RAJA ABDUL AZIZ BHATTI, J.--- Through this judgment we intend to dispose of the following matters: ;-
(i) Murder Reference No.511 of 1991.
(ii) Criminal Appeal No.203 of 1991.
(iii) Criminal Revision No. 134 of 1992.
2. Brief facts of the prosecution case are that Qaim Din P. W. 8 lodged report in Police Station Gujar Khan on 12-9-1980, which was recorded by Munawar Hussain, S.I. And a case F.I.R. No.175, dated 12- 9-1980 under section 302/307/430, P.P.C. Was registered against the present appellant/ accused Muhammad Mushtaq.
According to F.I.R., on the previous date i.e. 11-9-1980, when the complainant was coming back to his house after offering Asar prayer in the village mosque and reached in the street Fazal Hussain and Noor Hussain sons of Ismail Khan, who were related to the complainant, came from the front side. They were also proceeding to offer their prayer in the mosque. At that moment, Mushtaq appellant/accused holding gun in his hand came over there. He raised Lalkara saying that they will not be allowed to go alive and simultaneously he fired a shot from his gun, which hit to Fazal Hussain on the front side of his chest due to which Fazal Hussain fell down. Mushtaq appellant/convict fired two shots more, while Fazal Hussain was lying on the ground. The fires hit on his armpit. Thereafter Mushtaq fired two shots which hit Noor Hussain on his right ear and above 'the eye (temple). Consequently Noor Hussain and Fazal Hussain both died at the spot because of the firing of the convict. At that moment, Kala Khan P.W. Also reached there raising alarm that why he was committing cruelty, on which Mushtaq convict fired a shot towards Kala Khan, who happened to lay down on the ground and thus the pellets went out from his shirt. He repeated fire on the complainant and the pellets of the fire went out of his Parna of his head. Thereafter Mushtaq convict went to the house of Fazal Hussain and raised Lalkara. He created harassment in the village throughout whole night by firing. Mushtaq convict while he was present in the house of Fazal Hussain, the wife of Fazal Hussain and daughters were present in the house, who bolted the door from inside, threw kerosene oil on the door and put fire on that. Consequently the door was burnt and unfortunately two sets of Holy Qur' an lying on the shelf above the door were also burnt.
Mushtaq accused also went to the house of Kala Khan, Yaqoob and Mehboob sons of Khan Muhammad. He also caused fire by throwing kerosene oil on the doors of their houses.
4. According to F.I.R., the motive for the commission of crime is that sisters of Saghir son of Fazal Hussain are grown up and said Saghir had forbidden Mushtaq accused not to pass in front of their house. A few days earlier, Saghir was injured by Mushtaq on this count. Due to this grudge Mushtaq committed the heinous crime. Because of the seriousness of the crime and the harassment caused by the accused nobody went to the police station to lodge the report in time. However, later on it was lodged.
5. Raja Muhammad Manwar P.W.14 the then S.I. On receipt of information about the firing in the village Gasroor, reached there and recorded the statement of Qaim Din the complainant.
Complaint Exh.P.G. Was drafted and read over to the complainant, who thumb-marked the same in token of its correctness. The complaint was sent to police station through Muhammad Siddiq F.C.
For registration of the case, on which abovementioned formal F.I.R. Exh.P.G./1 was registered.
6. After recording the formal F.I.R., the investigation was carried out. Inquest report was prepared and the dead body of Noor Hussain deceased was sent for post-mortem examination under the escort of Khadam Hussain, F.C. The dead body of Fazal Hussain deceased was also sent for post- mortem examination under the escort of Muhammad Sarwar, F.C.
7. During investigation, the spot inspection was carried out. Blood-stained earth was taken into possession from the places where dead bodies were lying. Sealed parcels were prepared and eight empties of .12 bore gun were also taken into possession from the site, which are Exh.P.18/1-8 and made them into sealed parcel. Recovery memo. Exh.P.N. Was prepared, which was attested by Niaz Ali and Muhammad Sabir P.Ws. The house of Fazal Hussain deceased was also inspected. Leaves of Holy Qur'an which were torn into pieces and partly burnt were also taken into possession vide memo. Exh.P.O., which bears the signatures of the aforesaid recovery witnesses. Shirt P.12 and Parna P.13 of Kala Khan P.W. Having marks of pellets were also taken into possession vide Exh.P.H. This memo also bears signatures of Kala Khan and Qaim Din P.Ws. After the autopsy of the dead bodies last worn clothes of the deceased were also taken into possession and produced before the Investigating Officer.
8. Dr. Shamas-ud-Din, Medical Officer (P.W.1) Civil Hospital, Gujar Khan examined the dead body of Fazal Hussain deceased, which was brought to him by Muhammad Sarwar, F.C. The dead body was identified by Qaim Din and Niaz Ali. According to the report the following injuries were observed on the dead body:--
(1) 5 fire-arm wounds of inlet, each about 1/2" circular in an area of 3" x 2" at the right pectoral area, margins were inverted, contused, not blackened or scorched, corresponding holes on the shirt and Saluka were present.
(2) 2 fire-arm wounds of outlet, each about 3/4" circular, margins were everted at the inner aspect of right scapular area lying side by side, corresponding holes on the shirt and Saluka were present.
(3) 6 fire-arm wounds of inlet in an area of 4" x 3" below the left scapula, margins were inverted, contused, not blackened or scortched, corresponding holes on the shirt and Saluka were present, each wound was about half inch circular.
(4) A fire-arm wound of inlet about 1/2" circular, middle of the left scapula inner boarder, margins were not blackened or scortched, corresponding holes on the shirt and Saluka was present.
(5)4 fire-arm wounds of outlet, at the mid axillary line right armpit, in and area of anterior and posterior axillary lines, corresponding holes on the shirt were present.
(6) 4 fire-arm wounds of inlet at the medial aspect of right arm, middle part, margins were inverted not blackened, each wound was about half inch circular, and corresponding holes on the shirt were present.
(7) 4 fire-arm wounds of outlet each about half-inch circular at the middle of right arm lateral aspect. ,
9. According to the Doctor the 4th, 5th and 6th ribs on the left side were found fractured. The other details were also mentioned in the post-mortem report. He has further stated that a small bullet was found at about middle of the left side of thoracic vertebral column. Five pellets, each about size of big pea were found in substance of lungs. Three in the right lung upper lobe and two in the left lung lower lobe. All the pellets and bullets were removed and handed over to the police in a sealed bottle.
10. In the opinion of the Doctor the cause of death in this case, was shock and haemorrhage due to lungs injuries, sufficient to cause death in the ordinary course of nature by the inlet wounds.
According to him the deceased died within 10 to 15 minutes after receiving the injuries.
11. On the same day at about 7-15 p.m. This Doctor also conducted the post-mortem examination on the dead body of Noor Hussain deceased which was brought by Khadam Hussain, F.C. The dead body was identified by Niaz Ali and Qaim Din P.Ws. He found the following injuries on the dead body:--
(1) Fire-arm wound of inlet about 3/4" circular just above left ear, margins were inverted, contused and blackened.
(2) Fire-arm wound of outlet about 1 " circular just above right ear.
12. According to the Doctor the right and left parietal bones were found fractured in multiple pieces, right and left parietal lobes of brain and membrance were found lacerated. According to him the death in this case was occurred due to shock and haemorrhage because of brain injury. The injury No.1 was sufficient to cause death in the ordinary course of nature.
13. After the completion of investigation the accused was found guilty and challaned to the Court. A formal charge under section 302/307/436, P.P.C. Was framed against the accused to which he pleaded not, guilty and claimed trial.
14. After completion of challan, the accused was granted bail but on 15-11-1982 Mushtaq accused absented from the Court. On this his bail was cancelled. Proceedings under section 512, Cr.P.C.
Were initiated against him on 24-9-1983 by the learned Additional Sessions Judge, Rawalpindi.
During his absence statements of certain witnesses were also recorded. Proceedings under section 512, Cr.P.C. Were completed and the case file was consigned to the Record Room on 1-11-1983 by the orders of the learned Sessions Judge, Rawalpindi. By the orders of the High Court, this case was entrusted to the Court of Syed Ijaz Hussain Gillani, Additional Sessions Judge, Rawalpindi for final disposal.
15. The prosecution produced evidence in support of its case. P.W.I Dr. Shamas-ud-Din, Medical Officer carried out post-mortem examination of both the dead bodies. P.W.2 Khadam Hussain F.C.
Escorted the dead body of Noor Hussain from the spot to the mortuary. After post-mortem examination, he collected the last-worn clothes of the deceased and handed over to Raja Munawar Hussain, S.I., who secured those clothes vide memo. Exh.P.C. Attested by him.
16. P.W.3 .Muhammad Sarwar F.C. Escorted the dead body of Fazal Hussain from the spot to the mortuary, who collected the last worn clothes of the deceased and produced before the Investigating Officer. On 14-10-1980 Ghulam, Mustafa, A.S.I. (P.W.) gave him five sealed parcels containing gun, eight empties, four live cartridges and two parcels of blood-stained earth, which he delivered intact in the offices of Forensic Science Laboratory and the Chemical Examiner, Lahore on the same day.
17. P.W.4 Ghulam Mustafa deposed that on 15-9-1980 Mushtaq accused appeared before him at the police station and also produced his licensed gun Exh.P.6 along with its licence P.7 and four live cartridges P.8/1-4. The accused was arrested and the aforesaid articles were taken into possession vide memo. Exh.P.E. The gun and the live cartridges were sealed into a parcel. This witness also stated that on 15-9-1980 Raja Munawar Hussain S.I. Gave him two sealed parcels containing blood- stained earth and another containing empties and also a sealed phial which he kept into Police Malkhana along with the aforesaid sealed parcels. On 14-10-1980 he handed over these five sealed parcels to Muhammad Sarwar F.C. (P.W.) intact for taking them to Forensic Science Laboratory and Office of the Chemical Examiner, Lahore. He also recorded the statements of two P. Ws. Raja Munawar Hussain, S. I. Had also given him partly burnt two sets of Holy Qur'an and burnt plank of the door, which he kept in the Police Malkhana, which are Exh.P.9 and Exh.P.10. Similarly, shirt P.12 and Parna P.13 both having holes were also handed over to him. He kept these as well in the Police Malkhana.
18. P.W.5 Muhammad Din Draftsman deposed that he drafted the site plan. P.W.6 Zardad, F.C. Was entrusted with the summons Exh.P.W.6/1 for the service of Razi-ul-Hassan P.W. The witness was found dead and a report to that effect was recorded on the summons. P.W.7 Abdul Rehman is stated to be the eye-witness of the occurrence, who supported the prosecution story. P.W.8 Qaim Din complainant verified the contents of the complaint Exh.P.G. And narrated the facts. P.W.9 Mst.
Maqbool Jan wife of Fazal Hussain deceased deposed about the occurrence alleged to have happened inside the house after commission of the murders. She supported the prosecution version.
19. P.W.10 Muhammad jahangir is the witness of the appearance of the accused in the police station. In his presence the accused produced his licensed gun P.16 along with licence and four live cartridges. Thus, he is recovery witness of Exh.P.J.
20. The statement of Subeda' Ahmad F.C. Was recorded as C.W.1. He stated that he was entrusted with the summons Exh.C.W.I/A, for the service of Mst. Hussain Bibi and Kala Khan P.Ws. According to his report both the witnesses were not in a position to move and are lying on the cots and they were unable to attend the Court.
21. The statement of Muhammad Tahir, F.C. Was recorded as C.W.2. He stated that he was detailed for the service of summons in respect of Muhammad Sabir P.W. According to him this witness had died.
22. P.W.11 Eisa Khan, A.S.I. Stated that during those days he was posted as H.C. At Police Station Gujar Khan and he was entrusted with the warrants of arrest against Mushtaq accused. He was searched but not traced out.
23. (P.W.12) Muhammad Sabir son of Noor Muhammad, his statement was recorded in the proceedings conducted under section 512, Cr.P.C. As P.W.17. His said statement was brought on record in evidence as P.W.12 because the said witness had-expired.
24. P. W.13 Ghulam Sabir, Inspector deposed that he recorded the formal F.I.R. According to the contents of the complaint Exh.P.G.
25. Raja Munawar Hussain, D.S.P., the then S.I. Appeared as P.W.14, who investigated the case and verified the investigation. He also made statement to that effect in support of the proceedings conducted by him. The remaining witnesses were given up.
26. The learned D.D.A. Tendered in evidence the report of the Chemical Examiner Exh.P.Q., the report of the Serologist Exh.P.R. And that of the Fire--arms Expert's report as Exh.P.S. And closed the prosecution evidence.
27. The statement of the accused was recorded under section 342, Cr.P.C. He denied all the allegations levelled by the prosecution. He denied the motive for the commission of crime.
Recovery of empties were also denied and he stated that it was fabricated with a view to strengthen the prosecution case. He showed his ignorance regarding the Varna and shirt. He denied that after occurrence he absconded and stated that the police deliberately avoided to arrest him with a view to make out evidence. He stated that gun was taken from his house on the first day and he appeared before the police much earlier. However, he owned gun P.16, its licence P.17 and four live cartridges. He showed his ignorance regarding the experts' reports. Regarding his absconscion during the trial, he stated that he apprehended danger to his life. Only for that matter he went to Karachi to save his life. He did not want to make his statement on oath under section 340(2), Cr.P.C. He produced certified copy of F.I.R. Exh.D.l and photocopy of discharge slip Mark "A" in his defence.
28. It is a double murder case in which there is only single accused. The trial Court relied upon the prosecution evidence and convicted the appellant/accused under section 302, P.P.C. And sentenced him to death on two counts with a fine of Rs.25,000 each on two counts, in default of its payment to further undergo two years' R.I. Each on two counts. Under section 544-A, Cr.P.C. He was directed to pay compensation of Rs.50,000 each on two counts to the legal heirs of the deceased.
The accused was also convicted under section 307, P.P.C. To undergo five years' R.I. Each on` two counts for launching murderous assault on Qaim Din and Kala Khan P.Ws. With a fine of Rs.5,000 each on two counts, in default of its payment to further undergo six months' R.I. Each on two counts.
Under section 436, P.P.C., the accused was also convicted for burning the two sets of Holy Qur'an and sentenced him to life imprisonment with a fine of Rs.20,000, in default of its payment to further undergo for two years' R.I.
29, This order was passed on 4-11-1991 by the learned Sessions Judge, Rawalpindi. Against the order of conviction the present appeal has been filed. Learned counsel for the appellant Raja Muhammad Akram made the following propositions for consideration and for setting aside the judgment of the trial Court---
(a) that there is a delay of 16 hours in lodging the F.I.R. Having no proper explanation;
(b) that the F.I.R. Was recorded at the spot after having preliminary investigation;
(c) that the name of Abdul Rehman P.W.7 was not mentioned in the F.I.R.;
(d) that recording of the statements under section 161, Cr.P.C. Of the witnesses are at variance and also suspicious;
(e) That the empties were recovered and kept in Malkhana but sent for the experts' report after the recovery of the gun, which itself create doubt in the matter;
(f) that the recovery of the pellets from the dead body of Fazal Hussain, the evidence is not consistent. It goes counter to the ocular evidence;
(g) that the inlet and outlet of the bullets/pellets injuries and the presence of blackening changes the complexion of the case. Stomach and bladder of the deceased were empty. Mouth and eyes were closed. In view of the facts, it is a strong suspicious phenomena;
(h) that in this case police had informed through some source and investigating Officer went to the spot and recorded the complaint. But the source of information was not disclosed;
(i) that the motive is admitted. Keeping in view the story and background of the case, Saghir should have been victim but nothing happened to him;
(j) that the mala fide improvements regarding the version that leaves of the Holy Qur'an were torn.
This has been mentioned with the idea that it may be add to the gravity of the alleged crime.
Otherwise there is nothing in reality
(k) that the eye witnesses have stated falsely; that the statement of Abdul Rehman P.W.7 is highly doubtful. His name is not mentioned in the F.I.R. Even his name is not mentioned in the site plan;
(1) that the conduct of Mst. Maqbool Jan P.W. Is abnormal and has no importance;
(m) that firing at Qaim Din and Kala Khan as alleged by the prosecution is a strange version. Qaim Din's Parna was fired at while Kala Khan suffered one pellet on his shirt. It is a concoction by the prosecution;
(n) that the distance between the place of firing and these two witnesses is such that they would have suffered injuries but it is not a case of the prosecution; and
(o) that the evidence of ascendance cannot be given any importance in the given circumstances because the accused/appellant appeared before the police and proceedings were conducted in his presence. It is quite plausible that he went away to save his live from the opponents.
30: While elaborating contentions, learned counsel for the defence ha; contended that medical evidence has contradicted the ocular evidence as two types of weapons have been used in the occurrence. According to the Docto bullets and pellets were extracted. He vehemently stated that prosecution ha fabricated the version with regard to the firing on Kala Khan and Qaim Din According to him these persons were not present there and with a view to show their presence at the place of occurrence This false and weak story has been pu forwarded. It is not believable that firing shots would not have -hit the body o these persons, when the distance of firing was very close. Injury No.6 on th person of Fazal Hussain is not mentioned in the F.I.R. There is contradiction with regard to the location of the injuries allegedly suffered by Noor Hussain.
31. Learned defence counsel forcefully stated that medical evidence belie the ocular evidence especially on the ground that bullet injury could be only b having pistol shot and not by gun shot. It goes against the prosecution version.
Under these circumstances, the ocular evidence is liable to be disbelieved. He also stated that Abdul Rehman P.W.7 has been planted with a view to strengthen the prosecution case. Otherwise his name is not mentioned in. The F.I.R. And also in the site plan. But submission of Abdul Rehman P.W.7 is very material which do show that Investigating Officer with the conspiracy of the complainant party planted him. Especially in the circumstances when the alleged F.I.R. Was recorded at the spot and that is after the lapse of 16 hours.
32. Regarding the motive the version from the defence side is that in the given circumstances, the importance of Sagheer Hussain cannot be denied. The accused should have made Sagheer Hussain as his victim and not the other person.
33. Regarding the recovery evidence, especially about the alleged empties and gun, it has been stated that it is a total fabrication because after the recovery of gun, the empties were sent for analysis, regarding which number of judgments have been given by the superior Courts. It is quite apparent that such evidence cannot be believed and gives no corroboratory value to the prosecution case.
34. Regarding the statement of Mst. Maqbool Jan, it has been stated that while she was present in the house and her husband had been murdered then why she kept herself away from the dead body of her husband. Regarding this aspect, it is stated that Kerosene oil was thrown on the door of the house with a view to put fire by the accused. In spite of this why Mst. Maqbool Jan did not come out from the house?
35. On the other hand, learned counsel for the prosecution has stated that Qaim Din complainant appeared as P. W.8, he was not questioned seriously with regard to the registration of the case and so-called delay. It was stated by the S.I. Who recorded that on receiving information, he went to the spot. But he was not cross-examined on this point. According to the learned counsel for the prosecution, it was bounden duty of the defence counsel to probe into the matter. Besides this, none of the prosecution witnesses stated or inquired from the other side as to whether preliminary inquiry was carried out at the time of recording the complaint. No previous enmity with the accused has come on the record. There was no reason to implicate him falsely in this case. He relies upon the following judgments:-- (a)1989 PCr. LJ 491, (b)1970 PCr.LJ 546, , (c)1982 PCr.LJ 483,
(d) 1980 SCMR 649, (e)PLD 1971 Lah. 781.
36. According to the learned counsel for the prosecution, it is a case of single accused who committed murder of two persons. The witness has supported the prosecution case. They have no enmity with the accused. The alleged motive has been proved and the recovery evidence lends aid to the case. In addition to this the accused absconded during the trial and for that purpose he relies upon the judgment 1973 PCr.LJ 896. The delay in lodging the report, explanation is given that because of firing during the nighttime created harassment in the village. Due to fear of their lives, it was not possible for them to ' go immediately to the police station and lodge report. During cross-- -examination of eye-witnesses nothing has been brought on record to show that these eye- witnesses deposed falsely against the accused. There is a ring of truth, as far as the evidence of eye-witnesses is concerned. Omission of P.W.7's name in the F.I.R., it is not an important factor because his place of residence is the same village. His statement under section 161, Cr.P.C. Was recorded on the same day.
37. Here in this case, thinking of substitution is highly imaginary. It is a double murder case whereas the accused is only one. It cannot be expected from the complainant that he would have implicated the accused falsely in this case in place of another main culprit who committed the alleged crime.
38. According to the prosecution, Abdul Rehman P.W.7 is 73 years old. He made statement before the Court on oath. Similar is the case of Qaim Din, who is 90 years old. Both the witnesses are on the last legs of their lives. They have not deposed falsely against the present accused. They have no enmity with the accused. In this case, if two type of weapons were used it was most easy to implicate another person. But quite fairly and honestly the name of the real culprit has been mentioned and no innocent person has been implicated in this case as an accused. Regarding the version of Holy Qur'an, the Investigating Officer himself taken into possession its leaves. On the part of the Investigating Officer his statement cannot be made target of criticism to discredit him on this count. The time of the occurrence and the weapon used by the accused, to be meticulous about the site of injuries or to say where the fire shot hit exactly is not possible because when the fire shot goes out of barrel it is invisible.
39. Lastly, he contends that version given by the defence is highly unplausible. The defence version is that both the deceased were done to death by dacoits.
40. We have heard the arguments of the learned counsel for the parties and gone through the record as well as evidence produced by the parties in this case. Sufficient long time has been provided to the learned counsel for the parties to argue this case. To deal with the contentions raised by the learned counsel for the defence/appellant, we have also perused the judgment of the trial Court. However, in our view the propositions made by Raja Muhammad Akram, learned Advocate are dealt hereunder:--
(a) that according to him there is a delay of 16 hours in lodging the report.
The circumstances have been well-explained in the F.I.R. Under which the matter could not be reported to the police station. As per prosecution the appellant acted as a desperate person throughout night and had been busy in firing whereby he created much harassment in the area.
Obviously, due to fear no body could go for lodging the report. Because life is very dear to every one. The defence has not brought on record that there was any long-standing enmity between the parties. Hence there was no question of substitution. It is a case of one accused where two murders had taken place. Nortnally delay in lodging the report has an important factor, where time is consumed in implicating certain innocent persons and for some enmity false stories concocted. In this case the complainant party could implicate two or more persons keeping in view the deceased and injuries on their persons. Thus, the connected circumstances are such that defence could not take benefit of delay in lodging the report;
(b) that as far as the proposition that F.I.R. Was recorded at the spot after having preliminary investigation, it is also devoid of any force. Number of persons appeared as eye-witnesses in this case. The allegation is that only one accused/convict Mushtaq Hussain committed this crime with whom there was no such enmity for that end the preliminary investigation was needed. The implication of one person for two murders, itself is a circumstance going in favour of the prosecution to believe that nothing unbecoming or concoction was to be searched for;
(c) non-mentioning the name of Abdul Rehman in the F.I.R. Is not something alarming in the situation. He is resident of the said village and that very day his statement was recorded. Besides this no ulterior motive can be attributed to him. No doubt in some cases of different nature importance is given to this effect. With great care and caution statement of such-like witness considered to be believed. The deposition of Abdul Rehman P.W.7 with the other eye-witnesses happened to be recorded in this case leaves no room for doubting his presence;
(d) that the statements of the prosecution witnesses recorded under section 161, Cr.P.C. Are at variance and that for that reason suspicion is attached with the evidence. Presumption of truth is never attached with the statements recorded under section 161, Cr.P.C. However, for the purpose of appreciation only that portion is considered which is confronted. The statements of all the prosecution witnesses have been examined with the assistance of the learned counsel for the parties. We come to the conclusion that there are minor contradictions which are of no value and having no force to reject the statements;
(e) that undoubtedly, the empties were recovered and taken into possession from the site which were later on for some days kept in the Malkhana commission of murders;
(f) that the defence attacked on the facts of the recovery of pellets from the dead body of Fazal Hussain, the evidence is not consistent. It goes counter to the ocular evidence. It, too, has no force especially for the reasons that use of cartridge having pellets or bullets have common feature.
Because when a cartridge is used it may be of L.G. Or S.G. Type. It does leave an impression of bullet. Sole this factor cannot be made basis for rejecting the prosecution or defence and doubting aid to the medical evidence, which did not go counter to the ocular evidence;
(g) that the contention that inlet and outlet of the bullets/pellets injuries and the presence of blackening, coupled with the fact that according to the Doctor stomach and bladder of the deceased were empty. Mouth and eyes were closed was a phenomena which made out strong suspicions for the prosecution evidence. We have examined this aspect of the case. The time factor and the occurrence as pointed out by the doctor rang up sufficient long time. This part should have been examined by the defence to minimize the exact time of the occurrence but defence failed to do so. The other important factor of this case is that even the defence has not examined the prosecution witnesses with regard to the bullet and pellets. As far as the presence of blackening is concerned, at the most it can be said that the occurrence took place while the assailant was present quite near the deceased. Some benefit might have gone to the defence but only in those circumstances, when the connected factor; could have been clarified;
(h) that simply it has not been stated that source of information has no been disclosed by the Investigating Officer as to how he had the information and went to the' spot. Normally the source of the spying information is not disclosed by the Police Officers. Besides this, that is another factor of noise of the firing. Hence cherishing any benefit will be a futile wish;
(i) that much have been said for the motive. According to the defers Saghir should have been the victim but nothing happened to him. His father has been murdered and say so that nothing had been done to Saghir is a low imaginative proof of conclusion. The murder took place simply for the reason that the convict was restrained to pass through the street to satisfy the ill-begotten whim to satisfying the criminal's objects;
(j) that in a dramatic manner the learned counsel for the defence tried to make out story that the prosecution do torn the leaves of the Holy Qur'an, such story was nothing but mala fide improvement. This contention is very weak. A person being Muslim could not do such with the Holy Qur'an to tear its leaves or burn the same. The gravity involved in this case do leads on the other side that it was truthful happening;
(k) that according to the learned counsel for the defence that name of Abdul Rehman P. W.'7 was not mentioned in the site plan creates doubt about his deposition cannot be given undue importance. Site plan is not substitution piece of evidence. Admittedly the witness was resident of the same village. He has no ulterior motive against the accused. His presence at the scene of occurrence could not be ruled out;
(1) that the conduct of Mst. Maqbool Jan was abnormal because though she remained inside the house in spite of the fact that her husband and a relative was done to death. We have considered this point, the prosecution story is that accused has been firing throughout the night. He committed two murders and also fired at certain persons. He also tried to put the house on fire. These circumstances are such to believe that a lady witness because of fear could not come out from the house. It will so normal conduct on her part to remain inside the house to save herself;
(m) that according to the defence Qaim Din and Kala Khan P.Ws were fired at, hut they were not hit.
But some pellets were hit on the Perna of Qaim Din and on the shirt of Kala Khan. The statements of Qaim Din and Kala Khan could not be disbelieved because both these persons were at their last legs. They were having a considerable old age. Hence excepting that they were not present at their place of residences in the same village will not be proper. Admittedly they are resident of that village. Their houses were also located nearby. Thus, their presence and witnessing the occurrence cannot be doubted. We firmly come to the conclusion that these witnesses were the natural witnesses of the occurrence;
(n) that Raja Muhammad Akram, learned counsel for the defence gave lot of stress that in the given circumstances both these witnesses would have been injured because the distance between the place Why the assailant was standing and the place Where these P.Ws. Were present. Learned counsel for the defence while making these propositions totally forgot that allegedly it was not originally an object of the accused to injure these two witnesses. Firing on these witnesses by the accused was mainly to ward them. Thus, tile proposition has no force for defence,
(o) that learned counsel has also stated that evidence of the prosecution about the abscondence of the accused/convict is of the nature that no importance can be given to it. Quite surprisingly he admits that after the occurrence he appeared before the police and he was arrested. Liter on, he was granted bail when his bail was recalled for his absence. He became absconder for a considerable period knowing very Well that he C had to face the trial of murder. Undoubtedly, the evidence of absconcion, as a matter of principle, cannot be made basis for conviction but it do give aid to the prosecution to come to some positive findings. Here in this case it is sufficient to believe that the accused had committed guilt by Way of absconcion, when he was needed for trial purposes;
(p) that learned counsel gave much stress that there is a conflict between the medical evidence and the ocular evidence. The preference should be given to the medical evidence and ocular evidence could be rejected. Leading to this side, he pointed out froth the medical evidence the presence of the entry and exit wounds. He also pointed out as earlier recorded that in the opinion of the Doctor bullets and pellets were extracted. He tried to come to the conclusion that the eye- witnesses were not present at the place of occurrence and the accused had not committed the offence as alleged by the prosecution. He had even pointed out the commission of the injury No.6.
As far as the presence of Fazal Hussain deceased is concerned, saying so that it was not mentioned in the F. I. R. Certain contradictions have been pointed with regard to the location of the injuries allegedly suffered by Noor Hussain deceased. This aspect of the case was thoroughly examined by us. But we are of the view that it is devoid of any force because there is nothing in evidence to say that the exact type of cartridges were used by the assailant whether those were containing pellets or bullets, or both. Because in such-like weapons SG and LG normal type of cartridges are used. Number of fires were shot at night time and magnifying the exact location of the injuries is very difficult. At the most tentative version can be put forward by the eye-witnesses In addition to that he has contended that the eye-witnesses consistently deposed that Mushtaq Hussain committed the murders of both the deceased in their presence. Except the lady witness no other witness can be criticised by the defence on the ground that they had some motive against the accused. We have examined the file thoroughly, the convict was serving in the Army. He came to his village on some days' leave. He was simply restrained to pass through the street because the aforesaid Saghir's version was that his young sisters lived there. This fact can be called that it was not of the nature for which he had deep-rooted enmity with the accused; and
(q) that in this case no defence evidence was produced by the accused/convict in support of his own plea that dacoits came to the village and they committed the murder of both the deceased.
41. As far as the prosecution case is concerned a few words are needed to say that the prosecution has successfully proved the case against .The convict beyond reasonable doubt. The prosecution has produced eye-witnesses, recovery evidence, medical evidence and also proved the alleged motive. The ocular G evidence has not been shattered by the defence. The motive has also been proved through oral and documentary evidence, Copy of the previous F.I.R. Has also been placed on record.
42. In view of the above, we are of the considered view that Mushtaq Hussain appellant committed the murders of Fazal Hussain and Noor Hussain deceased. He launched murderous assault on Qaim Din and Kala Khan P. Ws. The prosecution successfully proved the burning of the doors of the houses and H the leaves of the Holy Qur'an beyond any reasonable doubt. Therefore, the sentence awarded by the trial Court to the accused Mushtaq Hussain is maintained and the appeal of the appellant is dismissed. Criminal Revision also stands dismissed.