' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,128 of 2001 filed by Zulfiqar Mehmood alias Zakar Hussain, who faced trial in case F.I.R. No,143, registered at Police Station Kallar Syedian, on 4-7-99, for offence under section 302, P.P.C., before learned Additional Sessions Judge, Rawalpindi, who after conclusion of trial, vide his judgment, dated 31-3- 2001 convicted the appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs,1,00,000 or in default six months' S.I.
2. Murder Reference No,619 of 2001 for confirmation or otherwise of death sentence of appellant and Criminal Revision No,50 of 2001 filed by Muhammad Meherban complainant seeking enhancement of compensation shall also be disposed of through this single judgment.
3. Briefly, the facts of the case are that on the fateful day the complainant, Shahid Afzal and Mahmood Hussain went to Kallar Syedian to do their work. Thereafter, while they were returning on foot from Kallar Syedian and were near the house of Karamat Hussain, Haji Qurban Hussain, who was paternal-cousin of the complainant, came there from the side of Kallar Sayedian on his motorcycle and asked the complainant to sit on the motorcycle; the complainant replied that as they were going together, he may go. In the meanwhile, at about 7-15 p.m. Zakar Hussain son of Meherban reached there on a motorcycle Registration No,RIU-5214 and asked Qurban Hussain as to why he wanted to get divorce his sister. He took out pistol from the folder and caused four fires on Qurban Hussairf, which hit on both the side of head, left side of chest, near the left eye and under the left arm. After receiving injuries, Qurban Hussain lost his life at the spot. The accused fled away from the spot on his motorcycle. The occurrence was witnessed by the complainant, Shahid Afzal and Mehmood Hussain.
4. The motive behind the occurrence was that Ansar Mehmood cousin of Qurban Hussain was residing in France, who was married to the sister of Zakar Hussain. Zakar Hussain suspected that Ansar Mehmood wanted to divorce his sister at the instance of Qurban Hussain.
5. After registration of formal F.I.R., the investigation of the case was taken over by Ghulam Shabbir Hussain Shah, A.S.-I./P.W.9. He proceeded to the place of occurrence, took over the dead body, prepared inquest report Exh.P.L. And sent the dead body to T.H.Q. Hospital Kahuta for post-mortem examination. Thereafter, on 5-7-1999 the investigation of the case was taken over by Muhammad Afzal, Inspector/ S.H.O./P.W.11, who after spot inspection secured the blood-stained earth vide memo. Exh.P.G. He collected four empties of .30 bore P.19/1-4 and took the same into possession vide memo. Exh.P.M. He also took into possession motorcycle Registration No,AJK/5826 of the deceased along with Registration Book P.20 and a pair of Chappal P.21/1-2 vide memo. Exh.P.J. On 16-7-1999 he arrested Zulfiqar alias Zakar Hussain, who on 23-7-1999 led to the recovery of .30 bore pistol P.16 along with five live cartridges, which were taken into possession vide memo. Exh.P.E. After completion of investigation, the accused was sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 12 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.P.Q. And that that of Serologist Ex closed its case. The accused in his statement recorded under section 342, Cr.P.C. Pleaded his innocence and false implication. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal has contended that P.Ws.7 and 8 were chance witnesses, who could not plausibly explain their presence at the time of occurrence; that according to eye-witnesses the appellant caused four fires at the deceased, while according to medical evidence there were only three wounds of entry and other two were the wounds of exit, which indicate that the P. Ws. Were not present at the spot; that in F.I.R. The name of the appellant was given as Zakar Hussain son of Mehrban but subsequently when the witnesses came to know that the name of the appellant was Zulfiqar Mehmood, they made supplementary statements, which also indicates that the P.Ws. Were not present at the time of occurrence; that the evidence of recovery of pistol and its tallying with the crime-empties allegedly recovered from the spot were not worthy of any credence, as in the relevant columns of inquest report it was not mentioned that the empties were lying at the spot and it was not believable that the empties would remain present at the spot till morning; that in fact the recovery was planted upon the appellant and the empties were obtained by the Investigating Officer Raja Muhammad Afzal, Inspector/S.H.O. (P.W.11) after firing from the pistol furnished to him by the complainant himself; that the prosecution miserably failed to prove the motive as allegedly Ansar and his parents had returned to village after the occurrence but none of them was produced before the Investigating Officer; that in the absence of motive there was no reason for the appellant to take life of cousin of Ansar Mehmood with whom he had no personal enmity; that in case the P.Ws. Would have been there then they would have attended to the deceased, who according to doctor died within 20 minutes; that both the P.Ws.
Took no step to save the life of their near and dear; that it spells out from the evidence that suspiciously murder was committed by one Zakar Hussain son of Meherban resident of Mankara, who had shifted to Karachi prior to the occurrence, therefore, due to enmity the appellant was substituted for the real killer; that recovery of motorcycle at the instance of the appellant, was a clear cut padding on the part of the Investigating Officer, as the registration number of motorcycle, which was being driven by the assailant was not mentioned in the F.I.R. At all; that no open transfer letter in favour of the appellant was recovered at the time of recovery of motorcycle; that it is proved from the record that both the Investigating Officers were dishonest and the whole proceedings were recorded by some other Police Officer and not by the Investigating Officers; and that the prosecution case is replete with doubts.
8. The learned counsel for the complainant has argued that both the P.Ws. Stated on oath that they had gone to Kallar Syedian in pursuit of some job, so it could not be said that they were chance witnesses; that both the witnesses had no previous enmity or against the appellant, so as to involve him in a false case; that the ocular account was supported by the medical evidence, as the deceased positively received at least three injuries on his person; that the ocular account was corroborated by the factum of promptly reporting of matter to the police, as the occurrence took place at 7-15 p.m. Thereafter, the complainant left for reporting the matter to the police, he met the police near Sadiqabad, which was at a distance of one mile; and Fard Bayan was completed at 8- 30 p.m. As far as the recoveries are concerned, the argument of the learned counsel for the appellant that the recoveries were planted has no force, as it was suggested to Shahid Afzal P.W.8 during cross-examination that it was correct that the recoveries were effected in his presence and thereafter, his statement was recorded; that except for the motive set in the F.I.R. There was no other motive available on record of the case; and that substitution was very rare phenomenon and the P.Ws. Have no motive whatsoever to involve the appellant in a false cage.
9. The learned Additional Prosecutor-General adds that the prosecution case would not suffer for the dishonesty on the part of the Investigating Officers and in case the mere fact that the proceedings were not recorded by the Investigating Officers themselves would not weak the prosecution case or the direct evidence; and that the identity of the appellant was not in question as the marriage of the sister of the appellant with Ansar Mehmood was not denied. He supports the judgment passed by the learned trial Court.
10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely with their able assistance.
11. The occurrence took place at 7-15 p.m. In the month of July, when the light was available, so assailant could easily be identified if known to the P.Ws. The matter was reported to Ghulam Shabbir Shah, A.S.-I., at Mohallah Sadiqabad, where the later was present. Ghulam Shabbir Shah recorded the statement of Muhammad Meherban complainant and thereafter sent the same for registration of formal case to the police station. The time given at the end of Fard Bayan Exh. P. D. Is 8-30 p.m. Which means that reporting of matter, recoYding of statement and completion of initial proceeding were completed within 1-1/4 hours of the occurrence. The distance between spot and the place where the matter was reported was about a mile, so the matter was reported to the police promptly and it could not be said that the F.I.R. Was lodged after unexplained delay.
Muhammad Meherban and Shahid Afzal P.Ws. Have given a very consistent account about the occurrence and have corroborated each other on all the material points as far as the occurrence is concerned. Both of them had no personal enmity or grudge against the appellant, who was a single accused in the case, so as to depose against him falsely under oath. It was suggested to the P.Ws. That the appellant was roped in this case as some altercation had taken place between him and the complainant earlier. It is not available on record as to when the altercation took place, what was its gravity and what was behind the altercation. As far as Shahid Afzal is concerned no such suggestion was even given to him. Both the eye-witnesses were subjected to lengthy cross- examination but intrinsic value of their evidence could not be shaken. Pages of cross-examination were devoted to establish that it was a case of substitution and in fact some one named as Zakar Hussain son of Muhammad Meherban resident of Mankara had committed the offence and when it came to knowledge of the complainant party that, that person had gone to Karachi" prior to the occurrence they substituted the appellant as murderer. In our opinion it was not a case of wrong identification at all for the reasons that it was stated in the F.I.R. That sister of the appellant was married with Ansar D Mehmood, who was Khalazad of the deceased, this relationship has not been denied and was admitted by the appellant in his answer to question No,2 put to him under section 342, Cr.P.C.; that it is nobody's case that sister of Zakar Hussain, who according to the accused was named In the F.I.R., was married with Ansar Mehmood; that it is common knowledge that in our villages many persons ate known by more than one names; that the supplementary statement of the complainant was recorded only to exactitude it to the extent of name and it was nowhere mentioned that the complainant had named a wrong person; and that the complainant and P.W.
Shahid Afzal stood the acid test of cross-examination on this point. As far as the living of the appellant in Mouza Mankara is concerned, suffice it to say that the appellant himself has given his residential address in his statement recorded under section 342, Cr.P.C. As resident of Dhoke Chhani, Mouza Mankara, which tallies with the address given in the F.I.R. It is not case of the appellant that he was not previously known to the P.Ws. As he himself claims that an altercation had taken F place between him and the complainant. No suggestion was made to Shahid Afzal that the appellant was not known to him rather during cross-examination it was suggested to him that Qamar-un-Nisa sister of the accused was wife of Ansar Mehmood, who lived in France. It was also suggested to him that Ansar Mehmood, who was resident of Dhoke Chhani, Mouza Mankara had gone to France to earn his living and his parents, two brothers and four sisters were alive and resided in France. In the above noted circumstances, it is more than evident that the appellant was known to the P.Ws. Prior to the occurrence and hence there was no question of mistake identification. The presence of the P.Ws. Stands established by the details given in Fard Bayan Exh.P.D., which was recorded within 1-1/4 hours of the occurrence.
12. The direct evidence is fully supported by the medical evidence. The argument of the learned counsel for the appellant that the medical evidence and the ocular version contradicted each other is without any force. Perusal of the medical evidence reveals that the deceased received repeated fire shots from very close range and three of the injuries were entry wounds. The P.Ws.
Who were taken by surprise by the assault launched by the appellant and were not supposed to give minute details about the seat of injuries per fire. According to witnesses, the accused fired four times resultantly the deceased received injuries on both sides of his head, left side of chest, forehead near left eye and under the armpit. Injuries Nos.2, 3 and 4, which are entry wounds show that injury No,2 was on the left side of head; injury No,3 was on the external angle of left eye and injury No,4 was on the left side of chest. In these circumstances, it could not be said that the medical evidence did not I14 support the ocular account.
13. The appellant was arrested on 16-7-1999. He led to the recovery of .30 bore pistol, which contained five live rounds, on 23-7-1999. All the four empties recovered from the pistol tallied with the pistol I recovered at the instance of the appellant. The learned counsel for the appellant severely criticized the evidence of recovery in this case by stating that the empties were not mentioned in the inquest report and that it was not likely that the empties would remain on the spot for the whole night. According to defence, the complainant produced a pistol on the next day and the Investigating Officer obtained empties and fabricated evidence of recovery. But the facts are against the argument of the learned counsel. It is in evidence that Ghulam Shabbir remained present at the spot till 9-30 or 10-00 p.m. He did not record the statement of Shahid Afzal on that date as S.H.O. Raja Muhammad Afzal had informed him that he himself would investigate the case after reaching the spot. It is also in evidence that Raja Muhammad Afzal reached the spot early in the morning. In these circumstances the remaining of empties at the spot was not an unusual circumstance at all. Ghulam Mustafa, Headconstable appeared as P.W.4 and stated that two sealed parcels one containing blood-stained earth and another containing empties were given to him. He kept the same in Malkhana for safe custody till 5-7-1999. Muhammad Ijaz Khan, Fire-arm Expert, who was working at Forensic Science Laboratory, appeared as P.W.12. He stated that he received sealed parcel containing four crime-empties on 15-7-1999. Subsequently, on 28-7-1999 he received another sealed parcel containing .30 bore pistol. Both the parcels were intact. According to his opinion based on reasons, the empties were fired by the recovered pistol. His statement was not challenged at all and was accepted as correct. It is apparent that the empties were received at Forensic Science Laboratory earlier than arrest and recovery of pistol. The empties and the recovered pistol were sent on two different dates and it could not be said that the empties were obtained after recovery of pistol. As already noted above neither the complainant nor Shahid Afzal had any enmity or grudge against the appellant, so as to involve him in a false case. Similarly there was no reason for Muhammad Meherbei to furnish a pistol to the Investigating Officer for obtaining empties. Shahid Afzal was witness of the recovery of empties. It was suggested to him that "it was correct that recoveries were carried at the spot within his view". No suggestion was given to him that the complainant gave pistol to the Investigating Officer to obtain empties.
14. As far as the motive is concerned, marriage of sister of the appellant with Ansar Mehmood, Khalazad of the deceased, stands admitted. It has been brought on the record during cross- examination that Ansar Mehmood married another lady as well. The later fact supports the motive as set in the F.I.R., which was supported by the P. Ws. During their statements before the learned trial Court.
15. Both the Investigating Officers were also subjected to lengthy cross-examination mainly on the point that the proceedings were not recorded in their own handwriting and they had borrowed services of some other person. By now it is known that standard of the police officials has been lowered down but lapses on their part would not be sufficient to nullify other reliable evidence on record. Reliance is placed on the case of Weram v. The State 1985 PCr.LJ 372.
16. For all what has been stated above, we have concluded that the prosecution has successfully proved its case against the appellant through direct evidence, which was fully supported by the medical evidence and corroborated by the recovery of empties from the spot and their tallying with the pistol recovered at the instance of appellant and the circumstances of the case. The appellant acted in a cruel manner by repeatedly firing at the deceased. No mitigating circumstance exists in his favour. Resultantly, this appeal is dismissed. Murder Reference is answered in the affirmative and the sentence of death is confirmed.
17. Criminal revision seeking enhancement in the amount of compensation, being devoid of any force, is dismissed.