' NISAR HUSSAIN KHAN, J. Appellant Amir Zad has challenged his conviction recorded by learned Additional Sessions Judge-Ill, Bannu, vide his judgment dated 18.10.2010, in case F.I.R. No, 32, dated 05.03.2008, registered under sections. 302/324/34, P.P.C.;/at; Police Station, Basia JChel, District Bannu, whereby he was convicted and sentenced in the following manner:-
(i) Under section 302(b), P.P.C, to life imprisonment and to pay Rs, 1,00,000/-as compensation under section 544-A, Cr.P.C, to the legal heirs of deceased, in default whereof to suffer 6 months' S.I.
(ii) Under Section 324, P.P.C, for attempting at the life of Qamer Zaman complainant to 5 years' R.L with fine of Rs, 5,000/-, and in default to stiffer 6 months' S.L
(iii) Under section 324, P.P.C, for attempting at the life of injured Sardar Daud to 5 years' R.I. With fine of Rs, 5000/- and in default to suffer 6 months' S.I.
(iv) Under section 337-F(iii), P.P.C, to 2 years' R.I. And to pay Rs, 10,000/- as Daman to injured complainant!
(v) Under section 337-D, P.P.C-, to 2 years' R.I. And to pay Arsh to the injured.
(vi) Under section 337-F(ii), P.P.C, to 2 years' R.L and to pay Rs, 10,000/f as Daman to injured Sardar Daud.
' Benefit of section 382-B, Cr.P.C; was extended to him.
2. Co-accused Gul Azad son of Raham Zad was acquitted of the charge by extending him benefit of doubt.
3. Sardar Daud injured has filed Cr.R. No, 06-B/ 2010, for enhancement of sentence of convict Amir Zad. Sjjpilarly., he has1 also filed Cr.A. No, 55-B/2010, against acquittal-of co-accused Gul Azad. As, all the three, emanate from theTsame judgment of the Trial Coqrt, stemming out of the same F.I.R., hence, are going to be decided through this common judgment.
4. The occurrence was reported on 5.3.2008 at 1030 hours to Mir Sardar Khan, AS1, by complainant Qamer Zaman, in injured condition, in Civil Hospital Bannu that on the day of occurrence he alongwith his brother Sardar Daud and his father Mir Zaman Khan, were present in their hotel, at village Basia Khel. At about 1030 hours, Amir Zad Khan (appellant-convict) alongwith his co- accused Sharifullah and Gul Azad Khan, duly armed with Kalashnikovs, came there. After chomping confection (Halwa) and taking 'other commodities, when complainant demanded the price, all the three, were exasperated and fired at them, with intention to commit their murders, as a result, they sustained injuries. Beside them, customers Roman Khan, Ghaffar Ali, Muzzamail Khan were also hit with the firing of accused. Father of complainant and one of the patrons Roman Khan died at the spot. Motive for the crime is not a previous enmity but was demand of payment of eatable commodities. The accused fled away from the spot, after the incident. Report of the complainant was incorporated into murasila, which was sent to Police Station, on the basis of which F.I.R.
Mentioned above, was registered.
5. Investigation, as usual, was conducted and after arrest of appellant-convict and Gul Azad (acquitted co- accused), challan was submitted against them in the Trial Court, where, they were charge-sheeted to which they pleaded f not guilty and claimed trial. Prosecution in order to prove its case examined eight witnesses. After closure of prosecution. Evidence, statements of accused under section 342, Cr.P.C, were recorded, wherein they denied the prosecution allegations and professed their innocence. However, they declined to be examined as their own witnesses under section 340(2), Cr.P.C, or to produce evidence in-defence. Learned Trial Court, after hearing the Prosecutor and the defence, Convicted and sentenced, accused Amir Zad, as mentioned-above, while, acquitted accused Gul Azad, hence, these appeals and revision.
6. Learned counsel for appellant-convict Amir Zad argued that there is a delay of 1 hour and 15 minutes in lodging report while the distance between the place of occurrence and that of Police Station is 5/6 Kilometers. He maintained that appellant was once convicted by Trial Court and the case was remanded by the High Court by setting aside the conviction recorded by Trial 'Court, but after remand, direction of the High Court has not been complied with; that in view of cross- examination of the Investigating. Officer, the time of occurrence is contradicted. He further maintained that statement of doctor recorded during the first trial was not put to appellant- convict in his statement under section 342, Cr.P.C., hence, it cannot be read against him; that consent accorded by learned defence counsel at the time of transposition of that statement being against the law, is not binding on the appellant nor an inadmissible evidence can be accepted with consent of the parties; that post-mortem report of the deceased by virtue of infirmities cannot be considered while recording conviction of appellant. He maintained that recovery of empties from the spot is also doubtful; that there are affidavits of two injured Ghafar Ali and Muzammil, by virtue of which, the occurrence has riot taken place, as alleged by the prosecution, so benefit of doubt is to be extended to appellant-convict and he is entitled for acquittal.
7. Conversely, learned counsel for respondent- complainant argued that, although, after transfer of statement of Dr. Riaz Ahmad (PW.5), on the file of trial of. Appellant, statement of appellant-convict under section 342, Cr.P.C. Was not recorded, but the same evidence was put to him in his statement recorded on 12.1.2009, so it can be read against him. Learned counsel contended that at the time of earlier trial, appellant was sentenced to death, but after remand, he has been awarded life .Imprisonment;, that learned defence counsel at the time of transfer of statement of the Medical Officer, did not raise any objection, rather; conceded which is reflected from order-sheet of the Trial Court; that typographical mistake in the cross-examination of Investigating Officer regarding time of occurrence is very much; clarified from the very first diary of the I.O. When he proceeded to the spot for investigation. He maintained that said doctor, could not be examined due to his brain haemorrhage, due to which, he was incapable to make statement; that the affidavits of two injured cannot be considered because appellant-convict has effected compromise with them; that place of occurrence is not - disputed; that presence of deceased on the spot at the time of, occurrence, has not been challenged; that FSL report about the empties further corroborates the prosecution version; that in' absence of any previous enmity the question of false implication does not arise, hence, not only the appeal of- convict-appellant is liable to be dismissed but the revision of complainant for enhancement of sentence of convict is to be accepted and he be awarded normal penalty of death. Learned' counsel for complainant, further argued that prosecution has also proved his case against acquitted co-accused Gul Azad, hence, appeal of complainant filed against his acquittal be accepted and he be convicted and sentenced for the crime.
8. We have given our anxious consideration to the respective arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
9. As per prosecution version, the occurrence took place in the hotel of complainant party at 10:30 a.m. Which was reported in the hospital by injured complainant Qamar Zaman at 11.40 a.m.
Though, the distance shown between the crime venue and the Police Station is 5/6 Kilometers. But according to the F.I.R., two persons have been murdered and five have Sustained injuries. In such state of-affairs, the complainant party was supposed to rush to the hospital to save their lives by taking medical aid, which would be the first priority of every sane person. To recollect the reflexes, in such a tense and gruesome situation, and then to shift the dead bodies of two deceased and five injured to the hospital and thereafter arrival of police in the hospital, would have unquestionably consumed some time, which caused delay in lodging report, but it may not be considered to have been used for consultation and fabrication. The bone of contention which resulted in present episode was demand of price of the eatable . Commodities from accused party by the complainant. It is borne out from the record that accused are known hardened and desperate criminals and no body can dare speak against them in the area. The complainant party belongs to the same village and clan of accused party, but not of the equal status of accused. It appears that demand" of payment of price of confection (Halwa) and other eatable commodities; made the accused enraged, as a result, they resorted to indiscriminate firing at the complainant party, resulting into two murders and causing fire-arms injuries to five persons including the passersby. The F.I.R, version is corroborated by recovery of bloodstained earth from the places of two deceased and 06 crime empties of 7.62 bore from places of accused. According to FSL report Exh.ARPW.2/4, the empties were fired from different weapons. The FSL report Exh.PW.3/6, regarding blood-stained articles, reflects that the articles were having human blood. Post-mortem reports of the two deceased and medico legal reports of the injured are also in line with the prosecution version.
10. Both the injured PWs complainant Qamar Zaman and Sardar Daud, corroborated each other on all mated points. They were subjected to lengthy and searching cross- examination by defence, but nothing material could be extracted from them, which could create any dent in the prosecution case. Though, both of them are the sons of the deceased, but it is evident from the record that they have got no previous enmity or malice with the accused, in absence of which, they cannot be branded as interested witnesses. Their interest may be to this extent that to get the real culprits punished for the murders of their fathers. One cannot expect from them to involve innocent persons instead of the real assassins. It is settled law that statement of interested witness should be taken with great care and caution, who has previous enmity with the accused and is interested in his conviction. In the instant case, both the injured witnesses are the real sons of the deceased and having stamps of injuries on their bodies, they cannot be expected to substitute innocent persons for the real culprits. Their interest to prosecute the actual culprits is natural; hence, they cannot be disbelieved.
11. The affidavits relied upon by appellant-convict, tendered by two injured, in pursuance of the compromise, cannot create any dent in the prosecution case. Firstly, for the reason that those are related to the injuries caused to the two injured and the affidavits were tendered by them in that context. Secondly, the deponents of the affidavits have not offered themselves for cross- examination, as they have not deposed on oath before the Court nor appellant-convict has produced them in their defence. Merely, filing of affidavits would not affect the prosecution case, nor would benefit the accused. l2. The contention of learned counsel for the appellant- convict that the Investigating Officer in his cross-examination has stated that he received copy of F.I.R, at 10.40 a.m. Is against the F.I.R, version which was registered at 1300 hours. Suffice it to say, in this regard, that the very first diary of the Investigating Officer reflects that -he reached at the spot, on receipt of F.I.R, and started investigation at 1.05 p.m. In this respect, the explanation offered by learned counsel for the complainant is plausible that it was a typographical error. The Investigating Officer, started investigation at 1.05 p.m. Undoubtedly, he might have started investigation at 0140 hours but instead of typing zero at the left end of 1, it has been placed in the middle, which if it had been correctly typed, it would have been as 0140 hours. However, be that as it may, such concession, offered by the I.O. During his cross- examination, which is against the record and his own diary cannot be made a mountain out of the male, and on the basis thereof, appellant cannot be acquitted, when otherwise, Strong, cogent, coherent and confidence inspiring ocular account hast been furnished against him by two injured eye-witnesses, whose presence has undoubtedly been established by recovery of empties and blood-stained earth from the places of two deceased as well as stamps of fire-arm injuries on them.
13. Now we come to the objection of learned counsel for appellant-convict about post-mortem report of the deceased, which according to him, was not put to appellant convict in his statement under section 342, Cr.P.C, after its transposition, during the second trial. The objection is based on the judgment of this Court at D.I. Khan Bench, dated 10.06.2010, in Cr.A. No, 27 of 2010, filed by appellant convict Amir Zad, whereby his conviction and sentence was set-aside and the case was remanded with the direction to frame joint charge against the accused and correct the errors committed in framing of charge. It appears that after remand, Other PWs were examined, while statement of Dr. Riaz Ahmad, could not be recorded, due to his inability to make statement, as in the meanwhile, he suffered stroke of paralyses resulting into his brain hemorrhage, due to which, he was unable to move and talk. In this scenario, learned counsel for complainant submitted application for transfer of his statement, which was supported by Deputy Public Prosecutor and stance of the prosecution was not objected by defence counsel, as such, his statement was transposed in the trial of appellant- convict and acquitted co-accused. By virtue of Article 47 of the Qanun-e-Shahadat Order, 1984, evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose-of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence. In the instant case, Dr. Riaz Ahmad has once recorded his statement with regard to the same occurrence and was cross-examined and his that statement was put to the appellant-convict in his statement under section 342; Cr.P.C, in the following words:- Q. How do you explain the PM report already exhibited of deceased Roman Khan and Mir Zaman and is in conformity to the prosecution versus?
' It was answered as follow:- - A. I am innocent and have been falsely implicated in the present case. Furthermore, the PM examination reports do not speak about the guilt of any body,so, it is a legal formality. I need not to say furthermore.
' In view of this question, the objection of learned defence counsel about seeking explanation of the evidence against appellant-convict is squarely met, as post-mortem report has specifically been put in Q. No, 4, which has been answered by appellant-convict. The only question left to determine is, as to whether the evidence of the doctor recorded earlier, could have been treated as evidence against appellant-convict By virtue of Article 47 of the Qanun-e-Shahadat Order, 1984, it is permissible under the law as the ibid Article has been inserted in the Statute to meet such-like situation. Thus, the objection of learned counsel for the appellant-convict is not tenable, particularly, when the appellant in his answer has not questioned the legality or genuineness of the post-mortem reports. Even otherwise, there are areas in our Province, where traditionally post- mortems are not conducted and the cases succeed on the basis of ocular evidence. The medical evidence is always treated as a confirmatory or corroborative piece of evidence. When the ocular account is straightforward, truthful, confidence inspiring and is furnished by injured witnesses, it hardly needs corroborations' from any circumstantial evidence.
14. So far as, the case of acquitted co-accused" Gul Azad is concerned, his presence has been shown on the spot at the time of occurrence at point No, 6, in the site plan, which is at a distance of 25 paces from point No, 4, while the distance from point (c) has not been shown in the site plan.
However, keeping in view his position on the spot, as shown in the site plan, would create doubt in mind of the Court as to whether he has participated in the occurrence not. So the learned Trial Court has rightly appreciated the evidence qua Gul Azad and has rightly acquitted him by extending him benefit of doubt. We could not find any reason to reverse the finding of the Trial Court qua acquitted co-accused, which is maintained.
15. Three accused are charged for effective firing, one of whom namely Gul Azad has been acquitted while the other one Sharifullah is still absconding, whose place of presence at the time of occurrence, is shown near the place of appellant- convict Amir Zad, which create a mitigating- circumstance. In these circumstances, the sentence awarded by learned Trial Court to appellant- convict is just and proper and meet the ends of justice. Therefore, we maintain the conviction and sentence of the appellant-convict recorded by the Trial Court.
I6. For the reasons discussed above, both the criminal appeals as well as Criminal revision are hereby dismissed. Conviction and Life Imprisonment Upheld/.