' KHALIL-UR-REHMAN RAMDAY, J.---One A.R. Sharif was reported to have been murdered on 23-11- 1998 at about 7-30 p.m. In the office of Aziz Carpets in Tegore Park within the jurisdiction of Police Station Naulakha of District Lahore. The said carpet factory/office belonged to a son of the said deceased, namely, Abdul Aziz (P.W.8) who was away to U.S.A. During the days of occurrence and it appears from the record that during the absence of his said son, A.R. Sharif deceased, who was a civil servant, used to look after the said business and this is how the said deceased happened to be at the place of occurrence where he was alleged to have been killed. It had also been reported that in the same occurrence, one Khurshid Ahmed who was a typist in the said office had also got killed but it had been subsequently explained that the said Khurshid deceased was in fact amongst the three assailants who had allegedly mounted an assault on Sharif deceased and had got killed in the process through a shot fired by his own companions i,e, the two appellants before us.
2. The F.I.R. Had been lodged by one Muhammad Rashid Ahmed who was the husband of a sister of the wife of Sharif deceased and who had claimed that, being an Advocate he was present in his law chambers when he received a telephonic call from someone that he did not know informing him that his brother in law, namely, A.R. Sharif had been killed in the office of Aziz Carpets. On reaching there, he found the said deceased lying in a pool of blood with fire-arm weapon injuries on his person. The said Muhammad Rashid Ahmed complainant (P. W.2) had further informed the SHO through the said F.I.R. That the said deceased had no enmity with anyone; that amongst the employees of the said carpet factory were one Zulfiqar Driver (one of the appellants before us); Shahid Accountant (the other appellant before us); one Naseer (P.W.1) and one Khurshid (the other deceased); that he did not know the names of the other employees and that there was a possibility of Sharif deceased having been murdered by these employees or any one of them. The complainant had further added that while still at the place of occurrence, he also came to know that the above-mentioned employee, namely, Khurshid had also got injured during the course of the occurrence and had succumbed to the said injuries. On the basis of the above-mentioned statement which the complainant had made to Yousuf Ali S.-I. (P.W.23)' at about 8-30 p.m. When the said S.-I. Had also reached the place of occurrence on receiving information about the said incident, a formal F.I.R. Was registered at Police Station Naulakha at 8-50 p.m.
3. Since the third alleged assailant, namely, Khurshid above-mentioned, had died during the very occurrence itself, therefore, it was only Shahid and Zulfiqar appellants who faced the trial as a result whereof each one of them was convicted under section 302/34, P.P.C. And was punished with death on two counts. Their appeals before the Lahore High Court having failed through a judgment dated 25-9-2001, they approached this Court through Criminal Petitions Nos.694 and 695/L of 2001 which were allowed. Hence these appeals.
4. Khawaja Sultan Ahmed, learned Senior Advocate Supreme Court canvassed acquittal for the two appellants essentially on the ground that the occurrence in question was an un-witnessed occurrence; that the two appellants had been falsely and maliciously implicated in the crime in question on account of religious and sectarian differences with the complainant party who were Ahmadis by faith; that Naseer Ahmed (P. W.1) was the only eye-witness who had been produced at the trial to establish the guilt of the appellants; that he had been falsely imported and planted as an eye-witness and had given evidence against the appellants only because he was also an Ahmadi by faith; that the appellants had not been named in the F.I.R. Nor had Naseer (P.W.1) been nominated therein as an eye-witness of the occurrence; that the positive report of the Forensic Science Laboratory had been maneuvered as a result of fabrication and concoction and was thus of no consequence and that, in the circumstances, the trial Court was in error in having found that the prosecution had successfully proved its case against the two appellants beyond all reasonable doubts and that the High Court had also fallen into a similar error in confirming the findings of guilt recorded by the trial Court.
5. The learned Additional Prosecutor-General and the learned counsel for the complainant made submissions in support of the said impugned concurrent findings and the consequent punishments recorded against the appellants.
6. Needless to say that we heard the learned counsel for the parties at some length and also examined the entire record with their able assistance.
7. The least that can be said about Rasheed complainant and the F.I.R. Lodged by him is that the said complainant was a truthful witness and the said F.I.R. Was an equally truthful document wherein the complainant had stated only what he had seen and what he knew without adding anything to fabricate or concoct a false case or leveling .Any false accusations against anyone.
8. The first and the main question that would require examination would be the possibility of any false or malicious implication of the two appellants in the occurrence in question as strenuously claimed and argued by their learned counsel. Reliance in this connection had been rather heavily placed on the statement of Abdul Aziz (P.W.8) who was the son of Sharif deceased and the one who was managing the family carpet business and the premises where the occurrence in question had taken place. Special reference had been made to his examination in chief wherein the said P.W. Had stated as under:-- "All these accused are fanatic Molvies and belong to sectarian organizations and are keeping beards.. The accused used to give bad names to Mirza Ghulam Ahmad Qaudiani. My father has been murdered by the accused because he was AhmadiMy father used to complain to me about the sectarian activities of Zulfiqar accused. Volunteers that my father used to tell me about the activities of all the three accused."
9. It would be noticed that an effort had been made by the prosecution to give the occurrence in question a colour of a religious and an Anti-Ahmadi act. And it was this alleged claim of the prosecution which was then exploited by the defence as a motive for false implication of the two appellants. But we find that the said claim of both the parties was being falsified by the record itself. A reference may be made to the following part of the statement of the same Abdul Aziz (PW.8) which runs as under:-- "It is correct that inspite of the fact that the accused used to give bad names to Mirza Ghulam Ahmad Qaudiani, we did not remove them from service.It is correct that I did not remove Zulfiqar accused from service inspite of the complain made by my father."
' The following part of his statement may also be relevant:-- "Shahid Javaid accused was employed in our firm for the last 4 years..Shahid Javaid accused used to deal with all types of payments, commissions and maintenance of account etc. I used to make payments by cheque according to information of Shahid Javaid accused.Shahid Javaid accused has brought Zulfiqar accused to be employed as driver in the firm I never employed any person from employment agency.
' However I used to employee the people as suggested by Shahid Javaid accused."
' What then appears from the above-quoted excerpts from the statement of Abdul Aziz P.W. Is that Shahid Javaid accused had been working with him and for him for 4 years since prior to the occurrence. It also appears from his said statement that Shahid appellant was a trusted employee of the deceased party as he was the one who used to deal with all types of payments and maintenance of accounts etc. Of the business and all cheques used to be drawn by the owners on and according to the advice and information of the said Shahid appellant. Not just this, Abdul Aziz P.W. Further disclosed that he used to employ people on suggestions and certification by Shahid appellant. Suffice it to say that it is not believable, firstly, that Abdul Aziz P.W. And Sharif deceased who were Ahmadis by faith would continue to keep Shahid and Zulfiqar appellants in their employment if they were fanatic Molvies who used to abuse Mirza Ghulam Ahmad Qaudiani. And, secondly, it is equally unbelievable that if the two appellants were what Abdul Aziz P.W. Claimed them to be, then Shahid appellant would be retained in service and would be such a trusted employee as was evident from the above-quoted admissions of Aziz P.W.
10. It is thus difficult for us to hold, as proved beyond all reasonable doubts that any religious or sectarian issues or existed between these two sides; that the two appellants were fanatic Molvies who used to give bad names to Mirza Ghulam Ahmad Qaudiani and that Shahid appellant was not a trusted confidant of the deceased party. Resultantly, it is also difficult to hold that any reasons existed which could have prompted the prosecution to maliciously implicate the two appellants in the occurrence in question, or to substitute them for the real culprits. The said conclusion is further strengthened by the fact that the appellants had never been nominated as the culprits through the F.I.R. In question which had been lodged by a fairly experienced lawyer who could be presumed to know the consequences of non-nomination of the assailants through the F.I.R. And who would have named the appellants as the assailants if the prosecution or if the family of the deceased had any designs to wreak any vengeance against them.
11. The next question which engaged our attention was whether the occurrence could have gone unwitnessed.
12. The place of occurrence was an office and the family business premises of the deceased party being managed by a son of Sharif deceased. It is on record that during the days of occurrence the said son of Sharif deceased, namely, Abdul Aziz (P.W.8), was away to U.S.A. The deceased father of the said son visiting the said business office during the absence of his son and looking after the affairs of the said business after Sharif deceased was free from his governmental office would thus not be an unbelievable situation. In the circumstances, the availability of at least some of the relevant employees of the organization i,e, the trusted accountant namely Shahid appellant; the driver who would be driving Sharif deceased to the said office and back home, namely, Zulfiqar appellant; Khursheed deceased who was a typist in the said office and the availability of CHOWKIDAR at the premises would thus be an acceptable claim. Two of the said such employees are the appellants before us. The third employee, namely, Khurshid deceased was no more, having died in the said occurrence. The only other person who would have been available in the premises at all times including the time of occurrence would be the CHOWKIDAR. It had been claimed by Naseer (P.W.1) who had testified at the trial as the solitary eye-witness that he was a workman employed with the business concern in question and that on the day of occurrence, the CHOWKIDAR was on leave and he was the one who had been asked to stay back to perform the said duty. His claim of being employed in the office in question had never been challenged by the defence nor had even a single question, been put to him by the defence challenging his claim of his presence at the place of occurrence at the relevant time. It had also never even been suggested by the defence that the regular `CHOWKIDAR' was available on duty and Naseer P. Ws.
Claim in question was false. In the circumstances, no serious exception could be taken to the concurrent conclusion that Naseer P.W. Was present at the place of occurrence when the crime in question had been committed. He was thus a natural witness of the occurrence who had no animosity to maliciously substitute the two appellants for the actual offender. The learned senior Advocate Supreme Court for the appellants then drew our attention to some parts of his statement which according to him were not believable and trustworthy. Suffice it to say that we are, fortunately or unfortunately, passing through an age where the principle of indivisibility of the veracity of witnesses stands judicially discarded since long; where the grain has now to be sifted from the chaff and where the intrinsic worth emanating from the cumulative effect of the entire testimony of a witness has to be assessed before discarding or accepting testimony offered by a witness.
13. It has been found by the two learned Courts and so also by us that Naseer P.W. Had a believable reason to be available at the place of occurrence at the relevant time. This being so, he would thus be also a natural witness of the occurrence. No reason could be brought on record which could have prompted him to falsely accuse the two appellants of the murder in question. The mere fact that he was an Ahmadi would hardly be any ground to reject his testimony against a person who was not so. And similar would be the situation if his claim was that he had left the place of occurrence on seeing the two men dead and to have returned after the police had reached there.
His testimony, to some extent, has also been corroborated by Dr. Imtiaz Ahmad (P.W.7) who had found healing abrasions on the right hand of Zulfiqar appellant and the time of receiving of such injuries which coincided with the day of occurrence. In the circumstances, we find that the concurrent findings of the two learned Courts that the evidence offered by the said witness vis-a- vis the two appellants, rang true, was not open to any serious exception.
14. Before we proceed any further, it may be mentioned here that at one stage, Khawaja Sultan Ahmad, the learned Senior Advocate Supreme Court invited us to read some statement of some person/witness which had been reduced into writing under section 161, Cr.P.C. During the course of investigation of the present case. On account of the prohibition contained in section 162 of the said Code, we refused to oblige. The learned Senior Advocate Supreme Court, however, insisted on his said request submitting that after incorporation of section 265-C in the Code of Criminal Procedure through the Law Reform Ordinance of 1972, the said prohibition contained in the said section 162, Cr.P.C. Stood impliedly annulled and consequently, nothing any longer stood in the way of the statements recorded under section 161, Cr.P.C. Being treated as evidence at a trial and the whole of such a statement being read as evidence.
15. Despite having heard the learned Senior Advocate Supreme Court at some length, we have not been able to persuade ourselves to accept the canvassed proposition as a valid exposition of the law on the subject.
16. The scheme of law is that the provisions of subsection (1) of section 161, of the Cr.P.C. Authorized an officer investigating a case, to orally examine any person supposed to be acquainted with the facts and circumstances of such a case. The provisions of subsection (3) of the said section 161 permit such an officer to reduce such a statement into writing and if he so did then he was required to make a separate record of, such a statement i,e, separately from the case diaries. It is this statement then which is ordinarily called a 'statement under section 161, Cr.P.C.'
17. The next relevant provisions are the ones contained in the above-mentioned section 162, Cr.P.C.
Which command through its subsection (1) that:--
(a) "NO STATEMENT made by any person to a police - officer in the course of an investigation, SHALL, if reduced into writing, BE SIGNED BY THE PERSON MAKING IT.";
(b) "NOR SHALL ANY SUCH STATEMENT or any record thereof whether in a police diary or otherwise or any part of such statement or record, BE USED for ANY PURPOSE save as hereinafter provided AT ANY inquiry or TRIAL .."
(emphasis and under-lining has been added)
' It will thus be noticed that the prohibitions contained in the above-quoted provisions are un- ambiguous and absolute subject to the permission of a limited and a restricted use of the said statements as allowed by the first Proviso to subsection (1) of the said section 162 which is in the following terms:- " any part of such statement, if duly proved, MAY BE USED TO CONTRADICT such witness in the manner provided by section 145 of the Evidence Act, 1872" (now Article 140 of Qanun-e-Shahadat Order, 1984).
(emphasis and under-lining has been added)
' Subsection (2) of section 162, Cr.P.C. Also carries an exception to the above-noticed prohibition which is, however, not relevant for the matter presently in issue.
18. Having thus noticed the prohibition in question regarding the use of the statements reduced into writing under section 161, Cr.P.C., we would now examine the effect, if any, of the provisions of section 265-C of the said Code on the said prohibition as canvassed by the learned Senior Advocate Supreme Court.
19. Un-like the case-diaries recorded by an investigating officer about the proceedings in an investigation which was a privileged record in view of the provisions of subsection (2) of section 172, the statements B recorded under section 161, Cr.P.C. Were an unprivileged and a public record and had always been intended to be so. It was perhaps for this reason that the provisions of section 161(2), Cr.P.C. Required that whenever an investigating officer reduced the statement of a person into writing, a record thereof had also to be made separately from the case-diaries. The purpose of so directing was to take the said statements out of the purview of the provisions of section 172(2), Cr.P.C. And the reason for so prescribing was that through the first Proviso to subsection (1) of section 161, Cr.P.C. a right had to be conferred on the accused to demand a copy of the statement of a prosecution witness, being examined at a trial which had been recorded under section 161, Cr.P.C. To enable the accused to confront the said witness with his said earlier statement recorded by a police officer and to highlight any contradiction in the two statements i,e, the one recorded by the investigating officer and one being made at the trial.
20. It will thus be appreciated that even prior to the incorporation of the provisions of section 265-C in the Cr.P.C. In the year 1972, a statement recorded under section 161, Cr.P.C. Was a public and not a privileged document and the accused was entitled to receive copies of the statements of prosecution witnesses recorded under the said section 161, Cr.P.C. The only departure made through section 265-C, Cr.P.C. Is that earlier the supply of such copies had to be demanded by the accused in case of each such witness which made the process lengthy and time consuming. The newly added provisions of section 265-C, Cr.P.C. Have made the process of supply of the said copies to the accused simpler eliminating the avoidable delays caused in the progress of the trial in following the earlier procedure as originally prescribed by the original afore-referred provisions of the first proviso to section 162(1), Cr.P.C.
21. Therefore, we hold and declare that the newly interpreted provisions of section 265-C, Cr.P.C.
Envisage only a procedural change and have not made any change in the earlier existing substantive provisions and consequently the same could not be interpreted to annul or over-ride the prohibition contained in section 162(1) of the Cr.P.C. Regarding the use of the statements recorded under section 161 of the said Code and such statements would, therefore, continue to be regulated by the provisions of section 162, Cr.P.C. The request of the learned Senior Advocate Supreme Court appearing for the appellants is, therefore, misplaced and is dis-allowed.
22. Reverting to the merits of the case, we find that having examined all aspects of the matter, no exception could be taken to the concurrent findings of guilt recorded against the two appellants.
Consequently, the conviction as recorded against the appellants under section 302/34 is maintained.
23. This brings us to the question of quantum of punishment deserved by the appellants which has also engaged our serious attention.
24. It is on record that the office and the show-room closed at 6 p.m. When all the employees went away. It was Naseer P.W's. Case that the CHOWKIDAR who would have been the only person available at the place of occurrence after 6 p.m., was also on leave on the day of occurrence. It was also his case that it was Shahid appellant who had asked him to stay back after 6 p.m. To perform the duties of the CHOWKIDAR and had even asked the said P.W. To bring his bedding to the office to be able to stay for the night. If the appellants had a mind to kill Sharif deceased after the office hours then they should have been happy with the absence of the `CHOWKIDAR' which could have provided them with a perfect opportunity to accomplish their design unwitnessed and would not have asked Naseer P.W. To remain available to witness the proceedings and to become an eye-witness against them. This then indicates that the murder of Sharif deceased was not a planned and a D pre-meditated murder.
25. It was again the prosecution's own case that the second victim of the occurrence, namely, Khurshid deceased was a co-employee, a coMAULVI and a co-assailant of the two appellants. It is also on record that the place of occurrence was a small office room (14 ft. x 12 ft.) where Sharif deceased was sitting on the office chair when he was attacked. Khurshid deceased, the co- assailant, had received a fire-arm injury on his front chest. In the circumstances, it is not understandable as to why Khurshid deceased who knew that his companions were to launch an attack on Sharif deceased with fire-arm weapons, would go and stand next to the said target to get a bullet wound on his front chest. And it is also not believable that the two appellants would miss their target from such a close range and would kill their own companion.
26. What we find is that the motive for the occurrence was shrouded in mystery. And not just this, even the genesis of the occurrence was hazy and nebulous. Consequently, we would find it un-safe to sustain a sentence of death in the present case.
27. Resultantly, while we maintain the findings of guilt as recorded F. Against the two appellants, we set aside the sentences of death awarded to them. Shahid and Zulfiqar appellants are instead convicted under section 302(b)/34, P.P.C. And each one of them is punished with a sentence of imprisonment for life on two counts. The said sentences of imprisonment are directed to run concurrently and each one of them shall also be allowed the benefit of the provisions of section 382-B, Cr.P.C.
28. Criminal Appeals Nos.272 of 2002 and 273 of 2002 are disposed of in the above terms maintaining the two impugned judgments subject to the modifications as above-ordered.