' MUHAMMAD NOOR MESKANZAI, J.---The appellant has called in question the legality and propriety of judgment dated 25th November, 2009 passed by Sessions Judge, Loralai, whereby the appellant was found guilty and sentenced as under:- Under section 302(b), P.P.C. To suffer imprisonment for life as Ta'zir with fine of Rs, 50,000 to be paid to the legal heirs of deceased. In default of payment of fine, the appellant was directed to further suffer six months' S.I. Benefit of section 382-B, Cr. P. C. Was also extended in favour of appellant.
2. Briefly stated, the facts of the instant appeal are that the complainant Niaz Muhammad on 8th June, 2009 lodged F. I. R. Bearing No,19 of 2009 with Police Station, Sanjavi District Ziarat under sections 302, 147, 148 and 149, P.P.C. It was alleged in the F.I.R. That the complainant runs a hotel at Sanjavi Bazar. On 8th June, 2009 at 9-50 p.m., he along with Muhammad Amin and Shah Muhammad were sitting in Post Office with Postmaster. At about 9-50 p.m. (night) the persons namely Muhammad Hassan, Abdul Rahim, Abdul Hameed, Mehmood Shah sons of Mullah Muhammad Karim and Noorullah (appellant) made firing upon the brother of complainant namely Shah Muhammad, due to which brother of complainant died. The complainant alleged that accused Muhammad Hassan was having a pistol in his hand, whereas the remaining four accused were armed with Kalashnikov. After the commission of offence, the accused persons, in a 2-D Corolla red in color left the incident. The motive behind the incident was stated to be the previous enmity.
3. After registration of F. I. R. Investigation commenced and appellant Noorullah was arrested, whereas the remaining accused persons were declared absconders, as such challan to the extent of appellant was submitted before the trial Court.
4. The learned trial Court framed charge and read over the same to appellant, to which he pleaded not guilty and claimed justice through trial. Where after the prosecution, in order to substantiate the accusation produced following six P.Ws:- ' P.W.1 Niaz Muhammad (complainant) who produced F. I . R. As Exh. P/1-A .
' P.W.2 Dr. Saifullah, who examined the dead body of deceased Shah Muhammad and produced death certificate Exh.P/2-A.
' P.W.3 Muhammad Ayaz, Constable who produced recovery memo Exh.P/3-A, Parcel Art.P/1, waistcoat Art. P/2 and cap Art.P/3.
' P.W.4 Shah Muhammad, who produced empty cartridges Exh.P/4-A, blood-stained cotton Exh.P/4- B and produced the same before the Court as Art.P/1 and Art.P/2. He produced 21 empty cartridges of Kalashnikov Art. P/3 to Art.P/23, two empty cartridges of pistol Art.P/24 and Art.P/25. He also produced three led of bullets Art.P/26 to Art.P/28 and blood-stained cotton Art.P/29.
' P.W.5 Muhammad Abbas Constable.
' P.W.6 Ghulam Shabbir, SIP/ Investigating Officer, who identified his signature over F.I.R. Ex.P/6-A, site inspection sketch Exh.P/6-B, prepared inquest report Exh.P/6-C, incomplete Challan Exh.P/6-D, FSL report Exh.P/6-E and supplementary Challan Exh.P/6-F.
5. At the end of prosecution evidence, the appellant was examined under section 342, Cr.P.C, wherein he denied the incriminating pieces of evidence produced against him. The appellant also got recorded his statement on oath as envisaged under section 340(2), Cr.P.C. And produced one DW namely Sardar.
6. On conclusion of trial, the learned trial Court found the appellant guilty and sentenced him as mentioned hereinabove, hence this appeal.
7. The learned counsel for the appellant contended that the impugned judgment is based on misreading and miss-appreciation of evidence. It was contended that there are material contradictions and dishonest improvements in prosecution evidence, on the basis whereof the learned trial Court recorded illegal conviction, which requires interference by this Court. The learned counsel vehemently contended that the F.I.R. Has been lodged with an inordinate and unexplained delay, which shows false implication of appellant in the commission of offence. The learned counsel emphasized that the complainant in the F.I.R. Admits previous enmity with appellant, as such in the garb of said enmity, the appellant was implicated in the commission of offence. That fact can be proved through F.I.R. Which was lodged after 14 hours, which shows that an afterthought and concocted story has been fabricated against appellant The learned counsel vehemently urged that an alleged eye-witness namely Muhammad Amin, who was present at the spot when alleged incident took place, was not produced. Whereas P.W. Shah Muhammad, who is admittedly a relative of complainant, was examined, but his statement is neither believable nor trustworthy being a relative. The learned counsel contended with great vehemence that the record is silent with regard to the recovery of crime weapon i,e, pistol from the possession of appellant.
There are material contradictions in the statements of prosecution but were overlooked by the learned trial Court. The learned counsel lastly contended with great vehemence that the evidence of DW produced by appellant i,e, Sardar in his defence, was illegally discarded by the learned trial Court. According to the appellant, he long with appellant and one Rasheed were present in Duki on the night of incident and departed for Loralai next morning at 8-00 a.m. In a Pickup, where the appellant. Noorullah was arrested. The learned counsel for the appellant stated that subsequent to the trial of appellant, one of the absconders was arrested. During the course of subsequent trial Muhammad Amin appeared and disowned the story, whereas Shah Muhammad also appeared and disowned his earlier statement. Though both the witnesses were declared hostile but the accused was acquitted of the charge. The subsequent judgment has been produced and placed on record, appellant claimed to be entitled for the benefit of doubt on that score too. The learned counsel invited our attention to a subsequent judgment delivered by learned Sessions Judge, Loralai and submitted that the co-accused have been acquitted of the charge on same set of evidence. The learned counsel referred to and relied upon the judgments reported in 1985 SCM R 181, 2003 SCM R 477 and 1993 PCr.LJ 1231.
' On the other hand, the learned Additional Prosecutor-General opposed the appeal and contended that the appellant along with absconding accused were specifically nominated in the F.I.R. She contended that the evidence produced by the prosecution are confidence-inspiring. P.Ws.
Stuck to their gun and their evidence has rightly been appreciated by the trial Court. She contended with great vehemence that the recovery of empties prove the fact that the deceased was murdered, besides the forensic report confirms the bloodstain on the clothes and cotton.
8. We have considered the contentions put forth by the parties learned counsel and have gone through the record minutely. Before dilating upon respective contentions of learned counsel for the parties, we deem it just and proper to reproduce the gist of evidence produced by prosecution.
' P.W.1 Niaz Muhammad complainant deposed that on 8th June, 2009 at about 9-50 p.m., he along with Muhammad Amin and Shah Muhammad were going towards Sanjavi Post Office, where they sat with the brother of complainant namely Shah Muhammad. In the meanwhile Noorullah, Abdul Rahim, Hassan Khan, Mehmood Shah and Abdul Hamid reached there in a 2-D Car and knocked at the door of post office. Shah Muhammad brother of complainant when opened the door, Muhammad Hassan having pistol and remaining accused persons having Kalashnikov made firing upon him, due to which Shah Muhammad died. The accused persons after commission of offence made their escape good. This P.W. Admits the incident to be the result of an old enmity.
' P.W.2 Dr. Saifullah, Medical Officer RHC, Sanjavi, who examined the deceased and found following injuries on his person:-
(i) A burnt wound with the loss of skin, muscles and bones of anterior 2/3rd of right lower leg measuring 10" in length.
(ii) One entrance wound of bullet on the left infra scapular region and exit on the right stenal region at the level of 5th intercostals space.
(iii) One entrance wound of bullet on the lower back and exit over the left infra scapular region.
(iv) One entrance wound over the lateral aspect of right thigh and exit on the medial aspect of right thigh.
(v) One entrance wound of bullet over the right flank and no exit scene.
' P.W .3 Muhammad Ayaz, Constable deposed that on 9th June, 2009, he along with Muhammad Abbas constable were present it in Police Station, Sanjavi. The complainant procured a cap, blood- stained waistcoat carrying three marks of bullet to S.I. Shabbir, which were taken into possession through recovery memo and in their presence parcel was prepared. He identified his signature over recovery memo Exh.P/3-A and parcel Art.P/1. He produced waistcoat Art.P/2 and cap Art.P/3.
On the same day Shabbir S.-I. Took into possession a red colour 2-D Car through recovery memo upon which the witness identified his signature upon recovery of Car Exh.P/2-B.
' P.W.4 Shah Muhammad eyewitness deposed that on 8th June, 2009 at about 9-50 p.m., he along with Niaz Muhammad and Muhammad Amin were sitting in Sanjavi Post Office. The door was knocked. Hassan was having a pistol while remaining accused persons were armed with Kalashnikov. They made firing upon Shah Muhammad, who died on the spot. Thereafter the accused persons escaped in a red color 2-D car. S.H.O. Along with other police officials reached the spot and took into possession 21 empty cartridges of Kalashnikov, 2 empty cartridges of pistol, 3 led of bullets through recovery memo and also took into possession blood of deceased through cotton and prepared parcels. The witness identified his signature over the recovery memo of empty cartridges Exh.P/4-A and recovery memo of blood-stained cotton Exh.P/4-B before the Court as Art.P/1 and blood-stained cotton Art.P/2. The witness also identified 21 empty cartridges of Kalashnikov as Art.P/3 to P/23, two empty cartridges of pistol Art.P/24 and P/25, three led of bullets Art.P/26 to P/28 and blood-stained cotton Art. P/29.
' P.W.6 Muhammad Abbas, Constable deposed that on 9th June, 2009 at about 2-00 a.m., night, he along with Ayaz Constable, S.-I./S.H.O. Shabbir Ahmed and other police officials went to Saleem Nasar Bagh, where S.-I./S.H.O. Shabbir Ahmed took into possession a 2-D Car through recovery memo prepared in his presence and in presence of Ayaz Constable. He identified his signature over recovery memo of 2-D Car Exh.P/3-B. He also identified 2-D Car Art.P/30.
The perusal of above reproduced evidence shows that the incident took place and Shah Muhammad was murdered. The case of prosecution hinges upon direct ocular, medical and circumstantial evidence. Whatever statement made by P.W.1/complainant that has been corroborated by P.W. Shah Muhammad, who was also present at the time of incident at the venue.
The time of occurrence, kind of weapon, place of occurrence, mode of making firing, identification of the accused persons at the time of incident, particularly mode of entry of accused person into the post office and their escape in a 2-D Car. The statement of P.W.1 is corroborated by statement of P.W. Shah Muhammad in its all material particulars. The medical evidence also supports the prosecution version, because according to P.W.1 and P.W.4, the moment, door was opened by the victim, he was fired upon, hence the fire seems to have been made from a very short distance. The injury No,1 corroborates the statements of P.W.1 and P.W.4. Though the defence conducted a lengthy cross-examination, but there is no improvement and contradiction in the statement of P.W.I. P.W.1 has admitted in A his statement that Fard-e-Bayan was reduced into writing by a petition writer. In reply to a question P.W.1 stated that he has lodged the report at 12.05 day time.
Since from 12 O'clock a.m. Starts perhaps on that analogy the witness might have stated so. Even otherwise, the F.I.R. Is clear that it was got lodged at 12-05 a.m. Night and the police report confirms the same. Moverover, P.W.6 Ghulam Shabbir I.O. In cross-examination has stated that according to his investigation, the incident took place at 9-50 p.m. Night. It was further stated by I.O. That he came to know about the incident instantaneously, as he heard firing and reached at the venue at 10-00 p.m. Night. I.O. Further stated that when he reached the site, Niaz Muhammad, Muhammad Amin and Shah Muhammad were present. I.O. Further stated that report was submitted to him on 9th June, 2009 at 12-05 a.m. Night. The I.O. Denied that the F.I.R. Has been lodged on 9th June, 2009 at 12-05 noon after the lapse of 14 hours. While conducting cross upon I.O., defence has never disputed the presence of the P. Ws. At the site when the incident took place. Under such circumstances, we do not see any reasons to disbelieve the ocular account furnished by P.W.1 and P.W.4 corroborated by medical evidence and the recoveries. Further P.W.4 has produced the recovery memo pertaining to blood-stained B cotton and the positive report of FSL, which fully corroborates the statement of P.W.4. Since different type of weapons were used by the accused persons and the recovery of shells from the venue further supports the prosecution version.
' No doubt the Fard-e-Bayan was reduced into writing by the petition writer. The defence throughout has taken plea that the F.I.R. Has been lodged after the delay of 14 hours but failed to establish the fact, hence there is no delay in the lodging of the F.I.R. As far as the recovery of vehicle is concerned, since the vehicle in question was not identified by the witnesses, hence the recovery of vehicle is immaterial; neither it helps the prosecution nor the defence. Since the prosecution evidence remained firm, consistent and corroborative to each other on all the material points i,e, the timing, manner of commission of offence, identification of the accused being armed with specific weapons. Under such circumstances, the trial Court has rightly rendered the findings, which are not open to any exception. As far as the non-recovery of crime weapon from the possession of the appellant is concerned, we have taken into consideration this aspect of the matter. The appellant was not arrested from the venue, who successfully made his escape good.
Therefore, mere non-recovery of crime weapon, cannot be treated a circumstance to vitiate the prosecution case. As far as non-production of P.W. Muhammad Amin is concerned, during the course of trial, non-bailable warrants were issued; however, the said witness could not be traced therefore dropped. The prosecution produced two eye-witnesses and remained satisfied with the number of witnesses. Even otherwise it is the prerogative of the prosecution to produce whatever number of witnesses, which it feels necessary to prove the case. The testimony of P.W.1 and P.W.4 were treated sufficient by the prosecution and the trial Court rightly believed the said two witnesses, therefore; in our opinion, the non-production of Muhammad Amin is not fatal. As far as the contention regarding subsequent development i,e, the acquittal of co-accused on same set of evidence is concerned, we have not been able to persuade ourselves to subscribe view point of the learned counsel for appellant for certain reasons. Firstly the prosecution successfully got recorded the statement of two eye-witnesses and the prosecution succeeded to prove the guilt to the hilt.
Secondly, though the witnesses were declared hostile in subsequent trial of another accused, but in our considered opinion, the subsequent hostility does not prejudice the earlier statement recorded by the witness. Furthermore, we have noted it painfully that P.W. Shah Muhammad while appearing at the trial for the second time made a contrary statement to his earlier statement. The trial Court was bound to have initiated proceedings against the said witnesses as contemplated by section 192, P.P.C. We have given our anxious thought to the proposition involved in the matter as to whether the subsequent hostility can nullify the statement made by an accused in a case where the proceedings have attained finality, in our considered opinion the subsequent hostility will not affect the veracity of the witnesses recorded earlier provided the same is corroborated by other material available on record. As regards the citations referred to and relied upon by the learned counsel for the appellant, the same are distinguishable and do not help the appellant. Under such circumstances, we are satisfied with the findings rendered by the trial Court and thus finding no force in the appeal, the same is dismissed. Before parting with the judgment, we feel it inevitable to direct the trial Court to initiate proceedings against Shah Muhammad, as he, prima facie appears to have committed an offence within the meaning of section 192, P.P.C. While recording his statement in the subsequent trial. Office to send the copy of this judgment to the trial Court for initiating appropriate proceedings against Shah Muhammad son of Pir Muhammad as contemplated by law.