Muhammad Ashraf Bhatti, J.--Muhammad Jamil and his brother Muhammad Khalil, appellants have challenged their conviction and sentences through Criminal Appeal No, 1325 of 2002 cited above. They were tried by the learned Additional Sessions Judge, Sialkot in a criminal case FIR No, 259 dated 14.5.1998 registered at Police Station Ugoke, District Sialkot under Section 302/34 PPC and convicted and sentenced vide judgment dated 20.7.2002 in the manner, as mentioned hereinafter, for causing double murder of Shabbir Ahmed and Jamshaid alias Shera (brother of Jamil Ahmed, complainant). Alongwith this appeal the learned trial Court has also sent a Murder Reference No, 565 of 2002 for confirmation of death sentence, on two counts, awarded to Muhammad Jamil, appellant. Since, Muhammad Khalil, appellant was convicted and sentenced to life imprisonment, on two counts, the complainant has also filed Criminal Revision No, 974 of 2002 for enhancement of sentence awarded to him vide the impugned judgment by the learned trial Court. In addition thereto, Muhammad Jamil, convict was also held liable to pay fine of Rs,20,000/- each on two counts and in default of payment thereof to undergo further imprisonment for one year R.I. Both the appellants were ordered to pay Rs,50,000/- each as compensation to the legal heirs of both the deceased in terms of Section 544-A Cr.P.C., and in default thereof to further undergo imprisonment for two years R.I. each. However, the learned trial Court did not extend benefit of Section 382-B Cr.P.C. to Muhammad Khalil, appellant except that the two sentences shall run concurrently.
Therefore, we intend to dispose of all these matters through this single judgment.
2. Formal FIR (Exh.PE/1) was registered by Muhammad Zahid, S.I./PW-6 on receipt of the complainant's statement (Exh.PE) recorded on 14.5.1998 at 9.00 p.m. by Allah Ditta, S.I./I.0 (PW-11).
The complainant, a WAPDA employee in Sialkot, was statedly sitting at about 7.00 p.m. along with his real brother Khalil Ahmad and father Muhammad Amin and his deceased brothers Shabbir Ahmed and Jamshaid alias Sera were studying in the "Baithak" of the house. In the meanwhile someone knocked at the door, he went out and found Muhammad Jamil and Muhammad Khalil, appellants standing with an unknown person in the street (Ghali). They asked for Shabbir Ahmed to come out. The complainant went inside, told his brother Shabbir Ahmad that Muhammad Jamil and Muhammad Khalil wanted to meet him. So, his brothers Shabbir Ahmed and Jamshaid alias Shera came out. Muhammad Jamil suggested Shabbir Ahmed to go out with them to have a talk.
On this, both the brothers went with them. After about 20/25 minutes, his brother Shabbir Ahmed, in a pool of blood, entered into the outer door and fell down in `Deuri'. From the Courtyard, they rushed to him and enquired as to what had happened to him. He disclosed that Muhammad Jamil and Muhammad Khalil, etc. had fired at him as also his brother Jamshaid alias Shera, lying in the field of "Shatala" but he only was able to make his way back and that accused persons fled away after having caused firearm injuries upon them. Thereafter, he became unconscious. Both Shabbir Ahmed and Jamshaid, in injured condition, were removed to the hospital but Jamshaid alias Shera died on the way to the hospital whereas Shabbir Ahmed succumbed to the injuries on reaching the hospital. According to the complainant, the occurrence was also witnessed by Riaz Ahmed (PW-5) and Muhammad Shafique (not produced).
3. Motive as disclosed by the complainant was that one month before the occurrence Muhammad Jamil and deceased Jamshaid had a shuffle on laying/affixing electric wire/cable, jointly shared by both the parties, on the wall of the house of Mushtaq Subedar, situated on the opposite side of the complainant's house. On this Muhammad Jamil threatened Shabbir Ahmed that he will teach him a lesson and hence, the occurrence.
4. Allah Ditta, S.I. (PW-11) conducted the investigation of this case. According to him, on having received information about the murders at Pakka Garha he went to the Civil Hospital, Sialkot along with other police officials, recorded the statement (Exh. PE) of Muhammad Jamil, complainant and sent it to the Police Station for registration of formal FIR. Thereafter, he inspected the dead bodies; prepared necessary police papers/reports like injury statement of Shabbir Ahmed (Exh. PL), inquest report (Exh. PN) and application Exh. PM for the post mortem examinations of his dead body.
Similarly, he prepared injury statement (Exh. PO), inquest report (Exh. PQ) and application (Ex. PP) for post mortem examination upon the dead body of Jamshaid alias Shera. He took into possession blood stained earth from two places vide recovery memos Exh. PJ and Exh. PK; recorded the statements of the PWs, and prepared the rough site-plan without scale (Exh. PR).
5. After the postmortem examinations, the police officials escorting the dead bodies produced before him the last worn clothes of Jamshaid alias Shera i,e, Shirt P1, Shalwar P2 and Banyan P3 and one sealed phial (Exh. PA) containing lead portion of the bullet duly attested by the PWs, and those of Shabbir Ahmed deceased, i,e, Shirt P4, Shalwar P5 and Bunyan P6 and one, sealed Phial. (Exh. PB) containing lead portion of the bullet. Then he got prepared the sealed site-plans "Aks Shajra" (Exh.
PH & Exh. P11/1) through Muhammad Shafi, Halqa Patwari (PW-9).
6. On 1.6.1998, he arrested Muhammad Jamil and Muhammad Khalil, appellants. On 9.6.1998 Muhammad Jamil in police custody got recovered Pistol 30 bore (P8) from his house. It was made into sealed parcel (Exh.PG), Exh.PG/1 is the site-plan of the place of recovery, got prepared in the presence Zafar Iqbal (PW-8) and Muhammad Khalil (given up PW). On 11.6.1998, he arrested Muhammad Khalil, appellant who on 11.6.1998, in police custody got recovered Pistol 30 bore (P7) from his house which was made in sealed parcel (Ex.PF) and Exh.PF/1 is the rough site-plan of the place of its recovery, got prepared in the presence of Zafar Iqbal, PW-8 and Jamil Ahmed, complainant, PW-4. He then searched for Muhammad Younis, a proclaimed offender. On having failed to arrest him, proceeding under Section 87/88 Cr.P.C. were got initiated against him when the Court of competent jurisdiction declared him a P.O. after completion of requisite formalities. Then the I.O. got submitted the challan in the Court concerned where the appellants were formally charge sheeted on 23.2.2000 to which they pleaded not guilty and claimed trial.
7. At the trial Dr. Fakhar-u-Zaman, M.O., Allama Iqbal Memorial Hospital, Sialkot (PW-2), provided medical evidence. On the person of. Jamshaid alias Shera, he found the following injuries during autopsy:--
(i) A lacerated circular punctured wound 3/4 cm in diameter on left side of upper part of neck at the level of angle of left Jaw. Margins were inverted blackening and Charring was present (entry);
(ii) A lacerated punctured wound 1.5 cm in diameter on left occipito parietal region .of skull.
Margins were averted (exit).
(iii)A lacerated punctured wound 1.5 cm in diameter on lateral aspect of -right buttock. Margins were inverted blackening and charring was present. (entry); (iv)A lacerated punctured wound 1.5 cm in diameter below Injury No,
3. Margins were inverted.
Blackening and charring was present. (entry);
(v) An abrasion 4 cm x 2 cm on left big toe planter aspect; and (vi)An abrasion 6 cm .x "cm on right big-toe planter aspect. After thorough external and internal post mortem examination of the dead body, he opined that Injuries Nos, (i),(ii),(iii) and (iv) were caused by firearm. Injuries Nos, (v) and (vi) were found to have been caused by blunt weapon. All the injuries were ante-mortem. Injuries No, (i), (ii) and (iv) were declared grievous and dangerous to life. Injury No, (iii) was found grievous and Injuries No, (v) and
(vi) were simple. In his opinion the death was caused by combined effect of Injuries No, (i), (ii) and (iv) by shock and cardio respiratory failure. Which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between the injuries and death was immediate and between death and post mortem examination was within 14 hours. Exh.PC is the exact carbon copy of his report whereas Exh.PC/1 and Exh. PC/2 are the pictorial diagrammes. On the same day, at 10.30 a.m., he also conducted autopsy on the dead body of Shabbir Ahmed and found the following injury:-- "An oval shaped lacerated punctured wound 2 cm x 1 1/2 cm on upper part of front of right chest margins were inverted. Blackening and charring were present (entry)."
After observing the injury, he concluded that it was also caused by firearm and was ante mortem as well as grievous and dangerous to life. In his opinion, the death was caused by said injury by haemorrhage, shock and cardio respiratory failure which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was within one hour and between death and post mortem examination about 15 hours. Exh.PD is the correct carbon copy of his report whereas Exh.PD/1 is the pictorial diagram.
8. In order to prove its case, the prosecution produced as many as 11 witnesses. PW-5 Raiz Ahmed deposed about the details of the occurrence that took place in his view as also Muhammad Shafique PW (given up PW). As disclosed by him, they were passing nearby the place of occurrence and saw the appellants and Younas, P.O. quarrelling with both the deceased brother whereafter Muhammad Jamil took out his pistol and fired at Shabbir Ahmed which hit him on the right side of his chest and that then Muhammad Khalil fired pistol shot at Jamshed that hit him at his right buttock whereafter Jamshaid fell down in the field and Shabbir Ahmed rushed to his house. Further stated that Younas P.O. also fired at Jamshaid which hit at left side of his neck.
9. The complainant (PW-4) reiterated what was reflected in his complaint/FIR under. reference. The defence raised number of reservations/questions regarding the integrity and veracity of the complaint as also that of Riaz Ahmed, PW-5 which will be dealt with in the later part of this judgment. The complaint stuck to the last seen evidence, i,e, of going the deceased brothers in the company of the appellants and the dying declaration of Shabbir Ahmed, deceased. He corroborated the recoveries affected from the appellants.
10.PW-1 Farooq Ahmed along with Haji Muhammad Latif (given up PW) identified the dead bodies of the deceased. Remaining witnesses were more or less of formal nature and need not be mentioned.
11.After tendering reports of Chemical Examiner, (Exh. PT, Exh. PU) and those of Serologist and Forensic Science Laboratory (Exh. PW, Exh. PX) and (Exh. PV), the prosecution closed its case.
12.The appellants were examined under Section 342 Cr.P.C. who denied the very factum of having committed the offences under reference. In an answer to a common question as to why this case against them and why the PWs deposed against them their identical reply was as under:-- The PWs are inter se related and are first relatives of the deceased persons and they have manoeuvered and fabricated the present FIR after due deliberations and consultations on the following morning of the alleged incident i,e, on 15.5.1998, on the basis of suspicion and on the instigation of relatives of Jamshaid alias Shera with whom my father and my father's sister have got family differences over the share of my father's sisters who are married in the family of Jamshed alias Shera. In fact, the deceased Jamshed alias Shera and Shabbir were spoiled desperate persons and were involved in nefarious activities and had been passing abusing remarks on the girls and women of Subedar Mushtaq Ahmed, my father, situated in Chowk Muradpur. On the complaint of the tenants/shopkeepers, my father Subedar Mushtaq Ahmed, who is a religious, pious retired J.C.O. of Pakistan Army reprimanded them and also lodged complaint to the police of the deceased persons and also asked them not to stand in front of the shops in future. A few days prior to the present occurrence, even on the night of occurrence, the dead bodies of both the deceased were found in the field where the poor women of the surrounding population of these fields used to go for easing themselves and that place was absolutely filthy and most stinking area. For the said reason and both the deceased had gone there with some nefarious ulterior motive, chasing some women and some of the relatives of those women had murdered them in the darkness. A large number of surrounding inhabitants, men and women, gathered there but none survived. This incident was brought to the notice of the relatives of the deceased by surrounding inhabitants of the house of the deceased persons situated far away on the other side of the village abadi. Neither the complainant nor any of the PWs ever claimed to see the occurrence. Even the so called eye- witnesses namely, Riaz Ahmed and Shafiq Ahmed are also flouted persons who are also involved in immoral nefarious activities and this fact is established in the statement of Riaz Ahmed. None of the alleged eye-witnesses are inhabitants of the vicinity of occurrence and they vicinity of the occurrence is abandoned area, absolutely dark, filthy and stinking. This fact is, corroborated from the statements of the Draftsman, Halqa Patwari who prepared the site plans. That even both Shabbir and Jamshed were taken to the hospital by those inhabitants of the vicinity who never knew the whereabouts of the deceased persons. That the present story has been introduced after the due deliberations and consultations and any legal advice on the following morning of the alleged occurrence. I and my brother have been involved on the basis of suspicion. We have got nothing common with the co-accused Muhammad Yousaf alias Juna (P.O. of this case)."
13. They, however, did not opt to record their statements on oath in terms of Section 340(2) Cr.P.C. in dis-proof of the allegations against them. In defence they produced copies of FIR No, 35/2001 (Exh.DB) and FIR No, 29/2001 (Exh.DB/1).
14. The learned trial Court after hearing the arguments of the learned counsel for the parties recorded conviction and awarded sentences to the appellants as mentioned in the, opening paragraph of this judgment giving rise to the aforementioned matters before us.
15. We have heard the learned counsel for the appellants as well as the learned Additional Prosecutor General appearing for the State and gone through the record.
16. The prosecution case revolves around the ocular account furnished by Riaz Ahmed, PW-5 to support and corroborate the last seen evidence and dying declaration of the deceased Shabbir Ahmed brought' on record by the complainant of the case Jamil Ahmed, PW-4. It my also be observed here that with insignificant variation as to the time of occurrence and its minute details, some of the facts were not subsequently disputed at the trial such as--
(a) number and nature of injuries;
(b) except injuries No, (v), (vi) rest of the injuries having been caused by firearm;
(c) the kind of weapon used;
(d) seats of injuries;
(e) date and place of occurrence; and
(f) at least to the extent that Jamshaid alias Shera was got removed by lifting him physically, from the place of occurrence.
17. What is hotly contested on the part of the defence is the presence of Riaz Ahmed, PW-5 at the time of occurrence and going of Shabbir Ahmed in injured condition to his house and his making of a daying declaration before his real brother, the complainant as also the last seen evidence provided by the complainant. The case of the defence is that occurrence took place in the darkness at about 8.30 p.m. In this regard, if we consider the time taken to reach hospital and then coming of the Investigating Officer there to record statement of the complainant with the registration of FIR at 9.00 p.m., the version of the defence stands no where particularly in view of the statement of the doctor whose calculations of different time periods directly support the prosecution case.
18.From the above, it appears that the statements made by Riaz Ahmed, PW-5 and Jamil Ahmed, complainant PW-4 that Jamshaid alias Shera was lifted on his shoulder by Riaz Ahmed PW-5 from the place of occurrence to take him to the pick-up to shifting to the hospital together with his brother Shabbir Ahmed at a time, Riaz Ahmed's immediate presence there hands support to his presence at the time of occurrence in the wake of absence of any material on record to form a contrary view. Riaz Ahmed stood firm to his stance with all confidence on his command despite lengthy cross examination he had to face which speaks about his truthfulness. The trial Court therefore, rightly declared Riaz Ahmed, PW-5 as an independent witness. He resides in the same locality and knew the appellants because it is on record that he was running a shop in village for the last 18 years before the occurrence. Moreover, seyenish was not the time in the month of May, that it became too dark to make it a case of mistaken identity Much emphasis was also laid upon existence of vast road network connecting the village Boukan with Gohadpur to point out that Riaz Ahmed, PW-5 was not supposed to pass by the place of occurrence where even no "Katcha" road existed to provide any access form Gohdapur to his village. But the defence failed to ask him as to why he chose that area to reach his village. Top on it is the admission that the pits and the area around the pits were partially used by some residents for answering the call of nature. Had he been questioned as mentioned above, he might have given a plausible explanation of his choosing that route. So, the existence of other established road/approaches, in itself cannot be found a valid reason to discredit his testimony.
19.There is not an iota of evidence to show that, like an interested witnesses, he had some motive or malice to falsely involve the appellants in this case. In cross-examination it was brought on record that he is friend of Jamil complainant which he denied categorically. So, on the basis of a suggestion merely made in this behalf, which was denied too, his statement cannot be brushed aside which, by all, means, convincingly lends full support to the statement of the complainant as also the medical evidence on record. The defence also tried to tarnish his character at the trial to portray him as a man of immoral character. In this regard reference was made to his alleged illicit relations with one Shama Parveen, later died due to fire burns, regarding which, admittedly, no criminal case was registered. In response to defence's suggestion he made it clear that she was his wife and that the marriage took place with the good offices of a Councilor, namely, Nasir.
20. Therefore, we find from the above, that the ocular account furnished by Riaz Ahmed, PW-5 is of an unimpeachable character coming from a man who had no grudge against the appellants nor he had any special relations with the complainant. He stood firm to his stance as to the occurrence perhaps finding it a duty on his port to furnish the first hand evidence regarding gruesome murders of two innocent brother in their prime youth. Accordingly, his solitary statement, being natural, direct and confidence inspiring is accepted as a solid price of evidence. Reliance is placed on Riaz Hussain Vs The State (2001 SCM R 177)
21.Coming to the cause of death disclosed by Shabbir Ahmed, deceased before his brother (complaint) after having received bullet which can safely be termed as a 'dying declaration'. It is on record that in injured condition he was taken to the hospital. So, it is possible that when he succeeded to reach his house it can be well perceived that the inmates of the house must have enquired from him as to what happened to him and his immediate, true and natural reply must have been the one as narrated by his brother, the complainant.
22.Both the complainant and Riaz Ahmed, PW-5 admitted that their clothes became stained with blood when they handled both the brothers in injured condition. Riaz Ahmed, PW-5 stated that Shabbir Ahmed rushed to his house. The complainant PW-4 stated that blood was present in the street as well as inside the house when Shabbir Ahmed managed to come back. Admittedly, no blood was collected from the street or from inside of the house of the complainant by the I.O. but no edge can be given on this score to the appellants as discussed hereinafter in the later part of his judgment. Sine there is nothing on record to suggest that the said deceased or the complainant had some alafide to involve the appellants, we have no valid reason to disbelieve he dying declaration coupled with the last seen evidence provided by the complainant that, finds support from the statement of Riaz Ahmed, PW4 Reliance is placed on Abdul Aziz and others Vs The State (2002 .Cr.L.J 1979). Here, no deadly occurred, nor there was a chance to tutor the said deceased. He too was not sure of his survival. We therefore, can't minimize the value of the said dying declaration though made before his real brother.
23.it is also urged that there was no point to taking both the deceased brother to pits of 100/150 feet depth which had no access. In the evidence it has been indicated that there were "Gharas" pits which does mean that the same were located at different sites and levels of the land of Nazeer.
Some of his land was also under cultivation and Birseem crop was standing there. Therefore motive behind was to take them away from the village abadi to a deserted place where the residents had to go after it is dark as 7.00 p.m. was surely too early in a village in the month of May, to be so dark that the area could be used to answer the call of nature. We, therefore, discard this contention.
24. We have also been reminded that throughout the trial there was no mention of retrieval of the pairs of shoes of the deceasdd persons from the place of occurrence. But non-mention of shoes appears to be immaterial. It was only necessary if the prosecution wanted to advance its case on this score also or the retrieval thereof was desired to be connected with the occurrence, which is not a case here. Indeed the defence wanted to build a case that both the deceased were desperate and vagabonds persons who used to tease and chase women folk of the village and so with this bad intention they visited the place in the darkness on the night of occurrence and teased the women present there for answering the call of nature when some relatives of those women murdered them and that due to this they were not 'wearing shoes. In this regard no details were given as to the women who were teased or chased by the deceased persons not the defence disclosed the identity of their relations who committed the crime. Had they been teasing or chasing women of their own village there was no difficulty for the I.O. to get its corroboration nor any question was put to the I.0 about the assailants in, line with the defence taken by the appellants.
Amazingly, the defence, in this respect, itself referred to a reprimand given by the father of the appellants, namely, Mushtaq Ahmed Subedar on a complaint made by the shopkeepers against deceased brothers. To support it, the appellants could ahve produced any shopkeeper as defence witness to prove that both the brothers were vagabonds who used to tease and chase the women flok of the village. So, therefore, we do not believed that both the deceased had gone of their own to the pits side and behaved in the fashion as suggested by the defence during cross examination of the PWs as also while answering at the trial to a common question put to them as to why this case against them and why the PWs deposed against them. In our view it appears to be a cock and bull story, finding no support on record by any independent piece of evidence. Contrary to this, the complainant gave satisfactory answers to all the questions put to him regarding both the brothers. He narrated that Shabbir Ahmed, a youth of 20/23, was a teacher in City Public School and was preparing for private examination of Master's Degree and Jamshaid alias Sher was a student of B.A. in Islamia Jinnah College, Sialkot. According to him, Shabbir Ahmed had done his matric perhaps in 1992. A specific question was put to him that Jamshaid used to work in a private factory but interestingly no particulars of the factory were given to contradict the statement of the complainant The learned counsel for the appellants has vehemently asserted that having been so badly hurt at his chest Shabbir Ahmed, deceased could not have taken even few paces what to talk of coming out of the pits area and reaching upto his home as alleged by the complainant PW-
4. The medical evidence furnished by the prosecution makes it clear that Shabbir Ahmed survived for one hour after having received bullet injury, which was sufficient for him to cover short distance from the place of occurrence upto his house. As already discussed above, there is no evidence on record to convince us that the location of the area of pits was such that three was hardly any leveled place to enable an injured man to come out of it. It is also gathered from the prosecution evidence that when the appellants might have taken the deceased brothers of the complainant to the pits side it must have been protested by the latter that might have turned into a scuffle as stated by Riaz Ahmed, PW-5 and then it ended up into the fateful incident. During this scuffle Injuries No, (v) and (vi) might have been suffered. So, no other turn can be given to create doubt on the basis of these injuries, of simple nature, as argued by the learned counsel for the appellants.
25.It has also been desired to have a look at the site-plan where there is no mention of the names of the appellants nor other necessary details of the occurrence find a place there, It is again of no significance because the site-plan has never been considered as a substantive piece of evidence and is always required as a corroborative piece of evidence. On the other hand, in this case every minor details stands explained by the complainant and Riaz Ahmed, PW-5 rendering the value of the site-plans/Aks Shajra of no consequence.
26.Our attention has been drawn to some discrepancies in the statements of Jamil Ahmed, complainant, (PW-4) and Riaz Ahmed, PW-5. It is contended that the complainant reported to the police that occurrence took place at about 7.00 p.m. Sham whereas in his complainant it was described as `Shamvela' Indeed 'Sham' and `Shamvela' means the same thing. Even otherwise it is a discrepancy of trivial nature. Similarly, in his statement (PW-4) before the police, the time of return of Shabbir Ahmed in injured condition was given to be 20/25 minutes and at the trial it was mentioned 15 minutes. Since the witness could not be expected to give minute details as to exact time, we find that there is no material difference of time in his statement. It has also been pointed out that the complainant talked about the `Deuri' and not of the Courtyard. In this regard, it is important to note. `Deuri' in a traditional rural home is always provided at the main entrance and then comes the Courtyard, usually adjacent to each other. So, this hardly is a discrepancy. Similar is the case regarding X-ray which was not required due to death of Shabbir Ahmed on reaching the hospital.
28.Regarding motive, the learned trial Court found it weak; but this alone would not be detrimental to the prosecution case. In a case where ocular account is fully established through candid, honest and straight narration of facts by the prosecution witnesses that finds full support and corroboration from other independent evidence on record, the proof of motive or otherwise is of no consequence or relevance because it is a double edged weapon and for commission of offence we have to see the peculiar situation of a case to find a place for the motive of the occurrence. So, it would be suffice to say that it is a case where its weakness or even absence had played no role as the peculiar facts and circumstance of this case did not require to prove it absolutely.
29. Our attention has also been drawn as to the role assigned to Muhammad Younas, P.O who inflicted injury on the neck of Jamshaid. The defence contends that soon after the occurrence, if Riaz Ahmed, PW-5 had told about him to the complainant them as to why he was not nominated in the complaint made to the local police. This contradiction is there. But if we consider it with the surrounding circumstance of the case we cannot ignore the tremendous agony that had to be faced by the complainant and his family members and so it is possible that he either might have lost memory due to shock or its is human error on his part. On this score alone, we are unable to brush aside his whole statement which covers all material details of the occurrence duly supported by Riaz ahmed, PW-5. In this regard, we may refer to Muhammad Ashraf Vs. The State (2001 P.Cr.L.J.
412) wherein it was held that integrity of a witness is indivisible, cannot be accepted because if a witness is proved to have not come out with the truth on a particular point, even then this entire statement cannot be said to be false. Court in such a situation should not discard the statement of witness which finds corroboration from other independent evidence," which is the case here.
30.Now coming to the investigation of this case conducted by Allah Ditta, S.I./I.O. (PW-10). We have gone through the statement of the I.O. statements that of Abdul Razzaq, HC/Moharrar (PW-3).
Perusal of their sta ents gives us the impression as if they were more a defence witnesses than the witnesses appearing from the prosecution side. Number of questions were put to them with a motive to extract concessions i,e, to show that neither the complainant, PW-4 nor Riaz Ahmed, PW- 5 was a trustworthy witness. It is astonishing to note that he records statement of the complainant PW-4 at the hospital on 14.5.1998 but applications for postmortem examination were forwarded by the D.S.P. on the following day. He did not intentionally explain its reason which gives the impression that he had apparently been in league with the accused party right from the stage of registration of the case. He talks about Riaz Ahrned, PW-4 that "he doesn't belong to the same locality" whereas he was running a shop in mama Bhoukan for the last 18 years before the occurrence and there is no rebuttal on record. All suggestions of the defence were accepted by him, one after the other. He gave concession to the defence regarding timings of the occurrence which runs counter to the established case of the prosecution. The learned trial Court rightly came to the conclusion that Shabbir Ahmed whose some vital organs were found uninjured as per doctor's report, could have been in a position to travel the short distance upto his house, being a young man of 20/23 years and we too have endorsed it but this police officer is bent upon to help the appellants with dishonesty in the matter of dying declaration. Similar, is the case of his concessional statement as to statements of PWs under Section 161 Cr.P.C. Abdul Razzak, PW-3 shamelessly admitted that he did not forward live bullet to the Forensic Science Laboratory (FSL), Lahore assigning no reason therefor. In statement under Section 161 Cr.P.C. he admitted receipt of the relevant parcels to be sent to the quarters concerned but did not make mention of Allah Ditta, S.I. (PW-11) knowingly that being I.O. of the case, he had handed over those parcels to him. It appears that every efforts was made at all levels to destroy prosecution case and to leave lacunas obviously with bad and dishonest intention.
In the light of the above and keeping in view the unimpeachable evidence of the prosecution, we attach no value to the statements of these police officials regarding illegal concessions given to the appellants.
31.As to recoveries, we have been unable to lay our hands on any material or good objection raised by the defence to disbelieve the same. We also believe that the I.O. did not intentionally collect blood from the street and from inside of the house of the complainant. The lapse so committed by the I.O. for his subordinate in this case must not therefore, affect adversely the case of the prosecution.
32.In the light of above, we uphold the sentence of Muhammad Jamil and Muhammad Khalil, appellants. Resultantly, the Criminal Appeal No, 1325 of 2002 is dismissed. Accordingly, the Murder Reference No, 565 of 2002 is answered in the Affirmative and the death sentence awarded to Muhammad Jamil, appellant is confirmed.
33.As to mitigating circumstance stated by the learned trial Court for awarding a lesser sentence to Muhammad Khalil appellant, suffice it to say that the same is neither convincing nor valid. In fact no mitigating circumstances exists in favour of the appellant. However, keeping in view the agony of trial suffered by him and his detention in jail since his arrest coupled with the fact that on account of award of life imprisonment by the learned trial Court, the appellant has developed reasonable expectancy of life, we feel it would not be appropriate and safe to interfere in the findings of the learned trial Court.
34. Resultantly Criminal Revision No, 974 of 2002 filed by Jamil Ahmed, complainant is also dismissed.