MALIK HAQ NAWAZ, C.J.--- The present appellants namely Sheheryar Hussain and Ali Abbas have filed the instant appeals under section 410, Cr.P.C. against the judgment/order dated 04-06-2018 passed by the learned Sessions Judge Gilgit whereby the learn ed Sessions Judge Gilgit has convicted the above named appellants for the of fences under sections 302/34, P .P.C. vide FIR No. 07/2015 registered at Police Station Jutiyal Gilgit.
2. Through this single judgment we intend to dispose of the connected cases i.e. Criminal Appeal No. 25/2018, Criminal Appeal No.23/2018, Criminal Appeal No. 26/ 2018, Criminal Revision No.19/2018 and Criminal Revision No. 24/2018 as all the above mentioned cases are the outcome of a single incident and all the cases have their origin in the main single FIR bearing No. 07/2015 under sections 302/34, P.P.C., the evidence recorded in all these cases is also same.
3. Brief facts of the case as per FIR No.07/ 2015 got registered by one Asghar Ali son of Arab Khan resident of Sakwar Tehsil and District Gilgit are that on 19-02-2015 at about 09:00 a.m. the accused Ali Abbas and Sheheryar Hussain son of Hussain Shah and Tasawar Hussain son of Shamsher Ali residents of Sakwar committed murder of Zahid Ali, son of the FIR lodger/complainant, Asghar Ali who died on the spot. The contents of the FIR show that the dispute erupted on the issue of turn of irrigation water between the accused party and the deceased party .
4. The FIR also finds mention of receiving bullet injury by one Mazhar Hussain PW-1 at the hands of the accused, Tasawar Hussain. After registration of the FIR, the investigation of the case was assigned to Abdul Hadi, SI who proceeded to the scene of occurrence and on reaching there, the I.O/PW -1 prepared site plan of the scene of occurrence and site inspection report. During the inspection of the scene of occurrence, the I.0 recovered and took into possession three empty shells of 30 bore pistol, one blood stained stone, one blood stained black cap and prepared parcels of the recovered articles in presence of marginal witnesses at the scene of occurrence. The dead body of the deceased had already been shifted to the DHQ Hospital Gilgit before the I.O. reached at the scene of occurrence, the I.O. after the above proceedings rushed to the DHQ Hospital and after reaching the hospital, the I.O. prepared inquest report and requested the authorities of the hospital for postmortem examination of the dead body of the deceased. The postmortem of the dead body was conducted by Dr. Sadiq Shah, Medical Officer DHQ Hospital Gilgit on the same day. During the postmortem examination, the Doctor found a spent bullet in the body of the deceased which was handed over to the I.O. vide Exh-PW -2/G and after conducting complete postmortem examination of the dead body of the deceased, the hospital- authorities hand ed over the dead body of the deceased to the I.O. who handed over the same to legal heirs for burial. On 19-02-2015 the I.O. arrested the accused Ali Abbas and on 25-02-2015 he arrested the co-accused Tasawar Hussain in the offences under sections 302/34, P.P.C. The I.O. of the case then recorded statements of the PW Mazhar Hussain and eye-witnesses Deedar Ali and Iqtedar Hussain. He also effected recovery of weapon of offence on the pointation of the accused in presence of marginal witnesses and prepared recovery memos and on Murasilahs of the I.O, FIR No. 14/2015, FIR No. 15/2015 and FIR No.16/2015 under section 13, A.O. were registered at P.S Jutiyal Gilgit against the accused Sheheryar Hussain, Ali Abbas and Tasaw ar Hussain respectively . The Police Station Jutiyal Gilgit also registered an independent FIR against the accused Tasawar Hussain under section 324, P.P.C. for the injury allegedly caused by him on the person of PW-1 Mazhar Hussain during the course of occurren ce but the same was later on compounded by the PW-1, Mazhar Hussain with the accused, Tasawar Hussai n with the intervention of jarga outside of the Court. The compromise was allowed and accepted Tasawar Hussain was acquitted from the charge of section 324, P.P.C. The prosecution had initially , submitted challan for trial of three accused together in the instant case on 28-03-2015 but during the initial trial, the accused Sheheryar Hussain was declared juvenile after receipt of report of Medical Board by the learned trial court vide order dated 01-09-2015 and an independent challan was submitted to his extent on 08-10-2015 by the prosecution which also remained under trial before the learned trial court side by side along with the connected cases. The accused were .brought to trial by the prosecution and the learned trial court framed charges against the accused in the offences under sections 302/34, P.P.C. and under section 13, A.O. to which the accused pleaded not guilty and the evidence of prosecution was called whereupon the prosecution through complete challan on 17-04-2017 submitted the forensic science laboratory report and arms expert report. The prosecution examined as many as ten PWs in support of their case and closed their evidence on 02-05-2017. The accused were examined under section 342, Cr.P.C. and the accused denied the charges and allegations levelled against them in the prosecution's case but refused to record their statement on oath under section 340(2), Cr.P.C. and did not produce any evidence in their defense before the learned trial court. The learned trial court after hearing pro and contra final arguments on 30-05-2018 disposed of the connected cases through a single judgment on 04-06-2018 whereby the learned trial court convicted the accused Sheheryar Hussain and Ali Abbas for offences under sections 302/34, P.P.C. for commission of murder of deceased Zahid Ali son of Asghar Ali resident of Sakwar Gilgit and both the convicts were sentenced imprisonment for life and benefit of section 382, Cr.P.C. were extended to them. They were further convicted for offence under section 13, A.O and further , sentenced for the period already undergone by them in detention in the cases under section 13, A.O. The learned trial court acquitted the accused Tasawar Hussain from the charges under sections 302/34, P.P.C. extending him the benefit of doubt but convicted for offence under section 13, A.O. and sentenced him for the period already undergone by him in detention in the instant case. The above findings of the learned trial court have been called in question by the appellants/ convicts through the instant appeal and the complainant/state through the aforementioned connected appeals and Criminal revision petitions.
5. The learned counsel for the appellants vehemently argued that the learned trial court has erroneously relied upon the highly interested, partisan and relative witnesses despite the fact that all the PWs made dishonest improvements during their statements before the trial court and also made totally contradictory statements from their previous statements before the police which makes the whole prosecution case full of doubts therefore cannot be made a base for any conviction and does not appeal to a person of prudent mind therefore the judgment /order dated 04-06-2018 of the learned trial court is injudicious, based on conjectures, misconception, misinterpretation, frivolous, patently illegal and devoid of any legal force therefore liable to be set aside. He further submitted that there is an unexplained delay of one and half hours in lodging FIR whereas the distance between the place of occurrence and the police station Jutiyal is about four kilometers only and the statements of eyewitnesses PWs Deedar Ali and Iqtedar Hussain have been recorded after a delay of three days from the occurrence despite the fact that they are stated to be present at the scene of occurrence in police proceedings right after the occurrence.
He further submitted that the police have violated the mandatory provisions of section 103, Cr.P.C. by not joining impartial witnesses of the locality in the preliminary proceedings and also during the alleged recoveries of weapons of offence. He further submitted that the learned trial court has extended all the benefit of reasonable doubts in favor of the prosecution and the appellants have been denied from their valuable legal rights as the alleged recoveries of weapon of offences effected from the convicts/ appellants are fake and fabricated. The prosecution has bitterly failed to prove the alleged incriminating articles through credible and trustworthy evidence. He further submitted that the learned trial court has considered the quantity of evidence instead of its qualitative worth which is against the safe dispensation of criminal justice and the whole investigation of the instant case is conducted malafidely , dishonestly by the investigation agencies with the collusion of complainant party just to involve the present appellants in the instant case, hence, the judgment of the learned trial court dated 04-06-2018 is liable to be set aside and the appellants may be acquitted from the charges levelled against them.
6. The learned Deputy Advocate General assisted by the learned counsel for the complainant strongly opposed the arguments advanced by the learned counsel for the convicts/appellants and argued that the accused are directly nominated in the FIR with their specific roles and names of the eye-witnesses are also mentioned in the FIR. The occurrence has taken place in the broad daylight and presence of PWs on the scene of occurrence is natural. They further submitted that the motive behind the occurrence has also been established in the prosecution evidence examined before the trial court which is a dispute between the parties over turn of irrigation water and the PWs have charged the accused with their specific role and the ocular account of their testimonies are corroborated by the medical evidence. They further submitted that the Forensic Science Laboratory report, the recovery of spent bullet from the body of deceased, the recovery of blood stained stone and cap and empty shells from the scene of occurrence soon after the occurrence along with the site plan and inquest report all ultimately prove that the accused are guilty of intentional murder of deceased Zahid Ali son of Asghar Ali resident of Sakwar Gilgit under sections 302/34, P.P.C. They further subm itted that any substitution of the present accused with the real culprits is not possible and matching mechanism is proved from the empty shells sent to Forensic Laboratory . The prosecution has successfully proved its case through its oral and documentary evidence therefore the accused are liable to be convicted for intentional murder of Zahid Ali son of Asghar Ali resident of Sakwar Gilgit under sections 302/34, P.P.C. thus capital punishment may be awarded to the convicts/ appellants by dismissing the instant appeal and the punishment awarded by the learned trial court may be enhanced from life imprisonment to capital punishment to meet the ends of justice, law and equity .
7. We have heard the learned counsel for the parties at length and also gone through the record of the case with their able assistance.
8. The learned counsel for the convict/appellant and accused Tasawar Hussain raised some contentions which were raised by him before the learned trial court. The learned counsel for the convict/appellant submitted that presence of eye-witness has not been shown in the site plan as well as in the inquest report and their statements under section 161, Cr.P.C. have been recorded three days after the occurrence which is a strong indicator that they were not present at the time of occurrence. The learned counsel for the appellant raised almost all the same contentions which were already raised by him before the trial court and have been exhaustively dealt with. The reproduction of the same would be a time wasting exercise. The main and prime contention of the learned counsel that the FIR lodger has not been examined, therefore whole of the prosecution case remained unproved, is devoid of any legal force as the FIR lodger died during trial and FIR was got exhibited by the PW-6, DSP Syed Sajjad Hussain in the trial court as exhibit-PW -6/A and 6/B. FIR is a document like any other document and there are a number of reported judgments where if maker of FIR has resiled from FIR, the convictions were awarded/maintained in appeal when the case of prosecution was proved from the other evidence.
Reliance in this regard could be placed on NLR 1983 page 27, where FIR lodger was declared hostile but the capital punishment was awarded to the accused as the case was otherwise proved. The other contention of the learned defence counsel that some of the names of PWs are not mentioned in the site plan and inquest report, therefore, their presence is doubtful, also does not hold the field as site inspection report was prepared on the same date which contains the names of prosecution witnesses of the occurrence. Even otherwise the site plan/inquest report are not substantive piece of evidence and any discrepancy therein will B not effect on the outcome of the case. As far as the late recording of the statements of PWs is concerned, it is not denied by the defense counsel all of the eye-witnesses are mentioned in the FIR which has promptly been lodged. If names of eye-witnesses are mentioned in the FIR, and their statements are late record, it could be termed as an inefficiency on the part of prosecuting agency and complainant cannot be penalized for any act/omission of the I.O. whether intentional or un-intentional. The eye-witnesses cross-examination is ranging over many pages but nothing has been extracted by the learned defense counsel in favour of the convict/appellant. There are some minor flaws which are natural as every person has different capabilities of perception of an event. One cannot expect a photographic picture of the occurrence from a witness. The appellate courts while deciding an appeal against conviction has to apprise the whole prosecution evidence and to ensure that each and every piece of prosecution is supportive in its nature and substance. A prosecution case is threat bare examined and doubts of even a slightest nature are always extended to the accused but at the same time self-styled benefit of doubt and doubts within doubts are not extended if the ocular account is upto the mark and the court is satisfied that the witnesses were present and have seen the occurrence. The statements of PW1 Mazhar Hussain, PW-4 Dildar Ali and PW-5 Iqtedar Hussain are quite natural and in line with each other . PW-1 E Mazhar Hussain was injured in the occurrence by one of the accused Tasawar Hussain and his presence has not been challenged by the defense.
9. The postmortem of the deceased was carried out by PW-7 Dr. Sadiq which was exhibited in the trial court as PW-7/A. The postmortem report is also in line with the prosecution evidence. Weapon of offence i.e. .30 bore pistols recovered from the convict/appellants, Sheheryar Hussain and Ali Abbas were sent to Forensic Science Laboratory and a positive report has been received therefrom.
10. As far as the case of respondent/a ccused Tasawar Hussain is concerned, we scanned the prosecution evidence minutely and we are of the view that the name of respondent/accused Tasawar Hussain is mentioned in the FIR with a specific role of causing firearm injurt to PW-1 Mazhar Hussain. Eye-witnesses have specifically charged him for commission of the offence and sharing common intention with the other two co-accused and a 7 MM rifle has also been recovered from his possession which was not sent for expert opinion as no crime empty was recovered from the place of occurrence and non-recovery of crime empty has been well explained by the I.O. of the case who while answering a questi on put by the defense stated that in surrounding, there was a cattle shed and clay, hence the empties could not be recovered and further stated that he has mentioned this fact in the daily diary . Non sending of a crime weapon to an expert in peculiar circumstances of the case will not advance the case of defense in any manner . The respondent has effected a compromise with PW-1 Mazhar Hussain who was injured because of the firing by the accused in the same transaction. When because of firing of accused Sheheryar Hussain, Ali Abbas and Tasawar Hussain, deceased Zahid Ali lost his life. The findings of the learned trial court while acquitting him from the murder charge are artificial, arbitrary and complete misreading of prosecution evidence which caused gross miscarriage of justice.
11. In view of the above, we are inclined to accept the appeals filed by the State/complainant against acquittal of the accused Tasawar Hussain. He is convicted under section 302(b), P.P.C. for murder of deceased Zahid Ali in furtherance of common intention and award him life imprisonment. He shall pay Rs. 10,00,000 (Rupees Ten Lac) as compensation under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased Zahid Ali son of Asghar Ali.
12. The convict/appellant Sheheryar Hussain and All Abbas were also not fined under section 544-A, Cr.P.C. They shall also pay Rs. 10,00,000 (Rupees ten lac) each as fine under section 544-A, Cr.P.C. which on realization shall be paid to the legal heirs of the deceased. The amount of fine shall be recovered as an arrear of land revenue and also shall be recovered from the legal heirs of the minor accused Sheheryar Hussain. The revisions for enhancement of sentence of convict/appellants Sheheryar Hussain and Ali Abbas from life to death are dismissed.
13. The Criminal Appeals filed by the convict/appellants Sheheryar Hussain and Ali Abbas are also dismissed. The respondent/accused Tasawar Hussain (respondent in Criminal Appeal No. 23/2018) be taken into custody and be committed to judicial lockup to serve out the sentence of imprisonment for life. He shall be entitled for benefit of section 382-B, Cr .P.C .
14. The Criminal Appeal No. 25/2018, Criminal Appeal No. 26/2018, Criminal Revision No. 24/2018, Criminal Revision No. 19/2018 and Criminal Appeal No. 23/2018 are disposed of in the above terms. File.