JUDGMENT MUNAWAR AHMED MIRZA, J.- This appeal questions correctness and legality of conviction, recorded by learned Additional Sessions Judge Usta Muhammad through judgment dated 31.1.1990; wherein after holding appellant guilty for the offence under section 302 P.P.C, he has been sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000 or in default R.I. For six months.
2. On 25th May, 1987 at 1.40 P.M. Mewa Khan lodged First Information Report under section 302/109/34 P.P.C, with Usta Muhammad Police Station about murder of his brother 'Wazir Khan committed by (i) Appellant Naubat (ii) absconding accused Ghous Bakhsh alias Bhooral (iii)
Ghulam Muhammad and (iv) Abdul Fateh. It is alleged that about 6/7 years prior to present incident Sohbat Jakhrani father of appellant was murdered for which complainant and deceased Wazir Khan were facing trial before Additional Sessions Judge, Usta Mohammad. On the fateful date, complainant and deceased Wazir Khan accompanied by their relatives P.Ws Misri and Ayub came to Usta Mohammad for attending the Court. After hearing of the case, they went towards Bus Stand. On the way Abdul Fateh exchanged Baluchi 'Hall'-. However while they were waiting for the 'Bus' appellant Naubat Khan, absconding accused Ghous Bakhsh alias Bhooral both sons of Sohbat Khan deceased; armed with shot guns alongwith Ghulam Muhammad holding Lathi, appeared and raised 'Lalkara'. Appellant and Ghous Bakhsh fired at deceased Wazir Khan who succumbed to injuries. The accused were followed but they managed to escape. Allegation of conspiracy for causing this murder were also attributed to accused Abdul Fateh. Complainant Mewa Khan rushed to police station which was at a distance of one and half furlongs and immediately reported the matter at Usta Muhammad Police Station. Appellant, Ghulam Muhammad and Abdul Fateh were apprehended on the same day, whereas accused Ghous Bakhsh is absconding uptil now. After completion of investigation challan dated 11.6.1987 was submitted before Sub-Divisional Magistrate, Usta Muhammad who after taking cognizance sent up the accused persons to face trial before Additional Sessions Judge Usta Muhammad.
On 13th January, 1988 charge was read out to appellant, co-accused Ghulam Muhammad and Abdul Fateh, to which they pleaded 'Not Guilty1 and claimed trial.
3. To substantiate the accusations prosecution has examined six witnesses namely complainant Mewa Khan, P.W.2 Misri, P.W.3 Liaqat Ali, P.W.4 Dr. Radha Kishan P.W.5 Ejaz Iqbal, and P.W.6 Ghous Bakhsh Investigating Officer. However P.W. Ayub was given upon the ground that he had been won- over by the defence. Statement of all the accused under section 342, Cr.P.C, were separately recorded on 14.12.1989 where in all the allegations were refuted. On the same day viz 14.12.1989 they were also examined on oath as contemplated by section 340(2), Cr.P.C. No defence was led by the accused persons, ultimately appellant was convicted as above vide judgment dated 31.1.1990 whereas co-accused Ghulam Muhammad and Abdul Fateh have been acquitted. Present appeal was filed on 7th of March, 1990 challenging the aforesaid conviction.
Mr. Muhammad Aslam Chishti learned counsel for petitioner raised following contentions; (i) That no independent witnesses has been produced by prosecution to substantiate accusation against appellant, specially when incident took place in broad daylight near Bus Stand.
(ii) Ocular evidence suggests fire of four shots from a very. Close range, whereas deceased sustained two injuries which is a glaring conflict, causing serious doubt in the correctness of allegations. Besides there is no recovery of crime weapon, therefore mere presence of empties at the place of incident has no legal consequence accordingly inferences drawn by the trial Court in that behalf are defective.
(iii) Misri Khan is a chief witness residing far away from the place of incident. His presence on the site was unnatural and improbable. He has been introduced for false deposition, because of close relationship.
(iv) Finally the report of Investigating Officer exonerates appellant, from the offence alleged against him. According to him, said report is of great significance and causes sufficient doubt on the prosecution case. Motive for the commission of offence is double edged. Situation of enmity can also be exploited to implicate appellant.
4. Whereas learned Assistant Advocate-General strenuously supporting the impugned judgment and conviction, recorded against appellant, made following submissions;
(i) That there exists strong and independent evidence for proving guilt of the appellant;
(ii) Presence of complainant Mewa at sta Muhammad on the said date is undisputed; Presence of P.W. Misri Khan is fully established from the averments of F.I.R, recorded immediately after the incident and identification of deceased before police while preparing the inquest report.
(iii) Ocular evidence being natural and unimpeachable has rightly been relied upon by the trial Court.
(iv) Absence of other persons at the relevant time has been duly explained and no cross- examination in that behalf was offered.
(v) Medical evidence fully corroborates the occular version as reflected from the examination-in- chief and corss-examination;
(vi) Admittedly father of appellant and absconding accused Ghous Bakhsh was murdered earlier whereas complainant Mewa khan and deceased Wazir Khan were facing trial in the court at Usta Muhammad, therefore, motive for commission of present offence existed and has been duly established in the case. There is no possibility of false implication because F.I.R, was lodged without any delay or meditation.
(vii) Report of Investigating Officer has not evidentiary value, and his obliging observation cannot provide benefit to the accused persons. According to him accusations have to be assessed on the basis of evidence adduced before the Courts. Reliance was also placed on the observation in cases (i) Falak Sher and another vs. The State (PLD 1967 SC-425) and (ii) Muhammad Arif vs. The State (1970 SCMR-178).
We have carefully considered the arguments addressed by learned counsel for the parties on the basis of available record.
5. It may be seen that complainant Mewa Khan has unambiguously deposed that he alongwith his deceased-brother, Misreprint and Muhammad Ayub after attending the court, came to Bus stop where appellant Naubat and Ghous Bakhsh arrived, and fired at them with shot-gun, causing instantaneous death of Wazir Khan. Presence of accused Ghulam Muhammad holding Lathi and conspiracy of Abdul Fateh for committing murder of Wazir Khan was also specifically alleged. P.W.
Misri Khan fully corroborated aforementioned version of complainant. Defence could not shatter or impeach testimony of these two witnesses despite lengthy cross-examination. P.W. Misri Khan also explained that two shots had hit the body of Wazir Khan. Presence of complainant was Undisputedly established on account of his attendance in the court on said date. Similarly presence of Misri Khan has been independently proved by mention of his name in the F.I.R, recorded immediately after the incident, and inquest report etc. Prepared on the site, containing his identification of dead body before Investigating Officer. Factually presence of these witnesses at the spot, has not been questioned, besides medical evidence pointing out pellets of various dimension regarding first injury sufficiently help in explaining occular evidence about fire shots.
Happening of incident at Bus-Ada Usta Muhammad has not been challenged. Effort was made, merely to show innocence of appellant. Now minutely analysing the deposition of complainant and P.W. Misri Khan coupled with attending circumstances, we find them convincing, natural, confidence inspiring, and reliable.
6. Nevertheless no adverse inference can be drawn if gun is not recovered by investigating agency.
Learned Additional Sessions Judge, Usta Muhammad has exhaustively discussed the evidence adduced by the prosecution. Learned counsel for appellant could not point out any glaring contradiction, which could effectively dislodge the accusations or observation of trial Court.
Factually on independent evaluation of occular testimony, medical evidence, and circumstances discussed above, we are inclined to confirm the conclusion arrived at in the impugned judgment.
Lastly learned counsel for appellant emphatically challenged propriety of the proceedings, contending that report of investigating officer incorporated in the challan was very important and crucial for providing benefits of doubt to appellant. We are unable to accept said proposition. It has been held by Lahore High Court in case Dargahi and others vs. The State (PLD 1958 Lahore. 300) that opinion of Investigating Officer was not relevant for determining innocence of accused, because trial Judge is bound to judicially determine liability of the accused. Relevant observation appears at page 318 Para- 23:- "23. We wish to emphasise that we cannot permit our judicial officers to follow their judicial conscience to be moulded by the opinion of the Investigating Officer. The guilt or innocence of an accused must be judged according to accepted rules of law. It will be extremely hazardous to place reliance upon the opinion of police officers. And to make it a cornerstone of one's decision is to allow oneself to be a tool in the hands of the police. This is likely to shake the very confidence of the people in the judiciary. We need not remind that the judiciary is under a solemn pledge to keep the fountain of justice pure and clear. We strongly hope, that in future that the learned Sessions Judge will act and judge, strictly in conformity with the law".
7. Same matter when came up before Honourable Supreme Court in judgment reported as Dargahi and others vs. The State (PLD 1958 S.C. 275) it was ruled that opinion of the Investigating Officer regarding guilt or innocence of accused has no relevancy. Said observations are reproduced below:- "The contention appears to us to be unanswerable. The action of the trial Judge in obtaining from the investigating officer a statement of his own belief as to the guilt or innocence of a number of persons accused in the case cannot be condemned- too strongly. The function of forming an opinion as to the guilt or innocence of persons accused in the case is confined to the trial Judge, and may not be shared with or delegated to any other person, least of all to the person who was responsible for the levelling of the accusations against the accused persons. It may not be rested upon the opinion of any other person. Although in coming to this conclusion the trial Judge is required to consult the assessors who sit with him at the trial, yet their opinions do not have a formative effect upon the judgment he delivers. The judgment must be formed by himself alone, and must be based exclusively upon legal evidence, which does not embrace such an opinion as was received in this case."
Similarly principle about ignoring report of the investigating officer have been discussed in cases
(i) Falak Sher vs. State (PLD 1967 SC 425) and (ii) Muhammad Arif vs. State (1970 SCMR- 178). We are therefore satisfied that opinion of Investigating Officer incorporated in the challan has no legal sanction or evidentiary value.
For the above reasons we do not find any merits in the appeal which is accordingly dismissed.
This appeal was decided by short order of even date, and here are reasons for the same. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.