' SHAUKAT AZIZ SIDDIQUI, J.---Instant appeal under section 410, Cr.P.C. Is directed against the Judgment dated 30.05.2015, passed by the learned Additional Sessions Judge-V, Islamabad (West), whereby Appellant has been convicted and sentenced to life imprisonment with compensation of Rs, 2,00,000/- payable to the legal heirs of deceased, in default to further undergo six months' S.I, with benefit of section 382-B, Cr.P.C., in case FIR No, 376/2011 dated 20.09.2011, offence under sections 302/324/109/34, P.P.C., registered at P.S Koral, Islamabad.
2. Brief facts of the case are that Complainant Azhar Mahmood (PW-14) presented hand written application (Ex:PA) to Muhammad Akram, S.I (PW-10) in PIMS Hospital on the basis of which formal FIR (Ex:PG) was registered. In the Complaint (Ex:PA), Complainant/PW-14 provided following information:- ' That complainant is the resident of Siyyam Koh-e-Noor Rawalpindi, whereas, his brother Kausar Mahmood (deceased) was living with his wife and mother at Sharif Abad within the limits of P.S. Koral, Islamabad. On 29.09.2011, at about 11.00 p.m. He received an information on phone that some unknown persons, murdered his brother by fire shots. Complainant reached PIMS Hospital, where dead body of his brother was lying in mortuary, he further stated in Ex:PA that, his brother Kausar Mahmood (deceased) went to barber shop for haircut in between 9 to 10 p.m., and during his haircutting two persons with masks on their faces, came there on motorcycle, who started indiscriminate firing as a result whereof, Barber Karam Ellahi (PW-18) and Kausar Mahmood got seriously injured due to which his brother succumbed to the injuries, whereas, barber Karam Ellahi was still under treatment in PIMS Hospital. Complainant also mentioned in Ex:PA that he was told by the family members that 2/3 days ago, some unknown persons had knocked at their door at about 10/11.00 p.m. But they did not open the door. Complainant further mentioned that they had no enmity with anyone, and since, his brother was in the company of Barber, therefore, Barber be inquired about the enmity, if any, with any individual, as deceased was also running a retail shop at the distance of 8/10 steps. Complainant added that deceased was working as helper in Pak. PW-D I-8/1, Islamabad and in the evening deceased used to open his retail shop.
3. Total five accused persons namely i) Ali Jan alias Badshah; ii) Waseem Akram; iii) Sajjad Khan alias Shahzad; iv) Khalid Hussain Shah; v) Muhammad Usman; were challaned and sent to face trial. Charge against above mentioned accused persons was framed on 19.05.2014 for the commission of the offence of Qatl-i-amd of Kausar Mahmood (deceased) punishable under section 302, P.P.C. Read with section 149, P.P.C. And for attempt to commit Qatl-i-amd of Karam Ellahi punishable under section 324, P.P.C. Read with section 149, P.P.C., and for making unlawful assembly and committing the above referred offences in furtherance of the common object, punishable under sections 148, 149, P.P.C. And for the offence of abetment under section 109, P.P.C., to which all the persons pleaded "Not Guilty" and claimed trial.
4. In order to discharge the onus of proof, Prosecution produced nineteen (19) witnesses namely Muhammad Rafique (PW-1), Raja Jamshed Iqbal (PW-2) Muhammad Farooq ASI (PW-3), Dr. Farukh Kamal (PW-4), Muhammad Ali, Moharrar (PW-5), Abdul Waheed, S.I (PW-6) Munir Khan; S.I (PW-7)
Amir Shahzad, Draftsman (PW-8), Naseer Ahmed (PW-9), Muhammad Akram, S.I (PW-10), Muhammad Yousaf, Constable (PW-11) Ghulam Mustafa, SI (PW-12), Muhammad Shafique, Head Constable (PW-13), Azhar. Mahmood, Complainant (PW-14), Aurangzeb (PW-15), Abdul Sattar, S.I/I.O. (PW-16), Muhammad Ashraf, S.I/I.O. (PW-17), Karam Ellahi, Barber/injured witness (PW-18) and Kamran Cheema, Magistrate (PW-19).
' Whereas, Prosecution gave up six (06) witnesses, namely i) Dilawar Khan; ii) Zafar Iqbal; iii) Dildar Khan; iv) Mst. Sitara Begum (Mother of deceased having died during trial); v) Tahir Javed LHC and vi) Munir Ahmad, Constable.
5. Brief of the statements of important PWs who appeared in trial is as under:- ' Muhammad Rafique son of Muhammad Hussain appeared as PW-1 and stated that on 19.09.2011 at about 09:15 p.m. His neighbor Nastier had called him to bring his taxi as Karam, Elahi and Raja Kausar had sustained fire arm injuries and they were to be shifted to hospital. He further deposed that he along with Naseer shifted the injured from the saloon of Karam Ellahi to PIMS Hospital.
' Dr. Farrukh Kamal, Medical Officer, Medico Legal Officer, PIMS appeared as PW-4 and stated that on 20.09.2011 at 11.00 a.m., he conducted the post mortem of Kausar Mehmood, 34 (male) son of Inayat Ali caste Rajput, brought by Muhammad Akram, S.I, P.S Koral, Islamabad identified by Azhar Mehmood Karam Elahi (injured PW). He gave his findings as under:- "External Appearance: A young male height 5 feet 6 inches wearing biscuit colored shalwar, Qameez, khaki salooka, burning on clothes. Rigor mortis and levidity present.
Injuries:
1. Entry wound 1.5 x 1 cm circular inverted margins blood stained. Tatooing present on side of lower abdomen 32 cm below from right arm pit.
2. Entry would 1.5 x 1 cm circular inverted margin, blood stained 38 cm circular inverted margin, blood stained 38 cm from right armpit on right lower abdomen.
Internal Examination: Small intestines and large intestines along with mesentery were returned. All other viscera were intact."
' As per his opinion deceased died due to fire arm injury causing rupture of right kidney, small and large intestines along with mesentery which caused excessive bleeding and death. All injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature. Time between injury and death recorded within 1 to 2 minutes or half an hour, whereas, death and post mortem examination between 12 to 14 hours.
' Naseer Ahmad son of Muhammad Nazeer appeared as PW-9 and deposed that on 20.09.2014 at 9:30 p.m. He was present near his house in Sharif Abad, meanwhile two muffled faces armed men came on motor cycle in the street where the shop of Karam Ellahi Barber was situated. He went back to his home and after a while heard the sound of firing, starting of motorcycle and walking of some person. He further deposed that he called his neighbor Rafique (PW-1) and both of them shifted Karam Ellahi injured to PIMS Hospital.
' Muhammad Akram, SI appeared as PW-10 and deposed that initial investigation was conducted by him. He prepared injury statement Ex:PL of Karam Elahi. He also filed an application Ex:PM for recording of the statement of injured Karam Elahi but CMO opined that he was not in a position to make the statement. Muhammad Akram S.I (PW-10) shifted the body in mortuary, submitted application Ex:PB for autopsy and also prepared memo. Of identification of dead body Ex: PA and after autopsy delivered the dead body to the legal heirs vide receipt Ex:PD. Inquest report EX:PE was also prepared by him and he also secured the last worn clothes of the deceased vide memo Ex:PN as well as recorded statements of the witnesses. He inspected the scene of occurrence and collected crime empties P-1/1-4 of .30 bore pistol and blood with cotton vide memos Ex:PJ and Ex:PK. He recorded the statements of the witnesses of recoveries, applied for call data record about the calls made at number of the deceased vide application Ex:PQ and secured blood stained clothes of injured Karam Ellahi vide memo Ex: PR. Abdul Sattar, S.I, who investigated the case from 4.10.2011 appeared as PW-16 and stated that:- ' On 05.10.2011 he received scaled site plan Ex.PH and Ex.PH/1 from Amir Shahzad, Draftsman and incorporated his notes in red ink. He also recorded the statement of the draftsman. On 10.10.2011 he secured MLC of the Karam Elahi and on 26.10.2011 dispatched parcels containing blood stained clothes and crime empties to the office of Forensic Science Agency, Lahore through Aurangzeb Constable on 05.01.2012. He recorded statements of Moharrar and Aurangzeb Constable. He recorded statements of Complainant and his mother on 27.10.2011, recorded supplementary statement of the complainant on 10.12.2011 on which date he arrested accused Naseer. On 12.11.2011 he arrested accused Waseem Akram. He again recorded statement of the Complainant on 16.12.2011 who exonerated accused Naseer and ultimately he was discharged on 17.12.2011.
Statement of injured was recorded by him on 17.12.2011 Accused Waseem Akram was remitted to judicial lockup on 19.12.2011, who made statement under section 164, Cr.P.C., before Magistrate.
Accused Sajjad Khan/Appellant was arrested by him, on 26.12.2011, who led to the recovery of pistol .30 bore P-7 along with three live bullets P-8 from his house on 02.01.2012, which he secured vide recovery memo. Ex. PV and recorded statements of PWs. He further prepared the unsealed site plan Ex.PW of the place of recovery and got registered case under section 13 of the Arms Ordinance. On 03.01.2012 he got remitted accused Sajjad Khan/Appellant to Judicial lockup. He also obtained non-bailable warrant of arrest of Appellant, Usman and Khalid Shah vide application Ex:PX and also obtained the proclamation under section 87, Cr.P.C. Against the said accused vide application Ex:PY dated 10.10.2012. He, on 21.02.2014, arrested Muhammad Usman accused and Khalid Shah on 02.03.2014.
' Muhammad Ashraf, S.I. Who investigated the case from 12.01.2012 appeared as PW-17 and stated that:- ' He dispatched the parcel of Pistol .30 bore to Forensic Science Agency, Lahore through Aurangzeb/C and recorded statement of said Constable, Moharrar and Muhammad Ali, S.I under section 161, Cr.P.C. He submitted incomplete reports under section 173, Cr.P.C. For the trial of the accused Sajjad Khan alias Shahzad on 14.01.2012.
' Kareem Akhtar Naz alias Karam Elahi son of Atta Muhammad (injured) appeared as PW-18 and stated that a few days ago from the day of occurrence all the five accused had some altercation with deceased Kausar Mehmood to which he intervened and cool down the matter and the accused declared that they would teach a lesson to both of them. He further stated that on 19.09.2011 he was working in his barber shop when accused Ali Jan and Shahzad came to his shop while boarding a motorcycle driven by accused Ali Jan. Shahzad accused armed with pistol came in his shop and fired at him which landed on his left arm. He made second fire which landed on his left leg and thereafter he fell on the ground. Thereafter accused Sajjad fired two shots at Kausar Mehmood deceased and thereafter the accused left the place of occurrence on their motor cycle. At that time he had become unconscious. Subsequently, the police recorded his statement in PIMS Hospital.
' Statements of all the other PWs are formal in nature.
6. On conclusion of prosecution evidence, accused persons were examined under section 342, Cr.P.C. They opted not to appear as witness in their defence in terms of section 340(2), Cr.P.C. On conclusion of trial, learned Judge acquitted four accused namely Waseem Akram, Muhammad Usman, Khalid Shah and Ali Jan by extending them benefit of doubt. However, Appellant was held guilty, therefore, sentenced, as mentioned in opening para of this judgment, was awarded to him.
7. Learned Counsel for Appellant submitted that, impugned judgment, whereby, Appellant has been convicted is besides the law and facts borne out on the record; that when prosecution evidence was disbelieved to the extent of four accused, how could same be declared worthy of credence and reliability for the purpose of convicting Appellant; that it is Prosecution's own case that assailants who committed the alleged offence, were with masks on their faces, then how trial Court could believe improved stance of Complainant during trial; that Complainant in Complaint Ex:PA nowhere mentioned about the source of information. Learned Counsel further submitted that at one stage when bail was being sought Complainant entered into compromise with some of the accused and injured witness also gave some concession, therefore, instant appeal may be accepted.
8. Conversely, learned Standing Counsel argued that Prosecution proved its case to the extent of present Appellant beyond any shadow of doubt. The learned trial Court while applying the principle of separating the grain from chaff awarded sentence of life imprisonment to the Appellant, which by all means is a lenient view. Learned Standing Counsel added that convincing, plausible and confidence inspiring evidence connected Appellant with the commission of offence, therefore, instant appeal may be dismissed.
9. Arguments heard, record perused.
10. Learned trial Court in the impugned judgment observed that role of five accused facing trial was not at par, therefore, benefit extended to all accused, except Appellant. Learned Judge trial Court held that most important witness of Prosecution in whose shop occurrence took place appeared as PW-18 i,e, injured Kareem Akhtar Naz alias Karam Ellahi. In my view also, statement of PW-18 is of much significance and immense value, therefore, for convenience following portion of his statement (examination-in-chief) is being reproduced here-in-below:- Shahzad accused armed with pistol came in my shop and fired at me which landed on my left arm. He made second:re which landed on my left leg and thereafter I fell to the ground. Thereafter accused Sajjad fired two shots at Kausar Mehmood deceased and thereafter the accused left the place of occurrence on their motor cycle. At that time 1 had become unconscious. Subsequently, the police recorded my statement in PIMS Hospital."
Although lengthy cross-examination conducted by the defence but portion of the statement of injured witness starting from "Shahzad accused armed with pistol" to "Left the place of occurrence on their motorcycle" remained unquestioned and un-rebutted. To my mind this part of the statement made before the learned trial Court was not only crucial but substantive to determine the guilt of Appellant or otherwise, but no cross-examination on it, which tantamounts to admission or fact admitted. PW-18 being injured witness provided direct ocular account with specific role of aimed firing made by Appellant/accused at the person of injured witness and deceased Kausar Mahmood. Law is quite clear on the subject, as held by the superior Courts through following reported judgments; (PLD 2010 SC 642), (PLD 2007 SC 249), (2007 PCr.LJ 1669) and (1993 PCr.LJ 1632).
11. Learned Counsel emphasized that at the time of hearing of bail petition, PW-18 appeared in Court and sworn two affidavits Ex-D2 and Ex-D3, therefore, his statement before the Court is of no value as through Ex-D2 he showed no objection on the grant of bail to Appellant and through Ex- D3 he exonerated Appellant and acquitted accused Ali Jan. As far, Ex-D2 is concerned; it is with reference to injuries caused to PW-18, which fact is corroborated by the statement recorded by the learned Sessions Judge on the back side of Ex-D2. In respect of Ex-D3 it is observed that no statement in support of contents of Ex-D3 recorded by the learned Judge as at the time of grant of bail it was not required. However, an interesting aspect surfaced from the perusal of Ex-D2 and D3 that Ex-D2 does not bear signature of deponent except, statement recorded by the Court. Ex- D3 does bear signature of deponent, but same was never considered by the Court at the time of grant of bail vide order dated 18.07.2012. At the most Ex-D3 could have been used as previous statement for the purposes of confrontation, but defence did not cross-examine and confront the injured witness on the material point, Last part of cross-examination further clarified the stance of defence which is given as under:- "It, is incorrect to suggest that. I had deposed before the Police that two muffled faces persons had come to my shop. The deceased had received the fire shots from close range. I don't remember the number of motor cycle."
It is noteworthy that even no suggestion put to witness claiming non-presence of Appellant at the place of occurrence. Statement of PW-18 finds corroboration from medical evidence and attending circumstances. Articles 132, 133 and 140 of the Qanun-e-Shahadat, 1984 are relevant in the proposition. Reliance on the point is placed on (2012 PCr.LJ 1840).
12. The learned trial Court appreciated the prosecution evidence with due care and caution, as a result whereof, distinction has been drawn between the roles of Appellant and acquitted accused.
This aspect itself established the fact that learned trial court passed the impugned judgment with due application of Judicial mind.
13. The argument of learned Counsel for Appellant that when evidence of prosecution to the extent of acquitted accused was disbelieved then same should not have been declared reliable to hold, Appellant guilty of offence. To my mind this argument has no legal foundation as learned trial Court minutely discussed entire evidence and advanced valid reasons in the impugned judgment.
It is fundamental law that admitted facts need not to be proved and that if some portion of statement of a witness remains without cross-examination, same shall deem to be admission. As far maxim "Falsus in uno falsus in omnibus" is concerned, it has not universal application. Law developed in our criminal administration of justice system emphasize on the principle of "Sifting chaff out of grain". Guidance on this is being sought from the following judgments reported as (2013 PCr.LJ 603), (2012 YLR 510), (2010 SCMR 1090) and (PLD 2002 SC 52).
' Learned Counsel failed to point out any misreading or non-reading of evidence. No error has been pointed out and committed by the learned trial Court in appreciation of evidence leading to conclusion drawn in the impugned judgment.
14. For what has been discussed above, this Court is fully satisfied that there is no substance in the appeal, resultantly, same is dismissed.