6-2006 vide recovery memo. Exh.PK, in presence of Maqbool Ahmed Mir (P.W.6) and Abdul Khaliq Butt (P.W.8).
7. ' The post-mortem of Mst. Hanifa Bibi was conducted on June 6, 2006 by Dr. Muhammad Ishtiaq Mughal (P.W.12) C.M.O. Rural Health Centre Leepa vide its report Exh.PG. He noticed the following injuries on the body of the deceased, caused by the fire-arm:- "First entry wound:-Located at the right side of the chin 5 c.m. Below the lower lip and 3-1/2 c.m.
8. Away from the symphysis menti; diameter:-2-1/2 c.m. Diameter with inverted edge and local sooting and # of the body of mandible also ocular.
9. First exit wound:-Located 3 c.m. Away from the first entry wound below the chin and oppositely with 2 c.m. Diameter and everted edge.
10. 2nd entry wound:-Located at the middle of the neck (Rt. Side) just lateral to trachea and lateral and below the hyoid bone. Diameter is about 3-1/2 c.m. With inverted edge and oozing blood; 2nd exit wound:-Located 2 cm below the lateral border of scapula (right side) lateral to erector spinea muscle having diameter (1.5 c.m.) edge of the wound is sharp and slightly aborted. "
11. ' Sajjad Hussain Shah, accused, was apprehended on June 6, 2006. On June 8, 2006 the accused led to the recovery of . 30 bore pistol which was secured vide recovery memo. Exh.PF (as the recovery memo, of blood-stained clothing of, the deceased has been marked as Exh.PF therefore, recovery memo, of pistol is marked as Exh.PFF during the course of this judgment) witnessed by Hafiz Abdul Latif (P.W.7) and Abdul Khaliq Butt (P.W.8).
12. ' On June 9, 2006 Muhammad Yaqoob Khan Patwari prepared the site plan Exh.PI.
13. ' It was reported by the Chemical Examiner vide its report, dated July 27, 2006 that the clay and clothing of the deceased were stained with blood, ' It was reported by Forensic Science Laboratory Lahore Punjab, vide its report, dated July 31, 2006 that crime empty was found to be fired by .30 pistol, allegedly recovered from the accused.
14. ' After completion of usual investigation a challan under sections 458 and 302, A.P C., read with section 13/20/65 Arms Act was presented before Additional District Criminal Court Hattian Bala, District Muzaffarabad.
15. ' On 26-7-2006 the accused was examined under section 265-D, Cr.P.C., who pleaded not guilty and opted for the trial.
16. ' The prosecution was ordered to produce its evidence, whereupon Abdur- Rehman (P.W.l), Abdul Aziz (P.W.2), Mst. Bakhti (P.W.3), Mst. Shakeela (P.W.4), Ghulam Ahmad Lone (P.W.5), Maqbool Ahmed Mir (P.W.6), Hafiz Latif Ahmad Lone (P.W.7), Abdul Khaliq Butt (P.W.8), Muhammad Yaqoob Khan Patwari (P.W.9), Muhammad Asghar Kayani Head- constable Police (P.W.10), Dr. Muhammad Ishtiaq Mughal C.M.O. (P.W.12) and Raja Muhammad Is'haq S.H.O./S.I. (P.W.15) were produced in support of the prosecution, whereas Raja Sheryar Khan A.S.P. (P.W.14) was given up.
17. ' After completion of the prosecution evidence, the accused was examined under section 342, Cr.P.C. On 7-9-2006 who refuted the prosecution evidence and claimed to be innocent.
18. ' Salam-Din (D.W.l), Imam-Din (D.W.2), Ali Haider Shah (D.W.3) and Javaid (D.W.4) were produced in defence.
19. ' The Additional District Criminal Court Hattian Bala after hearing the arguments of the learned counsel for the parties, convicted Sajjad Hussain Shah, accused, and sentenced him to twenty five years' rigorous imprisonment under section 302(c), A.P.C. He was further sentenced to five years' R.I.
20. Under section 458/PC along with fine of Rs,5000 and two years' R.I. Under section 13/20/65 Arms Act along with a compensation of Rs, 100,000 under section 544-A, Cr.P.C. Which after realization has to be paid to the heirs of the deceased and in case of default to undergo six months' S.I., vide its judgment, dated 18-9-2006. It is the aforesaid judgment which has been assailed' by the convict- appellant through , filing an Appeal No,58/2006 for his acquittal, whereas the complainant has also preferred an Appeal No,59/2006 for awarding death sentence to Sajjad Hussain Shah, convict- appellant.
21. ' Mr. Tahir Aziz Khan, the learned counsel for the convict-appellant vigorously argued that F.I.R. Was lodged after a considerable delay of more than 12 hours which could not be taken into consideration. He pointed out that the occurrence took place in the. Dark hours of night but eye- witnesses were planted with an intention to implicate the accused falsely in the case. The learned counsel further contended that according to Mst. Shakeela, the alleged eye-witnesses, the doors of the house were closed. The accused trespassed through a window and after commission of the occurrence, fled away from that very widow therefore, it was impossible for Abdul Aziz P.W. To witness the occurrence who was sleeping in another room. The learned counsel pressed into service the submission that all eye-witnesses are closely related to the deceased and not a single independent witness was produced in support of the prosecution case; therefore, their evidence could not be relied upon. The learned counsel while referring to the post-mortem report, submitted that according to the prosecution, F.I.R. Was lodged at 12-40 p.m., whereas according to the post- mortem report Exh.PG and in light of statement of Dr. Muhammad Ishtiaq Mughal (P.W.12), dead body was brought in the hospital at 10-00 a.m. On June 6, 2006; therefore, the prosecution version is suspicion and doubtful the learned counsel further maintained that according to the prosecution .30 bore pistol, weapon of offence, was recovered on June 8, 2006, but according to the perusal of remand forums, appearing at pages 34 and 35 of the trial Court's file, weapon of offence could not be recovered till June 17, 2006, because on the aforesaid date, the investigation officer, Raja Muhammad Is'haq Khan S.I., S.H.O. Requested the 'Illaqa' Magistrate for remand of the accused for recovery of the weapon of offence and to arrest co-accused; therefore, recovery of weapon of offence is also fake and concocted, which does not corroborate the prosecution tale. The learned counsel agitated that according to the complainant, he has been investigating the matter himself; therefore, the version of the eye-witnesses couid not taken into consideration, because if they would have witnessed the occurrence, the complainant should have nominated the accused forthwith, without' any delay and the investigation. The learned counsel strenuously argued that according to the prosecution, the occurrence took place at mid night but the source of light could not be proved by the prosecution, rather it was < admitted by Muhammad Yaqoob Khan Patwari (P.W.9) that the source of light was not pointed out in the site plan. The learned counsel maintained that the bloodstained clay, clothing of the deceased, an empty and . 30 bore. Pistol were sent for expert opinion after a considerable delay, therefore, the Expert's opinion looses its value. The learned counsel further agitated that the corroboratory evidence is not worthy of any credence because in presence of local inhabitants of the area, none of the independent witnesses was associated with recovery proceedings. The learned counsel submitted that recovery of bolts also could not be proved because it has not been mentioned in column 5 of the challan report nor the bolts were produced before the trial Court. The learned counsel argued with vehemence that according to the defence evidence at the time of occurrence, the accused was present in a marriage ceremony of son of Imam Din, (D.W.2), but was falsely implicated in the case. The learned counsel further maintained that in the light of the defence evidence, it has been further proved on the record that soon after the occurrence, when Ali Haider Shah (D.W.3) and Javed (D.W.4) reached at the place of occurrence, Mst. Bakhti was crying and stating that Shakeela got her daughter killed by some of her paramour, which proves the fact that in dark hours of the night, someone else murdered Mst. Hanifa Bibi, but the accused was involved in the case for no fault of him. The learned counsel also contended that Additional District Qazi, a member of Additional District Criminal Court, visited the spot without notice to the parties and relied upon the evidence of Abdul Aziz (P.W.2) without recording a memorandum of his local inspection; therefore, the trial has vitiated.
22. The learned counsel maintained that according to the post-mortem report, the diameters of entry wounds have been shown larger than the exit wounds, which is not possible. Similarly, inquest report shows only one injury whereas the injury from shows to injuries and post-mortem report four injuries. In this manner,."the medical evidence does not support the ocular account of the prosecution witnesses. The learned counsel took pains to substantiate his contention that the evidence of source of light was not put to the accused during his examination under section 342, Cr.P.C.; therefore, the same cannot be made basis for conviction and sentence. The learned counsel also stressed that the trial Court conducted the trial in a hasty manner and the charge was framed against the accused in absence of his counsel, therefore, an appropriate opportunity was not afforded to the accused to prepare his defence. The learned counsel finally submitted that the prosecution has miserably failed to prove its version beyond any shadow of doubt and the trial Court also ignored the above mentioned aspects of the case; therefore, the accused may be acquitted of the charge. In support of his contentions, the learned counsel cited the following authorities:-
(1) AIR 1939 Calcutta 487, (2)1973 PCr.LJ 675,.(3) PLD 1983 Lahore 195, (4) 1983 PCr.LJ 447, (5) 1985 PCr.LJ 1097, (6) 1985 PCr.LJ 1951, (7) 1989 PCr.LJ 1098, (8) 2000 PCr.LJ AJK 7, (9) 2000 YLR 1601, (10)
23. 2001 PCr.LJ 51, (11) 2001 YLR 1628, (12)2004 SCMR 1185, (13) 2005 SCR AJK 1, (14) 2006 SCMR AJK 1139,
(15) 2006 YLR 3188, (16) 2006 SCMR 1840 and (17) 2006 SCR 58-120-365.
24. ' On the contrary, Mr. Mushtaq Ahmed Janjua, the learned counsel for the complainant controverted the arguments raised by the learned counsel for the accused and submitted that time and place of occurrence and the death of deceased by shot of a fire-arm are admitted on the part of defence. The learned counsel further contended that the style of cross-examination and suggestions put to the prosecution witnesses shows that the occurrence is admitted, however, the defence has taken place that instead the accused, some body else has murdered Mst. Hanifa Bibi.
25. The learned counsel maintained that three eye-witnesses have fully supported the prosecution version and their statements to the extent of main story of the prosecution have not at all been challenged during the cross-examination; therefore, the occurrence has been admitted by the defence. The learned counsel contended that the filing of F.I.R. By the complainant has also not been challenged during the cross-examination. The learned counsel argued with vehemence that the prosecution case has been amply proved by the eye-witnesses and it has been fully supported by sufficient corroboratory evidence. The learned counsel pointed out that the medical evidence, the evidence of recovery of pistol at the instance of the accused and recoveries of an empty, clay and a mat from the place of occurrence fully implicate the accused with the commission of offence. The learned counsel pressed into service the submission that non-preparing of inspection note by the trial Court is mere an irregularity which does not vitiate the trial. The learned counsel submitted that during purgation, eyewitnesses were found "Adil" and their evidence is also consistent and clear; therefore, the prosecution evidence is reliable and trustworthy. The learned counsel further maintained that mere relationship of the prosecution witnesses with the deceased does not adversely affect the prosecution case because they do not nurse any grudge against the accused-appellant. The learned counsel laid great stress upon the point that the prosecution has proved its version without any shadow of reasonable doubt; but the trial Court, instead awarding death sentence to the accused, which is a normal penalty of murder, fell in grave error while awarding the accused sentence of 25 years only.. The learned counsel finally submitted that the sentence of the accused may be enhanced and he may be awarded death sentence. In support of the arguments, reliance was placed on the following case law:--
(1) PLD 1960 Peshawar (WP) 47, (2) PLD 2002 SC 77, (3) 2004 YLR 863, (4) 2005 PCr.LJ 464, 2005 PCr.LJ 1247, 2005 PCr.LJ 1606, 2005 YLR 2467, (5) 2005 MLD 142 and (6)2006 SCR 365.
26. ' Mr. Khalid Yousaf, the learned Assistant Advocate-General appearing on behalf of the State, has fully owned and supported the arguments raised . By the learned counsel for the complainant.
27. ' I have given my due consideration to the arguments addressed at Bar and perused the record with care.
28. ' The prosecution case is based upon ocular version of Abdul Aziz, Mst. Bakhti and Mst. Shakeela, whereas F.I.R. Was filed by Abdur Rehman (P.W.1).
29. ' Abdur Rehman (P.W.1) deposed that on the fateful night, his nephew Abdul Aziz came to him in village Nokote and informed him about the occurrence whereupon he went to police station and lodged an F.I.R. Exh.PA where a case Exh.PB was registered against the accused.
30. ' Abdul Aziz (P.W.2) stated that on fateful night, on hearing hue and cry, as soon as he opened the door of his room, the accused fired a shot of pistol which hit Mst. Hanifa Bibi on her throat. He tried to catch hold of the accused, but he jumped out of the window. He further contended that the occurrence was also witnessed by Mst. Bakhti and Shakeela. The afore-stated main part of the evidence about the occurrence was not challenged during the cross-examination.
31. ' Mst. Bakhti, (P.W.3), testified that on June 5, 2006 at 12-00 noon, she along with Mst. Shakeela (P.W.4) and Mst. Hanifa deceased were sleeping in room whereas Abdul Aziz was sleeping in another room. On hearing the noise of opening of window, they awakened and saw that the accused who was trying to open an almeerah. All three of them caught hold of the accused.
32. Meanwhile, Abdul Aziz opened the door. As soon as he appeared, the accused fired a shot which hit her daughter Mst. Hanifa Bibi. They tried to catch hold of the accused but he jumped out of the window and fled away. She further stated that she found Mst. Hanifa Bibi lying in a pool of blood.
33. She also contended that she recognized the accused in the light of a lantern. She sent Abdul Aziz (P.W.2) to inform her husband. It is necessary to mention here that neither main story of the occurrence nor source of light of lantern was challenged during the cross-examination.
34. ' Mst. Shakeela (P.W.4) deposed that on June 5, 2006 at 12-00 noon, the accused entered into their house after opening the window. He was trying to open the almeerah. On hearing the sound of falling down of the utensils, they awakened and caught hold of the accused. On hearing hue and cry, Abdul Aziz (P.W.2) also arrived there from the- other room. Meanwhile the accused fired a shot which hit Mst. Hanifa Bibi on her throat. They tried to catch hold of the accused, but he fled away from window. Like other P.Ws., main part of her deposition was not challenged during her cross- examination; therefore, this will be deemed to be admitted on the part of the defence.
35. ' It is by now a settled principle of law that if any piece of evidence or part of statement of the witnessed goes against the interests of a particular party and that party does not question the correctness of that deposition or the assertion, it will be deemed to have been admitted. My aforesaid view finds support from the following case law:---
(1) Mst. Farooq Bibi v. Abdul Khaliq and 26 others 1999 CLC 1358.
(2) Abdul Latif v. Safarish Ali Khan 2004 YLR 1663.
36. ' In view of the above stated position, the evidence of the eye-witnesses to the extent of Mst. Bakhti except the fact B of burning of lantern at the time of occurrence and the statement of Mst.
37. Shakeela, is clear, consistent and cogent, which is also supported by the medical evidence. Dr. Muhammad Ishtiaq Mughal has amply explained the nature and seize of injuries. According to him, the injuries on the person of the deceased were caused by fire-arm.
38. ' I also do not find any substance in this plea of the learned counsel for the convict-appellant that the medical evidence is not reliable because according to the post-mortem report, the entry wounds are larger than the exit wounds. Suffice to note that the wound of exit is often larger than the wound of entry and its edges are irregular and everted but it varies from case to case. The size, shape and sometimes multiplicity of the exit wound from a single projectile depends upon shape, composition of the bullet, its velocity and rather it has rotated, struck bone and altered its shape during its passage through the body. A perusal of the post-mortem report reveals that shot was fired from a close contact which hit on right side of chin 5 c.m. Below the lower lip and exited 3 c.m.
39. Away the entry wound below the chin and it again entered at middle of right side of neck below the hyoid bone and exited below the lateral border of scapula; therefore, because of the resistance, the exit wounds are smaller than the entry wounds.
40. ' It transpires from the perusal of inquest report that two injuries have been mentioned in column No,10; therefore, no conflict has been found between injury form and inquest report. However, such type of evidence becomes important only in the case where the cause of death is doubtful whereas in the present case it is admitted by the defence that the deceased was done to death by shot of a fire-arm.
41. ' The recovery of pistol .30 bore P.12, an empty P.13 from the place of occurrence and the recovery of blood-stained clothing D of the deceased further strengthens the case of prosecution. Maqbool Ahmed Mir (P.W.6), an independent witness along with-Raja Muhammad Is'haq S.I./S.H.O. (P.W.15) has proved the recovery of an empty from the place of occurrence but the statement of Investigating Officer was not challenged in the cross-examination. Similarly, the recovery of blood- stained clothing was testified by said Maqbool Ahmad Mir and Abdul Khaliq Butt (P.W.8). Both of the recovery witnesses are E independent witnesses and the statement of Abdul Khaliq P.W. Was also not challenged in cross-examination. As far as the recovery of pistol P.12 is concerned, has been proved by Hafiz Latif Ahmad Lone (P.W.7) and Abdul Khaliq Butt (P.W.8). Hafiz Abdul Latif is also an independent witness. The objection of the learned counsel for the defence that the abovementioned witnesses do not belong to the locality, village Khiwara, is devoid of force because the village Khiwara and Nokote are adjacent and the place of occurrence is situated at a distance which could be covered within 15/20 minutes. Furthermore, it is by now an enriched principle of criminal jurisprudence that strict compliance of section 103, Cr.P.C. Is not necessary in case of recoveries of seizure memos. Made by the police at the instance of an accused rather the said F provisions pertains to the search made by a police officer under Chapter VII of Cr.P.C. A reference may be made to a case reported as Abrar Hussain Shah v. The State 1992 SCR 294.
42. ' Now, I advert to another objection raised by the learned counsel for the defence that Investigating Officer has admitted that according to remand from annexed with the trial Court's file, he had requested "Illaqa" Magistrate for remand of the accused on the ground of recovery of pistol; therefore, the recovery of pistol is fake. It may be mentioned here that aforementioned remand form was not proved by the defence. It was not exhibited. In spite of that, negligence or inability on the part of Investigating Officer would not G demolish the case of prosecution. In this respect, I am fortified by a case titled Syed Kabir Hussain Shah v. State PLD 1984 SC (AJK) 82.
43. ' Hafiz Latif Ahmad Lone and Abdul Khaliq Butt, both the independent recovery witnesses have categorically stated that on 8-6-2006 the accused himself led to the recovery of pistol P.12 in their presence. The aforementioned deposition was also supported by Investigating Officer but not confronted by the defence. In such state of affairs, it can be safely held that pistol P.12 was recovered at the instance of the accused. It has also been opined by Forensic Science Laboratory that an empty P.13, recovered from the place of occurrence was found to be fired from .30 bore pistol P.12 recovered during investigation of the case in consequence of information supplied by accused which connects him with the crime under Article 40 of Qanun-e-Shahadat Order, 1984.
44. (2004 YLR (Lahore) 863). Similarly, the recovery H of bloothstained earth aid mat, two bolts of the window and blood-stained clothing of the deceased are also in nature of confirmatory evidence.
45. The place of occurrence stands proved by site plan Exh.DI, prepared by Muhammad Yaqoob Khan Patwari (P.W.9). However, the place whereat the lantern was found burning at the time of occurrence and the door between the place of occurrence and the room where Abdul Aziz P.W., was sleeping, were not pointed out.
46. ' It will not be out of place to mention here that the time and date of occurrence, the place of occurrence, the I presence of deceased and the death of deceased by firing a shot are admitted by the defence.
47. ' The defence evidence was also perused with care which does not inspire confidence. According to Imam Din. (D.W.2), marriage of his son was not solemnized on 5-6-2006. The accused did not take any specific defence at the time of framing of charge sheet and he simply refuted the allegation. During the course of his evidence, he took the plea that he was falsely implicated; however, at the time of recording of his statement under section 342, Cr.P.C. He took the plea of alibi was not at all substantiated by any cogent sufficient and trustworthy evidence. On the other hand, the prosecution from the day one took the version that the deceased was murdered by accused by firing a shot of pistol who wanted to commit robbery. In this manner, when both the versions of the prosecution and the defence are taken into juxtaposition and appraised in its true perspective; the version set up by the defence seems to be fake, concocted and afterthought. In the light of evidence and attending circumstances of the case, it will be relevant to point out here that the eyewitnesses were found "Adil" in purgation. The eye-witnesses' account, deposed by Mst.
48. Bakhti and Mst. Shakeela, is truthful, consistent, trustworthy and unimpeachable which is also supported by sufficient corroboratory evidence. In this view of the matter, it has been amply proved that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence. In this manner, the prosecution has proved it case beyond any shadow of reasonable doubt. The ocular , testimony stands confirmed by medical evidence and also confirmed by motive. At this stage, it will be relevant to note that motive is not a sine qua non for proving an offence of murder, even if J motive is alleged by the prosecution and not proved by it, it does not demolish its case, if otherwise commission of offence of murder is proved by other evidence. In this regard, reference can be made to a case reported as Hameed Khan alias Hameedia v. Ashraf Shah and another 2002 SCMR 1155.
49. ' The same view was taken in a case titled as Usman Khalid v. Muhammad Younis and another 1996 SCR 197.
50. ' The same view was affirmed in a case reported as Muhammad Ilyas v. Kabir Hussain and another and Kabeer Hussain v. Muhammad Ilyas and another 2003 YLR 806.
51. ' Let me now deal with another objection raised by the learned counsel for the defence that no question was asked about source of light during the examination of the accused under section 342, Cr.P.C.; therefore, the aforestated piece of evidence cannot be used against the accused. The contention appears to be well founded and requires serious consideration.
52. ' It has been opined in a case titled Nuzhat Bibi v. Shabbir Hussain and 2 others 2006 SCR 58 as follows:--- ' "All the possible material brought on record in evidence against the accused persons should be put to them for their explanation. They should not be left to guess the material which can be made basis for convicting them. Therefore, all the circumstances appearing in prosecution evidence should be put to them for their explanation. Mere putting general type of questions is not sufficient as provisions of section 342, Cr.P.C. Are mandatory. Omission of any material question putting to accused persons for their explanation on appeal in many cases has vitiated the trials."
53. ' Coming to the instant case, neither a lantern was taken into possession during the course of investigation nor explanation of burning of lantern at the time, of occurrence, was sought ,by the accused as stated by Mst. Bakhti (P.W.3); therefore, the aforementioned piece of evidence cannot be read against the accused and it is excluded from consideration instead remanding the case for re-examination of the accused. My aforesaid view stands supported by a case reported as Abdul Rasheed and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 wherein it was observed as under:--- ' "If a piece of evidence is not put to an accused person in his examination under section 342, Cr.P.C., either the case may be remanded for re-examination of the accused person under section 342, Cr.P.C. Or the same may be excluded from consideration.
54. ' Let me now deal with another point of objection raised by Tahir Aziz, the learned defence counsel that failure of the Additional District Qazi to record memorandum of local inspection has rendered the trial illegal; therefore, not only the evidence of Abdul Aziz P.W. Be ignored but the case be remanded for afresh decision. In support of contention reliance was placed upon AIR 1939 Calcutta 487 and PLD 1974 Quetta 28. On the contrary, the learned counsel for the complainant argued that the relevant section has been-omitted by Law Reform Ordinance, 1972 even otherwise failure to record memorandum is an irregularity. Which can be cured by section 537, Cr.P.C. And will K not vitiate the proceedings. In support of his contention, he referred to me PLD 1960 (WP) Peshawar 47.
55. In the light of above stated argument, I have carefully perused the record. It transpires from page 17 of the impugned judgment that learned Additional District Qazi made local inspection without notice to the parties and without associating the other member, the learned Additional Sessions Judge. The learned Additional District Qazi was not empowered to do. So because in this manner he has become a witness himself because the record of local inspection is not the part of the file and the parties had no opportunity of seeing the facts considered by learned Additional District Qazi during his inspection. It is an admitted principle of law that the purpose of local inspection is to afford an opportunity to the Court to appraise the evidence given at trial and not for the purpose to become principal witness on the question of fact and to withhold all knowledge of the facts with himself and then to convict the accused upon such knowledge. Coming to the instant case, such failure on the part of learned Additional District Qazi is a mere irregularity curable by section 537, Cr.P.C. And thus will not vitiate the proceedings because in this manner failure of justice has not occasioned; however, the personal knowledge of learned Additional District Qazi pertaining to spot inspection has to be ignored; therefore, it is ruled out of the consideration. My aforesaid view is not only supported by the case reported as The State v. Muhammad Azam and others 1960 (WP)
56. Peshawar 47 referred to by the learned counsel for the complainant but also in case reported as Jawala Singh v. Emperor AIR 1928 Lahore 479 wherein the result of Magistrate's local inspection was rejected.
57. ' Similarly, in the case titled State v. Jamil Iqbal PLD 1974 Quetta 28 referred to by the learned counsel for the defence, the observations in the judgment of the trial Court based on inspection made by the Magistrate without recording memorandum of relevant facts were overlooked.
58. ' As result of the above discussion, it reveals that the occurrence took place in the dark hours of the night. As no lantern was taken into possession by the police, it shows that there was no such lantern burning at the spot at the relevant time Investigating Officer is also silent about the presence of lantern at the place of occurrence; therefore, it was not possible for Abdul Aziz (P.W.2) to recognize the accused while coming from the other room particularly when the installation of a door between the spot and room where Abdul Aziz was allegedly sleeping could not be established by the prosecution and in this regard, the evidence of local inspection imported by learned Additional District Qazi has been rejected in earlier part of the judgment. The place of whereat the lantern was allegedly burning was not pointed out in the site plan rather according to Patwari (P.W.9), the occurrence took place in the dark hours of night. F.I.R. was lodged with the delay of 12 hours without any plausible explanation. According to Dr. Muhammad Ishtiaq Mughal, the post- mortem was conducted at 10-00 a.m. On 6-6-2006 whereas F.I.R. Was registered at 12-40 p.m. After more than two hours of the postmortem, are some of the circumstances which lead to the conclusion that death sentence cannot be awarded to the accused rather it is a case of lesser sentence. Therefore, the sentence of ten years shall meet the end of justice.
59. ' The nutshell of above discussion is that, I partly accept the appeal filed by Sajjad Hussain Shah, convict-appellant, and sentenced him to 10 years' R.I under section 302(c), A.P.C., two years' R.I. With a fine of Rs,2000 under section 458, A.P.C. And one year R.I. Under section 13/20/65 Arms Act with the benefit of section 382-B, Cr.P.C. All these sentences shall run concurrently. The payment of compensation Rs, 1,00,000 under section 544-A, Cr.P.C. Stands remitted. The appeal preferred by Sajjad Shah, convict-appellant, is disposed of in the manner indicated above. Consequently, the appeal filed by complainant fails, which is dismissed. A copy of the judgment shall be sent to the accused in the prison.