' QAZI MUHAMMAD FAROOQ, J.---This criminal appeal and the accompanying Murder Reference have arisen from the judgment dated 7-2-1996 of the learned Sessions Judge/Zilla Qazi, Timargera whereby the appellant Iftikhar Ali, aged about 25 years, was convicted for triple murder of Bakht Rawan, Habibur Rehman and Siraj Din alias Sakhi and sentenced to death as Qisas on three counts and was further convicted for murderous assault on Muhammad Islam and Beboor and sentenced to ten years R.I. On each count and was also convicted under section 353, P.P.C. And sentenced to one year R.I. And a fine of Rs,20,000 with benefit of section 382-B, Cr.P.C. We propose to dispose of both the matters by this common judgment.
2. The gory incident had occurred on 15-2-1993 in Chowk Bazar Chakdara and the F.I.R. Was made at 12-00 noon by Fazal Muhammad S.H.O. Police Station Ouch who had nabbed the appellant after a hot pursuit.
3. The F.I.R. Discloses that on the eventful day the complainant had rushed to the spot from the Court of E.A.C. Chakdara on hearing reports of firearms. He was informed that one Muhammad Arif Khan had killed his enemy Bakht Rawan and his nephew Beboor and injured two passers-by Muhammad Islam and Sakhi by firing made from a Klashnikov and was running towards Muhajir Camp. He alongwith a police party chased the assailant and arrested him in an injured condition near Ramial Mountain after an exchange of fire and recovered a China made Klashnikov No,15093118 alongwith a bandolier containing three empty and one loaded chargers.
4. It will be pertinent to point out at this stage that at the time of his arrest the assailant had disclosed his name as Muhammad Arif. But during the ensuing interrogation it had transpired that he was a resident of Risalpur, his real name was Iftikhar Ali and he was a proclaimed offender in two cases involving murder and attempted murder registered at Police Station Risalpur. Besides, the Klashnikov recovered from the assailant, namely, the appellant at the time of his arrest was made into a sealed parcel and so were the five empties of 7.62 bore recovered from the spot and both were sent to the Fire-arms Expert who opined that the empties were fired from the Klashnikov.
It may also be mentioned that a judicial confession was made by the appellant on 29-3-1993 and he was medically examined by Dr. Abdullah (P.W.11) on the very day of occurrence at 1-15 p.m. Who had found the following:
(1) An entry wound on the lateral side of the left thigh.
(2) Another small wound on the antero-lateral side of the left thigh.
(3) Exit wound on the anterior of the right thigh. Right thigh fractured.
5. The dead bodies of the three deceased were not subjected to autopsy but the omission is immaterial as their death by violence i,e, firing was not questioned by the learned counsel for the appellant. Besides, the inquest reports available on the record and the statement of Dr. Jan Alam (P.W.8) who had medically examined the deceased Habibur Rehman and Sirajuddin alias Sakhi in an injured condition also lead to the same conclusion. The same doctor had medically examined Muhammad Islam and found an inlet fire-arm wound on his back, left side of the chest, with no exit wound.
6. At the trial, as many as eleven witnesses were examined by the prosecution including the complainant Fazal Muhammad S.H.O. (P.W.7), who had also conducted the investigation, Dr. Jan Alam (P.W.8), Dr. Abdullah (P.W.11) and Syed Amir Shah (P.W.9) who had recorded confessional statement of the appellant. The ocular evidence was furnished by Bakht Zaman (P.W.2) and Chari (P.W.4) and of the remaining witnesses while Muhammad Islam (P.W.8) did not charge any one for his injury Niaz Muhammad A.S.-I. (P.W.5) and Jan Muhammad F.C. No,130 (P.W.6) deposed about the chase and arrest of the appellant and incriminating recoveries and Momin Khan (P. W.1) and Sher Bahadur Khan A.S.-I. (P.W.10) gave evidence of formal nature.
7. The allegations levelled against him by the prosecution were denied by the appellant in his statement under section 342, Cr.P.C. He also examined himself on oath and reiterated the stance taken by him in his statement under section 342, Cr.P.C. He, however, admitted that he was an accused in two criminal cases registered at Police Station Risalpur and having become a fugitive from law was residing in Tehsil Adenzai District Dir and was a Tractor driver employed by one Fazal Ghani. About the fire-arm injury sustained by him he stated that he had come to Chakdara for medical treatment and was hit by a stray 'bullet while defecating in a 'Khawar'.
8. The retracted judicial confession of the appellant is to be ruled out of consideration as it was recorded after one month and 14 days of his arrest and no explanation muchless satisfactory has been furnished for the delay. However, the matter does not end here because in view of the testimony of the two eye- witnesses Bakht Zaman (P.W.2) and Chari (P.W.4), who is an independent and impartial witness, the arrest of the appellant after the occurrence by a disinterested chasing police party and his abortive attempt to dupe the police by suppressing his real name and failure to give a plausible explanation for his presence in Chakdara and the injury on his person and further corroborative evidence consisting of the recovery of the crime weapon from him and crime empties from the spot and positive report of the Fire-arms Expert, we are of the considered opinion that the prosecution has succeeded to establish its case against the appellant beyond any reasonable doubt.
9. The ocular evidence was criticised by the learned counsel for the appellant on the grounds that names of both the eye-witnesses were neither mentioned in the F.I.R. Nor in the site-plan and their statements under section 161, Cr.P.C. Were recorded after five days of the occurrence, P.W. Chari was an addict chance witness and P.W. Bakht Zaman was not only closely related to the deceased and inimically disposed towards the absconding co-accused of the appellant but was also not a natural witness because had he been present on the spot he would have lodged the F.I.R., both of them had not uttered a word about Sirajuddin alias Sakhi and had identified the appellant in the Court and a test identification parade was not held. The criticism has not impressed us. It is true that the names of both the eye-witnesses are not mentioned in the F.I.R. As well as the site-plan but the omission is not fatal as the F.I.R. Was neither made by an eye-witness nor by a relative of any of the three deceased and the site-plan is not a substantive piece of evidence. The statement of. P.W.
Chari was recorded on the very day of occurrence. However, the statement of P.W. Bakht Zaman was admittedly recorded after five days. Ordinarily, delay in recording the statement of an eye- witness makes his credentials doubtful but in the present case the delay reflects on the efficiency of the police and not the credibility of P.W. Banat Zaman. It is a matter of common knowledge that the standard of investigation has improved in the I Malakand Division after the repeal of PATA Regulation governing the criminal cases and prior to that the police used to investigate the cases by and large in its own queer style. It is thus not surprising that P.W. Bakht Zaman was allowed to take the dead bodies of his uncles to his far-flung village without recording his statement. Be that as it may, the delay in recording his statement does not smack of consultation or machination because he gave a simple and straightforward account of the occurrence that on the fateful day he alongwith Naseeb Rawan and his two deceased uncles had come to the Court of E.A.C.
Chakdara in connection with the hearing of the case of Muhammad Arif etc. After adjournment of the case when they reached Chakdara Chowk the appellant fired at his uncles effectively from a Klashnikov and also injured two others including Sakhi shopkeeper. He had chased the appellant for some distance but had returned to the spot in order to take his injured uncles to the hospital and that the occurrence was motivated by a previous blood feud in which his deceased uncles were charged for committing murder of the son of the nephew of Muhammad Arif. Had P.W. Bakht Zaman been a trumped-up witness he would have definitely charged his enemies Muhammad Arif etc. For effective firing and spared the appellant who is a hired assassin according to the police officials examined at the trial. His failure to lodge the F.I.R. Cannot be blown out of proportion because he had taken his injured uncle to the hospital in order to save his life and apart from that this possibility cannot be excluded that he may not have been asked by the police to make the F.I.R. In view of his absence at the time of the arrest of the appellant after the sensational chase.
Mere fact that he is closely related to the deceased Bakht Rawan and Habibur Rehman does not justify rejection of his testimony particularly when it is amply corroborated by independent evidence coming from an unimpeachable source. Chari (P.W.4) may or may not be an addict but his conduct is praiseworthy because he displayed courage and testified against the appellant whereas now-a-days most of the eye-witnesses are loath to come forward. His testimony does not suffer from any inherent defect or infirmity and he is not a chance witness in true sense of the word because the occurrence had taken place at a Chowk and not at a deserted place. It was held in Muhammad Ahmad and another v. The State and others 1997 SCM R 89 that a passer-by is not a chance witness if the crime is committed on a public thoroughfare or at a place frequented by the public generally. As regards the absence of test identification parade it would be enough to say that it was not necessary as not only both the eye-witnesses had seen the appellant at the time of occurrence but P.W. Chari had also joined the police party which had chased and apprehended him. The name of deceased Sakhi finds mention in the statement of Bakht Zaman (P.W.2), therefore, it cannot be said that his name was not mentioned at all by the eyewitnesses.
10. The arrest of the appellant after the occurrence was also censured by the learned counsel for the appellant on the ground that the alleged encounter between him and the police was not supported by recovery of empties and bloodstained earth. The criticism is unfounded. The arrest of the appellant in the manner highlighted at the trial stands fully established in the light of the statements of Niaz Muhammad A.S.-I. (P.W.5), Jan Muhammad F.C. No,130 (P.W.6), Fazal Muhammad Khan S.H.O. (P.W.7) and Chari (P.W.4) who is an independent witness. Besides, the explanation furnished by him for the fire-arm injury on his person in not plausible and same is the case with the explanation in regard to his presence in the area. It appears that the police party was too excited to bother about recovery of empties and blood-stained earth. Be that as it may, this possibility cannot be ruled out that the blood was absorbed by the clothes of the appellant and the empties had become untraceable in the hilly terrain. In any event the investigation was not circumspect as mentioned earlier.
11. The positive report of the fire-arms Expert was challenged by the learned counsel for the appellant on the ground that the crime empties and the Klashnikov were received in the Forensic Science Laboratory, Peshawar on 25-2-1993 which meant that there was a delay of ten days in sending the same. The challenge is devoid of force because the crime empties and the Klashnikov were made into separate sealed parcels and no suggestion was made to the concerned prosecution witnesses that the seals were tampered with. In any case the delay cannot be termed as inordinate.
12. This brings us to two general objections raised by the learned counsel for the appellant. The first objection was that some eye-witnesses including Wadood, whose name was mentioned in the site-plan, were abandoned by the prosecution. The objection cannot prevail because by now it is firmly settled that the prosecution is not bound to examine all the witnesses and no adverse inference can be drawn from non-production of witnesses if the charge is brought home to the accused on the evidence produced at the trial. The second objection was that it was in the cross- examination of Fazal Muhammad Khan S.H.O. (P.W.7) that according to the statement of Naseeb Rawan the assailant was wearing black clothes while the colour of the clothes of the appellant taken into possession by him was greenish. The objection is misconceived for the short reason that Naseeb Rawan was not examined at the trial and the statement of a witness recorded under section 161, Cr.P.C. Can be used only for the purpose specified in section 162, Cr.P.C.
13. As to sentence, there is no mitigating circumstance, therefore, the appellant deserves to be awarded the sentence of death which is the normal sentence for murder. However, the sentence of death as Qisas having been awarded by the learned Trial Court without undertaking the exercise of Tazkiyah-Al-Shuhood requires alteration to death as Tazir which too is an Islamic punishment and has been recognised as such by the Qisas and Diyat Ordinances/Act 11 of 1997. No doubt Qisas and Diyat Ordinances/Act 11 of 1997 have not been extended to the Malakand Division and the criminal cases arising from offences affecting the human body are being tried and decided by the Courts functioning thereunder the common Islamic law but in view of the observations with regard to the state of vacuum made in Federation of Pakistan and another v. N.-W.F.P. Government and others PLD 1990 SC 1172 the Courts functioning in the Malakand Division are required to seek guidance from Qisas and Diyat Ordinances/Criminal Law (Amendment) Act, 1997 (Act 11 of 1997) in force in rest of the Country. The sentence under section 353, P.P.C. Does not warrant interference. However, the sentences for attempt to commit Qatl-i-Amd of P.W. Muhammad Islam and Beboor are not sustainable because Muhammad Islam has not charged any one for his plight and Beboor had expired in the hospital.
14. For the reasons aforesaid, this criminal appeal is dismissed, the conviction of the appellant on three counts for triple murder of Bakht Rawan, Habibur Rehman and Sirajuddin alias Sakhi is upheld but the sentence of death as Qisas awarded to him is altered to death as Tazir on each count and confirmed as such. The murder reference is answered in the affirmative accordingly. The conviction and sentences in regard to murderous assault are, however, set aside and he is acquitted of the charge levelled against him. The conviction and sentence under section 353, P.P.C.
Are also maintained.