' HASNAT AHMAD KHAN, J.--- Qasim Ali and Wazir Ali appellants, along with four others were tried by a learned Additional Sessions Judge, Faisalabad, in the case F.I.R. No,40 of 1995, dated 7-2-1995, registered at Police Station Kotwali, District Faisalabad, in respect of the offences under sections 302/34/109, P.P.C. After the conclusion of the trial, the said learned Additional Sessions Judge found the appellants guilty for killing Dilawar Khan (deceased) and convicted both of them under section 302(b)/34, P.P.C. Vide judgment, dated 26-3-2003. Qasim Ali appellant was sentenced to the rope with a direction to pay Rs,2,00,000 as compensation to the legal heirs of the deceased or in default of payment thereof, he was directed to undergo six months' R.I. Wazir Ali, the other appellant was awarded life imprisonment with a direction to pay Rs,2,00,000 as compensation to the legal heirs of Dilawar Khan deceased and in default of payment thereof, he was ordered to undergo further six months' R.I. The learned trial Court, however, acquitted Aurangzeb alias Fauji, Muhammad Ismail, Muhammad Suleman and Noor Muhammad, co-accused, by giving them benefit of doubt.
2. Aggrieved by the judgment of the learned trial Court, the appellants challenged their conviction and sentence through Criminal Appeal No,548 of 2003 The complainant filed Criminal Appeal No,727 of 2003 against acquittal of respondents Nos.1 to 4 (therein) and Criminal Revision No,478 of 2003 for the enhancement of the sentence of imprisonment for life, awarded to Wazir Ali respondent No,1, while the trial Court sent a Reference (Murder Reference No,261 of 2003) for the confirmation or otherwise of the death sentence, awarded to Qasim Ali appellant. This consolidated judgment will dispose of all the aforesaid matters.
3. Pithily, the, prosecution's story, as narrated by the complainant Gulzar Ahmed (P.W.6) through his statement (Exh.P.W.6/A), which later on culminated into F.I.R. (Exh.P.W.10/A), was/is that about two years prior to the occurrence, Aurangzeb etc. Had murdered his (complainant's) cousin (Chachazad) Saee, in which Aurangzeb was P.O.; thereafter, to take revenge of lynching of said Saee, the complainant party shortened the life of one Mian Khan, whose case was still under investigation; about four months prior to the incident, Noor, etc. (twenty-nine people in number) murdered Muhammad Nawaz of the complainant party; all the said accused were P.Os. And they would often waylay the complainant's sibling, namely, Dilawar Khan (deceased); in order to get the said people arrested, the complainant along with his brother Dilawar Khan (deceased), Muhammad Nawaz and Shahadat Khan, went to see S.S.P. Faisalabad, parked their car opposite to the office of S.S.P. At about 10-35 a.m. And stood there; the complainant Muhammad Nawaz P.W.7 and Shahadat Khan P W. Were about to go to S.S.P. Office, when all of a sudden Qasim and Wazir Khan the appellants, both armed with carbines of .12 bore caliber, emerged at the scene and Qasim the appellant fired a shot from his carbine, which hit in the head of Dilawar Khan (deceased) near his ear due to which he fell down on the ground. The complainant along with his companions gave a chase to the appellant who succeeded to flee from the scene of crime after boarding the car, which had been parked outside the District Courts. The complainant along with his companions took his brother Dilawar Khan in an injured condition to Civil Hospital but he bled to death after reaching the hospital.
' According to the complainant the incident was an off shoot of a running dispute between the two groups over several murders on each side.
4. After completing the investigation, the Investigating Officer found the appellants accused along with their co-accused guilty and challaned them to face the trial.
5. During the trial, the prosecution, in support of its case, produced as many as 14 witnesses.
Sabir Hussain C-1411, appeared as P.W.1 and deposed that he had received the dead body of Dilawar Khan from Faqir Muhammad, S.-I., and escorted to the mortuary for its post-mortem examination. Pervaiz Iqbal, who appeared as P.W.4, deposed that after receiving one sealed parcel containing blood-stained earth, from the Investigating Officer on 27-3-1995, he had handed over the same to Ashraf Ali, C-1841 for its onward transmission to the office of Chemical Examiner.
Muhammad Boota, A.S.-I., who after receiving the complaint (Exh. P. W .6/A), had drafted the formal F. I. R (Exh P . W . 10/A) appeared as P.W.10.
Gulzar Ahmad-complainant entered into the witness-box as P.W.6 and furnished the ocular account of the occurrence. Muhammad Nawaz, appeared as P.W.7 and corroborated the ocular version furnished by the complainant. Jaisal appeared as P.W.8 and stated that he had overheard Ismail, Aurangzeb, Noor and Suleman, accused, while hatching a conspiracy to murder Dilawar (deceased).
Shahid Anwar, S.-I. , who had partially investigated the case appeared in the witness-box as P.W.11.
Saijad Hussain, S.-I., who was entrusted the investigation thereafter, appeared as P.W.12 and provided the detail of the investigation conducted by him. Muhammad Wazir Khan, Inspector, who had concluded the investigation, appeared as P.W.13 and deposed about the manner in which he concluded the investigation. Ashiq Ali, S.-I., entered the witness-box as P.W 14 and deposed about the arrest of Qasim appellant.
' Dr. Muhammad Javed, S.M.O, , Allied Hospital, Faisalabad, who had conducted autopsy on the dead body of Dilawar Khan (deceased) came forward as P.W.3 and furnished the detail of injuries, observed by him on the corpse of Dilawar (deceased) as under' ---
(1) A lacerated wound 4 x 3 c.m. Blackly stained on the left side of head 10 c.m. Posterior to the pinna of left ear. Brain matter was coming out of wound.
' According to his opinion, the cause of death in this case was brain damage leading to cardio pulmonary arrest and death.
' Rest of the- witnesses, being formal in nature, need not to be discussed here. After tendering into evidence Report of Chemical Examiner (Exh.P.F.), report of Serologist (Exh.P.F./1) the learned A.D.A.
Closed the prosecution's evidence.
6. The appellants made their statements under section 342 Cr.P.C. While responding to the Question No,11, Qasim appellant stated as under:--- "The case is false. I and my alleged co-accused Aurangzeb, Noor, Suleman, Ismail and Wazir Ali have been falsely implicated in this case because of enmity. Gulzar Ahmad complainant in connivance with the police had falsely implicated me and said other accused mentioned in this case by concocting a false story. Gulzar Ahmad complainant, Nawaz and Shahadat P.Ws. Were not present at the spot at the time of occurrence and they had not seen the said occurrence. The above mentioned P.Ws. And the other P.Ws. Have made false statements being related to Dilawar deceased and being friendly with him and that the P.Ws. Have made false statements being inimical to me as well as to other alleged accused. Actually one Shaukat son of Lal, caste Sheikh, resident of Chak No,534/GB had fired at Dilawar deceased who died as a result of fire-arm injury. I and my alleged co-accused were found innocent by the police during investigation. I am absolutely innocent and was not present at the said time and place of occurrence. I was present in my village on the said date and time of occurrence."
' Wazir appellant toed the line of Qasim appellant and made a similar statement. The appellants, however, did not opt to appear as their own witnesses under section 340(2), Cr.P.C.
7. After conclusion of the trial the appellants were convicted and sentenced to death and imprisonment of life, respectively, as mentioned above.
8. After pulling the prosecution's evidence into pieces, learned counsel for Qasim Ali appellant has contended that the appellant has been convicted and sentenced illegally though the prosecution had failed miserably to prove its case to the hilt; that the ocular evidence comprises interested witnesses, therefore, it cannot be believed without any independent corroboration, which according to the learned counsel is not forthcoming in this case; that the statements of eye- witnesses have already been disbelieved qua the allegation of brooding a conspiracy to murder Dilawar Khan deceased; that the letter, dated 4-2-1995 mentioning the links of conspiracy of murder, allegedly delivered by one Sahib Khatoon to the complainant, was never produced by the prosecution; that the appellants were found innocent during the investigation; that four co- accused, who were involved in this case on the allegation of hatching a conspiracy to eliminate the said deceased, have already been acquitted by the learned trial Court after disbelieving the same evidence on the basis of which the appellants have been found guilty; that in order to avenge the Mian Khan's murder, 29 people had killed Muhammad Nawaz, a party man of the complainant party but all the said accused had been declared proclaimed offenders at the time of the instant occurrence; that since all the male relatives including siblings of Qasim appellant had absconded, therefore, the prosecution did not take any risk to nominate any of the said proclaimed offenders, who could have raised plea of alibi, therefore, Qasim, the appellant, the only available male member of his family was involved in the case of Dilawar's murder, which as a matter of fact was an unwitnessed affair; that the driver of the rented car, which was used by the complainant party, including Dilawar Khan deceased in order to reach District Courts. Faisalabad, was never produced by the prosecution; that withholding the said material witness from the Court, raises an adverse presumption against the prosecution; that in the site plan the place from where Qasim appellant shot Dilawar dead, was not shown by the Draftsman and that the complainant as well as Muhammad Nawaz, the other eye-witness made different and contradictory statements regarding the place where the F.I.R. Was lodged. In order to expound his contention the learned counsel submits that while lodging the F.I.R. The complainant claimed that his statement (P.W.6/A), which later on culminated into the F.I.R., was recorded in the Kuchery Chowk, whereas during his cross- examination he stated that his statement was recorded in the hospital. In the same breath the said witness stated that he had reached the police station for lodging the crime report, learned counsel adds. He further maintains that P.W.7 also made inconsistent statement on this point. Learned counsel for the appellants further adds that, in fact, the murder was committed by one Shaukat a lovelorn, who did not like the relations of Dilawar Khan deceased with his (Shaukat's) girlfriend/beloved namely Sahib Khatoon. In this regard, he has made a reference to certain suggestions made to P. W.6 and P.W.7 regarding the illicit relations of Dilawar (deceased) as well as those of Shaukat with said Sahib Khatoon. In order to further shore up his point, learned counsel for the appellant states that said Shaukat was later on murdered whereupon an F.I.R. No,798 (Exh.D.D.) was recorded against Asghar Ali, who is son of Muhammad Nawaz, the eyewitness of this case under section 302, P.P.C., wherein the motive of the said murder was narrated by Mst. Bashiran Bibi the complainant of the said case to the effect that the said Shaukat Ali had killed Dilawar Khan deceased of the instant case. On the basis of the said contention, learned counsel for the appellants has claimed that contents of the said F.I.R. Clearly establish that Dilawar (deceased of this case) was killed by said Shaukat Ali who himself was murdered by the revenge seekers of Dilawar's murder.
9. Conversely, learned D.P.-G. Assisted by learned counsel for the complainant, has opposed the appeal contending that the unfortunate occurrence, which took place in a busy place right in front of the office of S.S.P., Faisalabad, was reported to the police within an hour, i.e. 11-30 a.m. By the complainant who admittedly was residing at a pretty far off place; that the ocular evidence is duly supported by the medical evidence and the other attending circumstance which include the five years' long abscondence of the appellants; that the ocular evidence cannot be discarded on the ground that the accused who were involved in this case on the allegation of hatching a conspiracy, have been acquitted by the learned trial Court, for, the said witnesses did not claim to be the eye- witnesses of brooding of the conspiracy by the said acquitted co-accused; that the ocular evidence cannot be disbelieved only on the ground that the driver of the rented car did not come forward to prove the prosecution's case, because in murder cases usually no independent person dares to appear as a witness at the cost of risk of his own life; that the appellant committed murder in a daylight occurrence right in front of the office of S.S.P., therefore, only sentence he deserves is that of sending him to scaffold.
10. We have given an ardent hearing to the respective learned counsel for the parties besides going through the entire evidence, ocular as well as documentary with their able assistance. After picking the entire evidence into pieces, we find that there is no doubt that the parties were locked in long-standing criminal litigation. Two years before the instant occurrence, complainant's cousin, namely, Saee was worked to death, which was responded by the complainant party by eliminating Mian Khan, a real brother of the appellant. During the investigation of the said case, the party men of the appellants, murdered one Muhammad Nawaz, who belonged to the complainant party.
According to the complainant, all the 29 people involved in the said murder case had absconded.
He further claims that in order to request the police for effecting the arrest of the said absconders, the complainant along with Dilawar Khan deceased, Muhammad Nawaz, P.W.7 and Shahadat Khan, a given up P.W., reached in front of office of the S.S.P., Faisalabad at 10-35 a.m. For appearing before him. According to the complainant, right in their presence, the appellants shot at Dilawar Khan deceased, who later on succumbed to his injuries in the hospital. Admittedly, the complaint (Exh.P.W.6/A) was recorded on the statement of Gulzar complainant by the Investigating Officer at 11-30 a.m. (according to the original record), a fact which shows that the F.I.R. Was lodged with quite a reasonable promptitude. Admittedly, the complainant is resident of Chak No,435/G.B., which is situated at a distance of 25/30 miles from the place of occurrence, (see page 61), therefore, the fact of lodging of the F.I.R. On his statement and that too with a promptitude establishes his presence at the spot. Had he not been present at the spot the F.I.R. Would have been lodged with a reasonable delay or by some one else.
11 Insofar as the objection of the learned counsel for the appellants that in the site plan the place from where the appellants had shot Dilawar Khan dead, has not been shown is concerned, the prosecution's evidence cannot be disbelieved on the said score, especially, when the said site plan does show the place of the parking of the car, which was used by the complainant party for their transportation to the place of occurrence. Even otherwise, site plan is never considered to be a substantive piece of evidence. Insofar as some contradictions regarding the place of lodging of the complaint (Exh.P.W.6/A) is concerned, nothing material turns out due to the said minor discrepancies, because admittedly the hospital, the office of the S.S.P.. Faisalabad and the police station are situated in the same vicinity. Besides, due to the long abscondence of the appellant, the witnesses had appeared in the witness-box after a long period of more than 7 years. After such a lapse of time, such-like minor contradictions and inconsistencies are bound to occur.
12. It is true that both the eye-witnesses are interested witnesses but the evidence of the interested witnesses can only be discarded if the same is not found in consonance with the attending circumstances of the case but if the evidence of the interested witnesses is found to be straightforward, consistent, trustworthy and corroborative to each other, the same can be validly relied upon for maintaining the conviction, especially when it gets support from some other independent source as well. In this case, the ocular testimony has been supported by the undisputed motive behind the occurrence, the medical evidence, which has corroborated the statements of the eye-witnesses on all material points, inasmuch as, the duration, nature and the seat of injury, received by Dilawar Khan deceased, synchronize with the ocular evidence.
13. Insofar as non-production of the driver of the car by which the complainant party had reached the office of the S.S.P. Is concerned, according to the prosecution, he was driver of a rented car. In our society, such-like independent people usually do not dare to come forward for giving evidence in criminal matters, especially in murder cases. Admittedly, neither the police inquired about the whereabouts of the said driver nor was his statement recorded under section 161, Cr.P.C. Therefore, the prosecution's story cannot be discarded or disbelieved only on the said ground.
14. According to the learned counsel for the appellant, Dilawar Khan deceased was, in fact, gunned to death by one Shaukat, a lovelorn, who. Had an affair of heart with a woman, namely, Sahib Khatoon to whom the deceased also used to love. In this backdrop, scores of suggestions were put to both the eye-witnesses by the cross-examiner but the same were denied by both of them. Both the eye-witnesses denied the suggestion that Dilawar Khan deceased had developed illicit relations with the said woman. Though, there are some contradictions between the two eye- witnesses regarding the period when the said Sahib Khatoon shifted her residence to the village of the complainant party but merely because of the said contradictions one cannot infer that Dilawar Khan deceased had extramarital relations with the said lady. Similarly, the prosecution's story cannot be discarded simply on the ground that while lodging a criminal case (Exh.D.D.), against complainant party of this case, Mst. Bashiran Bibi complainant of the said case had claimed that Dilawar Khan deceased of the instant case was murdered by aforesaid Shaukat Ali and that was the motive for eliminating the said Shaukat Ali by the relatives of Dilawar deceased of the instant case. Barring the production of the said F.I.R., the defence neither produced the evidence recorded in the said case nor was the judgment of the said case relied upon by it. The F.I.R. By itself cannot be treated a substantive evidence. Besides, Qasim Ali appellant did not opt to appear as his own witness. Similarly, no effort was made by him to produce the said Mst. Bashiran Bibi, the complainant of case F.I.R. No,792 (Exh.D.D.) as a defence witness in support of his claim. Moreover, substitution is a rare phenomenon. In this case, Dilawar Khan deceased was lynched in a busy place in a daylight occurrence, which was reported to the police quite promptly. Therefore, there was no occasion for the complainant who is real brother of the deceased to let off the real culprit of his brother and implicate an innocent man. Therefore, the defence plea raised by Qasim Ali appellant does not hold water, so, the same is hereby spurned.
15. Further, a long abscondence of Qasim Ali appellant for a period of more than 5-1/2 years, is a circumstance, which can validly be treated as a corroborative piece of evidence. Besides the said circumstance militates the defence plea of false implication in this case. The appellant miserably failed to explain the reason for his long abscondence. He unsuccessfully tried to explain the same by answering Question No,10 put to him, while recording his statement under section 342, Cr.P.C. In the following manner:--- "The said prosecution evidence is false, concocted and incorrect. I was innocent and I proceed to Saudi Arabia for performing Hajj and had remained there and came back from there."
' The appellant failed to bring on record any documentary evidence to show that he had indeed performed Hajj and remained in Saudi Arabia during the period of his abscondence. Actions speak louder than the words. In short the defence story just does not add up. So, the ocular evidence has got support from the unexplained long abscondence of Qasim appellant as well.
16. As far as acquittal of co-accused, who were charged with the allegation of brooding the conspiracy to eliminate Dilawar Khan deceased is concerned, the eye-witnesses cannot be disbelieved on that score alone, for, admittedly, they did not claim themselves to be the witnesses of the hatching of the conspiracy. Even otherwise, Courts are supposed to sift grain from the chaff.
17. Learned counsel for the appellant has laid much stress on the ground that the appellants were found innocent during the investigation. To shore up the said contention, learned counsel relied upon the statements of Abdul Rehman, D.S.P. (C.W.1) and Syed Altaf Hussain Shah, D.S.P. (C.W.2), out of whom C.W.1 claimed that during his investigation, Qasim appellant had not been found to be present on the place and time of occurrence, whereas Syed Altaf Hussain Shah (C.W.2) made a similar statement but we cannot rely upon the said evidence, because firstly, opinion of the police is neither admissible in evidence nor binding on the Courts. Secondly, C.W. During his cross- examination categorically admitted that the investigation of this case was not transferred to him.
Similarly, Altaf Hussain Shah, D.S.P. (C.W.2) during cross-examination conceded that investigation was conducted by him during the period when the appellant had been declared a proclaimed offender. Considering the legal position and said state of affairs, the appellant cannot get any premium from some positive findings recorded by the Investigating Officer in his favour.
18. In a nutshell, we conclude that the prosecution has proved its case to the hilt beyond shadow of doubt. Therefore, the conviction awarded to Qasim Ali appellant is maintained. Insofar as the question of sentence is concerned, we find that Qasim Ali appellant gunned down Dilawar Khan deceased in a calculated and well-thought out manner. The appellant targeted Dilawar Khan deceased, who along with complainant and eye-witnesses had reached the office of S.S.P. In order to seek justice against the companions of the appellants, who, after committing murder of one Muhammad Nawaz, a party man of the complainant party, had become fugitives from law but unfortunately, he was shot dead right in front of the office of S.S.P., Faisalabad, which shows that the appellant had acted like a desperado. The appellant had a strong motive to kill Dilawar (deceased). The nature of injury as is evident from the statement of the concerned doctor, who had conducted the post-mortem examination on the dead body of Dilawar Khan deceased, reflects that the deceased was shot at from a close distance. Therefore, in absence of any mitigating circumstances in his favour, the death sentence has rightly been awarded to Qasim appellant, therefore, the same is confirmed. The appeal to the extent of Qasim stands dismissed.
Murder Reference is answered in affirmative.
19. As far as Wazir appellant is concerned, though, nobody has turned up to plead case on his behalf but after going through the record including the evidence we find that his case is that of acquittal. The said relief cannot be withheld simply on the ground that nobody has appeared on his behalf. In appeal, the whole case reopens. While examining the case of Qasim appellant, we have gathered that barring the allegation of accompanying Qasim appellant, no overt act is attributed to Wazir appellant. Though, according to the complainant he was armed with a carbine at the time of occurrence but, admittedly, he did not use the same even for ineffective firing. So much so, the role of raising of a proverbial Lalkara has not been attributed to Wazir appellant.
Insofar as participation of the appellant in the crime is concerned, a pall of doubt persists all around. In these circumstances, the prosecution's evidence regarding the presence of Wazir appellant at the time and place of occurrence or sharing of his common intention with co- accused. Cannot be relied upon for maintaining his conviction, therefore, Criminal Appeal No,548 of 2003 to the extent of Wazir appellant stands accepted and while giving him benefit of doubt, he is acquitted of the charge. Consequently, he be released from jail if not required in any other case.
In view of our finding returned on the appeal filed by Wazir appellant, Criminal Revision No,478 of 2003 is hereby dismissed. Insofar as Criminal Appeal No,727 of 2003 is concerned, the learned counsel for the complainant has not pressed the same seriously, therefore, the same is also dismissed.