1. ' MOHAMMAD AZAM KHAN, J. -- All the three appeals under Section 25 of the Islamic (Penal) Laws Enforcement Act, 1974, arise out of the consolidated judgment of the Shariat Court dated 2nd May, 2007, whereby Criminal Appeals Nos. 71, 67, 69, 70 of 2006 and Reference No, 68 of 2006 made by the District Criminal Court, Sudhnuti, Pallandri, have been decided. Since all the appeals relate to same matter, these are, therefore, disposed of by this single judgment.
2. Ghulam Rasool and Zameer Hussain were convicted by the District Criminal Court, Pallandri, under Section 5 of the Islamic (Penal) Laws Enforcement Act, 1974 (hereinafter to be referred as IPL) to death as 'Tazeer' on five counts for the murder of Altaf Hussain, Amjad Hussain, Abid Hussain, Muhammad Munir and Taj Shaheen. Said Hussain, Irfan, Muhammad Taj, Khalid son of Lai were convicted under Section 5,1.P.L., and sentenced to 10 years' rigorous imprisonment on five counts each total 50 years for the murder of Altaf Hussain, Amjad Hussain, Abid Hussain, Muhammad Munir and Taj Shaheen. All the sentences were ordered to be consecutive. They were also given the benefit under Section 382-B, Cr.P.C. Mazhar Iqbal son of Nawab, Muhammad Khaliq, Muhammad Akram, Nasir and Muhammad Jahangir were proceeded under Section 512, Cr.P.C., and were declared proclaimed offenders. Muhammad Nawaz, Mazhar Iqbal son of Khushi Muhammad, Ghulam Abbas, Muhammad Altaf, Muhammad Aziz, Muhammad Pervaiz, Zahoor, Khalid son of Sher and Mussarat Hussain were acquitted of the charge. Miskeen, Tariq and Karamat were also discharged of the offence. The District Criminal Court Pallandri made a reference to the Shariat Court for confirmation of death sentence. The State filed Appeal No, 69 and complainant filed Appeal No, 70 for enhancement of the sentence and against acquittal while the convicts filed Appeals Nos. 67 and 71 against their conviction. The Shariat Court, vide impugned judgment dated 2nd May, 2007, confirmed the death sentence awarded to Ghulam Rasool and Zameer Hussain.
2. Appeal No, 67 was partly accepted and sentence was altered to 14 years each to be run concurrently instead of 50 years. Appeals Nos. 69 and 70 to the extent of absconding accused were ordered to remain pending and non-bailable warrants were issued against them,, while appeals to the extent of other accused.
3. 3.Complainant, Fayyaz Hussain, presented a written application to S.H.O. Police Station Pallandri stating therein that on 18th January, 1993, at about 5 p.m. he was proceeding on the road at Dera Suniari when a jeep No, RIL- 7369 passed by him. lt was being driven by Altaf Hussain son of Sher Dil Khan. As the jeep went a few steps ahead, accused, Mazhar Iqbal and Muhammad Khaliq sons of Nawab Khan, Javaid son of Walayat Khan, Ghulam Rasool son of Gulab Khan, Said Hussain son of Khan Muhammad, Khalid son of Lai Khan, Zameer Hussain son of Ghulam Rasool, Irfan son of Noor Muhammad, Muhammad Taj son of Baloch Khan, Muhammad Akram son of Noor Muhammad, Nasir son of Muhammad Khaliq and Jahangir son of unknown resident of Dadyal who were hiding at both sides of the roapl, suddenly appeared and started indiscriminate firing from different sides at the vehicle. On account of firing, Altaf Hussain son of Sher Dil, Abid Hussain son of Muhammad Zaheer, Amjed Hussain son of Muhammad Hussain and Muhammad Munir son of Haji Wali Muhammad died on the spot, whereas Taj Shaheen was injured seriously. Besides complainant, the occurrence was witnessed by Zahid Hussain son of Muhammad Zaheer, Tahir Mahmood son of Muhammad Hussain, Abdul Hussain and Muhammad Sadiq sons of Sajawal and Muhammad Siddique son of Ali Zaman Khan. The motive behind the occurrence is that three sons of Ghulam Rasool son of Gulab Khan, resident*of Baral were murdered. The allegation of murder was levelled against some relatives of Altaf Hussain and brothers of deceased, Abid Hussain. Prior to this Ghulam Rasool had attacked upon Altaf Hussain but he survived.
4. 4.The S.H.O, sent this application along with 'muraslah' by hand at Police Station and a case under Sections 5, 15, IPL, 307, 147, 148, 149 and 427, A.P.C., was registered. The S.H.O. Sardar Muhammad Kabir Khan recorded the dying declaration of Taj Shaheen, deceased, in presence of Fayyaz Hussain and Shah Muhammad, P.Ws. After necessary proceedings, challan was presented against the accused, Ghulam Rasool, Said Hussain, Khalid Hussain, Zameer Hussain, Irfan, Zahoor, Muhammad Aziz alias Chezza, Pervaiz, Altaf, Khalid Hussain, Mazhar Iqbal, Ghulam Abbas, Muhammad Nawaz and Taj under Sections 5, IPL, 147, 148, 149, 427, 114, 341, 109, A.P.C., and Section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985. During the pendency of the proceedings, accused Mussarat Hussain was arrested and additional challan was presented against him on 22nd December, 2001. The Trial Court vide judgment dated 23rd August, 2003, decided the case in the terms indicated above.
5. 5.Sardar Muhammad Hussain, counsel for Ghulam Rasool and Zameer Hussain, convicts, argued that the judgment of the Trial Court as well as the Shariat Court is not maintainable being against law and facts of the case. He referred to pages 86 and 87 of the judgment of the Trial Court, wherein the Trial Court, has held that in purgation, the eye-witnesses have been found 'ghair aadil'.
6. They are the relatives of the deceased. The complainant Fayyaz Hussain and Zahid Hussain are brothers of Abid Hussain, deceased. Shah Muhammad and Zahir Hussain eye-witnesses were alleged accused of murdering the sons of Ghulam Rasool. ln spite of recording this finding, in respect of the witnesses, the Trial Court relied upon the witnesses and convicted the appellants. He argued that the witnesses are not only related but they are also inimical towards the appellants.
7. They were accused in the murder case of sons of appellant, Ghulam Rasool, and now they have become witnesses. The testimony of an interested witness who has motive to falsely implicate the accused in a crime cannot be relied upon.
8. 6.The counsel for the appellants attacked the F.I.R, on the ground that it is a fabricated document.
9. The occurrence is stated to be of 5.00 p.m. and took place on a road side far away from the populated area. The presence of the complainant and the witnesses on the scene of occurrence is not possible. The F.I.R, was not recorded at the relevant time shown in the F.I.R, lt is shown to have been entered in the register by one Munir (Muharer), but according to 'Roznamcha' on 17th January, 1993, he went to Rawalakot and came back on 19th January, 1993 as is evident from entry at serial Nos. 9 and 16 of 17th and 19th January, 1993. As such, it is crystal clear that Munir (Muharer) was not present in the Police Station on 18th January, 1993, how he can record the F.I.R, on 18th January, 1993. lt was entered in the register after 19th January, 1993 in previous date. During the course of arguments of Sardar Muhammad Hussain, we have gone through the F.I.R. and. observed that it is written by one Shaukat, A.S.I. Second Officer of Police Station and not by the hand of Munir (Muharer). The argument to this extent was rejected in the open Court.
10. 7.The learned counsel for the convicts seriously attacked upon the dying declaration of Taj Shaheen, deceased, and argued that it cannot be relied upon because there are three dying declarations on the record, recorded by Sardar Muhammad Kabir Khan, S.H.O., Police Station Pallandri at 6.30 p.m. The time of recording of all the three dying declarations is 6.30 p.m. and Shah Muhammad and Fayyaz Hussain are shown as witnesses of the same but they are written by three different hands. Furthermore, Shah Muhammad and Fayyaz who are witnesses of dying declarations contradict each other in respect of time of recording of the dying declaration, therefore, it is not reliable. He referred to page 17 of the statement of Shah Muhammad, witness, wherein he has stated that he was going to Court at 7.00 p.m. while the dying declaration is shown to have been recorded at 6.30 p.m.
11. 8.lt was furthdr argued by the counsel that the site plan negates the prosecution story, lt is not supportive to the prosecution version. He also attacked the recovery of carbine from the accused, Ghulam Rasool, and argued that the death was caused by bullets and not by. 12-bore gun. The carbine shown to have been recovered ftem Ghulam Rasool was not sent to forensic science laboratory, therefore, the recovery of the same cannot be read against Ghulam Rasool. He advanced another argument that the statement of accused Altaf son of Ramzan under Section 164, Cr.P.C., cannot be relied upon because at the time of recording the same, he was in Police custody.
12. N 9. Sardar Shamshad Hussain Khan, Advocate, counsel for the appellants in appeal No, 12 of 2008) and for the respondents in appeal No, 13 of 2008, filed by the complainant, contended that the appellants have been falsely implicated in the case. They were eye-witnesses in the murder of three sons of Ghulam Rasool, convict. They are not related to Ghulam Rasool. They have been falsely implicated due to this reason. No evidence is available to connect the appellants with the commission of offence. The appellants remained in the custody of Police but no weapon of offence was recovered although it was alleged in the F.I.R, that they were armed which negates the prosecution story, therefore, the allegation of firing is not proved. He further argued that there is no allegation of criminal conspiracy against the accused. The allegation of criminal conspiracy to the extent of accused-appellants is not proved. He referred 1o the statements of Shah Muhammad and Fayyaz Hussain, witnesses, and argued that these witnesses-stated that Taj Shaheen, ,deceased, has not told the names of appellants to them. He only'toid them about Ghulam Rasool and others.
13. He referred to the cases reported as Mary NG. v. The Queen [PLD 1959 PC 34] and Khawand Bakhsh & others v. The State [NLR 2000 SCJ 179J. The learned counsel argued that the appellants are not relatives of the deceased or the complainant. They have no contact with the accused, Ghulam Rasool, and no motive has been attributed towards them to murder the deceased, He referred to a case reported as Muhammad Yousuf alias Baggi v. The State [1995 P.Cr.L.J. 1262], His another argument is that the site plan is not supportive to the prosecution story. The Trial Court as well as the Shariat Court has sentenced the appellants while relying upon such site plan. The conviction cannot be passed while relying upon this site plan which negates the prosecution story. He referred to the cases titled Abdul Rehman & another v. Muhammad Mushtaq & another [2007 SCR 100] and Muhammad Akhtar and another v. The State [2009 YLR 1092]. He contended that the F.I.R, is doubtful which cannot be relied upon for conviction. Lastly he argued that the Trial Court passed the sentence of 50 years each against the appellants which is against the provisions of Section 35 of Cr.P.C. He contended that under Section 35, Cr.P.C., the sentence cannot be greater than 4he one provided for an offence. The maximum sentence provided under Section 5, I PL, can be 14 years. The Trial Court convicted the appellants to 10 years' rigorous imprisonment each on five counts total amounting to 50 years each which is against the spirit of law. He contended that all the appellants have already served a period for which they were sentenced. Khalid, appellant, has served 14 years and 3 months while Taj, appellant, has served 16 years in jail. They are 63 and 64 years of age respectively. Said Hussain has served 11 years and Irfan has served 9 years in jail. He requested that appeal of the complainant be dismissed and their appeal be accepted.
14. 10.While controverting the arguments, Sardar Abdul Hameed Khan, counsel for the complainant, argued that there were three sets of accused before the Trial Court. First, who participated in the occurrence, present on the site of occurrence and nominated in the F.I.R. Second set of accused was that who hatched the conspiracy and the third set of the accused were those persons who v\tere hired assassins and committed the crime in that capacity. He argued the following points:-- (a)that there are concurrent findings of facts recorded by the two Courts against the convicts.
15. The concurrent findings cannot be disturbed by this Court because re-appraisal of evidence is not the function of this Court. The judgment is perfectly legal. The accused are nominated in the F.I.R., eye-witnesses have implicated them with the crime. There is lot of corroborative evidence in the form of recovery of weapons of offence, crime empties, forensic science report, recovery of blood of the deceased from the place of occurrence, site plan, medico-legal reports, recovery of bloodstained clothes and chemical examiner report. The eye-witnesses, though related, are natural and they have testified in the Court in the manner the occurrence took place. The prosecution has proved its case against the convicts and other accused beyond any reasonable doubt; (b)that under Section 35, Cr.P.C., the Court is empowered to pass a sentence consecutively. The Trial Court has passed the sentence of 10 years for the murder of each person. Five persons were murdered, lt was ordered that the sentence shall run consecutively. The words "50 years' were inadvertently written. He relied upon a case reported as Bashir arid 3 others v. The State [PLJ 1992 SC 1]; and (c)that under Section 544-A, Cr.P.C., the legal heirs of the deceased persons are to be compensated. The provisions of Section 544- A, Cr.P.C., are mandatory and the Court is duty bound to pass an order for compensation to the legal heirs of the deceased. The Trial Court as well as the Shariat Court failed to consider this aspect of the case. He requested that this Court may order for awarding compensation to the legal heirs of the deceased. He referred to a case reported as Talib Hussain and others v. State [PLJ 1996 SC .51].
16. 11.Syed Ejaz All Gilani, Additional Advocate- General, fully owned and concurred with the arguments of counsel for the complainant, Sardar Abdul Hameed Khan, and requested for dismissal of appeals of convicts and acceptance of appeal of the complainant.
17. 12.We have heard the learned counsel for the parties and perused the record. The prosecution produced following evidence to prove its case:-- (i)Eye-witnesses, Fayaz Hussain son of Zaheer Khan, Zahid Hussain son of Muhammad Zaheer, Muhammad Sadiq, Abdul Hussain sons of Sajawal Khan and Muhammad Siddique son of Ali Zaman.
18. (ii)Dying declaration of Taj Shaheen, deceased.
19. (iii)Recovery witnesses, Muhammad Ashiq son of Kala Khan, Mirdad Khan son of Muhammad Zaman, Abdul Qayyum son of Mirza Khan and Muhammad Yunus son of Kala Khan.
20. (iv)Witnesses of pre-occurrence events/crime, Syed Hussain Shah son of Farman Ali Shah and Munshi Khan son of Gulab Khan who saw the accused, Ghulam Rasool Mazhar Iqbal Khalid, Khaliq and others going towards the place of occurrence before the occurrence armed with deadly weapons..
21. (v)Muhammad Masood Khan son of Haji Muhammad Sarwar Khan, Haji Muhammad Razaq son of Sarfraz Khan, witnesses of circumstances who saw Ghulam Rasool and Mazhar Iqbal, accused, with some unknown persons at Sadia Hotel Rawalpindi on 13th January, 1993 prior to the incident.
22. (vi)Muhammad Ishaque and Mehboob Khan, witnesses who took Altaf, accused, alongwith three other persons from their village to Kotli at 9.30 p.m. at the night of occurrence.
23. (vii)Shafat Ali and Abdul Latif witnesses of circumstances.
24. (viii)Sardar Muhammad Ayaz Khan, Sub- Judge/Magistrate who recorded the statement of Altaf, accused, under Section 164, Cr.P.C, on 4th February, 1993.
25. (ix)Mushtaq Ahmed, witness who took three persons to Mirpur on the order of Khalid, accused on 18/19.1.1993 at 12/1 a.m. at night .in his taxi.
26. (x)Retired Haveldar Muhammad Nazir, Clerk of Sadia Hotel, Rawalpindi.
27. (xi)Shaukat Hayat, A.S.I., who recorded the F.I.R, at Police Station Pallandri.
28. (xii)Dr. Rashid Yaqoob who conducted the postmortem of Abid Hussain, Sardar Muhammad Altaf, Munir Ahmed, Amjad and Taj Shaheen, deceased, on 19th January, 1993.
29. (xiii)Raja Shamim Akhtar, D.S.P. Pallandri who supervised the investigation.
(xiv) Sardar Muhammad Kabir Khan, S.I., Investigating Officer of the case.
30. (xv)Ghazi Muhammad Khurshid, Tehsildar Pallandri who supervised the identification parade.
31. (xvi)Blood-stained earth, pieces of glass, 18 crime empties of Kalashinkove, 18 crime empties of Kalashinkove, 8 crime empties of 12-bore gun, 20 crime empties of Kalashinkove, 18 crime empties of Kalashinkove, 8 crime empties of 12-bore gun, post-mortem reports of the deceased, clothes of deceased Munir Ahmed, Taj Shaheen, Altaf Hussain, Abid Hussain and Amjad Hussain, 2 Kalashinkoves, one 12-bore gun, one 12-bore carbine, one blood-stained jacket, pellets recovered from dead-bodies of the deceased, one brown 'pumpy', one broken briefcase brown colour, site plan, chemical examiner's report, injury reports and forensic science expert report were also produced in evidence to prove the prosecution case.
32. 13.The accused produced Zulfiqar Ali, Manzoor Hussain, Said Akbar, Dilber Hussain, Qasim Rizvi, Muhammad Iqbal, Subedar Ghulam Hussain and Ghulam Rasool as defence witnesses. The accused, Ghulam Rasoo! got recorded his statement on oath. The statements of Haji Nazar Muhammad, petition writer, Munish Abdul Aziz, petition writer, Zaffar Iqbal and Tufail were also recorded as defence witnesses. Mussarat Hussain, accused, also got recorded his statement on oath.
33. 14.The Trial Court believed the eye-witnesses to the extent of Ghulam Rasool, Zameer Hussain, Mazhar Iqbal, Said Hussain, Khalid son of Lai, Irfan, Muhammad Taj, Mazhar Iqbal, Muhammad Khaliq, Muhammad Akram, Nasir, Jahangir and Javed, accused, who has since died, while the Shariat Court also believed the evidence of the eyewitnesses.
34. 15.lt is well-settled practice of this Court that the re-appraisal of evidence is not the function of this Court but in the case in hand, where five persons have been murdered and there is longstanding enmity between the parties, we deem it proper to ourselves peruse he whole evidence and re-appraise the same.
35. 16.The F.I.R, was registered on the application of Fayaz Hussain who nominated Mazhar Iqbal and Khaliq sons of Nawab Khan, Ghulam Rasool son of Gulab Khan, Javaid son of Walayat Khan, Said Hussain son of Khan Muhammad, Khalid son of Lai Khan, Irfan and Muhammad Akram sons of Noor Muhammad, Muhammad Taj son of Baloch, Muhammad Zameer son of Ghulam Rasool, Nasir son of Muhammad Khaliq and Jahangir son of unknown, that they were waylaying the deceased and fired on the jeep which was being driven by Altaf Hussain and Ahid Hussain, Amjad Hussain, Muhammad Muneer and Taj Shaheen were sitting in it. He alleged that all the accused recklessly resorted to firing as a result of which four persons died on spot while Taj Shaheen was injured and died later on. He has also nominated Zahid, Muhammad Sadiq, Abdul Hussain and Muhammad Siddique as eye-witnesses of the occurrence.
36. 17.Fayaz Hussain appeared as a witness in the Court and apart from proving the contents of the F.I.R., stated that Ghulam Rasool was armed with a carbine, Zameer, Mazhar Iqbal and Khalid with 12-bore guns, Nasir with revolver and two unknown persons were armed with Kalashinkoves. He further stated that he alongwith Shah Muhammad^ witness, took Taj Shaheen in an injured condition towards Pallandri. When they reached Nalinda Cross they saw a Police vehicle where S.H.O, recorded the dying declaration of Taj Shaheen, Ex. PB. This witness was cross-examined at a considerable length but he stuck to the version taken ln the F.I.R, and examination-in-chief.
37. Although this witness has made some improvements in fhe statement contrary to his statement recorded by the Police under Section 161, Cr.P.C., but such improvements are not ot suoicmtial nature.
38. 18.The defence na& also suggested to this witness that the deceased died due to Tinny only from one side. From the trend of cross-examination, it appeals mat the prosecution admits the occurrence to have taken place on the same site and also admits the death of deceased by firing, but claims that the offence was committed by some unknown persons. This witness in cross- examination stated that Muhammad Sadiq, Muhammad Siddique and Tahir witnesses have immediately after the occurrence told him that they have seen the occurrence from a distance of 40-50# yards.
39. 19.Zahid Hussain, the eye-witness testified in the Court that Ghulain Rasool, Mazhar Iqbal, Khaliq, Zameer, Miskeen, Nasir, Mussarat, Khalid, Javaid, Taj and Tariq along with two unknown persons armed with Kalashinkoves, were seen by him at the place of occurrence. Ghulam Rasool was armed with a carbine, Mazhar Iqbal was armed with 12-bore gun, Khaliq and Zameer were armed with 12- bore guns, and Nasir was armed with a revolver. Zameer jj/id two unknown persons were firing indiscriminately on the jeep. He alongwith his brother Fayaz took refuge behind the stone and witnessed the whole occurrence. When the accused went away, they went towards the jeep and saw Altaf Hussain, Abid, Muneer and Amjad as dead while Taj Shaheen was injured and on their hue and cry Muhammad Sadiq, Abdul Hussain, Muhammad Siddique and Tahir rushed towards the jeep. The witness also stated in the Court that Muhammad Siddique, Muhammad Sadiq, Abdul Hussain and Tahir also witnessed the occurrence who came on the spot on his hue and cry: No suggestion was put to this witness that he was not present on the spot and has not witnessed the occurrence. No suggestion was put to this witness regarding the presence of other witnesses on the spot.
40. 20.Muhammad Sadiq, another eye-witness, appeared in the Court and stated that in the evening time he along with his brother Abdul Hussain was present in his house when Muhammad Siddique son of Ali Zaman came there. He wanted to go to Pallandri whereupon I alongwith my brother started towards Pallandri so that they could see off Muhammad Siddique at Islampura. When we reached Dhera Sunyari, near the place of occurrence, we heard the sound of firing. We immediately crossed at the bend and saw 18-20 persons upon a white coloured jeep. Due to firing they immediately took srit-ter. The firing continued for 4-5 minutes. When the firing stopped he saw Munshi Ghulam Rasool, Zameer Hussain, his son, Muhammad Khaliq and Mazhar Iqbal sons of Nawab Khan, Nasir, Miskeen, Mussarat, Javaid, Zahoor Ahmed, Karamat, Khalid son of Lai Khan and Irfan at the spot. Khaliq, Mazhar Iqbal and Zameer were armed with 12-bore guns, while two unknown persons were having Kalashinkoves in their hands. The witness also stated that when the firing ended, Ghulam Rasool, Zameer and two unknown persons went towards the jeep, checked the front seat and picked up something. He could not see what they have picked from the jeep.
41. Ghulam Rasool said that all the five persons were done to death. He also stated that the accused ran away towards jungle. When the accused ran away, they proceeded towards the jeep, ln the meantime Fayaz Hussain and Zahid Hussain also reached near the jeep. Four persons, Altaf Hussain, Abid, Amjad and Munir were dead while Taj Shaheen was in an injured condition. Fayaz Hussain took Taj Shaheen towards Pallandri. This witness is also a witness of identification parade in respect of Abbas and Mazhar Iqbal which was carried in the jail premises in presence of Tehsildar, D.S.P, and S.H.O. This witness was resorted to lengthy cross- examination and major portion of cross-examination was in respect of identification parade. No enmity was suggested to this witness. A bare suggestion was put to the witnesses that he was not present on the place of occurrence and he has not seen the occurrence.
42. ' The version of this witness that he went to the house of Abdul Hussain and his brother, is also proved from the statement of Abdul Hussain who narrated the story in the similar manner when he appeared as a witness in the Court. He stated that Muhammad Siddique, resident of Chechhan came to his house and when his brother Muhammad Sadiq came there, they went towards Baral road for seeing off Muhammad Siddique where he 'stated to have seen the occurrence in presence of Muhammad Siddique and Muhammad Sadiq. He stated that Ghulam Rasool was firing with a carbine, Zameer was firing with 12-bore gun, Mazhar Iqbal and Khalid were also firing with 12-bore. guns while Said had a rifle. He could not recognize the weapon in the hands of other accused.
43. However, the accused, Zahoor, Karamat, Javaid, Khalid son of Lai Khan, Irfan, Akram, Taj, Miskeen and two unknown persons were firing with Kalashinkoves. After firing, Ghulam Rasool, Zameer and two unknown persons came near the vehicle and after checking the vehicle, Ghulam Rasool stated that two persons are not present, in the vehicle. The others who were present have died. They ran away towards jungle. After that they came near the vehicle, ln the meantime, Fayaz Hussain and Zahid Hussain also beached near the jeep. Abdul Hussain is also a witness of recovery of clothes of deceased which were handed over to the Police in his and Fayaz Hussain's presence. This witness is also a witness of recovery of rifle from Zameer, accused, ln cross-examination the witness stated that he has seen the occurrence from a distance of 50 yards, ln cross-examination he has also stated that all the accused were firing while in the standing position and they were firing from both sides of the jeep. No enmity has been suggested to this witness although he has resorted to lengthy cross-examination, lt was only suggested that he has become a witness on the request of Fayaz Hussain and he also got recorded his statement as told by Fayaz Hussain.
44. 21.Muhammad Siddique son of Ali Zairian, another witness, stated that he went to the house of Abdul Hussain, from where he wanted to go to Pallandri. When Muhammad Sadiq, brother of Abdul Hussain, came, they proceeded towards Islampura where he could get bus for Pallandri. When they proceeded from the house of Abdul Hussain, it was 4.30 p.m. When they were about 70-80 yards from the place of occurrence, he heard the noise of firing. They reached near a bend from where the place of occurrence was visible. 18-20 persons were firing upon a white jeep. Munshi Ghulam Rasool, Zameer, Javaid, Khalid son of Lai Khan, Mazhar Iqbal son of Nawab, Khaliq son of Nawab, Nasir, Miskeen, Mussarat, Jahangir Zahoor, Tariq, Akram and two unknown persons were firing on the jeep. Ghulam Rasool had carbine, Zameer, Khaliq and Mazhar Iqbal had 12-bore guns, Nasir had a revolver and unknown persons had Katashinkoves in their hands. After firing, Ghulam Rasool came near the jeep and after looking into the jeep, he said that Khizar Hayat and Fayaz Hussain are not present in the jeep. He took out a brief case and handed over it to one unknown person who broke it and took out something from it: When the accused went towards jungle, he along with Muhammad Sadiq and Abdul Hussain came towards the jeep, ln the meantime, Tahir also reached there. Zahid Hussain and Fayaz Hussain had already reached near the jeep before them. They saw four persons dead while Taj Shaheed was in an injured condition. No enmity was suggested to this witness. Only a bare suggestion was put to this witness that he has not seen the occurrence and he in connivance with the complainant and Police has prepared a false case against the accused. .
45. 22.Fayaz Hussain and Zahid Hussain are brothers of Abid Hussain, deceased, and they have old enmity with Ghulam Rasool convict. The question is whether the testimony of a witness who is not only related but inimical, towards the accused can be relied or not. lt is not necessary that every related witness shall be inimical towards an accused and if any witness who is related to the deceased and is inimical towards the accused, his testimony can be relied upon or not. lt is settled proposition that the testimony of a related witness cannot be discarded merely on the basis of relationship, however, the testimony of an inimical witness has to be looked into with great care and caution, ln the case titled Abdul Aziz v. Muhammad Lai and 2 others [2001 SCR 402}, this Court observed as under:-- "it is well-settled principle of law that the evidence of a witness cannot be discarded merely on the ground of relationship; if the evidence of a related witness rings true, he cannot be disbelieved simply because he is related to the concerned party. Even otherwise, in the instant case, as has been indicated above, both the rival factions are closely related and there was no deep rooted enmity which could justify the inference that the eye-witnesses are partisan. Even a related and inimical witness is not to be necessarily disbelieved as being partisan; a partisan witness is one who has motive to falsely implicate an accused person in the offence of murder. Thus, in the circumstances of the case in band, it cannot be said that the statements of the prosecution witnesses could not be relied upon without independent corroboration." ' ln the case titled Muhammad Rashid Khan v. The State [1984 P.Cr.L.J. 93}, while dealing with the proposition whether the eye-witnesses were interested and partisan, it was held as under:-- " ......... But in spite of all that, their evidence cannot be brushed aside merely on the ground that they are interested and partisan witnesses. The defence has admitted their presence on the spot at the time of the occurrence." ' ln a case reported as Muhammad Sharif y. The State [PLD 1978 SC (AJ&K) 146} it was observed by this Court as under:-- "Whether a witness is to be believed depends on the circumstances and facts of each case.
46. Assessm ent of interested and partisan evidence is, of course, a difficult matter which engaged the attention of superior Courts time and again. The first thing which is of paramount importance is to see whether the witness is a natural witness and if Courts come to the conclusion that the witness is a natural witness then in the case of testimony of such a witness law does not make incumbent upon the Courts to ask for corroboration before relying on the testimony of such a witness.
47. Evidence of such a witness, however, is required to be scrutinized with great care and caution in order to eliminate any possibility of doubt and Courts must also determine as to whether or not he is a witness on whose words implicit reliance can be placed without independent corroboration.
48. Nevertheless, no inflexible rule can be formulated in this behalf, ln each case, the evidence of witnesses has to be evaluated on merits and if it rings true in the context and the circumstances of the case free from any fault and un contradicted by any cogent circumstances emerging from the case, it must be relied upon as the basis for conviction without any corroboration, ln a case of this nature, where the statement of an interested but natural witness can be believed with implicit faith without difficulty, corroboration is not to be insisted upon as a rule of law or as a rule of prudence and evidence will not be rejected merely because the witnesses are related with the deceased and inimical towards the accused. The safe administration of criminal justice demands that Court should draw its own inference flowing from evidence and circumstances and not be deterred by reason of incompleteness of tale given by each party." ' ln the case reported as Irfan Khan alias Fani v. The State [2008 P.Cr.L.J. 517], it was held as under:-- " Both the witnesses are related to the deceased and admit their enmity with the appellant over previous murder. However, mere enmity would not be enough to discard the statements of these witnesses if their statements rang true, were natural, coherent and their presence at the spot was established." ln a case titled Muhammad Akhtar and another v. The State [2009 YLR 1092] it was observed as under:-- " Although the eye-witnesses were related inter se and with the deceased closely, but mere close relationship of the eye-witnesses with the deceased is not sufficient to discard their statements and also to declare them as interested witnesses as it has not been brought on the record that the eyewitnesses had any previous enmity or grudge to falsely implicate the appellants in the present case if they had not participated in the present occurrence. .... All the eye-witnesses had given consistent, straightforward and confidence inspiring account of occurrence and the appellant had miserably failed to shatter their credibility during the lengthy cross- examination nor could succeed in bringing on record any iota of evidence to show that the said witnesses had any malice or ulterior motive or enmity to depose falsely and implicate them falsely in the present case. . Mere assertion of the appellant that the deceased had been murdered by some unknown person is not sufficient to exonerate him from the commission of the offence. The substitution of the real culprit is a rare phenomenon ... Both these P.Ws, have furnished necessary corroboration of Dr. Zaffar Ali Khan (P.W.9) the cause of death was skin injury leading to septecimias shock and death. The injury was due to acid, lt was ante-mortem in nature and sufficient to cause death in ordinary course of nature and such the medical evidence' in this case fully confirms, and supported the testimony of ocular account."
49. 23.From the survey of case-law, we are of the view that when the witnesses are interested and inimical towards accused, their testimony cannot be believed without independent corroboration, ln the present case apart from Fayaz Hussain and Zahid Hussain who are real brother of Abid Hussain, deceased, three other eye-witnesses Muhammad Sadiq, Abdul Hussain and Muhammad Siddique appeared as witnesses. Muhammad Sadiq and Abdu! Hussain are independent witnesses. They are not related to the complainant party nor any enmity is suggested to these two witnesses. They are inhabitants of. locality and when appeared as witnesses in the Court, they fully corroborated the statements of Fayaz Hussain and Zahid Hussain. Had there not been the statements of these two witnesses, then some doubt may have arisen in the statements of Fayaz Hussain and Zahid Hussain, but in the presence of independent and non-partisan witnesses* whose testimony is confidence inspiring and rings true, the statements of Fayaz Hussain and Zahid Hussain cannot be brushed aside. The statements of Muhammad Siddique, another witness, although no enmity is suggested is not confidence inspiring. He has not recognized all the accused persons but the statements of four eye-witnesses, Fayaz Hussain, Zahid Muscat", Muhammad Sadiq and Abdul Hussain are confidence inspiring, ring true and can be relied upon.
50. 10,0,An important piece of evidence is dying declaration of Taj Shaheen who later on succumbed to the injuries, lt is recorded by Sardar Muhammad Kabir Khan, S.L/S.H.O. Police Station Pallandri in presence of Fayaz Hussain and Shah Muhammad witnesses at Nalinda Cross at 6.30 p.m. on the day of occurrence, i.e, 18th January, 1993. He stated that he had friendly relations with Altaf Hussain, resident of Baral, who is a member of District Council. Both of them are P.W.D, contractors and also have business relations. Some period ago three sons of Ghulam Rasool, accused, were murdered.
51. Altaf Hussain and his relatives were nominated as accused in the case. A compromise was settled between the parties and today, the 18th January, 1993, the case was decided in the result of compromise. Altaf Hussain, accused, had paid a sum of Rs,1000/- in the Court and in the result of compromise the case was consigned to record. Khizar Hayat and Fayaz Hussain, accused were confined in the Judicial Lock-up Pallandri and in the result of compromise, they were released and at around 3 p.m. Altaf Hussain invited him to go to his home. He alongwith Altaf and Munir Ahmad proceeded towards his house in Baral while boarding in jeep, No, 7369-RIL. Both were sitting at front seat. Two other boys, Abid and Amjad were sitting in the back seat of the jeep. At around 5 p.m. when they reached Dhera Sunyari at Baral road all of a sudden firing started from left side of the road on jeep and two unknown persons who were not local were firing with Kalashinkoves. Along with them, Zameer son of Ghulam Rasool was also firing. Near to these accused 18- 20 other persons were present in armed condition. Among them he could recognize Munshi Ghulam Rasool, who had a carbine, Subedar Khaliq, Mazhar Iqbal and Nasir Iqbal. During the firing Altaf Hussain tried to dis-embark the jeep whereupon Zameer son of Ghulam Rasool fired upon Altaf Hussain from the near range. He fell on the driving seat. All the persons present in the jeep have died. He fell on the floor of the jeep near dash board. After the stoppage of firing, Zameer and Munshi Ghulam Rasool came near the jeep. The persons having Kalashinkoves also came there who were called by Munshi Ghulam. Rasool by the name of Abbas and Mazhar. Ghulam Rasool confirmed the death of the inmates of jeep. The persons having Kalashinkoves and Zameer took his brief case, broke it and took his 30-bore pistol and some cash out of it. They also have taken away the revolver of Altaf Hussain. He was critically injured. After some time Payaz Hussain and others reached on the spot and took him out of the vehicle and were taking him towards Palandri wherein in the way dying declaration was recorded in presence of Fayaz Hussain and Shah Muhammad, witnesses.
24. The defence raised serious objections on the authenticity of this dying declaration. Sardar Muhammad Hussain, Advocate, argued that no dying declaration was recorded at Dhera Sunyari.
52. He drew the attention of the Court apart from dying declaration^ Ex.PB, towards two Photostat copies of the dying declaration, Ex."DO" and "DP". According to him the recording of dying declarations was afterthought. Three different dying declarations were prepared by the S.H.O, who had old enmity against the accused-convict, Ghulam Rasool whose three sons were brutally murdered, ln the murder case of the sons of Ghulam Rasool, Sardar Muhammad Kabir who was also S.H.O, at that time connived with the accused whereupon Ghulam Rasool Moved an application against him for an inquiry and on his application a departmental inquiry was conducted against him. The S.H.O, wanted to take revenge from Ghulam Rasool whereupon he prepared a false case against Ghulam Rasool and other accused persons. He elaborated that Fayaz Hussain and Shah Muhammad are stated to be the witnesses of dying declaration. Shah Muhammad in his Court statement at page 17 stated that he went from Baral at 7.00 p.m. The time of recording the dying declaration is 6.30 p.m. This statement negates the whole story of recording of dying declaration at 6.30 p.m. Furthermore, two photostat copies, Ex. "DO" and "DP" are also indicative of the fact that the S.H.O, prepared different dying declarations and one which suited him was made part of the record and the other two were destroyed. This dying declaration has no evidentiary value and liable to be rejected.
53. 25.The dying declaration in a case is an important piece of evidence, ln the instant case the dying declaration has been recorded by Sardar Kabir Khan, S.H.O. Fayaz Hussain and Shah Muhammad are the witnesses of the same. S.H.O, the Investigating Officer, appeared in the Court as witness and proved the dying declaration annexure 'PB'. The aforesaid two witnesses of the dying declaration also appeased before the Trial Court and proved the same. The objection of counsel for the convicts-appellants is that in fact no dying declaration was recorded and for proving the same he relied upon photostat copies of two other dying declarations Ex.'DO' and 'DP' put to S.H.O., who denied that these were the pohoto stat copies of some dying declarations which were not recorded by him. The law is settled on the point that the photocopy of a document is not admissible, particularly where original of the same is not in existence. The case of prosecution is that only one dying declaration Ex.'PB' was recorded and photocopies are not copies of any such documents which were prepared by S.H.O. No effort has been made by the defence to prove the handwriting of S.H.O, by sending the photocopy of admitted dying declaration Ex.'FB' and the alleged photopia's of Ex.'DO' and DP', to the handwriting expert for verification, therefore, the argument that two other dying, declarations were also recorded and one suited to the prosecution was made part of record, carries not weight. Argument of counsel for the defence that Shah Muhammad has stated in the Court that he went to Pallandri from Baral at 7:00 a.m. and the dying declaration was recorded at 6:30 p.m. at Nalinda Cross, therefore, his presence at the scene of occurrence is not possible, is without any substance, lt is not the case of Shah Muhammad that he was in Baral and after the occurrence he went towards PaHandri at 7:00 p.m. He stated that he went to the Court from Baral at 7.00 a.m. and not at 7.00 p.m. He told the time of going to the Court.
54. Although this witness is also a partisan one, but his statement in respect of dying declaration is to be seen in overall circumstances when the dying declaration was recorded. Sardar Kabir Khan, S.H.O, stated in the Court that he met the injured, Taj Shaheen, alongwith Fayaz and others at Nalinda Cross. Fayaz presented an application Ex.'PA', who put a note on it for registration of case and sent it to Police Station. He stated that he also recorded dying declaration of Taj Shaheen, Ex.'PB', in presence of witnesses and sent Taj Shaheen to hospital in an injured condition and he himself went towards the place of occurrence and later on, on the death of Taj Shaheen he sent the dead-body for post-mortem and it was entered as such in the injury report.
55. 26.The recording of dying declaration can be looked from another angle. The post-mortem of all the five deceased was conducted by doctor on 19th January, 1993. The time between injury and death in the case of Abid Hussain, Altaf Hussain, Muhammad Munir and Amjad Hussain is stated to be 1 to 5 minutes and in case of Taj Shaheen it is stated to be 4 to 6 hours. According to postmortem report Ex.'PB', the death occurred at 22:30 on 18th January, 1993. The dying declaration is shown to have been recorded at 6:30 p.m. The narration of facts in dying declaration of Taj Shaheen that how the occurrence took place, appears natural, which is in line with the statements of four eye-witnesses. Taj Shaheen is not related to Altaf Hussain, the witness Fayaz or any of the deceased persons. He recognised only Zameer Hussain son of Ghulam Rasool, Ghulam Rasool, Subedar Khaliq, Mazhar Iqbal and Nasir Iqbal, accused. He stated that two unknown persons were firing. He also stated that 18 to 20 persons were firing. Had the prosecution prepared a fake dying declaration the there was a chance to attribute firing of Kalashinkove to Ghulam Rasool and his son Zameer Hussain, lt appears that the deceased in dying declaration started the event as it took place, ln the case titled Mst. Shamim Akhtar v. Fiaz Akhtar and two others [PLD 1992 SC 211], it was held as under:-- "The third piece of evidence is the Dying Declaration of the deceased. According to the Investigating Officer, the statement of Mst. Nasim Akhtar were recorded on 19.5.1985 in the Civil Hospital. The Dying Declaration has been challenged by the learned counsel for the respondents on the ground that Mst. Nasim Akhtar was examined on 18,5:1985 at about 10:15 a.m. by Dr. Muhammad Tasneem, CMO, District Headquarters Hospital, Rawalpindi, and there is no evidence on the file to show that on 19.5.1985 she was even present in the Central Government Hospital, Rawalpindi, as none from the Central Government Hospital was produced to confirm that she was even admitted there. Dr. Muhammad Tasneem in his statement has deposed that Mst. Nasim Akhtar was referred to the Visiting Surgeon as the injured was kept under observation. The question for consideration is whether Mst. Nasim Akhtar had given any statement on 19.5.1985 or it was concocted by the prosecution. Non-production of a witness from the hospital would not change the veracity of the statement if otherwise it is established that the statement of the deceased was recorded on that day. The learned counsel for the appellant has stated that she was removed to the Central Govt. Hospital. After all, why the prosecution would state an incorrect fact when it will not get any benefit out of it. Her statement could be recorded in either of the two hospitals but if in reality, she was admitted to another hospital on that date, it was not the requirement of law that the prosecution must show that why her statement was recorded in Central hospital."
56. 27.Our conclusion is that after the occurrence Taj Shaheen was being brought to Pallandri in an injured condition when S.H.O. Police Station Pallandri recorded his dying declaration at Nalinda Cross at 6:30 p.m. in presence of Fayaz Hussain and Shah Muhammad, witnesses. He implicated Ghulam Rasool armed with a Carbine, Zameer Hussain armed with 12-bore gun, Subedar Khaliq, Mazhar Iqbal and Nasir Iqbal, who along with 18 to 20 persons, fired upon jeep of Altaf Hussain where he was sitting along with the other four deceased persons. The dying declaration was correctly recorded by S.H.O.
57. 28.lt was argued by the defence counsel that the F.I.R, is a fake and fabricated document, which cannot be relied upon. According to him in fact it is an unseen occurrence which took place on a road far away from any village or populated area, lt is shown to have been recorded by Munir Hussain, Muharer, who had proceeded to Rawalakot on 17th January and came back on 19th January, as is evident from entry Nos. 9 and 16 of daily register of 17th and 19th January, 1993 respectively. The F.I.R., according to defence counsel was registered after deliberation, 2 to 3 days after the occurrence. The record reveals that the F.I.R, was registered by one Shokat, A.S.I. Second Officer of Police Station, and not by Munir Hussain, although according to entry in daily register of 17th January, Munir Hussain, Clerk, went to Rawalakot and came back on 19th January, but from the perusal of F.I.R, this argument that the F.I.R, was recorded after 19th January, 1993, carries no weight.
58. 29.The complainant stated that he met the S.H.O, in the way and presented the application. The S.H.O, sent the same to the Police Station. His version is supported by Shah Muhammad who stated that application was presented to the S.H.O, in the way. The version is further strengthened by the recording of dying declaration of Taj Shaheen in the way and statement of S.H.O., that he met complainant at Nalinda Cross when he was taking Taj Shaheen towards Pallandri, where he received application and sent it for registration of case to Police Station Pallandri and recorded the dying declaration, lt is such an incident where five persons including one of brothers of complainant have been murdered where it was not possible for the complainant to furnish minor details in the F.I.R. The F.I.R, is a document on the basis of which the police machinery is activated and set in motion for investigation, lt is not necessary that the F.I.R, shall contain minor details, ln a case titled Muhammad Yousuf alias Baggi v. The State [1995 P.Cr.L.J. 1262] it was observed as under:-- "The contention of the learned counsel for the appellant that as the occurrence took place during darkness of night, non-disclosing of source of light either in F.I.R, or in the complaint to establish identity of the accused is of no help to the appellant; as it is not obligatory that the F.I.R, being initial report, must contain all minute details as it is not a substantive piece of evidence."
59. Similarly in a case reported as The State v. Waheed Iqbal [2005 SD 1098], it has been held as under: -- "As the contention of the learned counsel for the appellant is concerned, that detail was not mentioned in the F.I.R, about the injuries inflicted upon the deceased and the F.I.R, simply contained that Yasir fired at complainant while Waheed and Yasir fired bullets at Nasir Iqbal and it did not contain as to on which part of the body the bullets were fired, has no substance, because F.I.R, is not substantive piece of evidence, lt is just a document. for bringing the investigation agency into operation, therefore, it could be said that if details have not been mentioned in the F.I.R., it shall not make any difference." ' ln another case reported as Jan Muhammad v. Muhammad Ali and 3 others [2002 SCM R 1586], it has been observed as under:-- conspiring also that the F.I.R, being neither substantive evidence nor exhaustive document and if the detailed facts have not been mentioned, it would not diminish its correctness."
60. 10.Both the learned counsel for the defence attacked the site plan on the ground that the place of firing of accused is not shown in the site plan, lt is not shown in the site plan at which place prior to firing the accused were hiding and from which place any of the accused was firing, lt was argued that the site plan negates the prosecution story. The occurrence is stated to have taken place on a road which goes to Baral from Pallandri. lt is not disputed by the defence that the occurrence has not taken place at this place, rather the case of defence is that some unknown persons have committed the crime. The police has collected crime empties from points Nos. 3, 4, 5 and 6. All the above- mentioned points are shown to be near the jeep. The witnesses Fayaz and Zahid Hussain are shown to have been at point No, 7, which is on western side of road and towards northern side of jeep, while the witnesses. Abdul Hussain, Siddique, Sadiq ,and Khalid Mehmood are stated to have witnessed the occurrence from point No, 8. lt has come in the statements of eye-witnesses that the occurrence took place within a few minutes. All the accused were firing on the jeep, lt was not possible for the witnesses to see that which of the accused fired upon which deceased. The prosecution witnesses have pointed out the presence of accused firing on the jeep. Furthermore the pieces of glass have been taken into custody by the police from the place of occurrence. The jeep in broken condition was taken into custody by police from the same place of occurrence. The site plan also contains that the dead-bodies of Altaf Hussain and Munir Hussain were taken out from front seat and dead bodies of Ahid Hussain and Amjad Hussain were taken out by police from backside of jeep. The site plan corroborates the prosecution case. The site plan is not a substantive piece of evidence, lt is only prepared for the purpose of appreciating the evidence and the crime scene can be easily explained. We, therefore, see no force in the contention of the learned counsel for the accused with regard to the site plan, ln a case titled Sardar Khan and 3 others v. The State [1998 SCM R 1823], it was observed as under:-- ", The site plans are, however, prepared only to explain or to appreciate the evidence on record in the case. Site plan by itself is not a substantive piece of evidence so that it could contradict the ocular account in the case. ' ln a case reported as Mst. Shamim Akhtar v. Fiaz Akhtar and two Others [PLD 1992 SC 211], it was held as under:-- "8. The learned counsel then referred to the site plan and submitted that a bare perusal of the site plan would show that it was not possible for the complainant to identify the accused. This contention has no force. This site plan was prepared on 7.7.1985 i,e, after about 50 days of the occurrence. Though, it is mentioned that it was prepared on the pointation of Mst. Shamim Akhtar but Mst. Shamim Akhtar in her statement stated that she had shown the place of incident to the Investigating Officer, She had not stated that on her pointation the site plan was prepared. The Investigating Officer has deposed that on 7.7.1985 he got prepared the sketch from the draftsman.
61. Moreover site plan is not a substantive piece of evidence. We, therefore, see. no force in this contention."
62. 11.Sardar Muhammad Hussain disputed the recovery of Carbine from Ghulam Rasool. He argued that the recovery was fake and fabricated. No Carbine was recovered from Ghulam Rasool. Death was caused by the bullets and not by pellets of 12-bore guns. Furthermore the Carbine was not sent to Forensic Science Laboratory, ln absence of report of Forensic Science Laboratory, the recovery cannot be read against Ghulam Rasool, accused, lt is evident from the record that Ghulam Rasool is the principal accused, in the occurrence. There is a long history of enmity between the parties Three sons of Ghulam Rasool, accused, were murdered and the case was registered against the present complainant party, lt was Ghulam Rasool, who has motive to murder *^e deceased and not anyone-else. Four witnesses of reference appeared in the Court against him and implicated him that he was present be the place of occurrence firing with a carbine. The Carbine was recovered U i presence of witnesses who proved the same in the Court.
63. The Investigating Officer who recovered the Carbine from Ghulam Rasool also appeared as a witness. He proved ^ recovery of Carbine from Ghulam Rasool in presence of witnesses. Both witnesses also appeared in the Court and proved recovery of Carbine. Their evidence is confidence inspiring. As regards the argument that Carbine was not sent to Forensic Science Laboratory and in absence of report of Forensic Science Laboratory, reliance cannot be placed upon the recovery, it may be stated that the instant case is ' one of direct evidence. When the case of prosecution rests upon the direct evidence, the Courts do not insist upon corroboratory evidence like Ballistic Expert's report, ln presence of statements of four eye-witnesses, two of whom are independent; dying declaration of Taj Shaheen, deceased, the recovery of carbine from Ghulam Rasool is of not much importance for proving the case, ln a case titled Javaid Azam and 2 others v. Muhammad Saleern and the State and 9 others [PLJ 1997 226] it was observed by this Court asunder.--'
64. "17. The entire case of the prosecution depends upon the | eye-witnesses account not upon the circumstantial or corroborative evidence, ln the presence of witnesses two of whom are injured and others having personally seen, the accused attacking upon the complainant party, the opinion of the Fire-arms Expert or Ballistic Expert etc. matters least. The opinion of Fire-arms Experts, Ballistic Experts and Chemical Examiners is necessary in the case when the occurrence is not witnessed by the eye-witnesses and the case entirely depends upon circumstantial evidence. The opinions and reports of these experts are always to support, or corroborate the other evidence if direct evidence is not available, ln the case in hand, the occurrence did not require any corroboration as the direct evidence itself was available, lt was the case of broad day light firing in the very busy Chowk witnessed by the prosecution witnesses and all others, who could be produced in defence by the respondents if the matter was otherwise."
65. ' Similarly in the case titled Sardar Khan and 3 others v. The State [1998 SCMR 182], it was held as under:-- The recoveries of the fire-arms from the appellants were not relied by the High Court for sustaining the conviction and sentences of appellants under Section 302/34, P.P.C. Recovery of crime weapon and report of ballistic expert or other expert evidence in the case, are only confirmatory or explanatory of the direct and other circumstantial evidence in the case. Therefore, such evidence does not outweigh the trustworthy direct evidence in the case. We are, therefore, of the view that even if the recovery of fire-arm is kept out of consideration, it would not affect the fate of this appeal which is mainly based on direct evidence."
66. 12.The defence counsel also attacked the statement of accused Altaf Hussain son of Ramzan recorded under Section 164, Cr.P.C, having been procured under duress and with connivance. The accused later on retracted from his confessional statement. The confessional statement was recorded by the then Sub-Judge Pallandri, Sardar Muhammad Ayaz Khan, who was a judicial officer of high reputation. He appeared as a witness in the Trial Court and proved the confessional statement. He stated that the accused voluntarily got recorded his statement. He provided full opportunity to accused for thinking before recording his evidence. After being satisfied that the accused is recording his statement at his own free will, he recorded his confessional statement, ln the cross-examination he stated that he did not summon the accused on the application of police rather he ordered the Incharge judicial lock-up to produce accused in the Court. Therefore, the argument of the counsel for the defence is hereby rejected.
67. 13.Sardar Shamshad Hussain Khan while adopting the arguments of Sardar Muhammad Hussain Khan argued that the appellants in appeal No, 12 of 2008 were eye-witnesses in the murder of three sons of Ghulam Rasool. They have been falsely implicated in the case. There is no evidence to connect them with the commission of offence. The accused remained in custody of police for 15 days, but no weapon of offence was recovered from them, although in the F.I.R, they were alleged to be armed with deadly weapons. As it has been discussed above in detail that the eye-witnesses fully implicate the convicts-appellants in appeal No, 11 of 2008 with the crime, it will be of no use again to reproduce the portion of statements of eyewitnesses suffice it to say that the eye- witnesses connect the accused with the crime. The argument that the appellants Irfan, Said Muhammad, Taj and Khalid Mehmood are not relatives of Ghulam Rasool, they have been implicated only due to reason that they were witnesses in the murder case of sons of Ghulam Rasool and no motive is attributed to them, therefore, they are proved innocent, carries no weight because the Trial Court as well as the Shariat Court after due appreciation of evidence of eye- witnesses and corroboratory evidence reached the conclusion that the appellants are connected with the crime, ln a case titled Mary NG v. The Queen [PLD 1959 PC 34] it was observed as under:-- "The evidence led by the prosecution, if accepted, would have sustained a conviction on the first charge. With regard to the second charge it is not disputed that falsity of the representation made by the appellant that she could induce the Magistrate to show favour was, under the relevant Sections of Penai Code of Singapore, a necessary ingredient of the charge." ' ln a case titled Khawand Bakhsh and others v. The State [NLR 2000 SCJ 179] it was observed as under:-- "The principle of falsus in un falsus in omnibus would not be applicable to their case because of availability of sufficient corroboratory material against them. The rule about the indivisibility of the testimony of a witness is that ordinarily if he is found to have falsely implicated an accused person, he should not J^e relied upon with regard to the other accused in the same occurrence; but if his testimony stands corroborated by strong and independent circumstances regarding the other, the reliance might then be placed on him for convicting the other accused. The Courts are required to separate grain from the chaff by considering whether the same tainted evidence stands corroborated from some independent and strong circumstance or evidence." ' ln a case titled Muhammad Yousuf alias Baggi v. The State [1995 P.Cr.L.J. 1262] referred to by the defence counsel it was observed as under:-- "21. The outcome of above discussion is that neither any motive has been attributed to* the appellant to kill the deceased nor it has been proved beyond any shadow of doubt. The medical evidence is not clearly supporting the complainant version as there are vital discrepancies as the ocular evidence is not in consistency with medical evidence on record. Similarly, neither recovery of empty was made from the spot nor recovery of rifle P. 1 was proved by independent witnesses and the prosecution witnesses were not independent." ' ln a case titled Abdul Rehman & another v. Muhammad Mushtaq & another [2007 SCR 100] it was observed by this Court as under:--- " ........ lt is well-settled principle of law that while dealing with a murder case it is the fundamental duty of the Court that it should sift the grain from the chaff 14.The Trial Court awarded sentence of 10 years' rigorous imprisonment on five counts, in total 50 years, to appellants Muhammad Irfan, Said Muhammad, Muhammad Taj and Khalid Mehmood, each. The Court also ordered that the sentences shall run consecutively. Benefit of Section 382-B, Cr.P.C., was also given to the appellants. On appeal the Shariat Court held that under proviso (a) of sub-section (2) of Section 35, Cr.P.C, a sentence greater than the original provided for the original offence cannot be awarded.
68. 15.Section 35, Cr.P.C, provides that when a person is convicted at one trial of two or more offences, the Court may, subject to provisions of Section 71 of Penal Code, sentence him for such offences to several punishments and such sentences shall commence one after the expiration of other unless the Court directs that such punishments shall run concurrently. Sub-section (2) of Section 35, Cr.P.C, provides maximum term of punishment and proviso (a) to sub-section (2) provides that in no case the sentence of imprisonment shall be for longer period of more than 14 years, lt has to be seen whether the proviso to sub-section (2) of Section 35, Cr.P.C, applies only to Courts of Magistrates or, it applies to Courts of Sessions/District Criminal Courts. A plain reading of sub-section (2) of Section 35, Cr.P.C, leaves no doubt that it deals with only those Courts which have limited sentencing powers. The Shariat Court and the District Criminal Courts are authorised by law to pass any sentence provided for the offences. .
37. The Courts of Magistrates have limited powers of sentencing under Sections 30, 32 and 34, Cr.P.C, while the Shariat Court and the District Criminal Court can pass any sentence under Section 31, Cr.P.C. The proposition came under consideration of Supreme Court of Pakistan in a case titled Bashir and 3 others v. State [PLJ 1992 SC 1], For resolving the controversy a larger bench of Supreme Court of Pakistan was constituted after considering Sections 30, 31, 32, 34 and 351, Cr.P.C., Sections 53 and 57 of Penal Code and going through all the previous case-law, decided 4 by the Supreme Court, the Court reached the conclusion that Section 35(2), Cr.P.C, deals only with sentencing powers of Magistrates at trial and the proviso is restricted to Courts of Magistrates with limited sentencing powers, lt is not applicable to the Courts whose powers of sentencing are not limited, lt was resolved in paras 12 and 13 of aforesaid judgment as under:-- "12. lt is clear, therefore, that Section 35(2) deals only with the sentencing power of the Magistrates at a 1 trial and the proviso has necessarily to be restricted to the Courts of Magistrates with limited sentencing power. On no principle of interpretation can the proviso be extended so as to outstrip the substantive scope of sub-section (2) of Section 35, Cr.P.C, and to refer to the Courts whose power of sentencing is not so limited.
69. 13.ln the cases before us, we are not dealing with the cases of sentencing by Magistrates or Courts having limited power of sentencing, lt is the sentences passed by the Trial Court, i,e, Sessions Judge who, as pointed out under Section 31 of the Criminal Procedure Code, has no limitations on his powers except to pass a sentence authorised' by law. There is no higher Court for a Sessions Judge within the meaning of sub-section (2) of Section 35, Cr.P.C, ln the circumstances, this section has no application to the trial by the Sessions Judge and to the conviction and sentence imposed by that Court and for that reason the decisions on which reliance has been placed and which have come up specifically for reconsideration and review, cannot be sustained.
70. The legal question raised is answered accordingly." ' lt was further observed in para 16 as under:-- "16. ln view of the foregoing discussion and the interpretation of law directly in issue, we have come to the conclusion that our judgments in the cases of Javed Shaikh (1985 SCM R 153), Juma Khan & another (1986 SCM R 1573), Muhammad Ittefaq (1986 SCM R 1627) and Khan Zaman and others (1987 SCM R 1382) not correctly interpret Section 35(2) of the Criminal Procedure Code and require review. We accordingly review the same, restricting the effect and import of sub-section (2) of Section 35, Cr.P.C, to the judgments and sentences by Courts other than and subordinate to the Sessions Judge and the High Courts, i,e,, the Magistrates and the Assistant Sessions Judges, wherever in existence."
71. ' From the above, it is very much clear and we hold as such that the restriction laid down in proviso to sub-section (2) of Section 35, Cr.P.C, is not applicab'e to District Criminal Courts/Sessions Judges while convicting an accused. The District Criminal Court can pass any sentence authorised by law.
72. 38.The motive is alleged that three sons of Ghulam Rasool were murdered. The case of their murder was against the complainant party. The parties compromised and sum of a Rs, 10,00,000/- was paid to Ghulain Rasool but Ghulain - Rasool wanted to take revenge from the murderers of his sons. He hired the accused, Abbas and Mazhar and committed the crime. The prosecution has successfully proved the motive by the reliable evidence. This is important corroboratory piece of evidence which can be read against the accused.
73. 39.The recovery of crime empties the place of occurrence, broken pieces of glass, blood-stained earth, recovery of weapons of offence from the accused, injury reports of the deceased, post- mortem report of deceased and Chemical Examiner report are all corroborative pieces of evidence where the prosecution version is proved and the Trial Court as well as the Shariat Court has believed the corroboratory piece of evidence. The statements of Syed Hussain Shah and Munshi Khari also support the prosecution version that they saw the accused, Ghulam Rasool, Mazhar Iqbal, Khalid, Khaliq and others going towards the place of occurrence in armed condition before the occurrence. The statements of defence witnesses and the accused, Ghulam Rasool, Mussarat Hussain, are of ho help to the case of defence. The prosecution has proved its case from cogent, coherent, natural and reliable testimony of the eye witnesses. Furthermore, the case of the prosecution is proved by corroboratory evidence.
74. 40.We have considered the argument of the learned counsel for the complainant that under Section 544- A, Cr.P.C., it was obligatory for the Court to award compensation to the legal heirs of the deceased persons. Section 544-A, Cr.P.C., was incorporated in Pakistan by Law Reforms Ordinance, 1972. For adoption-'of amendments of the Criminal Procedure Code, an Act was passed by the Azad Jammu anti Kashmir Legislative Assembly and promulgated on 12th December, 2001 which includes Section 544-A, Cr.P.C. The occurrence in the case took place on 18th January, 1993.
75. Section 544-A, Cr.P.C., was not applicable at the time of occurrence, therefore, the compensation cannot be awarded under Section 544-A, Cr.P.C.
76. 41.We have also considered the contention of counsel for the complainant that the death sentence awarded to respondents Nos. 2 and 3 as Tazeer' be converted into death sentence as 'Qisas'. We do not agree with the contention because the Trial Court reached to the conclusion that the eye-witnesses are 'ghair aadil'. Under Section 24, I.P.L., if a witness is found 'ghair aadil', the sentence of 'Qisas' cannot be imposed. The Court is competent to pass alternate sentence or sentences provided under Section 3,1.P.L. Since the witnesses were found 'ghair aadil', the Trial Court correctly passed the sentence of death as Tazeer'.
77. 42.V\(e have also considered the argument of counsel for the Complainant in respect of acquitted accused. The Trial Court acquitted the accused and the Shariat Court maintained the acquittal order. The acquittal order passed in favour of an accused has double presumption of innocence. After considering all the evidence, we are unable to agree with the argument of the counsel for the complainant.
78. 43.We have also considered the argument of counsel for the complainant for enhancement of sentence of accused, Muhammad Irfan, Said Muhammad, Muhammad Taj and Khalid Mehmood, After going through the evidence and judgments of both the Courts below, we do not agree with the counsel for the complainant. The Trial Court awarded correct sentence.
79. The result of the above is that:-- (i)Crl. Appeal No, 11 titled Ghulam Rasool and another v. The State and another is dismissed.
80. (ii)Crl. Appeal No, 12 titled Muhammad Irfan and others v. The State and another is partly accepted. They have already undergone the sentence of around 10 years and more. The Judgment of the Shariat Court to the extent of awarding 14 years' sentence is modified. The 4 Judgment of the Trial Court whereby the appellants were awarded 10 years' sentence rift five counts is restored.
81. However, all the sentences shat! run concurrently. They shall be entitled to the benefit of Section 382-B, Cr.P.C.; given to them by the Trial Court.
82. Crl. Appeal No, 13 titled Ahsan-ul-Haq and others v. The State and others is dismissed.