Ghulam Mustafa Mughal, C.J.--Raja Mumtaz, Raja Abbas Khan, Raja Muhammad Ilyas Khan, Raja Muhammad Ayyub Khan, sons of Gulfam Khan, Israr S/o Raja Mumtaz, Zia Ahmed S/o Muhammad Reaz, Ansar, Azhar, Shafqat sons of Muhammad Ilyas, were tried by the learned Additional District Criminal Court, Muzaffarabad, in offences under Sections 302, 324, 337 (F-3), 147, 148, 149, 506, 34 APC, & 13/20/65 of Arms Act, registered with Police Station Ghari Dupatta, Tehsil and District Muzaffarabad vide F.I.R. No. 39/2008, on 5.6.2008 at 10 a.m. for committing Qatl-i-amd of Muhammad Jahanzeb & Muhammad Aurengzeb, deceased, and causing injuries to Muhammad Amjad. Vide judgment dated 9.9.2009, the learned trial Court convicted and sentenced Raja Mumtaz Khan, Raja Abbas Khan, and co-accused as under:--
(i) Raja Muhammad Mumtaz & Raja Abbas Khan, under Section 302 APC, to death as Qisas with compensation of Rs. 5,00,000/- each, to be paid to the legal heirs of the deceased, and in default thereof to undergo 06/06 months simple imprisonment. Under Section 13/20/65 of the Arms Act, 02/02 years rigorous imprisonment besides the fine of Rs. 1,000/- each and in default thereof were ordered to undergo 15/15 days simple imprisonment. Under Sections 147 & 148 APC, 01/01 & 02/02 years R.I., respectively.
They were acquitted from the offences under Sections 324, 337 & 506 APC.
(ii)Zia & Ayyub, under Section 324 APC, 5/5 years R.I., under Section 337-F, 2/2 years R.I. besides fine Rs. 50,000/- each as Dhaman, to be paid to Muhammad Amjad, and in default whereof to undergo 2/2 months simple imprisonment. Under Sections 147 & 148 APC, 01/01 & 02/02 years R.I. each, respectively, however, were acquitted from the offences under Sections 302 & 506 APC. In the offence of 13/20/65 of the Arms Act, 02/02 years R.I. with, fine of Rs. 1000/- each and in default whereof to further undergo 15/15 days simple imprisonment.
(iii)Ilyas & Shafqat, under Section 324 APC, 5/5 years R.I. with fine of Rs. 10,000/-. Under Sections 147, 148 APC, 01/01 and 02/02 years R.I., respectively, and in the offence of 13/20/65 of Arms Act, 02/02 years R.I. with fine of Rs. 1000/- each and in default thereof to further undergo 01/01 month simple imprisonment, however, they were acquitted from the offences under Sections 302, 337-F & 506 APC.
(iv) Ansar, Azhar & Israr, under Sections 147, 148 APC, 01/01 & 02/02 years R.I., each and under Section 13/20/65 of Arms Act, 02/02 years R.I. with fine of Rs. 1000/- each and in default thereof to further undergo 15/15 days simple imprisonment. These accused were acquitted in the offences under Sections 302, 337-F and 506 APC. All the accused were extended the benefit of Section 382-B Cr.P.C.
Reference No. 26/2009, has been sent by the trial Court, for confirmation of the death sentence awarded to Raja Mumtaz and Raja Abbas Khan (Appellants No. 1 & 2 in Appeal No. 25/2009). The convict/appellants through the instant appeal have challenged their conviction/sentence, whereas Raja Muhammad Aziz, complainant, has filed Criminal Appeal No. 28/2009, for enhancement of the sentence awarded to the other accused.
As the above appeals & reference have arisen out of the common cause, hence, were heard together and are being disposed of as such.
Facts of the prosecution's case are that on 5.6.2008, Raja Aziz Khan, complainant, herein, made a written report, Exh.PA, with Police Station Ghari Dupatta, stating therein that he is residing in village Chothla, Tehsil and District Muzaffarabad. The accused are close relatives to him and his son, Muhammad Javed, was married with the sister of Mumtaz Khan, who in return demanded the hand of his daughter. He sought some time from the accused, later on refused the hand of her daughter.
Due to this enmity, the respondents remained threatening the complainant and his sons. Three- days before the occurrence, Abbas S/o Gulfam, threatened the applicant saying that you have humiliated us by refusing the hand of your daughter for which you will face the consequences.
Some hot words were also exchanged between the complainant and Raja Abbas. Khan at that juncture. It was further narrated that the accused remained chasing him and his sons. Today (5.6.2008), the complainant alongwith his sons, Muhammad Jahanzeb, Muhammad Aurengzeb and Amjad were constructing their shop near the shop of Shah Zaman Khan, on the roadside. At 8.0 Clock the accused while arming themselves with lethal weapons having common intention, opened attack at the complainant and his sons. Raja Mumtaz, shot with fire-arm at Jahanzeb who fell down on the spot whereas Muhammad Abbas fired at Aurengzeb who also fell down and succumbed to injuries. Muhammad Zia, shot at Amjad who got injured. Ansar, Azhar & Israr were armed with lethal weapons and raised lalkara i.e. "Kill all". Shafqat and Ilyas also fired at the complainant but he escaped. It was further narrated that due to firing on the deceased some other persons were also injured. The occurrence took place in presence of Muhammad Ishtiaq, Raja Younas, Zahid and Muhammad Basharat, prosecution witnesses.
The motive behind the occurrence, was that the complainant; has refused the hand of her daughter for the brother of the accused and they felt humiliation which motivated them for commission of the crime. After registration of the case, Sardar Muhammad Farooq Khan, Investigating Officer, P.W.26, went on the spot and took dead bodies of Muhammad Jahanzeb & Muhammad Aurengzeb, deceased into possession. He prepared inquest report of the deceased.
The Investigating Officer secured from the spot empty of .30 bore pistol, blood-stained earth and gross vide Exh. PC, and got prepared the site-plan by the Patwari, P.W.16. On pointation of the accused he recovered the weapons of offence either Kalashnikovs from Raja Mumtaz and Raja Abbas vide recovery memos. Exhs. PD & PF, respectively. Pistols .30 bore were recovered from Shafqat and Zia and a stick from Raja Muhammad Ayyub vide recovery memos. Exhs. PDA .30 bore pistol was also recovered from Raja Muhammad Ilyas vide recovery memo. Exh.PF. A Riffle .7MM, from Ansar, Pistol .30 bore from Azhar and .12 bore gun from. Israr, were recovered vide recovery memo. Exh.PF. The above recovered articles were sent to Forensic Science Laboratory, Lahore, for report which is available on the record as Exh.PX. Report of the Chemical Examiner has also been produced as Exh.PW. After completion of the investigating the Investigation Officer submitted report under Section 173 of the Code of Criminal Procedure requiring the accused to face the trial.
Formal charge under the abovementioned offences was framed on 24.9.2008. They pleaded not guilty and claimed trial. At trial prosecution examined 25 witnesses in all. Dr. Ziad Afzal Kiani, P.W.17, was given up by the prosecution. Dr. Naseer Ahmed Sheikh, P.W.18, medically examined the dead bodies of Muhammad Jahanzeb and Muhammad Aurengzeb and prepared post-mortem report, Exh.PH.
After the prosecution's evidence, the accused were confronted with the same and they again claimed innocence.
The conclusion of the trial ended in the above-noted conviction of the appellants.
Sardar K. D. Khan, the learned Advocate for the convict/appellants, inter alia, contended that an application was submitted for, summoning the witnesses on behalf of the defence including Dr. Ziad Afzal Kiani, who was listed as Witness No. 17, in the challan but was given up and the Court illegally, without following the due course of law, rejected the application which has seriously prejudiced the case of the defence and the accused have been condemned unheard which is against the celebrated principle of audi alteram partem. It is further submitted that occurrence has not taken place, as is reported by the complainant. Neither the accused version has been considered by the trial Court nor an independent conclusion has been drawn by placing both the versions in juxtaposition. He argued that it was the case of the defence that prosecution party was aggressor and Jahanzeb, deceased, opened fire on Zia Ahmed, convict/appellant, herein, who got injured in the same incident and Zahid, P.W.4, opened fire on the deceased as a result of which they succumbed to the injuries but the Court has totally ignored this aspect of the defence case. It was also submitted that the trial Court misread the material evidence especially which was supportive of the defence version and failed to appreciate the motive set-up in the F.I.R. and the immediate cause of the incident stated by the prosecution witnesses. He argued that Muhammad Younis, Basharat and Zahid, P.Ws., are closely related and have motive to falsely implicate the accused and their whole family in a false case. He submitted that daughter of Muhammad Younis, P.W., was engaged with Jahanzeb, deceased. Basharat and Zahid are sons of Muhammad Younis, hence, they are not independent witnesses and their evidence is not confidence inspiring. He further submitted that Zia and Sarfraz, P.Ws., also received injuries in the occurrence. All the prosecution witnesses have suppressed the injuries of Zia, accused, who got examined by Dr.Ziad Afzal Kiani, and remained under treatment at Abbotabad. The prosecution has given up Ziad Afzal Kiani, and has also not brought on the record his medical report. The Investigating Officer, Raja Akhtar and Reaz Abbasi, DSP, admitted the fact that Zia, accused, injured in the same incident but even then his medical report has not been made a part of the record, submitted the learned Advocate. He argued that investigation has been conducted dishonestly as only one version has been placed before the Court by the Police. He argued that Zia, accused, was uncle of Zahid, P.W. who has an extraordinary attachment with him and on seeing him injured it was he who opened fire recklessly and resultantly both the deceased died on the spot. The learned Advocate also contended that the alleged motive has not been proved and the. immediate cause of occurrence appears to be the construction of the shop which has been admitted by Muhammad Younis & Sarfraz, P.Ws. Recovery of the weapons of offence is doubtful and has been effected in violation of Section 103 of Cr.P.C. He submitted that the report of Forensic Science Laboratory has belied not only the recovery but also act attributed to the accused. The learned Advocate also submitted that in absence of premeditation, and qualitative evidence, capital punishment cannot be awarded to the accused/ appellants especially so when the trial Court reached at the conclusion that Section 149 of APC was not attracted in the case. In support of his submissions the learned Advocate placed reliance on the following cases:-- (i)Manzoor Hussain and 6 others u. The State [1994 SCMR 94] (ii)Umar Hayat and 3 others v. The State [PLJ 1997 SC 2030] (iii)Muhammad Arshad v. State [PLJ 1995 SC 532] (iv)Nazir Ahmad u. The State and another [2002 P.Cr.L.J. 149] (v)Masood Ahmad and another u. State [PLJ 1994 SC 130] (vi)Ejaz Ahmed and another v. The State [PLJ 1999 Cr.C. (Lahore) 306]
(vii) Liaqat Ali and another v. The State [PLD 1999 Lah. 56]
(viii) Jan Alam u. The State [2004 P.Cr.L.J. 68] (ix)Rashid Ahmad u. The State [2001 SCMR 41] (x)Muhammad Sharif v. The State [2004 SCMR 8] (xi)Karim Bux v. The State [PLD 1977 Kar. 108]
(xii) Muhammad Saeed v. The State [PLJ 1977 Kar. 141]
(xiii) Farrukh Sayyar and 2 others v. Chairman, NAB, Islamabad [2004 SCMR 1] Conversely Mr. Saddaqat Hussain Raja, the learned counsel for the complainant/appellant contended that place, mode of occurrence, presence of the accused and P.Ws. are admitted by the defence and the same born out from the trend of cross-examination and suggestion made on behalf of the accused, therefore, the trial Court has rightly awarded penalty of Qisas to the accused/respondents. The learned counsel contended that it was enjoined upon the defence to prove that the occurrence has not taken place in the manner stated by the prosecution, In this regard the learned counsel placed reliance on Muhammad Khurshid Khan's case [2007 SCR 1] & Elahi Bakhsh and others v. The State and others [2005 SCMR 810]. He argued that allegation of the defence that the whole family of the accused has been roped in a false case, is also not supported from the record and a bare-statement in this regard cannot be accepted on behalf of the accused. He submitted that it is not natural that a party will leave the real culprits while falsely implicating the innocent person. Reliance was placed on Abdul Rashid and 3 others v. Abdul Ghaffar and ,5 others [2001 P.Cr.L.J 524], & Jind WADDA alias Bhattal v. The State [1993 P.Cr.L.J. 565].
He submitted that strict proof of motive is not a sin-qua-non for awarding normal penalty in a murder case if the same is otherwise proved. In support of this submission the learned counsel placed reliance on Abdul Rashid and 3 others v. Abdul. Ghaffar and 5 others [2001 P.Cr.L.J. 524], Ameer Khan v. The State [2002 P.Cr.L.J. 886], Muhammad Aslam and another v. State and another [PLJ 2005 Sh.C. (AJ&K) 1]. The learned counsel argued that every member of an unlawful assembly is liable for the act of other members, hence, it was enjoined upon the trial Court to award similar sentence to the other accused and their acquittal/lesser punishment is unfounded and illegal. He relied upon Muhammad Hanif v. State [PLJ 2001 SC 359], Muhammad Altaf v. The State [2002 SCMR 189], The State v. Moula Bakhsh alias Moulak [2005 P.Cr.L.J. 794], Saeed Akhtar and 2 others v. State [PLJ 2000 SC 603] in support of his submission. He argued that negative opinion of the fire- arms/Chemical Expert is not fatal for the prosecution case in presence of ocular evidence because in presence of direct evidence, the corroborative evidence looses its importance. To support his submission he referred to and relied upon following cases:-
1. Noor Muhammad v. The State and another [2005 SCMR 1958],
2. Muhammad Hanif v. The State [PLD 1993 SC 895],
3. Muhammad Aslam and others v. The State and others [2005 P.Cr.L.J. 1352],
4. Muhammad Ajaib v. Mehboob Khan and another [2000 P.Cr.L.J. 1484] and
5. Muhammad Aslam and another v. State and another [PLJ 2005 Sh.C. (AJ&K) 1].
He argued that site-plan is not substantive piece of evidence nor the defects of investigation can demolish the proved prosecution case. Reliance was placed on the following case law: --
(1) Muhammad Iqbal and others v. Muhammad Akram and another [1996 SCMR 908];
(2) Muhammad Aslam and another v. State and another [PLJ 2005 Sh.0 (AJ&K) 1],
(3) Muhammad Aslam and others v. The State and others [2005 P.Cr.L.J. 1352],
(4) Alimdad alias Khan v. The State [2002 P.Cr.L.J. 1785] and
(5) The State v. Liaquat Hussain and others [2005 MLD 1425].
He argued that evidence of the prosecution witnesses remained unchallenged and no material contradictions or discrepancies have been pointed out by the defence. He submitted that mere relationship or close association of the prosecution witnesses is not sufficient to discredit their testimony. He submitted that recovery was made strictly in accordance with law and stood proved through reliable evidence. He submitted that in the present case, Qatl-i-amd stood proved through required evidence and minimum penalty was Qisas for commission of such offence, hence, judgment under challenge does not suffer from any legal infirmity. He placed reliance on the following precedents:-- (i)Muhammad Ramzan v. The State [1996 P.Cr.L.J. 1076] (ii)Mst. Nur Jehnan Begum through legal representatives v. Syed Mujtaba Ali Naqvi [1991 SCMR 2300] (iii)Muhammad and others v. The State [1994 P.Cr.L.J. 2102] (iv)Muhammad Aslam and another v. State and another [PLJ 2005 Sh.C. (AJ&K) 1] (v)The State through Muhammad Afzal and others v. Waheed Iqbal and others [2005 P.Cr.L.J.
1384] (vi)Noor Muhammad v. The State and another [2005 SCMR 1958]
(vii) Muhammad Khurshid Khan v. Muhammad Basharat & another [2007 SCR 1]
(viii) Niaz Ahmed v. The State and 2 others [2008 SCR 326] (ix)Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others [2001 SCR 240] (x)Aurangzeb v. The State [2005 P.Cr.L.J. 1606] and (xi)Nabi Bakhsh v. State and another [PLJ 2000 SC 419].
After hearing the learned Advocates representing the parties and giving our anxious thought to the record of the case, we are of the considered opinion that the appellants, herein, have not been given fair right of defence. A perusal of the record reveals that on 26.8.2009, statements of the accused under Section 342 Cr.P.C. were recorded and the Court passed the following order- {{URDU TEXT}} A perusal of the above reveals that only two days were reserved for defence evidence. Although the accused were facing the charge of capital punishment. Record further reveals that accused applied for summoning the witnesses on 28.8.2009. On the same date, objections were filed and vide order dated 28.8.2009, their application was rejected on the ground that no procedure has been cited for summoning the witnesses. In the application filed on behalf of the accused/appellants, herein, it was stated that Witnesses No. 1 to 4 are Government servants, therefore, the accused cannot produce them at their own. It was further stated that the complainant belongs to an influential party and due to its fear .nobody is coming/appearing as a witness irf defence without process of the Court. Dr. Ziad Afzal Kiani, who was a prosecution witness but was given up when he appeared to make the statement. This witness has also examined Zia Ahmed, accused, who allegedly injured in the same incident. The said accused was referred to Abbottabad where he was examined by Professor Dr. Ali Asghar Shah. The prosecution has not brought on record the report regarding injuries of Zia Ahmed, accused, however, the same is available in the police file. A perusal of the record further reveals that -the accused moved an application on 20.8.2009, for summoning the police record relating to the injuries of Zia Ahmed, accused, on the ground that the same was available in the. Police diary. The Court received the application, as is evident, from the interim order of the above date and fixed the application for arguments. Interim orders recorded thereafter do not reveal that the arguments upon this application were ever heard by the Court. In this background right of fair trial which is a constitutional right of an accused and the Court was bound to provide the same before awarding capital punishment, has been denied. It is astonishing that the learned- Additional District Criminal Court, Muzaffarabad has stated in its order dated 28.8.2009 that no procedure has been shown for summoning the witnesses. Such unawareness on the part of the judicial officers is unfortunate and could not be ignored especially when life of an accused is at stake. Notwithstanding the fact that the parties have engaged counsel or not, it is the primary duty of the Court not only to know the law of the land but also to apply the same in its true perspective. In Muhammad Gulshan Khan's case, [PLD 2003 SC 1021, the apex Court of Pakistan while reiterating its earlier view observed as under:-- "...It is the bounden duty of the Courts to decide the cases on merits in accordance with law and the rules. The Courts, while dispensing justice, are duty bound to apply the provisions of law in their true perspective and application of the same cannot be avoided simply on the ground that the said provisions of law were not brought to their notice by the parties. We are fortified in this regard from an earlier illuminating judgment of this "Court in the case of Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 SC 263), where it was held asunder:- "18. The learned counsel who represented the respondents in the High Court by not bringing to the notice of the High Court the law laid down by this Court on the subject did not render good service to their clients. Besides, it has been laid down by this Court in Muhammad Sarwar v. The State (PLD 1969 SC 278) that a Judge must know the adage that a Judge must wear all laws of the country on the sleeves on his robe and failure of the counsel to properly advise him is not a complete excuse in the matter."
As stated above that the learned trial Court failed to note the provisions contained in Section 244 of the Criminal Procedure Code which were applicable for murder trial in Azad Kashmir in view of the provisions of Penal Laws Enforcement Act, 1974. Provisions of Section 244 of the Code of Criminal Procedure are as under: "244. Procedure when no such admission is made:--
(1) If the Magistrate does not convict the accused undcr the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence: Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
2. The Magistrate shall on the application of the complainant or accused, issue a summons to any witness directing him to attend or to reduce an document or other thin unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by him in writing.
3. The Magistrate may, before summoning any witness on such application, require that his reasonable expenses. incurred in, attending for the purposes of the trial, be deposited in Court: Provided that it shall not be necessary for the accused to deposit any such expenses in Court in cases where he is charged with an offence punishable with imprisonment exceeding six months.
(Underlining is ours)
Sub-section (2) of Section 244 Cr.P.C. reproduced above makes it obligatory on the Court to summon the witnesses on the application of the complainant or accused, as the case may be. The refusal on the part of the trial Court tantamount to denial of justice. In a case titled Muhammad Shareef and another v. The State [2000 MLD 671], it was observed as under:- "5. In the light of the above facts and the provisions of law reproduced above the accused persons are entitled in law for a fair trial; under Article 4 of the Constitution 1973, accused are also entitled to be dealt with in accordance with law, and right of producing evidence in support of their case is a valuable right which cannot be denied or deprived, in a cursory manner. Under sub-section (7) of Section 265-F, Cr.P.C. the Court is obliged to record reasons for denying the issuance of such process, except where the Court comes to a conclusion that the application is made for the purpose of vexation or delay or defeating the ends of justice, only then such request could be declined or refused under the provisions reproduced above. The Court is obliged to record reasons in writing declining to issue process for the production of defence witnesses or for the production of any documents or other things as may be considered necessary for the defence for which the accused had applied for after entering into defence.
6. Order, dated 4.5.1998 reproduced in Para 4 above shows that same has been passed mechanically without application of mind and due regard of the provisions of law. It is settled principle of law that a thing required to be done in particular manner is to be done and executed in same manner, which exercise is found missing in the order, dated 4.5.1998 recalling the issuance of process. As noted above right to defend is a valuable right and same has been recognized and incorporated in sub-section (7) to Section 265-F, Cr.P.C. accused can be denied such right only when the Court comes to the conclusion that such right is being abused for vexatious reasons or to delay or defeating the ends of justice. Such conclusion is to be recorded in writing and not otherwise. Learned counsel for the complainant vainly argued that, process could only be issued on written application, which in the instant case has not been made. Arguments are without force.
Record shows that the statements of accused under Section 342, Cr.P.C. were recorded and to a specific question put to him whether he wanted to examine any witnesses in his defence, he stated yes and gave names of two witnesses with addresses. One of the witnesses is also named in F.I.R. who was not examined by the prosecution."
As stated above, the record regarding the injuries of Zia Ahmed, accused, has been withheld by the prosecution. Injury form, X-rays and Medico Legal Report of Zia Ahmed, accused, are available in the Police file but the prosecution has withheld the same. In this regard we are supported by Abdul Ghafoor's case [PLD 1983 Lah. 139], wherein a document was refused to be placed on the record and a learned Judge of Lahore High Court allowed the same by observing as under:--
11. On a perusal of these precedents it does appear that the weight of pronouncements of the superior Courts is in favour of the proposition that the Court ought to make maximum endeavour for discovering the truth for arriving at a just decision. To achieve this avowed objective in search for truth, the Court cannot be construed to be leaning in favour of either side or against any one.
Otherwise, in the absence of true state of facts coming to the knowledge of the Court, it is difficult to conceive, how the decision would be correct or just. This power to secure ends of justice, therefore, must be exercised where the purposes enumerated above are designed to be achieved unless some principle of law creates an impediment or circumstances of a given case lead the Court to the irresistible inference that the effect of such an exercise of power would bring about opposite results like miscarriage of justice. The weight to be attached to such relevant and material evidence received for just decision of the case, is for the trial Court to determine at the conclusion of the trial.
I would, accordingly hold that this is a fit case calling for my interference and direction to the learned Sessions Judge to allow an opportunity to the prosecution to render these documents in evidence. The accused shall of course have the opportunity to test their veracity or to raise whatever please may, be available to them under the law."
This view further lends support from a case titled Muhammad Sarwar Naseenz v. The State [1973 P.Cr.L.J. 911].
We, therefore, direct the prosecution to place these documents on the record as was requested by the accused. The record so placed shall be deemed part of the challan/judicial file.
Before parting with the case it may be stated that investigation never means to bring on the record one sided version. While conducting investigation, it is the duty of the Police Officer not only to bring on record the evidence which favours the prosecution but also the accused's version, if any. The provisions contained in Sections 157, 160, 161 of Code of Criminal Procedure read with other enabling provisions of Cr.P.C. & Police Rules have provided a mechanism of check and balance for fair and impartial investigation so that the Courts could come to a just decision.
In a case titled Abdul Latif v. I.G.P. etc. [1999 P.Cr.L.J. 1357], referring to the relevant provisions of Cr.P.C. and Police Rules the learned author of the judgment concluded as under:-- "16. The word "Investigation" has been defined in Section 4(1) of Criminal Procedure Code to include all the proceedings under the Code for collection of evidence conducted by a Police Officer.
Collection of evidence cannot be confined only to such evidence which only favours the prosecution. Powers of Police-officer under Section 160, Cr.P.C. are only to the extent to require attendance of witnesses in the course of investigation which does not make any distinction either between the witnesses in favour of the prosecution and the defence. Police Officer conducting investigation can examine any person under Section 161, Cr.P.C, who is supposed to be acquainted with facts and circumstances. Therefore, keeping in view the contents of Sections 160, 161 and 163, law does not make any distinction in the matter of recording statements made in favour of the accused or the prosecution in the course of investigation.
17. The duty of the Investigating Officer is not only to set up a case of complainant party with such type of evidence as may enable the Court to record conviction by all means, but also to bring out the truth on the surface to reach to a just decision. In other words, the purpose of investigation is to find out the truth and to present the same before the Court by way of admissible and acceptable evidence as it is undertaken to protect the innocent and never to let the guilty escape because of carelessness, excess of zeal or negligence of the police- officials/ officers."
In view of above, accepting Appeal No. 25/2009, filed on behalf of the convict/appellants, the impugned judgment recorded by learned Additional District Court of Criminal Jurisdiction, Muzaffarabad on 9.9.2009 is vacated and the case is remanded with the direction to the prosecution to place on the record medical report, injury sheet and X-Rays of Zia Ahmed, accused within one week. After doing so, the defence Witnesses shall be summoned for evidence by giving reasonable opportunity to the accused. The case shall be decided afresh after hearing the parties.
The findings on other arguments would be academic and premature.
In view of above conclusion, Reference No. 26/2009 for confirmation of death sentence stands answered in negative and Appeal No. 28/2009, filed on behalf of the complainant for enhancement of the sentence is hereby dismissed in view of the abovementioned conclusion.