SARDAR MUHAMMAD DOGAR, J.-- F.I.R. (Ex. PC/1) was registered at Police Station Shakargarh, at 5.50 p.m. On 4.1.1985, by Muhammad Iqbal,MHC (PW 9), on receipt of statement (Ex. PC) of Zulifqar Ali (PW 5), recorded by Imtiaz Ahmad, SI (PW 17) at 5.40 p.m. At Chowk Nur Kot,Shakargarh, three furlongs from the police station.
According to the FIR, Qulfqar Ali had gone to the graveyard of Rato Chak at 4 p.m. On the day of occurrence along with Jamal Din (PW 6), Muhammad Ashraf (PW 7) and Saeen Muhammad (deceased).
On reaching the graveyard, Saeen Muhammad went to the room of the graveyard and lit the fire while complainant alonwith the two PWs went to the Darbar in the graveyard for offering Fatchkhawani. In the meantime, Ghulam Mustafa Shah accompanied by two unknown young persons, armed with fire/arms, came there. Ghulam Mustafa raised a Lalkara that they have discovered Saeen and he should not be allowed to go. All three of them fired one shot each on him.
They then fired shots at the complainant and PWs and ran away hurling abuses. The Pws saved their lives by running away. After the departure of the accused, all three of them entered the room and found Saeen dead, they noted two firearm injuries, one on the right side of the eye near the temple and the other a little below right armpit. Right wrist and right hand were found burnt due to firing.
The complainant stated that they will be able to identify the two iunknown accused, who had accompanied Ghulam Mustafa.
About the motive for the occurrence, he stated that Ghulam Mustafa had murdered Saeen along with his companions because Saeen had got case HR No. 195/84, u/s 302/307/149 PPC, registered at P.S. Shakargarh. He also stated that the murder was committed by Ghulam Mustafa and others on the abetment of Irshad Hussain, Manzur Shah, Muhammad Akram, Mushtaq and Ghulam Hussain (acquitted accused) and Zulifqar Ali and Liaqat Ali sons of Ghulam Hussain absconders.
2. Imtiaz Ahmad, SI proceeded to the spot, after recording Exc.PC and despatching the same for registration of case to the police station. He sent the dead body for post-mortem examination after preparing inquest report (Ex.PJ) and injury statement (Ex.PK). He recorded the statements of PWs Jamal Din, Muhammad Ashraf and supplementary statement of Zulifqar Ali. He inspected the spot on the following day and collected blood-stained earth from there.
Muhammad Zulifqar, SHO, who had partly investigated the case appeared as PW-18. He arrested Akram, Liaqat Ali Fani (appellant) on 16.1.1985. On the same day, he sent Liaqat Fani to judicial lock up for identification parade, which was conducted under the supervision of Muhammad Ibrahim Qaiser, Magistrate (PW 15), wherein Liaqat Fani was identified by all the three witnesses, i.e. PWs. 5,6 and 7. He obtained the physical remand of Irshad Hussain Shah, Mushtafa Shuh(appcllant), Liaqat Fani (appellant). Liaqat Fani appellant got recovered carbine (P.2) on 5.2.1985, which was taken into possession vide memo. Ex.PF. Ghulam Hussain and Mushtaq Shah were arrested by him on 6.2.1985.
Ghulam Mustafa led to the recovery of carbine (P.l) on that day, which was taken into possession vide memo. Ex. PE. He obtained the custody of Amjad Shah, who had been arrested by Muhammad Younas Butt (PW I6), SHO, P.S. Kausser Kakabm ib 6.12.1985.
After completion of necessary investigation challan was submitted against Mushtaq Hussain, Ghulam Hussain, Muhammad Akram, Irshad Hussain, Liaqat Ali Fani son of Malang Ali Sher, Ghulam Mustafa Shah and Amjad Hussain Shah. The name of Amjad Shah was placed in column No.2, as he was declared innocent. Zulifqar Ali and Liaqat Ali sons of Ghulam Hussain, who had abetted the crime could not be arrested. They were, therefore, declared as proclaimed offenders...........................
Proceedings undersection 512 Cr.P.C, were taken against them by the trial judge. Out of the two unknown persons, who had physically participated in the occurrence, one could not be traced.
3. The accused were tried by Addl. Sessions Judge, Narowal. The learned trial Judge vide judgment dated 16-10-1986 convicted Ghulam Mustafa Shah and Liaqat Ali Fani under section 302/34 PPC and sentenced both of them to death, plus to pay a fine of Rs.5,000/-, in defauIt whereof to undergo R.I. For one year each. Whole of the amount of fine, on realization from both, has been directed to be paid as compensation to the heirs of the deceased. The other five accused tried along with them were acquitted vide the same judgment.
4. The convicts have filed appeal. The learned trial Judge has made reference for confirmation of death sentences. Both the matters are being disposed of together.
5. Statements of eighteen Pws were recorded at the trial.
Dr. Muhammad Akram, who had performed autopsy at 10 a.m. On 6-1-1985, appeared as PW-3. He had noted following injuries on the body of the deceased:-
(1) An oval lacerated wound, 7 cm x 4 cm, on the outer side of the face and fore-head, behind the right eye. There was blackening around the wound.
(2) An oval wound, 8 cm x 3 cm, on the outer side of right chest. There was blackening around the wound.
(3) An oval wound, 6 cm x 3 cm, on the outer side of right chest. There was blackening around the \ wound.
(4) Right hand and 10 cm adjacent area of right forearm on the front side was burnt. jOn dissection, right and left temporal bones were found factured and frontal lobe of the brain was found pierced by pellets. Five pellets and pieces of corks were recovered from cranial cavity, near the left temporal bone. Liver, right and left lungs were found perforated. Some of the ribs were also found fractured. Five big pellets and muItiple pellets along with corks and wads were recovered from the chest cavity.
Death was opined to have resuIted due to destruction of brain caused by injury No.1, and internal haemorrhage and shock caused by injuries No.2 and 3. All the injuries were opined to have been caused by firearm.
6. The ocuiar account was deposed to by Zulfiqar Ali (PW 5), Jamal Din (PW 6) and Muhammad Ashraf (PW 7).
Zulifqar Ali repeated the facts given by him in the FIR. Out of the two unknown persons mentioned by him to have committed the occurrence 1 along with Ghulam Mustafa Shah, he named one of them to be Liaqat Ali Fani appellant. He also stated that he had identified him in the identification parade held in District'"Tail, Sialkot. He added that he had also made B statement to the police giving descriptions of the two unknown accused. He ' narrated the same descriptions at the trial also. AIthough in the FIR, he had only stated that accused were armed with fire-arms but at the trial he stated of their being armed with carbines. During cross-examination, he admitted that deceased was son of his uncle Ramzan while Jamal Din PW was son of his uncle Siraj Din and Muhammad Ashraf PW was son of his aunt (Phuphi).He stated that Jamal PW had shifted to his cillage. He stated that Saeen deceased had lodged FIR No. 195 for the murder of his brother Muhammad Ashraf and one Sardar wherein Ghulam Hussain, Liaqat son of Ghulam Hussain, Mustafa Shah, Irshad Shah and Zulifqar Shah were named as accused. He admitted that his father SuItan was murdered in Rato Chak on 23-10-1984 and Zulifqar Shah and Liaqat son of Ghulam Hussain were named as accused, but they had absconded. He gave out that he was employed at Lahore but he used to visit his village every Friday and would go B to the graveyard to offer Fateh for his father. He gave out that Ashraf and Jamal PWs also used to be with him. He staled that the police had arrived at the spot at 6.30 p.m. And had despatched the dead body to the mortuary after completing formalities.
I 7. Jamal Din (PW 6) and Muhammad Ashraf (PW 7) corroborated the statement made by PW-5.
Bothof them also stated of P having witnessed the taking into possession of blood-stained earth from the F spot. Like PW-5, they gave out that they had identified Liaqat Fani appellant ^ during identification parade held in Sialkot jail. Both of them stated that they I had taken up residence in Rato Chak after the murder of father of Zulifqar.
All the three denied the suggestions that they had not witnessed the occurrence and that false story was cooked up to involve the accused. The suggestions that the FIR was recorded during night of 5th/6th of January, 1985 and the dead body was despatched to the mortuary in the early hours of 6-1-1985 were also denied by them. The suggestion that one Muhammad Arif alias Saeen was keeper of the graveyard was denied by PW-5. The suggestion that Mojawar of the gravevard had informed them about the occurrence was denied by PWs. 5 and 6.
All three of them denied the suggestion that Liaqat Fani had been shown to them before the identification parade.
8. The evidence of Murid Ahmad (PW 10), is irrelevant for this appeal, as the same pertains to the acquitted accused, about whom no matter is pending before us.
9. Bashir Ahmad, who had witnessed the recovery of carbine (P.5) at the instance of Ghulam Mustafa Shah appellant appeared as PW-11. He testified the fact of the recovery. He denied the suggestion that the recovery proceedings were fake. He gave intervening distance of his house and the house of Ghulam Mustafa Shah to be eight furlongs.
10. Munir Ahmad (PW 12) testified the recovery of carbine (P.2) at the pointing out of Liaqat Ali Fani appellant. During cross- examination, he admitted that he was cousin of the deceased. He denied the suggestion that he had made a false statement.
11. Mr. Muhammad Ibrahim Qaiscr, Magistrate, who had supervised the identification parade of Liaqat Fani appellant on 26-1-1985 in District Jail, Sialkot, appeared as PW-15. He testified the fact of PWs. 5 and 7 having identified Liaqat Fani appellant. During cross-examination, he admitted that the accused had raised objection before him that he was arrested at Vehari on 12-1-1985 and was brought to Shakargarh, where he was shown to the witnesses. He admitted that he had not recorded the statements of the PWs before the identification parade.
12. Imtiaz Ahmad, SI, who had recorded statement (Ex.PC) and had prepared the injury.Statemcnt and inquest report and had taken into possession blood-stained earth from the spot, appeared as PW-17.Hc also stated of having recorded supplementary statement of Zulifqar Ali complainant.
During cross-examination, he stated that he had despatched the dead body at 10 p.m. To the mortuary by tractor trolly. He added that he had inspected the spot on the next day and collected blood-stained earth from there. During cross-examination, he stated that he had reached the spot at 6.30 p.m. He denied the suggestion that he had not recorded the statement (Ex. PC) on 4-1-1985 and that he had not sent the dead body on- the said day. He also denied the suggestion that Fard Biyan was actually concocted in consuItation with the complainants during the night between 5/6- 1-1985. In answer to another question, he stated that he was transferred from P.S. Shakargarh and had handed over the charge to Zulifqar SI (PW 18) on 9-1- 1985.
Muhammad Zulifqar, SI (PW 18), who had taken over investigation from Imtiaz Ahmad, SI (PW 17) on his transfer, partly investigated this case. He arrested Akram and Liaqat Fani on 16-1-1985. He lodged Liaqat Fani in judicial lock up as he was to be put to identification parade, which was conducted on 26-1-1985, on the application submitted by him to the Assistant Commissioner, Shakargarh on 19-1-1985. It was during his custody that Liaqat Fani had got recovered carbine (P.2) on 5-2-1985. Ghulam Hussain and Mushtaq were arrested by him on 6-2-1985. Ghulam Mustafa got recovered carbine (P.l), which was taken into possession vide memo. Ex. PE. During cross- examination, he admitted that he had visited P.S. Vehari, but expressed inability to rebut that he had visited the said police station on 12-1- 1985. He stated that he had made the report of his arrival at P.S.Vehari and had obtained the assistance of Muhammad Sharif constable No.195 for going to Chak No. 95/WB, for arrest of Liaqat Fani. He denied that he had arrested Liaqat Fani from there on 12-1-1985. In answer to another question, he stated that he had not entered in the case diary of this case his visit to Vehari and as daily dairy register was not before him, he was not in a position to say as to on what date he had left Shakargarh for Vehari. He admitted that Fazal Muhammad brother of Liaqat Fani had submitted an application before the Anti-Corruption Department for falsely invloving Liaqat Fani in this case and an inquiry was in progress. He denied the suggestion that he had involved Liaqat Fani for the said reasons.
13. Both the appellants during their statements under section 342, Cr.P.C, denied the prosecution case as a whole and pleaded innocence. Both of them denied the recoveries of arms at their instances. Ghulam Mustafa Shah appellant stated as following, in answer to the question, "Why this case against you?"
"The case has been cooked up against me due to enmity and litigation with the complainant party and ASI Muhammad Ashraf and Shaukat Ali Gujjar. The ASI had involved myself and others in a false case u/S 17/679 and another case u/S 506 PPC as well as a Qazaf case. The reason for my false implication in those cases and this case was that one Samina Kausar d/o Hashmat Ali was kidnapped and raped by ASI Ashraf and I myself, my relatives and party- men had helped Samina Kausar in her case against the said ASI."
Hi. Admitted that Saeen deceased had named him as accused in case FIR No.195/84, u/Ss 302 PPC etc. Along with Ghulam Hussain, Mushtaq, Akram, Liaqat, Irshad Shah and Zulifqar Shah.
Liaqat Ali Fani appellant while answering question about having been identified by the PWs in the jail, stated as follows:- "The identification parade was a stage managed affair as I had already been shown to the witnesses by the Police. The fact of the matter is that 1 was arrested by the Police on 12.1.85 from my village Chak No.95, District Vehari, wherefrom I was brought to P.S. Shakargarh, kept there in wrongful confinement for four days and during this period I was shown to the witnesses more than once."
He stated as follows in answer to the question, "Is it a fact that S.I. Muhammad Zulifqar PW arrested you on 16.1.85. How do you explain your absconsion after the commission of the offence?":- "It is incorrect. As a matter of fact I was available in my Chak throughout. My arrest as shown by the Police on 16-1- 85 is a fabricated piece of evidence."
In answer to the question, "Why this case made against you?", he stated as follows:- "It is a false case. I have been falsely involved in this false case on account of relationship with Ghulam Hussain and Mushtaq co-accused. My mother and mother of Mushtaq accused are cousins inter se."
Both the appellants took up the plea that PWs have deposed against them on account of enmity.
Both opted to produce defence but did not make statements u/S 340(2) cr. P.C.
14. Liaqat Ali Fani appellant examined DWs. 1to 6 in his defence while Ghulam Mustafa Shah appellant examined DWs 7 to 10.
15. Nusrat Khan, MHC, P.S. Sadar Vehari, who appeared as DW-1, stated that Muhammad Zulifqar SI had visited P.S. Sadar Vehari vide report (Ex.DA) No.22, dated 12.1.1985 in connection with the arrest of Liaqat son of Ghulam Hussain P.O. In case FIR No. 2/85 of P.S. Shakargarh, u/Ss 302 PPC etc. He stated that service of Muhammad Sharif constableNo. 195 of P.S. Sadar Vehari was placed at his disposal.
During cross- examination, he stated that Muhammad Zulifqar SI had not returned to the Police Station and that return of Muhammad Sharif constable had been entered in the daily diary register on 13.1.1985, along with Mustafa Shah, ASI of said police station. In answer to another question, he stated that arrest of Liaqat Ali Fani was not reported in the Roznamcha of his police station.
Muhammad Sharif Constable No.195 appeared as DW-2. He admitted of having been deputed to accompany Muahmmad Zulifqar, SI of P.S. Shakargarh on 12.1.1985 but denied that anybody was arrested from there. He stated that Liaqat Fani accused, present in court had not been apprehended by Muhammad Zulifqar, SI from Chak No. 95/WB, Vehari. He was declared hostile and was allowed to be cross-examined bycounscl for Liaqat Fani. While answering questions to the cross-examination of the counsel for Liaqat Fani, he admitted to have signed the paper marked 'A' but denied that contents of the said paper were read over to him. He stated that he had signed the said paper on the asking of Tanvir Hussain, ASI. He admitted that he had studied up to 7th class but added that he had not read the paper. He denied of having sworn the contents of the documents marked 'A'. In answers to the questions of D.D.A, he stated that paper marked 'A' was not purchased by him and that the contents of the same were neither written in his presence nor read over to him.
Shaukat Ali Shah, MHC, P.S. Shakargarh, who was examined as DW-3 stated that no Zimuni pertaining to this case was received at the police station from 5th to 7th of January,1985. During cross-examination, he stated that constables who had gone along with Imtiaz Ahmad, SI had not returned to the police station till 4 p.m. On 7-l-1985.In answer to another question, he stated that Imtiaz Ahmad, SI had returened to the police station on 7-1-1985 and had delivered Ziminis No.1,2 and 3, relating to the investigation of this case to Muhammad Iqbal, MHC. On that day.
Tanvir Ahmad, ASI, PS Vehari, who was examined as DW-4, denied that he had obtained the signatures of Muhammad Sharif constable on the document marked 'A'.
Nur Muhammad (DW-5) stated that he was working as a Clerk to Mr. Muhammad Hussain, Advocate, Vehari, and that he had correctly recorded Ex. DB, at the instance of Muhammad Sharif constable. (Paper marked 'A' and Ex. DB are one and the same) During cross-examination, he stated that the endorsement on the back of said paper (Ex. DB) by the Stamp Vendor did not bear the signatures of Muhammad Sharif constable. He admitted that he was not a regular petition writer. He admitted that Ex.DB did not bear his name and signatures as scribe. He denied that he had made a false statement.Mr. Akbar Ali, Advocate, Vehari was examined as DW-6. He stated that he was performing the duties of Oath Commissioner in the month of June, 1985 and that on 12.6.1985 he had attested affidavit (Ex. DB) of Muhammad Sharif, after reading out the same to him.
During cross- examination, he stated that he had attested the affidavit after receiving fee from Muhammad Sharif. He stated that he had come to him in uniform. He denied that he had attested the affidavit on the asking of Tanvir Ahmad, ASI.
Mst. Samina Kausar (DW 7) stated that she was abducted, for which a case was registered, that after her recovery she was raped by some officials, for which she lodged FIR against Muhammad Ashraf, ASI of PP Chamal and others. She deposed that Ghulam Mustafa Shah (accused) and Irshad Shah had helped her and her parents in both the cases. She added that Ghulam Mustafa and Irshad had given beating to the said ASI and his companiions, for which a case was registered against them, but they were acquitted. She admitted that Ghulam Mustafa Shah and Irshad had been helping her and her family in the matter.
Maulvi Nur Muhammad (DW 8), Muhammad Shall (DW 9) and Bashir Ahmad Lambardar (DW 10), residents of Pul Bajwan, Tehsil Sialkot, were examined in support of the alibi of Ghulam Mustafa Shah, of Being in that village on 4-1-1985.
Maulvi Nur Muhammad stated that Ghulam Mustafa Shah had come to their village 10/12 days prior to the death anniversary of Karam Shah, his father-in-law (Ghulam Mustafa Shah's, which fell on 4- l-1985.He stated that the accused had received information of this occurrence in his village on 5-1- 1985. During cross-examination, he stated that he knew the accused since 1968. He admitted that he was follower to of Karam Shah, father-in-law of the accused. He admitted that the accused was already involved in some other case also. He admitted that he had not gone to the police or to any court to make statement in this regard.
Muhammad Sharif stated that Ghulam Mustafa had come to their village 4/5 days prior to 4-1-1985 to attend the Urs of his father-in-law on 4- 1-1985. He stated that the Urs ended on Friday and the accused received information of this occurrence on Saturday. During cross-examination he stated that he appeared before the police to make statement along with four other persons 22/25 days after that day.Bashir Ahmad Lambardar stated that Ghulam Mustafa had come to their village 10/12 days before the Urs of Karam Shah, which fell on 4-1- 1985. During corss-examination, he admitted that he had not gone to the police to make statement nor had made any application to the police or any other authority in this regard.
8. Learned counsel for the appellants after taking us through the evidence criticised the impugned judgment and contended that all the three eyewitnesses in this case are related inter-se and inimical to the appellants, as some cases stood registered between them prior to this occurrence and that at the best they are chance witnesses; that the performance of autopsy of the deceased on 6-1-1985 is indicative of the fact that the FIR had not been recorded on 4-1-85. Learned counsel explained that if that had happened, the post-mortem would have been definitely performed on 5- 1-85. Learned counsel contended that no description of the two unknown accused was given in the FIR, which, not only makes the evidence of identification parade doubtful, but is also indicative of the fact that the eyewitnesses had not seen the culprits. Learned cousel argued that the complainant intentionally did not mention the kind of weapon in the FIR, so that he may do so conveniently at the trial after seeking tne resuIt of the post-mortem. He contended that the medical evidence in this case is contradictory to the ocular account, in the sense that if the accused had fired from a distance of six feet (calculated on the basis of notes on the site plan), there would have been no blackening around the seats of injuries, nor pellets and wads would have entered the body enmass and that it cannot be assumed that the fire-arm injuries found on the body of the deceased had resuIted from three shots. Learned counsel contended that the Investigating Officers in this case were biased and they made all efforts to build a strong case against the appellants. In this connection, he referred to the plea taken by Liaqat Fani appellant that he was arrested on 12-1-1985 and was shown to the witnesses before the identification parade.
Learned counsel submitted that the police officers have wrongly shown the arrest, to have been effected on 16-1-1985. Lastly, learned counsel submitted that the identification parade, even otherwise, is of no value, as the witnesses who had identified Liaqat Fani had not made any statement as to, for doing, what, they had identified the accused. In this connection he referred to Khadim Hussain vs. State (1985 SCM R 721) and Ghulam Rasul etc. Vs. State (1988 SCM R 557).
9. Learned counsel for the State defended the judgment of the trial court and submitted that both the appellants had failed to produce cogent evidence in support of the pleas taken by them, that the testimonies of the eyewitnesses inspired confidence and there is nothing on record warranting exclusion of their statements. Learned counsel submitted that mere delay in performance of the post-mortem examination cannot be deemed to mean that the eyewitnesses had not witnessed the occurrence.10. It is not anybody's case that the deceased was not murdered in the room of the graveyard on 4-1-1985. The criticism of the learned counsel about the authenticity of the FIR, the natue of the interest the witnesses had and the submissions made by them is all directed to prove that they had not seen the occurrence, nor had made complaint on 4-1-1985 and that the FIR was lodged after consuItations and deliberations on coming to know of the unwitnessed murder.
We have examined all these aspects by thoroughly examining the record and carefully applying our minds. The admitted facts are that SuItan Ali father of Zulifqar Ali complainant was murdered on 23-10-1984 in village Rato Chak and a case was registered against Zulifqar Shah and Liaqat son of Ghulam Hussain, relatives of Ghulam Mustafa Shah and the acquitted accused. On the same day, Ashraf, a brother of Saeen deceased and one Sardar were murdered in village Hadnal (at a distance of one mile from Rato Chak). FIR No. 95 was registered for that occurrence at the instance of Saeen deceased aggainst Ghulam Hussain, Liaqat son of Ghulam Hussain, Mushtaq, Mustafa Shah, Irshad Shad and Zulifqar Shah. Zulifqar Shah. Shah and Liaqat son of Ghulam Hussain had absconded in both the cases and were declared as proclaimed offenders.
The registration of the two cases resuIting from the murders of SuItan Ali, father of the (complainant, and Ashraf, brother of Saeen deceased against the accused named in both the cases, is clear proof of the fact that the complainant and the other two eyewsitncsscs, who are also related closely to the deceased in the two cases, knew it as a fact as to two were their enemies. In spite of that except Ghulam Mustafa Shah, none else was named in the FIR to have physically participated in the murder of Saeen.
We do not know if the accused named in those FIRs had any other relatives, but we have it on record that Liaqat son of Ghulam Hussain and Zulifaqar Shah, who had absconded after being named as accused in both the cases, are related to Ghulam Mustafa Shah appellant. If the complainant or the other two eyewitnesses had any intention of involving innocent persons in the case, they could have easily substituted them for the two unknown persons mentioned in the FIR.
The argument of the learned counsel for the appellants in this regard that the complainant and the witnesses might have thought that they already stand burdened for two occurrences that took place earlier and so might not have though it necessary to name them in this FIR has not appealed us, because their having been named in the FIRs had not brought any relief to the complainant party because of their absconsions. We would rather say that if the complainant had lodged the FIR on the basis ofsuspicion, then the suspicion would have-------------------- fallen straightaway on them. The fact of their being not named in the FIR, in our assessment, clearly belies the argument that the FIR was lodged after delay, consuItations and deliberations. It is known that delay, consuItations and deliberations become relevant if there is scope for argument that innocent persons had been involved in the case. But if the complainant while lodging the FIR makes a statement that some unknown persons had committed the occurrence, then it has to be granted that he had neither any intention to involve innocent persons nor had time to think for that.
The only aspect which the learned counsel laid much stress upon, with regard to the possibility of the FIR having not been recorded on 4-1- 1985 is the fact of the post-mortem having been performed on 6-1-1985. Apparently, there is not justification for not performing the post-mortem on 5-1-1985, particularly in view of the statement made by Imtiaz Ahmad, SI, that he had despatched the dead body to the mortuary on 4-1-1985, after visiting the spot. The explanation given by the prosecution in this regard appears in the statement of Javid Iqbal (PW 2), who had escorted the dead body. He stated during cross-exanrfnation that he had reached the mortuary with the dead body on 5-1-1985 and had reported the matter to the doctor, for performing the post-mortem, on the same day at 7.30 a.m. And on his having not done so, had reminded him again at 3/4 p.m. But the doctor had not attended to the case.
The doctor while making statement did not rebut this fact. What he stated during cross- examination is that he must have received the request for post-mortem on 6-1-1985. He had not made any such note in that regard.
In view of the statements made by the public witnesses that the dead body was despatched for post-mortem on the night of 4-1-1985 and in view of the claim made by Imtiaz Ahmad, SI that he had despatched the dead body on the same day and also keeping in view the statement made by Javid Iqbal (PW 2), who had escorted the dead body, we feel no hestitation in saying that the delay in post-mortem did not occur due to the dead body having not been sent for post-mortem examination on 4-1-1985, nor on account of the fact of the same being not available at the mortuary on 5-1-1985. The reasons for delay in performance of post-mortem lie somewhere else, for which the complainant and the prosecution cannot be made to suffer.
We are not convinced that the delay occurred in post-mortem because of non-registration of the case at the alleged time and the nondespatch of the dead body in time for post-mortem.
The other argument advanced in support of the contention that FIR was not lodged on 4-1-1985 is the fact, that, the case diaries of this case were not received at the police station on 5th and 6th of January, 1985, as stated by MHC(PW 3). We feel, the argument is not well placed for the reason that the same witness during cross-examination admitted that none of the constables who had accompanied Imtiaz Ahmad, SI for investigation of this case had - returned back to the police station till 7-1-1985 that they - had returned to the police station along with the SI on 7-1-1985.
Zimnis No.1,2 and 3 in this case were delivered by Imtiaz Ahmad, SI to Muhammad Iqbal, MHC on the same day. The delay in receipt of Zimnis, therefore stands explained. The S.I. Remained busy in investigating the matter at the spot and in chasing the accused while two constables who had been deputed to take the dead body to the mortuary for post-mortem examination, were not free till 6.1.1985, whereafter they reported to the S.I. At the spot along with the last worn clothes of the deceased and other articles. In the circumstances, there are reasons to believe that the S.I., had nobody, at this command, for taking the zimnis to the police station prior to his own return on 7-1- 1985. The receipt of zimnis at the police station with the delay of two days, therefore, cannot, in our view, be assumed to be a proof of the fact that the FIR had not been recorded till 6-1-1985.
There is another evidence also on record in support of the fact of the case having been registered before the night between 5/6-1-1985 and that is the statement made by Abdul Aziz, Patwari (PW 4).
He stated during cross- examination that he had inspected the spot on 5-1-1985. If the case had not been registered prior to that, he could not have been deputed to prepare the site plan and so he would not have inspected the spot on 5-1-1985. The mere fact that the names of the accused are not mentioned in the site plan cannot diminish the value of his statement, that he had inspected the spot on 5-1- 1985. In fact, his explanation that preparation of site plan was his first experience explains the socallcd lacuna in the site plan.
11. The relationship of the eyewitnesses inter se and with the complainant, in the cirumstances explained above, in our view, does not tell upon the statements made by them.
The argument that the eyewitnesses could not have been at the spot, has also been considered by us. In that regard we have on record that aIthough the complainant was serving in Lahore, and Muhammad Ashraf PW-7 was also working as a labourer in the market at Lahore, but the fact is that the occurrence had taken place on Friday, which was a holiday, and so their having gone to the village on that day cannot be excluded. The complainant's father had been murdered less than three months prior to that,the urge and desire to visit------------------------------ the grave of his father was obvious. The other two witnesses also stated at the trial that they had taken up residence in the village of the complainant after the muredcr of their uncle, i.e. Father of the complainant. The deceased had also done the same. The possiblity of the two eyewitnesses, therefore, having accompanied the complainant and deceased to the graveyard cannot be ruled out for any reason.
12. The plea of alibi taken by Ghulam Mustafa Shah appellant and the evidence produced in support thereof has also been examined by us.
AIthough there is no reason to disbelieve the statement made by Mst. Samina Kausar (DW-7) that a case was registered against Ashraf, ASI and others and there might be, even, truth in her statement that Ghulam Mustafa and Irshad Shah had helped them in that matter, but that by itself is no proof of the fact that Imtiaz Ahmad, SI would have named him in the case of this FIR. Firstly, for the reason that no connection of Imtiaz Ahmad, SI with said Ashraf, ASI had been proved. Secondly, there is nothing on record to say that they are related inter se, nor is there anything to hold that they had served together and Imtiaz Ahmad, SI was biased against Ghulam Mustafa on account of his having opposed Ashraf, ASI. Moreover, we find it difficuIt to believe that the complainant would have named Ghulam Mustafa as accused for the murder of his cousin at the instance of Imtiaz Ahmad, SI, when he had not substituted anybody's name for the two unknown culprits. The statements made by DWs. 8,9 and 10 apart from being discrepants, do not inspire confidence at all.
All the three DWS not only belonged to the village of inlaws of Ghulam Mustaf but they are also murids of his father-in- law. Their efforts to prove Ghulam Mustafa as innocent, therefore, in the cjrcumstances, are for obvious reasons.
13. The stand taken by Liaqat Ali Fani appellant and the evidence produced by him in defence has also been considered by us.
The statement made by him that Muhammad Zulifqar, SI had visited P.S. Sadar Vehari on 12.1.1985 not only stands proved from the statement of Nusrat Khan, MHC, but has-------- been admitted by Muhammad Zulifqar, SI himself also. However, that does not advance the case of the appellant because purpose of the visit of Muhammad Zulifqar SI was specifically noted in the daily diary register of 12.1.1985 of P.S. Sadar Vehari; copy (Ex.DA) of which has been placed on record. In that it is written that he had gone there to effect the arrest of Zulifqar Shah son of Manzur and Liaqat son of Ghulam Hussain absconders in the murder case.
Muhammad Sharif, FC, who had been deputed to assist Muhammad Zulifqar, SI for that purpose was examined as DW-2 to support the plea taken by Liaqat Fani that he was taken into custody on that day, i.e. 12.1.1985, from Chak No. 95/WB, by Muhammad Zulifqar, SI, did not support that plea. He refuted the suggestion that Uaqat Fani had been taken into custody by Muhammad Zulifqar, SI on 12.1.1985 from Chak No. 95/WB. He was confronted with Ex. DB, affidavit said to have been sworn by him that Liaqat Ali son of Malang Ali had been taken into custody by Muhammad Zulifqar, SI of P.S. Shakargarh. The F.C. AIthough admitted his signatures on the afficafit but denied that its contents were ever recorded at his instance or read out to him. No doubt the Advocate, who as Oath Commissioner, had attested the affidavit, and the Clerk who had written the affidavit, were also examined, but we do not feel inclined to believe that the affidavit had been written at the instance of Muhammad Sharif constable. The stamp paper which was purchased in his name and bears the entry on the back, does not bear his signatures. The normal practice is that anybody who purchases a stamp paper signs it on the back.
The plea taken by him that he had been shown to the witnesses on 15-1-1985 at the police station is contradictory to the stand taken by him that he had been taken into custody from Chak No.95/WB, Vehari, for being challaned in this case on 12.1.1985, for, if he had been taken into custody by the SI on 12.1.1985, for, if he had been taken into custody by the SI on 12.1.1985, he would not have waited for three day to show him to the witnesses. The S.I. Would have shown him to the witnesses at the earliest and sent him to jail for going through the formalities of identification parade. The delayh of three days, which occurred, according to him, for showing him to the witnesses, does not find explanation from any angle of the matter.
The plea that the SI had taken him into custody from Chak No.95/WB, P.S. Sardar Vehari on 12.1.1985 and that he had been brought by the SI to Sialkot without reporting back to the police station Sadar Vehari about his arrest and without obtaining order of his transfer, even otherwise, does not appear to possess any wight, because, we cannot imagine that the S.I., who had recorded his visit to the area at P.S. Sadar Vehari, would have not reported back to the police station, if he had arrested anyone from Chak No.95/WB. He would not have taken the risks involved in that.
The stance of Liaqat Fani appellant of his having been arrested on 12.1.1985, from a different district and of having been shown to the witnesses on 15.1.1985, has not impressed us.
The plea that he was involved in the case because of his being cousin of Mushtaq Shah (acquitted accused) was not put to any of the three eyewitnesses. In fact, the first question asked in this connection was to Munir Ahmad (PW 12), who also slated that he might be cousin of Mushtaq accused.
AIthough Liaqat Fani appellant himself while making statement under section 342, Cr.P.C, stated that he was cousin of Mushtaq accused but that by itself, even if true, cannot be assumed to mean that the three eyewitnesses knew that he was related to Mushtaq. If the eyewitnesses had known that he was a relative of Mushtaq and if they had any intention of involving him falsely, he would have been named by them specifically in the FIR.
14. The argument that the medical evidence contradicts the ocular account, appears to be a far fetched proposition. The contention that injuries 1,2, and 3, opined to have resuIted from fire-arm, could have resuIted from one or two shots, has not impressed us. In that reference can clearly be made to the fact that pieces of corks and wads were not only recovered from the seat of injury, which had fractured temple bone and pierced the brain, but they were also recovered from beneath the seat of injury, which had perforated liver and lungs. The corks and wads could not have entered the body at two different places from one shot. Five pellets lodged enmass at one place and five big pellets and some muItiple small pellets were recovered from another part of the body. One shot could not have resuIted in enmass lodging of five pellets at one place and five big pellets at another place, nor one shot could have fired cartridge containing big pellets as well as small pellets.
The contention that the blackening around the wounds of entries could not have resuIted if the shots had been fired from six feet, in our view, is not that material. The villagers cannot be expected to be acuratc by inches while giving distances. The blackening occurs if the shot is fired even from about four feet. A person standing at a distance of six feet, if fires by stretching full arm, will cover about one and a half feet distance.
15. The argument that if the witnesses had been nearby they would not have allowed the arm and hand of the deceased being burnt, stands negated by the fact that neither clothes of the deceased were burnt nor he had burns marks on the body. Had the witnesses not reached him soon, the fire would have certainly spread and his clothes would have been burnt and in fact whole body bore burns marks.
16. As a resuIt of the above discussion and analysis of the contentions raised by the learned counsel for the appellants, we feel no hesitation in recording our conclusion that the presence of the three eyewitnesses at the spot cannot be doubted for any assumed reasons and their statements cannot be thrown away.
17. The incident, which formed motive for the commission of this occurrence, has not been denied.
Saeen deceased, did lodge the FIR for the murder of his brother and another person, against Ghulam Mustafa Shah and his other relatives(including liaqat Ali). It was a case of double murder.
The fact of two accused of that case having absconded, shows, the anxiety, the accused had, about that case. Ghulam Mustafa Shah, therefore, would have been having concern in elimination of Saeen so that he does not appear and depose against them for their conviction and sentences in the murder case.
18. The argument of the learned counsel that the evidence of identification of Liaqat Fani by the three witnesses is of no legal consequence, as none of them made statement as to for what they had indentified him, is based on the judgments reported as Khadim Hussain vs. State (1985 SGMR 721) and Ghulam Rasul etc. Vs. State (1988 SCM R 557).
The judgment reported at page 557 of 1988 SCMR, is based on the judgmentreported at page 721 of 1985 SCMR. Their Lordship of the Supreme Court while coming to the conclusion to discard the evidence of identification parade in Khadim Hussain vs. Stale (1985 SCM R 721), after noting the inter se relationships of the appellants and the witnesses and particularly of the complainant, observed:-"In view of this relationship docs the identification parade held eight months after the occurrence serve any purpose."
Connections through relationship have been noted after this observation as well. The following observations made thereafter, in our view, makes the present case of a distincitivc nature from that case:- "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by thir role in the crime or as individuals, as friends or as foes."
Reference has also been made in that judgment of the case reported as Lai Singh vs. Crown (ILR 51 Lahore 396).
Following observations in that judgment are also relevant:- "The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he cme to pick out a particular accused person and the details of the part which that accused took in the crime in question.The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court...."
With utmost respect we would like to say that it appears from the observations of their Lordships, noted above, that while judging the evidence of identification parade, the statements made by the witnesses before the Supervising Magistrate or their failure in not making any statement before him are not the only factors which govern authenticity of the identification evidence, but the statements made by the witnesses about identification parade at the trial have also to be considered before believing or throwing away their testimonies.
Coming to this case, we find that the three witnesses while appearing at the trial had given the descriptions of the two unknown accused in some details. The witnesses gave out their statures, their ages and other marks of identification and then stated that they had identified Liaqat Fani as one of the acused, who had participated in the occurrence. The case is hand in that respect is on a distinct footing than the cases referred to above. The other feature, which we feel, is of a distinction, is that while the identification parade was held in the case (1985 SCM R 721), after eight months, in the case in hand the identification parade was held after 22 days and the appellant, who was identified, was lodged in jail six days prior to that on arrest. He was resident of a place far away from the place of residences of witnesses.
In view of the conclusions drawn above, we feel we are not obliged to discard the evidence of identification parade in this case.
19. For all the reasons noted above, we arc of the view that there is sufficient evidence on record connecting the appellants with the crime. There is no merit in this appeal, the same is dismissed.
The sentences of death awarded to both the appellants arc confirmed.