1. ' ABDUR REHMAN KHAN, J.--- In this appeal, the appellant, assails the correctness and legality of the judgment, dated 6-10-1991 of the learned Additional Sessions Judge, Haripur Camp at Abbottabad, whereby he was convicted under section 302, P.P.C. For the murder of Mazhar Sher Khan, was awarded death sentence and a fine of Rs,50,000 or in default of payment of this amount to suffer further two years' R.I. The appellant was also found guilty of the charge of murder of Raja Amanullah Khan under section 301, P.P.C. Read with section 302, P.P.C. And on this count he was sentenced to imprisonment for life and a fine of Rs,25,000 or for non-payment to remain as prisoner for further one year. He was also held guilty under section 449, P.P.C. For trespass into the Bungalow of the deceased Mazhar Sher Khan and on conviction under the said section he was sentenced to five years' R.I. And a fine of Rs,5,000 or in default to six months' R.I. It was also ordered that fine if recovered should be paid to the legal heirs of the deceased as compensation.
2. In this case the episode occurred on 16-2-1989 at 21-10 hours in the Official residence of the deceased Mazhar Sher Khan who was then Deputy Inspector-General of Police, Abbottabad and was reported to the police by Taus Khan (P.W.13) Head Constable Police who was during those days working as Orderly with the Deputy Inspector-General on the same day, at 21-30 hours. This report when rendered in English would read as under:-- "I was present in the Bungalow. D.I.-G. Mazhar Sher Khan was watching T.V. At about 9-00 p.m. The Telephone Operator, Muhammad Ilyas, informed me that Raja Amanullah Khan, an ExM.PA. And Muhammad Ashraf Khan Tareen have come to meet the D.I.-G. I informed the D.I.-G. Who asked me to make the guests seated and I made them sit in the small room adjoining the Drawing Room. The D.I.-G. Came to meet the guests and had hardly sit when the two accused abused him. Raja Amanullah asked 'V d" on which Ashraf Khan fired at the D.I.-G. With "{{URDU TEXT}}" which hit and injured him. I tried to catch hold of Ashraf Khan when Raja Amanullah proceeded towards me and in the meantime Ashraf Khan fired another shot which hit and injured Raja Amanullah. During this time Muhammad Saleem Orderly also reached there. The two accused decamped through the car parked near the door where Driver was already present. The D.I.-G. Has been immediately taken to the hospital."
3. It is to be noted at this stage that Mazhar Sher Khan (D.I.-G.) died of the injuries the next day i,e, 17-2-1989 at 3-50 a.m. In the District Headquarter Hospital, Abbottabad while Raja Amanullah Khan succumbed to the injuries in Pakistan Institute of Medical Science, Islamabad at 10-25 on 24-4- 1989 i,e, more than two months after the occurrence.
4. In order to appreciate the prosecution case in its correct perspective it will be useful and helpful to refer to the relevant evidence examined by the prosecution at the trial.
2. ' P.W.1 is Dr. Shaharyar, Medical Officer, Casualty Department District Headquarter Hospital, Abbottabad who examined Mazhar Sher Khan for his injuries before his death and also conducted his post-mortem examination and had found the following external injuries:--
(1) Fire-arm entry wound present at posterior axillary line at level of 3rd rib in a direction of left to right side obliquely placed from above down. The size of wound 1/2" oval inverted edges, burnt edges.
(2) Fire-arm wound present at the supra clavicular region on the left side of neck. Size of wound 1/2" in diameter, circular from left to right obliquely placed within an exit wound with overted edges with the size of 1/2" oval in shape, placed at the level of first thoracic vertebra near the midline towards the right on the posterior aspect of body.
3. ' He also examined Raja Amanullah Khan and found the following external injuries:-- "One fire-arm entry wound on right lowal quardant of about 1/2" diameter, oval shape witk corresponding hole in shirt. No exit wound present. Advised X-ray abdomen. Nature of injury later on."
4. ' P.W.2 is Dr. Azmat Humayun Khan Sunbal, Medical Officer, Federal Government Services Hospital, Islamabad who had conducted post-mortem examination of the deceased Raja Amanullah Khan and who verified the postmortem report Exh.P.W.2/1 as correct. The external injury having old scar could not be particularised by the witness and which can be found in the statement of P.W.1 who initially examined the deceased for his injuries. Mst. Yasmin widow of the deceased Mazhar Sher Khan appeared as P.W.3 and stated that she and her husband were sitting in T.V. Lounge at about 9-00 p.m. And at that time the Orderly Taus Khan P.W. Came there and informed her husband that guests have come. On enquiry he disclosed their names to be Raja Amanullah Khan and Ashraf Khan. He was directed to get the guests seated and switch on the heater. Taus came and informed that the guests have been got seated so Mazhar Sher followed by Taus Khan went to meet the guests. After a few moments she heard report of fire-shot and she took it for a short circuit. In the meantime Mazhar Sher who was held by P.W. Taus Khan came to T.V. Lounge and told her that he has been shot and asked her to take him to the hospital. He was put in the car with the help of Yunas who was cook in the Bungalow and Saleem and was taken to the hospital in a car driven by Rahim. "While on road to the hospital I asked Mazhar Sher who has shot you? And I asked "Raja Amanullah". In answer Mazhar Sher said, "no Ashraf'. When we reached in hospital, immediately after us another car also arrived in the hospital. Rahim P.W., the driver of my car told me that the two persons who alighted from the other car behind us were Raja Amanullah and Ashraf'. Mazhar Sher was taken inside the Emergency Room when Raja Amanullah and Ashraf also came in and Ashraf was shouting that prior to the treatment of D.I.-G. The bullet should be removed from Raja Amanullah. During this time S.S.P., Abbottabad also arrived the emergency room and Mazhar Sher pointing towards Ashraf stated that he had fired at him and that the S.S.P. Should arrest him.
5. "Thereafter, S.S.P., Abbottabad caught hold of Ashraf and took him out of emergency room. At that time, Ashraf was swearing that he has shot D.I.-G.".
6. ' P.W.4 is Fiaz Khan Toru, then S.S.P., Abbottabad. He deposed that at about 9-15 p.m. He was hearing news on T.V. When he received a telephone call from the operator of D.I.-G.'s house that Ashraf and Raja Amanullah had come to D.I.-G. House and after firing at D.I.-G. They managed to decamp in Corolla Car. He directed the police line to arrange pilot escort jeep for arresting the decamping accused and himself reached D.I.-G. House. There the S.H.O. Informed him that the D.I.- G. Had been taken to the hospital and "he wished me to follow him to the hospital". So, he followed the S.H.O. In his own car driven by Yunas (P.W.12). He straightway went to the casualty room where he found the D.I.-G. In injured condition. The D.I.-G. When noticed his arrival, looked towards him and pointed towards Ashraf that he was the person who fired at him. He caught hold of him, brought him outside the room and on his search .30 bore revolver was recovered from his possession which had four empties and one live cartridge. The driver Yunas was asked to take him to police station and he was also given the recovered revolver for handing it over to the S.H.O.
7. Yunas was escorted by other police personnel.
8. ' P.W.5 Muhammad Ilyas on receipt of the Murasila from the S.H.O. Registered the case through F.I.R.
9. Exh.PA. (Statements of P.W.6 and P.W.7 are not that much important and are, therefore, not referred).
10. ' P.W.8 Abdul Manan, Inspector, Crime Branch took into possession a spent bullet recovered by the doctor from the dead body of Raja Amanullah at the time of his post-mortem examination through recovery memo. Exh.P.W.8/1 which had been sealed into parcel. He sent this spent bullet to the Arms Expert. He also prepared the inquest report of the said deceased vide Exh.P.W.8./2.
11. ' P.W.9 is Iftikhar Ahmad, S.I. Who is marginal witness to recovery memo. Exh.P.W.9/1 whereby the clothes of the deceased Mazhar Sher Khan were taken into possession. Similarly he witnessed the recovery of various bulbs from different places, in the Bungalow through recovery memo.
12. Exh.P.W.9/2. The Investigating Officer also took a spent bullet recovered from the dead body of the deceased of Mazhar Sher Khan which was sent by doctor through Exh.P.W.9/3 which was also witnessed by this witness. He is also witness to recovery memo. Exh.P.W.9/4 by which the Investigating Officer took into possession white car and from inside the car he recovered the following articles:--
(1) Registration copy in the name of Muhammad Ashraf;
(2) An empty Kash (Bandolier);
(3) One Klashnikov No,29085 with two magazines having 20 cartridges and its licence in the name of accused Ashraf;
(4) Radio licence of the motor-car;
(5) Driving licence of accused Ashraf;
(6) Copy of licence of .32 bore pistol in the name of Muhammad Ashraf.
13. ' Ghulam Hussain Shah, A.S.I. Who had seized the car belonging to accused Ashraf during the raid and had recovered the articles therefrom as detailed in the memo. Exh.P.W.9/4, made a statement as P.W.10. Muhammad Yunas Driver of the S.S.P. To whom the latter had handed over the accused alongwith revolver of .38 bore, four empties and a live cartridge appeared as P.W.12 and deposed to this effect and also the recovery memo. Exh.P.W.12/1 being its marginal witness.
14. ' The complainant Taus Khan who is also an eye-witness was examined as P.W.13. He enumerated the same fact as alleged by him in the F.I.R. And reproduced in the earlier part of this judgment which need not be reiterated. The Investigating Officer Sadiq Hussain, S.H.O. Police Station Cantt.
15. Was examined as P.W.14. This witness gave details of the steps taken by him in completion of the investigation, explained the recoveries and gave particulars of the various documents prepared by him. There is no need to recapitulate his statement as it would be referred to whenever necessary.
5. The accused when examined under section 342, Cr.P.C. Pleaded innocence, false involvement on account of ulterior motive and described the entire prosecution case as fabricated, cooked up. He, however, declined to appear in his defence in terms of section 340(2), Cr.P.C.
6. The learned counsel, Dr. Khalid Ranjha, appearing for the appellant at the very outset took exception to preparation of the map of venue of the offence by the Investigating Officer as according to him this offended against Rule 25.13 of the Police Rules, 1934, which lays down that such a plan should be got prepared by Patwari or expert. According to him this site plan prepared by the Investigating Officer is inadmissible in evidence under section 162, Cr.P.C. Being a statement made to the police during the investigation. He supported his submission by the Rule laid down in AIR 1944 Cal. 339, AIR 1962 SC 399, AIR 1956 SC 327 and AIR 1976 SC 1421.
16. ' Mr. Zahurul Haq, who represents the State in his capacity as Special Prosecutor did not dispute the legal proposition as enunciated in the above judgments but while relying on PLD 1976 SC 234, PLD 1979 Pesh. 36, 1983 PCr.LJ 429, submitted that the site plan is not a substantive piece of evidence and even if defect in preparing it is found even then it would not detract from the veracity of the prosecution case or devalue the otherwise proved and unchallenged version of the incident. He also referred to the various parts of the statements of the eye-witness (P.W.13) and the Investigating Officer P.W.14 to prove that their statements on this count i,e, regarding the place of crime has rather been admitted. It is, however, curious to note that the appellant's counsel could not take this plea to its logical conclusion as he did not even remotely point out as to how the alleged flaw would detract from or affect the veracity of the prosecution case or in what manner it would help the defence or would affect the finding of guilt. We were, therefore, unable to understand the logic in advancing the rrgument when at some later stage of the arguments it was conceded that the episode did occur in the official Bungalow of the D.I.-G. i,e, the Bungalow in question but not in the small room or in the manner in which it was described. Under the mentioned Police Rule the Area Police Rule the Area Patwari should only be asked to draw the sketch in those heinous crimes which are connected with land disputes for obvious reason that he has the custody of the record pertaining to the lard under his jurisdiction. Similarly the preparation of the site plan by the expert will be necessary only if the Investigating Officer considers it proper to have the assistance of a technical man otherwise there is no bar to the making of map by the Police Officer who investigates the case. In this case the eye-witness in his Court statement supported the site plan and admitted that it was prepared at his instance and it is not that case where the prosecution merely relies on the testimony of the Investigating Officer, therefore, the principle formulated in the precedent cases would not strictly apply. Moreover, the Investigating Officer himself had recovered a bullet from the room where the occurrence had occurred, therefore, this portion of his statement regarding the recovery is relevant and admissible to determine the place of occurrence. In any case this argument is merely academic in nature as the defence itself did not dispute the site of crime rather he admitted the same as is clear from the following extracts from the statement of the eye-witness (P.W.13) on pages 138, 139, 140 and 141 of the print book:-- "The moment I informed the D.I.-G. About the arrival of the guests he asked me to get them seated in the small room adjacent to T.V. Room. One big and two small Sofas were lying in that room where I got them seated. Usually when the guests visited the D.I.-G. They were made to sit in that room. It is correct that the small room is contiguous to drawing room which in turn is close to Dining Room and the apportionment of T.V. Attached to the Dining Room. .... It is incorrect that the D.I.-G. Asked me to make arrangement for the dry fruit or its despatch to the room meant for guests before he left for the room. The distance between the room where the guests and T.V.
17. Lounge is about 50 paces. It is incorrect that the wife of the deceased had left to meet them.
18. ' Again on page 140: ' It is incorrect to suggest that the Electricity had failed due to snowfall and break at that time. .... It is correct that I did have talk with any one about the occurrence till the arrival of S.I. Sadiq Hussain at the scene of occurrence at 9-30 p.m. Alongwith .... Duly armed .... The S.H.O. Prepared the site plan at my instance and pointation on the very day thereafter when the S.H.O. Arrived at the spot I was with the children and was summoned to the room where the occurrence took place. It is correct that before writing my report the S.H.O. Sadiq Hussain inspected the room of occurrence."
19. ' Many other parts from this statement and the statement of the Investigating Officer can be referred to show that from the defence side the scene of crime has been admitted but that would burden the judgment unnecessarily.
7. The learned counsel next referred to two newspapers clipping Exh.P.W.4/D-1 and Exh.P.W.4/D-2 appearing at pages 65 and 66 of the print book and argued that the contents of these extracts should have been considered in support of the plea of the appellant which he had introduced by way of suggestion to the eye-witness as is manifest from at page 143 of the Print Book. This suggestion is to the effect. "It is incorrect to suggest that the deceased came to the crime room to meet the guests, served them with Alcohol and during that he abused because he also took the Alcohol (the entire suggestion is incorrect). It is incorrect to suggest that the deceased, accused, Ashraf Khan and deceased Raja Amanullah got drunk and started abusing each other in which deceased Mazhar Sher abused the accused and he was fired at by Raja Amanullah deceased".
20. ' It is interesting to note that in his statement under section 342, Cr.P.C. The accused has not taken any specific plea or stance, but to the question "It is in evidence that on 16-2-1989 at about 9-00 pin. You alongwith Raja Amanullah Khan went to the Bungalow of Mazhar Sher Khan D.I.-G. At Abbottabad. What do you say about it?" his answer was "It is incorrect. I did not visit the Bungalow of D.I.-G. Late Mazhar Sher Khan". It is thus clear from this statement that the accused neither admitted his presence on the spot nor admits the venue of occurrence to be the one as shown by the prosecution but it is amazing that even then insists that the version of the incident as given in the news item should be considered in support of his plea. Exh.P.W.4/D-1 is a news item in "Daily Mustaqbel" dated 17-2-1989 by the Staff Reporter who has described the strife between the deceased and their compeers over gambling while they all were drunk. The other Exh.P.W.4/D-2, dated 18-2-1989 in "Daily Aman" Karachi is from the Staff Report and is also to the same effect and in that too the incident has been shown to be the result of a fall out in gambling on cards and cheating at the time when the deceased of the case and their compeers were not in senses being drunk. It was argued that these news items were are relevant and should have been considered. It was, however, conceded that it could have only be looked into if it had been duly proved on record.
21. It was pointed out that P.W.4 had been asked about it but he did not say that he had contradicted these news items. It was also stressed that the news items could help the Court in forming opinion about the prevailing circumstances in those days. It was argued that the Coin t should have at least read these news clipping but it was conceded that the Court was not bound to have either accepted it or acted on it. Reference was made to the following cases in support of this contention:--
(1) PLD 1993 SC 473,
(2) PLD 1963 BJ 14,
(3) AIR 1930 Lah.
22. 371.
23. ' The correctness of this argument was disputed by the learned Special Prosecutor. He submitted that these documents were absolutely inadmissible in evidence as no effort was made to prove it because neither the original print copy nor the correspondence which was instrumental in furnishing the information were produced. It was also pointed that even if both the above had been produced even then without the production of the original source of these news no reliance could have been placed on it. He distinguished the Rule laid down in PLD 1993 SC 473 and in this contest referred to Article 58(2)(b) of the Constitution as the President of Pakistan could form opinion on the basis of the news items to the limited extent of informing himself about the public opinion. It was submitted that it was not understandable as to how a criminal case can be decided on reports in the news and that too on inadmissible, unproved, unverified and conjectural type of reports. It was also stated that P.W.4 was not legally required to contradict such type of inadmissible reports. He referred to PLD 1986 SC (AJ&K) 120, PLD 1960 Kar. 178, AIR 1961 Pb. 215, AIR 1953 Himachal Pradesh 41 and AIR 192. Lah.
24. 289.
25. ' It is not correct that the trial Judge has not referred to above news cutting but he has in fact not discussed its evidentiary value to the extent it was relied on by the defence. We find on page 209 the contention put up by the defence in respect of the news items which is reproduced. "The learned counsel for the accused emphasized that the vanue of the occurrence was changed and it was not established that the occurrence had taken place in the Bungalow of the late D.I.-G.
26. Because no blood was recovered from the spot at all and news items were published in the newspapers that the venue of the crime was somewhere else: In this regard he referred to cutting of the newspapers copies Exh.P.W.4/D-1 and Exh.P.W.4/D-2 but the perusal of the said items would show that the place of occurrence was mentioned as the Bungalow of the D.I.-G. However, the occurrence was shown to have taken place in different mode". It is thus clear that this point was agitated to the extent of venue of the crime and was answered to that extent. In any case it could not be disputed that these Press Reports only amounted to hearsay and were inadmissible and that no efforts were made by the defence to prove it formally and to produce the Reporter and its source for verification. The appellant has also tried to play hide and seek as he was not bold to admit his presence on the spot and to take a specific plea in the light of the contents of the Press reports which he now relies on. If the precedent of deciding the criminal cases on Press reports is laid then that of course would be a very dangerous one and would frustrate the very purpose of "Qanun-e-Shahadat". The reliance on the rule laid down in PLD 1993 SC 473 is misplaced as the facts and circumstances of that case were entirely different. As that was a case relating to the formation of opinion by the President in term of Article 58(2) of the Constitution and, therefore, the Press report reflecting a certain view which was not controverted by the opposing side were taken into consideration. Similarly the dictum in the other cases relied on by the defence is not attracted as those were formulated in entirely distinct factual background. On the other hand, the judgment referred to from the defence side clearly envisages that the Press reports of the type as in this case amount to hearsay and, therefore, inadmissible.
8. The third objection of Dr. Khalid Ranjha was that the D.S.P. Gulzarullah Khan who had conducted partial investigation in the case, submitted challan in the Court whereas the requirement of section 173, Cr.P.C. Is that it should have been filed in Court by the S.H.O. (P.W.14). It was argued that in view of the law laid down in AIR 1936 PC 253 things should be done as prescribed by law otherwise it should not be done at all. PLD 1962 Kar. 633 was relied to show that this amounted to an illegality which vitiated the trial. It was also in this context pointed out that the statements of witnesses or accused recorded by the D.S.P., Gulzarullah Khan had not been supplied to him which vitiated the trial on account of the decisions in these judgments, 1989 P Cr. L J 316, PLD 1962 Dacca 671, 1985 SCMR 1442, 1986 P Cr. L J 3025. The non-production of Gulzarullah Khan, D.S.P. And Muhammad Amin, S.H.O., Police Station, Bhagnotar was also criticised. The sole purpose for raising these objections was that it prejudiced the appellant in his defence as according to the arguments if Gulzarullah Khan had been produced he would have been asked about the contents of the statement of Raja Amanullah Khan co-accused and Muhammad Amin S.H.O. Could be questioned regarding the statement of the appellant made before him when he was arrested. It was, therefore, clarified that if all the above had been brought on the record then the Court would have known the plea of the appellant at the earlier stage. The cases cited in support of this point are AIR 1947 PC 67, PLD 1953 Dacca 10, 1985 SCMR 1442, PLD 1989 SC 226, PLD 1988 SC 99, 1989 P Cr. L J 316, 1987 P Cr. L J 1532-445, 1982 P Cr. L J 10, 1969 P Cr. L J 586, 1978 P Cr. L J 10 and PLD 1962 Dacca 671.
27. ' The learned Special Prosecutor Mr. Zahurul Haq, while answering the above objection submitted that under section 190, Cr.P.C. Any Police Officer can submit the challan in Court and there is no such limitation in the section as argued by the defence. It was also stressed that the statements of all the witnesses and also other available material has been supplied to the accused before the trial which can be satisfactorily concluded from the fact that no such objection was taken during all the time the protracted trial continued. The statement of Raja Amanullah co-accused had not been recorded at any stage as he was not able to make a statement, therefore, the question of supply it to the accused never arose. It was clarified that D.S.P. Gulzarullah Khan had only recorded the statement of P.W.3 Mst. Yasmin and she appeared in Court but was not confronted by the defence with her statement under section 161, Cr.P.C. Meaning thereby that no contradiction was found between her that statement under section 161, Cr.P.C. And in her Court statement If she had been confronted with her statement then the prosecution would have been obliged to supply a copy of that statement on record and produce the Gulzarullah Khan in Court and in absence of this eventuality there was no need for the prosecution to produce Gulzarullah Khan. AIR 1942 Born. 71 was in this respect referred. It was argued that even if for argument's sake it is admitted that challan was not submitted by a competent person and copy of any statement was not given even then the competency of the Court to try the case would not be affected in absence of proof either of causing miscarriage of justice or prejudice to the accused. It was pointed out that the accused has not taken any specific plea nor has admitted his presence on the spot nor has laid foundation in cross-examination of the witnesses for the alleged plea. It was, therefore, stated that it was inexplicable and baffling as to how the accused was prejudiced in his defence. 1980 P Cr. L J 97, PLD 1956 FC 156, PLD 1965 BJ 1257, AIR 1964 SC 28, AIR 1963 Pat. 268 were referred by the Special Prosecutor in support of his view points. In context of these arguments it is of primary importance to note that the accused has totally denied his presence on the spot and while answering the question "what is your statement and why are you charged?" he gave the following vague and inexplicit answer:- ' I have been falsely charged in this case on account of my close relationship with Raja Amanullah Khan deceased who was cited as a co-accused with me and whose cause I pleaded against late D.I.-G. Mazhar Sher Khan who fired at him (Raja Amanullah) with fatal results. The D.I.-G. Mazhar Sher Khan was tempramently arrogant, heartened and ill-reputed person. He was not given proper and timely treatment and his death occurred due to the negligence of the Doctors. The doctors who attended him and performed Surgical operation on him (D.I.-G.) Mazhar Sher Khan, have been by design withheld. To cover up this shortcoming and to suppress critical condition of Mazhar Sher Khan the record of the Hospital relating to his Medical Reports and P.M. Report was removed to the office of S.S.P. Abbottabad and interpolations were made in such record. This is apparent from the application made by my son at my instance for supply of copies of relevant record and the endorsement made by the official concerned. It is Exhs.DA. And D.B. Raja Amanullah Khan deceased was purposely not properly treated because of his charge against the late D.I.-G. Mazhar Sher Khan and also to erase the effect of his accusation in that behalf. Raja Amanullah Khan had furnished a written statement duly signed by him to the police official investigating the case but the same has been withheld and not made a part of judicial record nor its copy placed thereon, through applied for was not equally supplied to me, though promised by the prosecution. The copy of which is Exh.D.C. The Investigating Officer D.S.P. Gulzarullah Khan has also recorded the statement of Raja Amanullah Khan deceased regarding the injuries resulting in his death. This partakes the nature of dying statement and though a very vital and important item of evidence regarding the role played by D.I.-G. Mazhar Sher Khan deceased in the brawal has been suppressed by not producing the said D.S.P. Who had also prepared a final report in the case under section 173, Cr.P.C. A thread of fabrication runs throughout the proceeding relating to more and manner of may arrest, recovery of pistol, bullets, inquest reports, my taking to different police stations and ultimately taking me to Peshawar and citing of Mr. Anwar Ali Haideri as P.W., a Magistrate, the evidence of essential witnesses and vital documents linked to and connected with the case have been suppressed, twisted and manipulated. The document manipulated with the connivance of the police by Mr. Anwar Ali Haideri, Magistrate has also been dishonestly withheld. I produce attested copies of duty roster Salhad Barrial Forest Department and copies of applications for supply of Medical record of both the deceased. The copy of Duty Roster is Exh.D.D.
28. Comprising of three sheets. I am a person of advanced age, afflicted by serious maladies like cervical sypondilesis, aschemic heart disease. With body physically wricked. I cannot afford to indulge in criminal ventures, nor have I. Ever resorted to any crime. I belong to a respectable family of Haripur and common respect in the locality. In fact I had no motive to commit the offence attributed to me, nor had any animus or illwill against late D.I.-G. Mazhar Sher Khan to take away his life. The gun duel was confined between late D.I.-G. Mazhar Sher Khan and Raja Amanullah Khan only as is alleged by the latter in his dying declaration (Raja Amanullah). I have been falsely introduced in the Drama for the reasons stated above. I produced my medical record Exh.D.E.
29. Consisting of 47 pages which has been aptly discussed by the High Court in my application for release on bail.
30. ' In this case a very Senior Police Officer was involved and the entire police force in collusion with the Administration reacted over zealously and overdoing, change the time, manner and venue of occurrence and instead put up a distorted version before the Court with aid of false and fabricated evidence both oral and documentary and circumstantial. I am innocent."
31. ' It is to be noted that the appellant has neither specifically raised any plea nor produced any evidence in support of his alleged plea nor has laid foundation in the evidence of the prosecution for such a plea. It is, therefore, astonishing as to how the evidence of the left over P.Ws. Could harm him in his defence. It is noticeable that none of the above objections had been raised at trial stage which was essential as that Court was in a better position at a proper stage to remedy the deficiencies, if any, found by it.
32. We went through the judgment cited by either side and found in almost all of them a common feature that any defect, irregularity or even illegality in the investigation would not vitiate the trial unless it is shown that it has prejudiced the accused in any manner and similarly no objection regarding any flaw in the investigation or trial can prevail at appellate or revisional stage unless it is proved it has brought about a miscarriage of justice or it has occasioned failure of justice.
33. Keeping in view the above axiomatic and well settled position we have now to judge the validity of the objection agitated by the appellant's Advocate. The criticism that instead of the S.H.O.
34. Gulzarullah Khan has submitted the challan which amounts to violation of section 173, Cr.P.C. As under that section it is only S.H.O. Who can file challan, would not prevail. Firstly, because under section 190(b) the Magistrate can take cognizance upon a report in writing of such facts made by any Police Officer. Secondly, neither any prejudice to the accused nor any failure of justice could be established. Thirdly, the objection could be raised at the trial but admittedly it had not been raised, therefore, the appellant cannot be allowed to agitate at this stage so as to cause harassment and inconvenience to all concerned. Moreover, as rightly pointed out by the Special Prosecutor, Gulzarullah Khan had merely recorded the statement of P.W.3 Mst. Yasmin under section 161, Cr.P.C.
35. And she was not confronted with her statement in Court, therefore, the prosecution was not bound to place its copy and to examine its scribe Gulzarullah Khan. The criticism about the non-supply of the statement of Raja Amanullah Khan, S.H.O. Muhammad Amin and the other witnesses who are not cited in the challan as P.Ws., the medical report and P.M. Report is also of no avail for the reasons stated above. If the accrised had taken a particular plea and had either produced the defence evidence to substantiate that stance or had introduced it in the evidence of the prosecution then he could at the most say that he was prejudiced in proving his plea for the alleged lapses as pointed out but in absence of any specific plea by him he could not be allowed to raise these trifling and inconsequential objections at this stage.
9. The fourth objection which was raised in respect of the proceeding conducted by the trial Court was regarding misjoinder of charges. It was argued that the appellant could not be charged jointly with his co-accused Raja Amanullah Khan and Ghulam Murtaza. (the latter was the driver of the car in which the appellant and Raja Amanullah had come to the Bungalow of D.I.-G.) and from which arms and ammunitions were later on recovered. It was clarified that his objection is not that he could not be charged under section 301, P.P.C. But his point is that he and Raja Amanullah could not jointly be charged and tried in the said case as in that case Raja Amanullah was to appear as witness or his dying declaration was to be used as evidence against him. In this context sections 233, 236, 239, Cr.P.C. Were referred and the following case-law was cited:--
(i) PLD 1963 Lah. 239,
(ii) P D 1969 SC 120,
(iii) 1970 P Cr. L J 540
(iv) 1971 P Cr. L J 707,
(v) PLD 1976 Lah. 183,
(vi) PLD 1960 Dacca 913,
(vii) PLD 1959 Lah.
36. 490.
37. ' It was lastly stressed that the appellant has been prejudiced in his defence which vitiated the trial and this defect could not be cured under section 537, Cr.P.C. In reply the learned Special Prosecutor argued Raja Amanullah was co-accused in the case as he had directed the appellant to shoot and, therefore, his case was covered under the ambit of section 34, P.P.C. He submitted that Raja Amanullah died on 24-4-1989 before the trial in the case started and, therefore, at the time of framing the charge the case against him stood abated. Similarly the case against the other co- accused Ghulam Murtaza was withdrawn 'before the charge was framed, therefore, the argument of the appellant's counsel has been rendered merely academic. In any case section 239(d) was referred and it was stated that even if some defect is found on this count then that would be remediable under section 537, Cr.P.C. We considered this submission in the light of the materials on record, the relevant of law and the judgments cited at the Bar. The factum of the death of Raja Amanullah before the trial and the withdrawal of the case against Ghulam Murtaza could not be disputed and even otherwise they are so apparent on record. It is thus obvious that no joint trial of the appellant with other accused could either be held or has been held, therefore, the criticism appears to be misconceived and the grievance of prejudice to the appellant is out of question.
38. Moreover, it is not apt and advisable to enter into academic discussion or deal with the theoretical argument in judicial determination.
10. The learned counsel for the appellant while arguing the case on merit asserted that the peculiar distinct characters of the case should be kept in mind while assessing the evidenciary value of the evidence in the case. He detailed the special feature as (1) the case related to the murder of a police high ranking officer and was taken by the police as something personal and, therefore, every efforts have been made to exclude all others and to associate only the police with the investigation of the case. (ii) The evidence is subjective as it is deprived of objectivity and it has been tampered with. It is a sweeping argument and its validity or otherwise will be discussed, determined and judged while dealing with the objection from the appellant on each item of evidence recorded in the case.
39. ' Elaborating the above objection the withholding of D.S.P. Gulzarullah Khan and S.H.O. Muhammad Amin from appearing as witnesses in Court was repeated. This objection was raised to show that the non-production of these Police Officers had hindered the appellant in proving his plea through them. This point has already been answered in the earlier part of this judgment and to state it briefly again that as no special plea had been taken by the appellant in his statement nor evidence has been led in defence nor justification could be found in prosecution evidence for such an argument, therefore, neither any prejudice has been caused to the appellant nor any miscarriage of justice has resulted in non-production of these witnesses. It was next argued that no motive has been given in the F.I.R. The statement of P.W.4 was then referred wherein he stated that he did not know about any illwill or enmity between the deceased and the accused. Similarly the statement of the complainant-cum eye-witness Taus Khan (P.W.13) was also referred to show the absence of motive therefrom and rather to prove that they had cordial relations. It was, therefore, stressed that the prosecution intentionally left vacuum about motive in the evidence and, therefore, the defence out of compulsion was to rely on the news reports to resolve the mischief about it. PLD 1993 SC 473 at page 548 was again cited to show that Press reports can be relied.
40. The statement of P.W. Fayaz Toru at pages 102 and 103 of the Print Book was also referred to show that the accused tried his best to introduce the said newspapers clipping in the evidence and to prove that the motive mentioned therein was the real motive for the crime and that the incident occurred in the manner depicted therein. It was submitted that it was not a case where it could be said that the motive was shrouded in mystery. It is to be noted that the appellant's counsel did not clarify as to what benefit accrued to the appellant from the absence of motive, however, from the tenor of his arguments it appears to us that he meant that the failure of the prosecution to set up a motive and his client success to place on record the news reports and to make some suggestion to P.W.4 about the correctness of these news items should have been accepted to the effect that the incident has occurred as alleged in these reports. It is very far-fledged arguments and we could not be persuaded to determine the guilt or innocence of the accused on the basis of unproved and legally inadmissible news reports and certain unfounded suggestion to the witnesses. It is, otherwise, well-settled by now that the absence or weakness of a motive would not help the accused against whom unimpeachable evidence is available nor it devalues or renders less trustworthy, reliable and direct evidence in the case. It is not that case in which the prosecution has set up a motive because in that case the prosecution would have been bound to prove it and to have suffered consequences for its failure.
11. The learned counsel then criticised the trial Court for relying on the extra-judicial confession of the appellant as according to him it was exaggerated and not supported by any other evidence.
41. This extra-judicial confession is to be found at page 94 of the Printed Book in these words "Thereafter, S.S.P. Abbottabad caught hold of Ashraf and was taking him out of the emergency room. At that time Ashraf was swearing that he shot D.I.-G." It was described as inadmissible under section 162, Cr.P.C. Because the appellant at that time was in the custody of the police. The learned Special Prosecutor while replying this argument stated that this extra-judicial confession has been brought on record through Mst. Yasmin (P.W.3) and as her statement has not been challenged on this count, therefore, this judicial confession made in her presence and brought through her on record is admissible. We agree with the contention of the appellant's Advocate and hold that the extra-judicial confession having been made at the time when the appellant was in the custody of the S.S.P., is, therefore, inadmissible under section 162, Cr.P.C. And Article 38 of "Qanun-e-Shahadat" as such the trial Judge has erred in relying on this piece of evidence.
12. The trial Court was next criticised for its failure to properly assess the evidentiary value of the alleged dying declaration of the deceased Mazhar Sher Khan and making it as basis for conviction.
42. He referred to the difference between the statement of P.W.3 and P.W.4 in this respect to point out that the former stated that Mazhar Sher Khan while pointing to Ashraf as assailant asked P.W.4 to arrest him while the latter P.W. Did not say having been directed by Mazhar Sher to arrest Ashraf.
43. This is rather inconsequential and superfluous point as nothing turns on it. He then emphasized that the prerequisite for valid dying declaration are (i) the actual wording used by the Dying Man must be known; (ii) there must be evidence of the doctor that the maker of the dying declaration could speak; (iii) the witness to the dying declaration must be reliable; (iv) it is always considered as weak type of evidence. The learned counsel was of the view that the dying declaration in this case does not satisfy these tests. To elaborate his points he referred to the statement of Gul Muhammad (P.W.11) who had identified the dead body of Mazhar Sher at the time of post-mortem examination and who stated "I had identified the dead body at 9-30 p.m." It was, therefore, asserted that the time of death shown by P.W.1 Dr. Shehryar at 3-30 a.m. Was wrong. The other identifying witness P.W.13 denied having identified the deceased at the time of P.M. Examination. He was, therefore, of the view that all these circumstances would suggest that the deceased was not in a position to make a statement. On the other hand, the Special Prosecutor, replied that the dying declaration is relevant under Article 19 of "Qanun-e-Shandat" as it was a statement of a dying man soon after the occurrence which was connected with the issue of his murder and also under Article 46 of the said order as it relates to the cause of death of the deceased. The statement of Dr. Shehryar (P.W.1) about the time of death was described as more authentic. It was stressed that the dying declaration fulfils all the tests laid down by superior Courts in their judgments as (i) there was no difficulty in the identification, (ii) no prompting from outside, (iii) no previous enmity, (iv) no delay in making it, (v) and no reason or justification for substitution, as single accused was charged. It was, therefore, argued that the dying declaration by itself was sufficient for holding the appellant guilty and it needed no corroboration. He founded these submissions on the following cases:-
(i) P LD 1951 SC 111,
(ii) PLD 1974 SC 87,
(iii) PLD 1978 SC 298,
(iv) PLD 1970 SC 612,
(v) AIR 1958 SC 22.
44. ' Before dealing with the merits of the respective contentions advanced from either side regarding the dying declaration we would like to emphasize that every criminal case is to be adjudged on its own evidence, facts and circumstances as it is not possible to lay a certain rule of law for absolute, general and universal application on account of the distinct facts of each criminal case.
45. Recognizing these principles it has been laid down in almost all the precedent cases cited at the Bar that the veracity of the dying statement is to be scrutinised in the light of the facts and surrounding circumstances of each particular case. If it is established in a given case that it was made at the time when the dying man had the capacity to speak, that there was no chance of mistaken identity, that he was not promoted and persuaded by others so as to achieve their nefarious design and that it otherwise appears to be intrinsically true, then it can be acted upon even without corroboration and irrespective of the fact that it is not signed by the declarant nor is verified by an independent person like a Magistrate or a doctor. So, in order to determine the probative value of the dying declaration in this case we have to refer to the relevant evidence on record in this respect. P.W.3 Mst. Yasmin at page 94 of the Printed Book described it as such: "while on road to the hospital I asked Mazhar who has shot you? And I asked Raja Amanullah? In answer Mazhar said "no, remember Ashraf." Again, "At that very time, S.S.P. Abbottabad entered the emergency room and Mazhar pointing towards Ashraf asked him (S.S.P.) that he (Ashraf) has shot at him (Mazhar) and arrest him (Ashraf)".
46. ' P.W.4 Fiaz Khan Toru at page 96 of the Printed Book stated "The D.I.-G. Then lying in injured condition noticed my arrival and looked towards me. He pointed towards Ashraf telling that he is the man who shot at me (D.I.-G.)".
47. ' It is astonishing to note that the statement of P.W.3 has not been challenged on this point. It is also very unusual to note that even a remote suggestion of dubbing the statement of the P.W. About the dying declaration as concocted or false has not been made to any witness. It is thus obvious that the veracity of her statement has gone unchallenged and naturally whatever was said in examination-in-chief remained intact and as such can be relied upon. It rather appears from the below noted lines of the cross-examination that the defence did not dispute the capacity of the deceased to make a statement but it was critical about its being oral and not in writing". I did not take down the statement of deceased Mazhar Sher when he told me that he.Was fired at by Ashraf'.
48. Even otherwise there is no ground to discard the statement of this witness as she had no reason or motive whatsoever to implicate the appellant in such a heinous offence. Similarly, the statement of P.W.4 regarding dying declaration has also not been questioned in the cross-examination as it could not even be suggested that the deceased suffered such physical infirmity which rendered him incapable to speak, or that he was promoted by some motive to implicate the appellant or that it was false. This much has only been asked about dying declaration in cross-examination from this witness. "I did not record the statement of deceased when he pointed to accused Ashraf Khan present in the Casualty Room that he was the person who fired upon him (D.I.-G.). The deceased was then in senses". It is thus clear that the stress of the cross-examination was only as to why the dying statement was not written and not that he could not talk or that it was motivated by animosity. The statement of P.W.4 has also not been discredited on this score and it has also not been shown that he had some interest of his own to fabricate the dying statement. It was tried to make some capital out of the statement of the identifying witness (P.W.11) who had stated that he had identified the dead body at 9-30 p.m. Probably it was with a view to show that the deceased died soon after the injuries and, therefore, was not in a position to make dying declaration. Similarly the denial of P.W.13 Taus Khan having not identified the dead body although written as identifier in the inquest report was also agitated to gain some benefit on this count. On the other hand, the statement of P.W.1, the doctor, who examined the deceased for his injuries and who conducted the post-mortem examination is that he examined the deceased then alive at 9-30 p.m. And showed his death at 3-30 a.m. We have no reason to prefer the vague and apparently concessional statement of a layman about the time of death as against a medical expert. The denial of Taus Khan that he did not identify the deceased is also inconsequential as the identity of the deceased was at no stage in doubt. The learned defence counsel also referred to medical evidence with a view to show that on account of these injuries he was incapable to speak and he also referred to some cutting in the post-mortem report which according to him was manoeuvred to indicate that the deceased could speak. This argument will also hold no good in view of the positive and explicit statement of the Medical Officer which curiously enough has not been questioned in the cross- examination. P.W.1 who examined Mazhar Sher for his injuries and who conducted his post-mortem examination stated at page 25 of the Print Book "Patient conscious responding to vocal stimuli.
49. Again at page 28 he deposed "patient is fully conscious". Similarly at page 33 he testified "At the time of examination (Exh.P.W.1/1) keeping in view the volume of shock he could speak". This statement coupled with the deposition P.Ws.3 and 4 as already discussed is sufficient to prove the capacity of the deceased to speak. The alleged cutting in post-mortem report to the disadvantage of the accused could not be established and it is of no relevance when P.W.1 at page 28 stated "I have also seen Exh.P.W.1/2, the P.M. Examination report of Mazhar Sher Khan. The cuttings thereon also bear my signatures correctly".
13. The learned defence counsel then objected to the recovery of revolver from the appellant and also the recovery of the spent bullets. It was agitated that P.W.4 who took the revolver from the appellant neither prepared recovery memo at that time nor sealed it and it is not known as to where these were kept till they were sent to the Expert. It was also pointed that section 53 of the Criminal Procedure Code has been violated and he referred to the statement of P.W.4 who stated that he had not put any identification mark on the revolver nor identified the same in Court. Some objections were also raised about the crime bullets. In order to appreciate these submissions it would be relevant to give details of the various recoveries, to refer to the recovery memos. And the relevant evidence on this point. The revolver was recovered from the appellant by P.W.4 who described this recovery at pages 96 and 97 in this way: "I went straight into the Casualty where the D.I.-G. Was lying in injured condition on the back. I noticed his wife standing near his bed, and also Ashraf Khan Tarin in the room of Casualty. The D.I.-G then lying in injured condition noticed my arrival and looked towards me. He pointed at Ashraf telling that he is the man who shot at me (D.I.- G.). Immediately I caught hold Ashraf Khan Tarin present there. I brought him outside the room, made him sit in the official police vehicle. In the meanwhile somebody informed me that accused was armed. I searched him and recovered .30 revolver from his possession. The same was loaded with five empties and one live cartridge. I told my driver Yunas, to take him to the police station. At that time many other police persons sat with him and took him to the police station. I handed the recovered revolver to my driver Yunas for handing over the same to the S.H.O." The main objection to this recovery by the defence is that no recovery memo. Was prepared by this witness himself.
50. However, this is rather a superfluous objection and the following explanation offered by the, witness satisfactorily justifies the non-preparation of the recovery memo. At that particular juncture of time. "Voluntarily stated, that at that time, so many people gathered there, the injured was lying in the Casualty. I was in hurry and I did not know who was a friend and who was foe and I wanted to send the accused to the police station immediately". From the trend of the cross-examination it appears that the recovery of revolver at the time as alleged from the possession of the accused was not doubted but the stance of the defence was that it in fact belonged to the accused as is evident from these lines. "It is incorrect to suggest that the revolver recovered by me from the accused belonged to the deceased and it was planted". This- recovery was effected through recovery memo. Exh.P.W.12/1 which was witnessed by P.W.12 Muhammad Yunas who confirmed its contents in his Court statement. The Investigating Officer who appeared as P.W.14 also supported the recovery in his statement. No cogent reason was advanced to persuade us to disbelieve the recovery in the manner as stated by the prosecution. In all three crime bullets of .38 bore were recovered out of which one was taken into possession from the spot through recovery memo.
51. Exh.P.W.14/2, the second one from the dead body of deceased Mazhar Sher Khan vide recovery memo. Exh.P.W.3/3 and the third from the dead body of Raja Amanullah Khan by recovery memo.
52. Exh.P.W.8/1. All these articles except the crime bullet recovered from the dead body of Raja Amanullah Khan was received by the Expert on 22-2-1989. The crime bullet of Raja Amanullah Khan was recovered on 24-4-1989 and was sent to the expert on 27-4-1989 which was received by the expert on 30-4-1989. P.W.8 Abdul Manan, Inspector Crime Branch, appeared to prove the recovery memo. Of the spent bullet taken into possession through recovery memo. Exh.P.W.8/1. This was taken into possession from the dead body by Dr. Azmat Humayun. According to the witness "The spent bullet was sealed into parcel by affixing 3 seals of "FD" by me. I also obtained the signature of the attesting witness and the same is also correctly signed by me". P.W.9 Iftikhar Ahmad, took into possession spent bullet recovered from the deceased Mazhar Sher. The evidence led by the prosecution to prove all these recoveries have remained in tact and creditworthy as it could not be discredited or shattered in any way. There is unanimity in the statements that the recovery memos.
53. Were sealed on the spot and there is nothing in the cross-examination of any of the relevant evidence to doubt their veracity. The tenor of the arguments appear to be to persuade the Court to start with the assumption that everything was fabricated and fake. However, this is not safe to adopt this course rather we should proceed on the assumption that official duties by independent and unbiased officers have been performed duly until there are valid reasons to doubt their acts. It is in the evidence that these articles were promptly sealed and the seals remained in fact all along till it was received by the expert. We could not find any reason to suspect the recovery of these incriminating articles, or to doubt the expert's report in this respect.
14. After having answered the objections raised to the prosecution case from the defence side we would now analyse the evidence on record to see for ourselves and as to how far the prosecution has been able to prove the guilt of the appellant and how far the trial Judge was correct to act on this evidence for conviction.
15. The prosecution relied on the following pieces of evidence to press for a finding of guilt against the appellant:--
(i) Prompt report of the incident by Taus Khan (P.W.13);
(ii) Court statement of the said Taus Khan,
(iii) Testimony of Mst. Yasmin (P.W.3); widow of the deceased;
(iv) Statement of Fiaz Khan Toru (P.W.4);
(v) Medical evidence;
(vi) Recovery of revolver from the appellant, and recovery of spent bullets;
(vii) Positive report of the Expert about the said recoveries;
(viii) Dying declaration of deceased Mazhar Sher;
(ix) Extra-judicial confession of the appellant.
54. ' To deal with the first item it is noted that the incident happened at 21-10 while the report was made at 21-30. The police was informed on telephone from the Bungalow of the deceased at 10-20 and the moment the Investigating Officer reached the spot the report was made by P.W. Taus Khan. The promptitude in the report could not be seriously disputed but it was submitted that telephonic message received in the police station should be considered as the First Information Report while the present F.I.R. As a statement of Taus Khan under section 161, Cr.P.C. It has been noted in the earlier part of this judgment that every criminal case is to be dealt with and adjudicated upon its peculiar factual aspect and no hard and fast rule of ever lasting application can be laid down. The arguments, if judged in the circumstances of the present case, would have no value. It is admitted fact that the deceased or any member of his family had no previous illwill with the appellant. Similarly Taus Khan P.W. Had no motive or axe to grind in the matter. The defence counsel could not, therefore, successfully assert that the gap of 10 minutes in between the telephonic message and the recording of the report was used in manipulation and deliberation to select the appellant out of the public-at-large for the charge. This was also not pleaded nor there is anything on record to suggest that any investigation had been conducted before the report was scribed, In these peculiar circumstances the telephonic message from the Bungalow of the deceased tosthe police station at a distance of one kilometre by a person not posing to be an eye- witness to the crime with a view to inform the police to reach the Bungalow for necessary action cannot be rightly termed as an F.I.R. Rather the one recorded at the spot at the behest of the eye- witness (P.W.13) can legally be held as the F.I.R. The second item of evidence shown above is the deposition by Taus Khan P.W. In Court. There is no denying the fact that this witness is in police service and during those days was posted as orderly in the Bungalow of the deceased (D.I.-G.) with a duty to look after the household affairs, therefore, his presence in the Bungalow was natural. In this context it is noteworthy that this witness had no relation with the deceased nor any animosity against the appellant. He has rather been admitted as eye-witness by the prosecution, as is evident from the following sentences in his cross-examination:-- "It is correct that the occurrence had taken in my presence alone. And again 'It is incorrect to suggest that the deceased came to the crime room to meet the guests, served them with the Alcohol and during the talk he abused because he also took alcohol. (This entire suggestion is incorrect). It is incorrect to suggest that the deceased, accused Ashraf Khan and deceased Raja Amanullah got drunk and started abusing each other in which deceased Mazhar Sher Khan abused the accused and he was fired at by Raja Amanullah deceased."
55. ' The testimony of this P.W. Was dubbed as incredible because he stated that the D.I.-G. Was abused by the two guests but according to the learned counsel it was not confidence inspiring as there was no reason for the guests to abuse the D.I.-G. This is hardly enough to discredit the statement of this witness as the reason for abuse must not have been disclosed at that time. It was also pointed that when Raja Amanullah abused the deceased then what was the fun in directing the appellant to fire and, therefore, according to him this portion of the statement of the witness was not creditworthy. This is a fact which could be explained by Raja Amanullah and not the P.W.
56. Who could not read the mind of Raja Amanullah. His testimony was stated to be belied by the medical evidence as no charring or blackening was shown from the distance shown between the appellant and the deceased in the site plan. This argument also does not prevail because the distance in between the two points has been indicated as 21/2 feet and usual hand is stretched at the time of firing, and in that case charring becomes possible. Even otherwise no exact and inflexible formula in this regard can be laid as the nature of the powder, the method of charring and the calibre of the weapon used would also having bearing in the matter. The portion of statement wherein this witness stated that he tried to catch hold of Ashraf was critisized as to why he did not try to catch hold of him at the time when Ashraf abused the deceased. It is too much to expect from a witness to say as to why the accused acted in a particular manner and not conducted himself in a way suggested by the counsel. The absence of blood in the crime room was also critisized to show that the occurrence had not happened in the place alleged by the witness. This was winter season in Abbottabad a hilly station and the deceased had worn a sweater and other warm clothes, therefore, the absence of blood is not that much material to negative the presence of the witnesses particularly when the presence of some of the witnesses and the spot is admittedly as earlier indicate. Certain other bleak objections were also made against the evidence of this witness but those are not that much relevant and material and, therefore, need not be dilated upon.
16. The third piece of evidence is the statement of Mst. Yasmin. It need not be emphasized that she is natural and absolutely disinterested witness. It is particularly noteworthy that whatever was stated by this witness in j examination-in-chief was not at all challenged in the cross-examination and naturally her examination-in-chief remained in tact and as such there is no legal hinderance to accept it. The statement of this witness has been discussed in the earlier part of this judgment and this is sufficient to say that nothing material could be pointed out to discredit her statement.
57. Her statement appears to be intrinsically true and is in consonance with that of Taus Khan and other materials on record and can safely be made basis for conviction. The other evidence against the appellant is that of P.W.4 Fiaz Khan Toru which, mainly deals with the arrest of the appellant in the hospital with the revolver, the dying declaration of the deceased and both of them have been discussed in the preceding para of this judgment and there is no need to repeat. Nothing positively could be shown to justify the dropping of the evidence of this P.W. From consideration. The recovery of revolver and crime bullets supported by K the Expert Report is yet another item to connect the appellant with the charge.
58. ' The dying declaration can also satisfactorily form basis of conviction in view of I K its inherent truthfulness and credibility.
17. In the end we would also like to dispose of the three Criminal Miscellaneous Nos.285 of 1992, 286 of 1992 and 5 of 1993 submitted from the side of the appellant as these were vehemently pressed by Qazi Muhammad Anwar, Advocate appearing for the appellant. Although we feel in view of the above discussion on merits of the case these are neither that much relevant/important nor anything turns upon it. In Criminal Miscellaneous No,285 of 1992 relief sought is "correcting the judicial record of the case in restoring the word "pistol" in two lines above the cross-examination (in examination-in-chief) in the statement of P.W.4 Fiaz Khan Toru, in lines 6, 10 and 14 of P.W.12 Muhammad Yunas and in line 15 in examination-in-chief of P.W.13 Taus Khan and correction to be brought on print paper books". It has been clarified in the application that P.Ws.4, 12 and 13 in their examination-in-chief mentioned pistol as the weapon of offence. The statement of P.W.4 was recorded by the learned Sessions Judge Mr. Attaullah Khan while that of P.Ws.12 and 13 were dictated by Mr. Musaddaq Hussain Gillani, the learned Additional Sessions Judge who delivered the judgment. It is further alleged that in accordance with the "practice in vogue" typed copies of the statements of the witnesses were supplied to the counsel of both the parties. It is stated that after conclusion of the trial the learned trial Judge who wrote the judgment "has tampered with the record and has in his own handwriting over written the word "Revolver" on "pistol". In the manner as alleged in the heading and initialed the correction in these statements which were recorded by him. The affidavit of the learned counsel who represented the appellant at the trial have been annexed. This change for "pistol" to "revolver" is allegedly made to bring the testimony of these witnesses in line with that of the recovery memo.
59. ' In other Application Criminal Miscellaneous No,286, the prayer is to add ground No,19 in the appeal. This ground is reproduced:-- "That the convicting Judge (Syed Musaddaq Hussain Gillani) (the then Additional Sessions Judge, Haripur Camp, Abbottabad) has tampered the judicial record, changed the word pistol into revolver in the examination-in-chief of P.W.4 Fayyaz Khan Toru, P.W.12 and P.W.13 Taus Khan under his own hand. Since statement of P.W.4 was recorded by his predecessor namely Attaullah Khan, therefore, in spite of overwriting there is no initial while the other overwriting in the statements of P.W.12 and P.W.13 have been initialled by Syed Mussadiq Hussain Gillani. Such tampering has been made so as to make the weapon of crime in line with the recovery and this dishonest tampering has resulted in miscarriage of justice."
60. ' The third Application (Criminal Miscellaneous No, 5 of 1993) relates to the request to be permitted to bring on record bail application of late Raja Amanullah before Magistrate and the order thereon
(ii) bail application of the said deceased before the Sessions Judge and order thereon.
61. ' The application containing the allegations of tampering was sent for comments to the Sessions Judge who had recorded the statement of P.W.4 and the Additional Sessions Judge who had recorded the statements of P.W.12 and P.W.13. The Sessions Judge denied having made any cutting/correction while the Additional Sessions Judge admitted the correction made by him in the statements of the witnesses which he had recorded and not in that which was recorded by his predecessor. He claimed to have "made the corrections with my initials in accordance with law under section 360, Cr.P.C. In Court, wherein the said were necessary". He described the allegations of tampering as malicious, frivolous and motivated with a view to maligning and defaming him for the reason that his judgment went against the interest of the appellant. The learned counsel for both the parties argued in the light of the contents of the application and the reply submitted by them.
62. ' It is curious to note that in spite of the fact that the appellant had the copies of the statements of the witnesses with him and in spite of the fact that the statements of the witnesses were reproduced in the judgment, no allegation on this count was made in the memorandum of appeal and the application was filed with a delay of more than two years. In the F.I.R. The weapon of crime has been described as "Tamacha' and in the recovery memo. Exh.P.W.12/1 it is shown as "Revolver".
63. The Investigating Officer sent the revolver to the expert and the latter received the "Revolver", examined it and gave report about it. In short all along the investigations the word "Revolver" and not "Pistol" had been mentioned. However, in the charge-sheet the weapon of offence was shown as "Pistol". Apparently it was done keeping in view the contents of the F.I.R. And obviously with a bona fide mistake as the appellant has never shown any grievance about it, against the learned Judge who framed the charge. It is stated in the examination-in-chief of P.W.4 that "I searched him and recovered .38 revolver from his possession. The said sentence precedes about 5 lines from the alleged change from "Pistol" to "Revolver" in the last but one line of the examination-in-chief of the witness. It was pointed out by Mr. Tariq Pervez who argued the application as Special Prosecutor for the State that in the cross-examination of the witness the word "Revolver" has come 7 times which as a practice was dictated by the defence counsel. In the statement of P.W.12 in the third line it appears that the S.S.P. Brought out Ashraf Khan outside the Emergency Room and he searched his person on which he recovered a Revolver of .38 bore alongwith five empties and live cartridge in it".
64. Thereafter, in line No,10 the correction has been made. Again in line No,13 the word "Revolver has been written and then in line No,14 the Pistol has been corrected as "Revolver". Thereafter, 7 times the word "Revolver" has been referred to in his statement and the 8th time it was described as Pistol/Revolver. It thus appears that the correction was made bona fidely of typographical mistake as has already been pointed out that excepting the disputed correction of "pistol" for "revolver" the word "revolver" has been used seven times in the statement of P.W.4 and eight times in the statement of P.W.12. The learned trial Court was legally authorised under section 360, Cr.P.C. To make such correction and was perfectly justified in making it. It could not be shown as to what was the motive of the learned trial Judge to make such a correction as it could not even remotely help the prosecution or has in fact helped it or has adversely-affected the defence. It is deplorable that for no valid reason serious allegation of tampering with the record has been made against the learned trial Judge and he has been maligned and defiled. The Applications Nos.285 of 1992 and 286 of 1992 are, therefore, found without substance and are accordingly dismissed while the one bearing No,5 of 1993 is superfluous and whatever are sought to be brought on record are already on record and can be looked into and, therefore, this application is dismissed as misconceived.
65. For the reasons stated above we are satisfied to hold that the conclusion of guilt arrived at by the learned trial Judge against the appellant on all the three counts is well-founded and needs no interference. We are, however, of the view that in the peculiar circumstances of the case the maximum sentence of death awarded for the murder of Mazhar Sher, is harsh and the ends of justice would be better served if the lesser penalty of imprisonment for life is imposed. It is evident that motive has neither been alleged in the F.I.R. Nor it has come in the evidence of any of the P.W.
66. Produced by the prosecution. This cannot be refuted that the deceased Raja Amanullah and the appellant used to occasionally visit the deceased (D.I.-G.) and they had friendly relations. P.W.4 stated "I tried but I could not find any reason for the murder till then". There is no evidence of previous ill-will and the immediate cause which resulted in the unfortunate incident is also not ascertainable from record. Therefore, we commute the death sentence into imprisonment for life and decline to confirm the death penalty. We, however, enhance the fine from rupees fifty thousand to rupees one lac in respect of the murder of Mazhar Sher Khan and in case of non- payment the appellant would suffer 4 years' R.I. We also in terms of section 544-A, Cr.P.C. Order the appellant to pay compensation of rupees one lac regarding the murder of Mazhar Sher Khan or to suffer imprisonment for six months. We also direct that the substantive sentences on all the three counts shall run concurrently. The entire amount of fine of rupees on lac and that of compensation of rupees one lac should be paid to the legal heirs of the deceased Mazhar Sher Khan.
67. ' With the above modification in the sentences the appeal is dismissed.