' JAWAID NAWAZ KHAN GANDAPUR, J.--- Mazhar Iqbal appellant (who died in the Jail during the pendency of this appeal) and Muhammad Siddique appellant were both put on trial in the Court of Additional Sessions Judge, Haripur in case registered under section 302/34, P.P.C. Vide: F.I.R., No,465, dated 13-6-1990 lodged in Police Station, Haripur.
2. After the conclusion of the trial the Additional Sessions Judge by his judgment, dated 3-2-1993, held both the accused guilty and convicted them. He sentenced Nazhar Iqbal appellant (now deceased) to death whereas Muhammad Siddique appellant was sentenced to life imprisonment.
3. Hence the appeal.
4. The trial Court has also sent Murder Reference No,1 of 1993 for the confirmation of the death sentence awarded to Mazhar Iqbal accused appellant (deceased).
5. Additionally, the complainant, not content with the sentence awarded to Muhammad Siddique has filed Criminal Revision No,9 of 1993 wherein he has prayed that the sentence of life imprisonment be enhanced and the appellant be sentenced to death. He has further prayed that compensation, as envisaged under section 544-A, Cr.P.C., be awarded to the heirs of the deceased including the complainant.
6. It may be stated, at the out-set, that during the pendency of this appeal (pending disposal for the last more than three years) appellant Mazhar Iqbal died in the Death Cell in March, 1993. The appeal filed by him, therefore, has become infructuous and accordingly stands abated. The Murder Reference No,1 of 1993 also relates to him, therefore, the same having become infructuous as abated, hence dismissed.
7. We are now left with the Criminal Appeal filed by Muhammad Siddique appellant and the Criminal Revision filed by the complainant for the enhancement of sentence awarded to Muhammad Siddique appellant. Since both are inter connected, therefore, we propose to dispose of the same by this single judgment.
8. Stated briefly, the facts of the case, as disclosed in F.I.R. No,465, dated 13-6-1990 registered in Police Station, Haripur are that on the eventful day Dilawar Shah F.C. (P.W.7) and Abdur Rashid F.C.
(P.W.8), attached with the Court of Extra-Assistant Commissioner (I), Haripur were on duty outside the Court. At about 7-30 a.m., Zafar Ali deceased son Abdul Hameed resident of Mankarai, Tehsil and District Haripur, alongwith his two companions, arrived there in connection with the case registered against him under section 307, P.P.C. Which was pending disposal in the Court of the said Extra-Assistant Commissioner (I).
9. Muhammad Siddique, appellant had Mazhar Iqbal appellant (deceased), residents of village Mankarai also came to the Court. Both of them had come to the Court in connection with the same case. Since both the parties used to come to the said Court, therefore, they were known to the two eye-witnesses (including the complainant) i,e,, Dilawar Shah F.C. (P.W.7) and Abdur Rashid F.C.
(P.W.8).
10. According to the prosecution version, within the sight of F.C. Dilawar Shah (P.W.7) and F.C. Abdur Rashid (P.W.8) Mazhar Iqbal appellant took out .32 bore revolver and fired four shots at Zafar Ali (deceased). Muhammad Siddiuq appellant, on the other hand, gave a 'Churri' blow to Zafar Ali. In short, Zafar Ali after having received the bullet injuries on his chest, neck, at the back of his right palm, on the front of neck and a 'Churri' blow on the left side of his belly, was grievously injured/wounded and resultantly fell on the ground.
11. Both the accused, after accomplishing their task, tried to escape from the scene of occurrence.
However, they were apprehended chased by P.W.7 and P.W.B. Mazhar Iqbal appellant was apprehended by Abdur Rashid F.C. (P.W.8) alongwith the crime weapon (Pistol) whereas the other culprit namely Muhammad Siddique appellant was apprehended by Dilawar Shah F.C. (P.W.7) on the spot alongwith blood-stained 'Churry'. In addition to P.W.7 and P.W.8 the occurrence was seen by other persons who were present in the premises of the Court, including the two companions of Zafar Ali deceased.
12. The deceased, then injured seriously, was immediately rusehed to the Hospital for medical treatment. Dr. Noor Wahab Shah, Medical Officer (P.W.11) after providing necessary First Aid treatment to him, referred him to the District Head Quarter Hospital, Abbottabad. Since the injured was in precarious condition he succumbed to his injuries and expired while on his way to Abbottabad. Resultantly, he was brought back to the Civil Hospital, Haripur.
13. The autopsy on his dead body was then conducted by the same Medical Officer (P.W.1 1).
14. The killing was reported to the Police on the same day and a case was registered vide: F.I.R.
No,465, dated 13-6-1990 under section 302/34, P.P.C., against both the appellants.
15. The motive, as alleged in the F.I.R., is stated to be the case pending against the deceased under section 307, P.P.C.
16. On the following day both the appellants were produced before Mr. Muhammad Nasim M.I.C.
(P.W.5) who recorded their confessional statements (Exh.P.W.5/2 and Exh.P.W.5/5).
17. After the completion of the usual Police investigation complete challan was submitted against the appellants in the Trial Court.
18. The charge, against the accused, was framed on 10-2-1991 which was read over and explained to the appellants who pleaded not guilty and claimed trial.
19. In order to prove its case against the appellants the Prosecution produced the following witnesses:--- ' P. W. 1 Raja Pervez son of Raja Khan Bahaudar.
' P.W.2 Muhammad Saleem son of Abdul Aziz.
' P.W.3 Muhammad Ilyas Khan Muharrir A.S.I. P.S. Haripur.
' P.W.4 Muhammad Banaras Trafic H.C. Abbottabad.
' P.W.5 Muhammad Naseem Khan M.I.C. Haripur.
' P.W.6 Abdul Latif F.C. No,447, Police Station, Haripur.
' P.W.7 Dilawar Shah F.C. No,767 Process Server EAC-I Haripur.
' P.W.8 Abdul Rashid F.C. No,731 Police Line Abbottabad.
' P.W.9 Abdul Salam son of Nawab Khan.
' P.W.10 Muhammad Fareed Khan, Inspector S.P.I. Branch Peshawar.
' P. W. 11 Dr. Noor Wahab Shah, M.O. Incharge Civil Hospital Haripur.
' P.W.12 Muhammad Nazir Khan A.S.-I. No,21 Trafic Police, Haripur.
20. The statement of Mazhar Iqbal appellant (now dead) was recorded under section 342, Cr.P.C.
On 22-10-1991. It is to the following effect:--- Statement of Mazhar Iqbal son of Fazal Dad caste Awan aged about 25 years resident of Mankarai accused under section 342, Cr.P.C.
Q. Is it correct that Muhammad Siddique, your co-accused, is your maternal Uncle?
A. Yes.
Q. Is it a fact that deceased Zafar Ali was charged for attempting at the life of your maternal-uncle Abdul Khalil brother of your co-accused and on the day of occurrence the deceased had come to the Kutchri premises for attending the Court?
A. It is correct.
Q. It is in evidence that on 13-6-1990 at 07-30 hours in the premises Kucheri Haripur you alongwith your co-accused and in furtherance of your common intention attempted at the life of deceased Zafar Ali with revolver, firing at him effectively, who succumbed to his injuries on the way, while he was being shifted to D.H.Q. Hospital, Abbottabad?
A. It is incorrect. In fact, Zafar Ali, deceased, after having an altercation with us i,e,, myself and Siddique, pressuring for compromise ih case under section 307, P.P.C., against him, attempting at our lives by firing two shots from his revolver. Fortunately, the bullets did not fire and we managed to get hold of him, so that, he could be prevented from firing further. It was, during the scuffle, wherein, Siddique was holding him and I was trying to snatch the revolver that the firing continued under the pressure of his finger on the trigger. Due to that firing he got injured. We did not cause any injury to him. Nor we initiate the fight. We were making hectic efforts to save ourselves from his determined attack. Zafar Ali has lost his life by his own hands. We are innocent. Q. It is in evidence that on the same date, time and place you, alongwith your co-accused in furtherance of your common intention attempted at the life of Zafar Ali, deceased, with churri by causing him injury who succumbed to injuries on the way when he was being taken to the Hospital?
A. It is incorrect. Siddique was empty handed and so was I. There is no injury on the person of deceased caused with churri or any sharp-edged weapon, the injury recorded in the documents has been assigned by the Doctor, in collusion with the complainant party and the police just to trap Siddique. The body of War All can be exhumed and get inspected; it would certainly show no sharp weapon injury on his person. In any way, I and Siddique fell victims to aggression of Zafar Ali deceased and caused him no injuries at all. There is no evidence on record acceptable according to the established norms of law and justice. It is all biased and truped up evidence of either the police witnesses or the relations of the deceased who could never be present on the spot. We have been falsely implicated for colateral reasons. We are absolutely innocent. Q. It is in evidence that on 13-6-1990 at 07-30 hours in the premises of Kutchari Haripur you alongwith you co-accused and in furtherance of your common intention caused murder of Raja Zafar Ali by firing and stabbing at him. What have you to say?
A. It is incorrect. We have been falsely implicated. Zafar Ali died of the injuries caused to him under his own hands. There is no independent evidence on the record against us. We are innocent.
Q. It is in evidence that on the same day you were apprehended near the place of occurrence while you were decamping from the spot with the revolver, weapon of the offence, by P.W. Abdur Rashid.
What have you to say?
A. It is incorrect. In fact, after, Zafar Ali fell on the ground, I removed the revolver in question from his hands and I, alongwith Siddique, ran to Police Post, City Haripur. The revolver was handed over to the Incharge Police Post, Haripur and the occurrence was narrated by us. There was no police man present on the spot at the time of occurrence. Thus, question of my being caught by any policeman cannot arise. Story of F.C. Rashid and other police witnesses had been made up by the police in collusion with the complainant party subsequently. The revolver in question belonged to deceased Zafar Ali.
Q. It is in evidence that on the same day, time and place when you were apprehended by P.W.
Abdur Rashid F.C. Near the scene of occurrence he recovered .32 bore revolver Exh.P.2, four empties freshly discharged from the pulli of the revolver Exh.P.3, two missed cartridges P.4 from you and he also recovered 9, .32 bore live cartridges P.5 during your personal search which, he lather on, produced before Muhammad Nazir A.S.-I., who took it into possession through the recovery memo.
Exh.P.W.4/1. What have you to say?
A. It is incorrect. Neither F.C. Abdur Rashid was present on the spot nor he caught me, thus, question of the alleged recoveries cannot arise. However, at the Police Post Haripur when I handed over the revolver to Incharge Police Post, he took out from the said revolver two missed cartridges and four empties. What transpired between the Investigating Officer and F.C. Rashid thereafter I am not aware of that. I was kept in Police Post and the police went away who did not perform any act of investigation in my presence. Recoveries, as attributed to me, are the result of absolute fabrication and falsehood. Q. It is in evidence that on the same date, time and place your co-accused Muhammad Siddique :Is also apprehended near the scene of occurrence by P.W. Dirawar Shah F.C.
While he was decamping with blood-stained Churn the weapon of offence which he recovered from your co-accused Muhammad Siddique and produced Exh.P.1 the bloodstained Churri to Muhammad Nazir S.-I. Who took into possession the same through recovery memo. Exh.P.W.4/1.
What have you to say?
A. It is incorrect. The details have been given above. Neither F.C. Dilawar nor any other police was present on the spot at the time of occurrence. Siddique was empty handed even after the occurrence, since, I was holding the revolver used by the deceased. Siddique alongwith me went to Police Post, Haripur where we were detained. We are not aware of what transpired between the members of police, thereafter we are not aware. Alleged recoveries against both of us are concocted and false.
' How will you explain the position report of Arms Expert Exh.P.W.10/D-2 regarding .32 bore revolver and 4 empties?
A. In fact, the question should have been directed to Zafar Ali deceased. Nevertheless, the report whether termed negative or positive, has no reflection upon me. The four empties got fired by the same revolver at the hand of Zafar Ali deceased. Similarly, the two missed rounds were also fired under the hand of Zafar All deceased. The docket sent to the Arms Expert by the police after unconstionable delay is full of patient mala fides by its contents as well. The report not being specified about the missed rounds taken out of the chamber of the revolver in question by the police would cast grave doubt on the truthfulness of the report whatever its contents and whoever may be its victim. Q. It is in evidence that the Investigating Officer despatched recovered blood- stained churri, weapon of the offence, alongwith the garments of the deceased, blood-stained earth and sand recovered from the spot to the chemical examiner whose report is Exh.P.W.10/2 and is positive. What do you say about it?
A. It is not uncommon for the police to plant weapons like Churies and smear those with the blood of the deceased from his body or his clothes. The Chhuri has no relevance to me and the co- accused with me. Thus, the positive report of aforensic Science laboratory has nothing incirminating against us. Q. It is in evidence that on 14-6-1990 you made volunteer confessional statement before M.I.C. Muhammad Naseem Khan P.W. And signed the confessional statement Exh.P.5/2 after admitting it correct before him?
A. I was subjected to inhuman treatment at the hands of the police who also nurshed grudge against me previously. I had stated the same thing before the Magistrate what I had conveyed to the Incharge Police Post Haripur soon after the occurrence. I was made to sign a statement not presenting true version given by me but recorded at the instance of the police. Thus, the said statement can neither be termed voluntarily nor it is true wholly by its contents. Q. It is in evidence that on 14-6-1990 your co-accused Muhammad Siddique also made a volunteer confession Exh.P.W.5/5 before M.I.C. Muhammad Nasim Khan P.W. What have you to say?
A. We both were kept in Police Post Haripur initially and then in the Police Station and subjected to same torture treatment. However, what Siddique stated before the Magistrate and under what circumstances, it may be asked from him. Q Why the P.Ws. Have deposed against you?
A. Admittedly on record, there were many persons from public present at the time of occurrence, yet, not a single one has come forward to depose against me which is the solid proof of false depositions of police witnesses and a solitary witness closely related to the deceased. There is no independent evidence against me which could be accepted according to law and justice. The P.Ws. Are interested, enimical and trumped up. Hence, there evidence is non entity according to the established principles of evidence, which makes it a case of no evidence coming forth from unimpeachable source. I was victim of the occurrence at the hands of Zafar Ali and committed no offence. I am innocent. Q. What is your statement and why are charged?
A. I am innocent and have been falsely roped in. I have already provided sufficient details hereiubefore. Q. Do you wish to produce defence evidence?
A. Yes, I would be requesting the Honourable Court to summon Moharrir Police Station Haripur and Moharrir Police Post Haripur alongwith Daily Diary registers of 13-6-1990 as C.Ws./D.Ws. As the Honourable Court may deem fit. Q. Do you wish to appear as you your own witness on oath as required under section 340(2), Cr.P.C.
A. Yes.
Q. Do you add anything in your statement?
A. I would explain tatters further in my statement under section 340(2), Cr.P.C.
' R.O. & A.C. (Sd.)
22-10-1991 A.S.J.-I, Haripur.
' Accused Mazhar Iqbal Certified under section 364, Cr.P.C. A.S.J.-I.
21. The statement of Muhammad Siddique appellant was recorded under section 342, Cr.P.C. On 11- 11-1991 which is to the following effect:--- Q. Is it fact that Zafar Ali deceased was charged for attempting at the life of your brother Abdul Khalil and on the day of occurrence he had come to Kutcheri premises for attending the Court.
What have you to say?
A. Yes.
Q. It is in evidence that on 13-6-1990 at 07-30 hours in the premises of Kutcheri Haripur you alongwith your co-accused and in furtherance of your common intention attempted at the life of deceased Zafar Ali with revolver by firing at him effectively who succumbed to injuries on the way while he was being shifted to D.H.Q. Hospital, Abbottabad. What have you to say?
A. It is incorrect. I was empty handed and remained so until I reported to Police Post Haripur alongwith Mazhar Iqbal. The deceased firstly abused us and in consequence of an altercation between us took out his revolver and fired upon us. In order to save ourselves we attempted to catch hold of the deceased during which the revolver was being fired because of struggle between Mazhar lqbal and deceased. I and my co-accused have neither killed the deceased nor caused him any injuries. In fact, our lives were put to danger of death by the deceased who wanted to pressurise us to compromise the case with him. The allegations against us of causing any harm to the deceased are false and fabricated between the complainant party, the police and the doctor as an afterthought. Q. It is in evidence that on the same day, time and place you alongwith your co-accused in furtherance of your common intention attempted at the life of Zafar Ali deceased with Chhuri by causing him injuries who succumbed to injuries on the way while he was being shifted to D.H.Q Hospital, Abbottabad. What have you to say?
A. It is incorrect. I never caused any injury to the deceased nor had any Chhuri with me at the relevant time. The Chhuri may be invention of the police in collusion with doctor who was deeply interested to the deceased and against myself and my tribe, The deceased could not have any injury with chhuri on his body. The body of the deceased can be exhumed to see that the allegations are false and fabricated. Q. It is in evidence that on 13-6-1990 at 07-30 hours in the premises of Kutcheri Haripur you alongwith your co-accused and in furtherance of your common intention committed murder of deceased Zafar Ali by firing and stabbing him. What have you to say?
A. It is incorrect. The deceased attempted to shoot both of us but we managed to escape because the firing by the deceased did not prove fruitful by missfiring. Thereafter, during the struggle between ivlazhar Iqbal and the deceased the revolver went on discharging while Mazhar was trying to snatch it from the deceased who was attempting to fire at Mazhar Iqbal. We have committed no crime and were victim of aggression.
Q. It is in evidence that on the same day, time and place you were apprehended near the scene of occurrence by Dilawar Shah F.C. P.W. While you were decamping from the spot with blood-stained Chhuri weapon of offence Exh.P.1 which he recovered from you and produced to Muhammad Nazir A.S.-I. Who took into possession the same through recovery memo. Exh.P.W.4/1. What have you to say. A. It is incorrect. I never had any chhuri with me at the relevant time. After Zafar Ali had fallen on ground I alongwith my co-accused took the revolver from his hand and went to Police Post Haripur and reported the occurrence. There was no police constable at the spot, thus, question of catching me on the spot by any policeman could not arise. The assertion on the part of said F.C. Is aboslutely false. Otherwise, there should have been blood spots seen by the Investigating Officer on my person, my clothes, person of the said F.C. And clothes of the said F.C. Imputation of chhuri and corresponding injuries to me is an afterthought planned by the police, complainant party with the support of the doctor. Q. It is in evidence that on the same day, time and place your co- accused Mazhar lqbal was also apprehended by Abdur Rashid F.C. Near the scene of occurrence while he was decamping from the spot and he recovered .32 bore revolver Exh.P.2, four empties freshly discharged Exh.P.3 two missed catridges Exh.P.4 and nine live cartridges Exh.P.5 from him which he later on produced to Nazir A.S.-I. Who took into possession the same through memo.
Exh.P.W.4/1. What have you to say?
A. It is incorrect. The reply in detail has been made in foregoing answers as well. I alongwith Mazhar Iqbal ourselves went to Police Post Haripur and reported the occurrence to the Incharge Police Post.
We handed over the revolver in question belonging to the deceased and fired by the deceased during the struggle to the Incharge Police Post. We were not allowed to go anywhere thereafter by the police. As such, whatever police has imputed to us in this respect is untrue and of their own making. Q. It is in evidence that Investigating Officer despatched the recovered blood-stained chhuri weapon of offence alongwith the garments of deceased, blood-stained earth and sand to chemical examiner whose report is Exh.P.W.10/2 and is positive. What have you to say?
A. It may be known to the Investigating Officer from where he brought chhuri and got it blood- stained. As the Investigating Officer alongwith the Doctor have acted as a party with the complainant side, there could easily obtained the blood stains of the deceased from his body on any Chhuri and sent that for the chemical analysis. Whatever the repett of the expert, it has no reference to any act on my part. Q. It is in evidence that the Investigating Officer had despatched the recovered revolver and empty to arms expert whose report is Exh.P.W.10/D-2 and is in positive.
What have you to say?
A. The report with respect to the empties may be correct since, the revolver kept discharging during the struggle between the deceased and Mazhar Iqbal. However, report of the expert with respect to two missed cartridges, at the face of it, is mala fide tentitious at the instance of the police which would operate against the veracity of the entire report of the arms expert, it becomes essential that he should summoned by the Court to explain and satisfy as to why he could not make conclusive report about the missed two cartridges. Such a report could have no legal value which also reflects on partisan behaviour of the expert at the instance of the police. Q. It is in evidence, that on 14-6- 1990 you made a volunteer confessional statement Exh.P.W.5/5 before M.I.C. Haripur. What have you to say?
A. I was subjected to unbearable torture by the local police who wanted me to make a statement before a Magistrate as they liked. It was beyond my ignorance to resist the police any more. The statement attributed to me is not wholly true. However, I did state therein that the deceased had fired upon me and my co-accused which part alone is of my own accord. As my co-accused had not fired at the deceased, I could not falsely implicate anything to him. The role attributed to me in the said statement is result of police coercsion, duress and torture. I have given. The true account to day before the Court in my answers to the foregoing questions. Q. It is in evidence that Mazhar Iqbal ydurs co-accused also made a confessional statement before M.I.C. What have you to say?
A. I know only this much that Mazhar Iqbal was meted out similar treatment by the police as it was done to me. Beyond that the question may be directed to Mazhar Iqbal for answer. Q. Why the P.Ws.
Have deposed against you?
A. There is no independent witness examined against me before the Court. The Court premises being public place and overcrowded by persons from various walk of life at the relevant time, only the policeman and one odd individual related to the deceased have been trumped as P.Ws. It could have been demonstrably proved before the Court had I been allowed through my present counsel to cross-examine further such trumped up witnesses of the police. The witnesses are not the witness of occurrence. They have been brought up only to support a concocted and fabricated version of the occurrence, since, dozens of independent witnesses of occurrence available on the spot did not support the version developed by the police incollusion with the complainant party and the doctor. Thus, there is no evidence against me which can be legally and judicially accepted.
I am innocent and have been implicated for collateral motive. Q. What is your statement and why are you charged?
A. I am innocent and have been falsely charged. My detailed answers about my false implication in the case have already been recorded. Q. Do you wish to produce defence evidence?
A. Yes, I have already moved an application before the Court for summoning of Daily Diary Registers of Police Station Haripur. And Police Post Haripur for 13-6-1990 through the concerned Moharrirs which after examining I would place on record the relevant entries therein. Q. Do you wish to appear as your own witness on oath as required under section 340(2), Cr.P.C.?
A. Yes.
Q. Do you add anything in your above statement? A. No, except, I may state before the Court on oath.
' R.O. & A.C. (Sd)
11-11-1991 A.S.J.-I, Haripur.
21. On 6-1-1992, the joint statement of the appellants as well as their counsel, Mr. Mushtaq Ali Tahirkheli, Advocate. Haripur, was recorded (page 162 of the Print Book) by the Trial Court. It would be appropriate to reproduce the same here:--- "Statement of accused and counsel for the accused on oath.
' Muharrirs Police Station and Officer of Haripur were summoned as D.Ws. To produce relevant entries of daily diary registers for bringing on those on record. The said registers were inspected by the counsel for the accused on 21-12-1991 and also today i,e,, 6-1-1992. The previous pages and entries have been taken off the record and new pages and entries have been made to support the prosecution evidence already adduced. Hence the said two witnesses are abandoned as D.Ws. We do not want to produce the relevant diaries and Muharrirs in our defence, however, we request the Honourable Court to call the said two Muharrirs alongwith the daily diary registers as C.Ws. To enable the defence to cross-examine them with respect to the alteration/changes in the entries/pages of the said registers. An application to this effect has already been moved before this Court i,e,, today on 6-1-1992."
' R.O. & A.C. (Sd.)
Dated 6-1-1992. A.S.J.-I, Haripur.
' Mazhar Iqbal accused Sd/- in English ' Muhammad Siddique. Sd/- in Urdu.
Sd/- Mr. Mushtaq Ali Tahirkeli, Advocate, counsel for the accused.
22. The Trial Court, most probably, keeping in view the serious allegations made against Gharib Shah, Madad Muharrir Police Station Haripur and Muhammad Sarwar, Madad Muharrir, Police Post, Haripur, by the appellants and their counsel, in the joint statement, mentioned above, summoned the two F.Cs. As Court witnesses, although they had been abandoned by the appellants to be produced/examined as defence witnesses. Both these witnesses were thus, examined as C.W.1 and C.W.2 respectively on 21-7-1992 and the appellants/ complainant were allowed to cross-examine them (pages 133-140 of the Print Book).
23. Thereafter, on 26-7-1992, the appellants produced their defence evidence and the following persons were examined on oath:--- D.W.1 Shahzada son of Faiz Aslam.
D.W.2 Zarin son of Juma Khan.
24. The case was then adjourned for recording the statements of the appellants under section 340(2), Cr.P.C. However, both of them refused to depose on oath and their statements (Page-151), in this respect, were, therefore, recorded on 30-11-1992 by the Trial Court which are to the following effect:--- "Statement of Mazhar Iqbal son of Fazal Dad, Caste Awan, resident of Dheena presently Mankarai.
Accused.
' I do not want to give my statement on oath.
' R.O. & A.C. (Sd.) dated 30-11-1992 A.S.J. Haripur.
' Statement of Muhammad Siddique son of Abul Salim, Caste Awan, resident of Dheenda presently Mankarai. Accused.
' I do not want to give my statement on oath.
' R.O. & A.C. (Sd.) dated 30-11-1992 A.S.J., Haripur.
25. Mr. Mushtaq Ali Tahirkeli, Advocate, learned counsel for the appellant addressed his arguments for two days i,e,, on 2-4-1997 and 3-4-1997. Mr. Saeed Akhtar Khan, Advocate, learned counsel for the complainant assisted by Mr. Muhammad Aslam Khan Tanoli, Advocate, learned counsel for the State was heard on 4-4-1997.
26. We have gone through the record of the case, with the assistance of the learned counsel for the parties, carefully.
27. In the main, reliance has been placed on the direct evidence (eyewitness account) of complainant, F.C. No,767 Dilawar Shah, Process Server, (P.W.7), F.C. No,731, Abdur Rashid, Process Server (P.W.8) attached with the Court of Extra-Assistant Ccommissioner (I), Haripur, Abdul Salam Son of Nawab Khan, Caste Quresh, aged about 34 years (P.W.9), recoveries i,e,, revolver (Exh.P.2), four empties (Exh.P.3), two missed cartridges (Exh.P.4) and 9 live cartridges (Exh.P.5), blood-stained chhuri (Exh.P.1), blood-stained earth and stand (Exh.P.W.2/1), post-mortem repot (Exh.P.M.) and the confessional statements (Exh.P.W.5/2 and Exh.P.W.5/5) of the appellants, motive apart.
28. Let us process to discuss these one by one. Ocular evidence is taken up in the first instance.
29. There is no denying of the fact that the eye-witness account has been furnished by P.W.7 to P.W.9. One of them, i,e,, Abdul Salam (P.W.9) is admittedly related to the deceased though distantly (page 87 of Print Book). Since he is an interested witness, therefore, his evidence would require to be put to close and critical analysis. It is now settled principle of law that if the statement of such a witness inspires confidence and if no other independent witness is available even then the Court can rely on the testimony of the "interested witness" provided it is otherwise free from doubt. In case Roshan etc. v. The State reported as PLD 1977 SC 557 it was held:--- "There is also no universal rule that the evidence of an interested witness must be invaribly corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of interested witness. Secondly, if the presence of a witness is provided beyond doubt and no other independent witness is available in the case, if would result in grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where the Supreme Court has upheld the conviction of the accused based entirely on the testimony of the ' interested' witness".
30. In another case, Sharif and another v. The State, reported as 1973 Supreme Court (M.R.) 83 it was observed by their Lordships of the Supreme Court as under:--- "Corroboration may be offered by anything in circumstances of the case which tend to satisfy the mind of the Court that the witness has spoken the truth."
31. In case, Niaz v. The State PLD 1960 SC 387, His Lordship, Mr. Justice Kaikaus had observed:--- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there is no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, a further Question arises as to whether they can be relied upon for convicting the accused without corroborated. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may in the absence of anything making it unsafe to do so be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundatuin for it."
32. Similarly, in case Shihab Din v. The State PLD 1994 SC 177, His Lordship, Mr. Justice Cornelius, Chief Justice, observed:--- "The mere relationship of witness does not necessarily render a witness's account of the occurrence doubtful provided his presence on the spot is proved beyond doubt. In so far as there were injuries on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced the witnesses in the circumstances were entitled to be believed."
33. Keeping in mind the abovementioned principle as laid down by the august Supreme Court of Pakistan for appreciating the ocular testimony of the related/interested witnesses, we find that the occurrence took place at day time (7-30 a.m.). Abdul Salam (P.W.9) while deposing on oath supported the version of the prosecution case as disclosed in the F.I.R., (Exh.P.A.). According to him, on the day of occurrence (13-6-1990) he (Abdul Salam P.W.9) and P.W. Abdul Qayum (not produced) had accompanied Raja Zafar Ali (deceased).To the Court, where the deceased was to appear in the Court in the case registered under section 307, P.P.C., pending against him and the accused party. He further stated that when all of them reached the Court premises, accused Mazhar Iqbal and accused Muhammad Siddique also reached there. According to P.W.9, it was accused Mazhar Iqbal who fired four shots at Raja Zafar Ali (deceased) with which he was hit whereas accused Muhammad Siddique gave him a Chhuri blow on his abdomen; that because of the firing and the Chhuri blow Raja Zafar Ali sustained serious injuries and fell down. That thereafter he was rushed to the Civil Hospital, Haripur. That after receiving first-aid the deceased, then injured, was referred to the D.H.Q., Hospital, Abbottabad. P.W.9 further stated that while on his way to Abbottabad, the deceased succumbed to his injuries and breathed his last near a place called Shah Maqsood. That, therefore, the dead body was brought back to the Civil Hospital, Haripur. This witness' categorically stated that the motive for the commission of the offence was the criminal case, pending in the Court of Extra-Assistant Commissioner (I) between the accused party and the deceased.
34. This witness was thoroughly cross-examined. In his cross-examination he admitted that he was the maternal aunt's son of one Raja Pervez who was the brother-in-law of the deceased.
(deceased's sister was married to Raja Pervez). He also admitted and, in point of fact, supported his own version, given in his examination-in-chief, that prior to the occurrence the deceased had injured one Khalid and was therefore, challaned under section 307, P.P.C. He, however, refuted the suggestion that he was not present on the spot and had not witnessed the occurrence. He also refuted the suggestion that he was deposing falsely against the accused because of his relationship with the deceased. He fitrther stated that it was incorrect to suggest that he had not accompanied the deceased, then injured, to the Civil Hospital, Haripur. He also denied the suggestion that he was not present on the spot and that it was at about 12 Noon, on the day of occurrence, that he was summoned by the police for giving false statement.
35. Although this witness (P.W.9) was subjected to lengthy cross-examination by the learned counsel for the appellant but nothing was brought on record to suggest, even remotely, that he was either planted witness or that he had any motive/enmity to depose against the accused falsely. The testimony of this witness, therefore, remains unshattered.
36. Next, we take up the eye-version account of the complainant, F.C. No,767 Dilawar Shah Process Server of the Court of Extra-Assistant Commissioner (I), Haripur. When examined on oath, as P.W.7, he narrated the manner, in which the occurrence took place, in detail. He stated that he was .Present out side the Court of Extra-Assistant Commissioner (1) Haripur alongwith other Process Server, F.C. 731 Abdur Rashid (P.W.8), when at about 7-30 a.m., Raja Zafar Ali (deceased) alongwith his two companions came there. All of them stood in front of the said Court. That in the meantime accused Mazhar Iqbal and accused Muhammad Siddique, present in the Court, also arrived there.
He further stated that it was Mazhar Iqbal who fired four shots, with .32 bore revolver, at Raja Zafar Ali with which the deceased was hit. That accused, Muhammad Siddique in the meantime stabbed the deceased with a chhuri on the left side of his abdomen. That due to the injuries the deceased fell down. He further stated that both the accused then tried to escape from the scene of the occurrence. According to him, he overpowered accused Muhamamd Siddique on the spot, alongwith blood-stained Chhuri (Exh.P.1), that accused Mazhar lqbal ran away from the spot who was then chased by F.C. Abdur Rashid (P.W.8), and apprehended near the gate of the Court. .32 bore revolver, alongwith 9 live cartridges, was recovered from his personal search, that the revolver contained 4 empties cartridges and two missed cartridges. He further stated that thereafter the police arrived at the scene of occurrence and he (P.W.7) and Abdur Rashid (P.W.8) handed over both the accused, alongwith the weapons of offence, to the police party, that the same were taken into possession by the Investigating Officer (P.W.12). According to him, it was he who then reported the matter to A.S.I., Muhammad Nazir Khan (P.W.12) on the spot, that his report was reduced into writing in the form of a murasila (Exh.P.A./1) which was read over and explained to him and he after admitting the same to be correct signed the same. He stated that the murasila was also signed by F.C. Abdur Rashid (P.W.8) in token of its being correct.
37. This witness was subjected to lengthy cross-examination by the learned counsel for the appellant. However, nothing was brought on record to show that this witness was either an interested witness or had any enmity with the accused or any other motive to depose falsely against the accused. This witness, in his cross-examination, stated:--- "It is correct that my companion Abdur Rashid had hauled up accused Mazhar Iqbal in the gate of the Courts. There were many petition writers near the gate and other people when accused Mazhar Iqbal was apprehended by Abdur Rashid. Since I was at a distance of 6 yards I did not try to stop the accused from firing nor did I prevent Siddique accused from giving Chhuri blow. I had kept the blood-stained chhuri of Siddique accused with me for 10 to 15 minutes when the police i,e,, to say the Investigating Officer arrived there. I had produced the Chhuri to the Investigating Officer in presence of many people who were present at the spot. Similarly, at the same time Abdur Rashid F.C. Produced the revolver and the cartridges to the Investigating Officer in presence of many people who were present at the spot.
"It is incorrect to suggest that I never knew the deceased or the accused prior to this occurrence and the entire story was concocted by the local police against Mazhar Iqbal and the co-accused on account of previous strained relations of the police with the accused It is incorrect to suggest that none of the accused was present in the Court premises but they were summoned from their houses in the police post where they were arrested. (The entire suggestion is incorrect). I do not know the names of all the persons who attend the Court daily in connection with their cases. It is incorrect to suggest that I was not present in the Court premises on the day of occurrence nor Abdur Rashid constable was present there at that time. (The entire suggestion is incorrect). It is incorrect to suggest that since no disinterested person supports the prosecution version so we all the police men have been cited witnesses in the present Court. (The entire suggestion is incorrect)."
38. From the perusal of the cross-examination of this witness it has become crystal clear that P.W.7 (complainant) had no enmity whatsoever with the accused for charging them falsely for killing Raja Zafar Ali (deceased). In the circumstances it can be safely concluded that this witness is a truthful witness and that his testimony can be relied upon.
39. F.C. Abdur Rashid, Process Server attached with the Court of Extra-Assistant Commissioner (I), Haripur was examined on oath as P.W.8. In his examination-in-chief he supported, in toto, the prosecution version as contained in the F.I.R. He also corroborated the statements of the other two eye-witnesses i,e,, P.W.7 and P.W.9. This witness stated that he was present in the Court premises on the day of occurrence alongwith Dilawar Shah F.C. (P.W.7) when Raja Zafar Ali (deceased) came there alongwith his two companions; that thereafter accused Mazhar Iqbal alongwith accused Muhammad Siddique arrived there; that within his presence and sight accused Mazhar Iqbal effectively fired 4 shots at Raja Zafar All (deceased); that accused Muhammad Siddique gave the deceased a Chhuri blow on the left side of his abdomen; that because of the said injuries Raja Zafar Ali fell down. According to this witness both the accused after committing the offence tried to decamp from the spot. However, accused Muhammad Siddique was apprehended by F.C. Dilawar Shah (P.W.7) alongwith blood-stained Chhuri. Since Mazhar Iqbal accused had ran away from the spot, therefore, he was followed and apprehended by him (P.W.8) near the main gate of the Kutcheri. The witness further stated that he recovered .32 bore revolver from him which contained 4 empties and 2 missed cartridges. He further stated that the personal search of the accused Mazhar Iqbal led to the recovery of 9 live cartridges from his possession. According to him, on the arrival of A.S.-I. Muhammad Nazir Khan (P.W.12) he handed over the accused to him alongwith .32 bore revolver (Exh.P.2), 4 empties (Exh.P.3), two missed cartridges (Exh.P.4), 9 live cartridges (Exh.P.5). He corroborated the statement of P.W.7 and stated that he (P.W.7) handed over accused Muhammad Siddique, alongwith blood-stained chhuri, to A.S.-I. Muhammad Nazir Khan A.S.-I.
(P.W.12) who took the same in his possession and sealed the same into a parcel.
He further stated that Dilaawr Shah (P.W.7) then narrated the incident to A.S.-I. (P.W.12) who reduced his report into writing in the form of a murasila (Exh.P.A./1) and that the same was also signed by him in token of its being correct. According to him, the site-plan (Exh.P.B.), during the spot inspection, was prepared by the Investigating Officer on his and Dilawar Shah's pointation. He stated that his statement was also recorded by the Investigating Officer under section 161, Cr. P.0 .
40. P.W.8 was cross-examined thoroughly by the learned counsel for the appellant. At the out-set P.W.8 stated that he had produced the record of his duty/presence within the Court premises before the Investigating Officer. He also stated:--- "I had apprehended Mazhar Iqbal accused in the Main Gate of the Kutcheri premises in the presence of large number of people. I had not prepared any recovery memo. Of the revolver, and the cartridges mentioned in my examination-in-chief after their recovery from the accused It is correct that I had recovered the revolver and the cartridges from the accused Mazhar Iqbal in the presence of disinterested persons who were present in the main gate."
41. According to this witness, Muhammad Nazir Khan A.S.-I. (P.W.12) had reached the spot 10/15 minutes after of the occurrence and that he (P.W.8) had produced the revolver and the cartridges before the Investigating Officer. He admitted that before the arrival of the A.S.-I. The injured was removed from the spot. He also admitted that till 11-00 a.m. The A.S.-I., had not prepared the site- plan and that on the arrival of the S.H.O., the S.H.O., had himself prepared the site-plan on their (P.W.7 and P.W.8) pointation. He refuted the suggestion that the report was not lodged on the spot and that the same was lodged in the Police Post City, Haripur. He also refuted the suggestion that the report was lodged after deliberation and consultation between the police official at 10 a.m. He stated:--- ' It is incorrect to suggest that since no independent person, present on the spot at the time of occurrence, was going to support the false version of the prosecution so the Investigating Officer, and the S.H.O., made the present case as policeman show and involved the present accused on account of previous ill-will."
42. A perusal of the entire cross-examination of this witness would reveal that he was quite consistent on all most all the material points. He not only corroborated the version of the complainant (P.W.7) but also corroborated the other eye-witness, Abdul Salam (P.W.9). In fact he supported P.W.7 and P.W.9 on almost all the material points. Besides, it may be noted, that nothing could be brought on record to show that this witness had either any enmity with the accused or any to implicate them in the present case falsely. Similarly the defence miserably failed to bring on record any evidence to show that this witness had any motive to depose on oath against the accused appellant falsely. No reason exists and none indeed has been made out as to why the testimony of this disinterested/indepndent witness be discarded.
43. Muhammad Banaras, Traffic Head Constable Abbottabad (P.W.4), while in the witness-box, confirmed that F.C. Dilawar Shah (P.W.7) had produced accused Muhammad Siddique, alongwith blood-stained churri (Exh,p.1) to the Investigating Officer. He further stated that accused Mazhar lqbal was produced by F.C. Abdur Rashid (P.W.8) before the Investigating Officer alongwith .32 bore revolver (Exh.P.2) containing 4 empties (Exh.P.3), two missed cartridges (Exh.P.4) and 9 live cartridges (Exh.P.5); that the Investigating Officer took the same in his possession vide Recovery memo. Exh.P.W.4/1. He further stated that the said recovery memo. Was duly signed by him as its marginal witness. According to him, he had also signed Recovery Memo. Exh.P.W.4/2 as a marginal witness, vide, which the Investigating Officer took into his possession the deceased's blood-stained shirt (Exh.P.6), Shalwar (Exh.P.7), having corresponding cut marks, and the phial containing bullet led (Exh.P.8), produced before him by F.C. Abdul Latif (P.W.6) and sent by the doctor.
44. When cross-examined this witness stated that the recoveries, Exh.P.1 to Exh.P.5, were produced by the two F.Cs. In the Court premises at 7.45 a.m. Whereas articles, Exh.P.6 to Exh.P.8, were produced before the Investigating Officer at about 10-30 or 10-45 a.m. He further stated that at that time Advocates including litigants were present on the spot. According to him, the Investigating Officer had given him the murasila (Exh.P.A./1) for delivering the same at the police station. That he took the Murasila to the police station where, on its basis, F.I.R. (Exh.P.A.) was duly registered. He further stated that after the registration of the case he brought a copy of the said F.I.R., to the spot at 10/10-15 a.m. He, however, admitted that nothing was recovered from the accused in his presence but refuted the suggestion that he, being a Police Official, was falsely deposing against the accused. He also refuted the suggestion that Memo. Exh.P.W.4/1 and Exh.P.W.4/2 were prepared in the police post and that he had signed these documents there.
45. A.S.-I. Muhammad Ilyas Khan was examined as P.W.3. He stated that on the receipt of Murasila (Exh.P.A./1) he correctly incorrporated its contents in the F.I.R., (Exh.P.A.). According to him the F.I.R., was correct and was duly signed by him. He further satted that after the registration of the case he sent a copy of the F.I.R., to the Investigating Officer for the investigation of the case.
46. Muhammad Saleem son of Abdul Aziz, caste Turak aged about 50 years deposed on oath as P.W.2. He stated that he was the marginal witness to Recovery Memo. Exh.P.W.2/1 Vide: which the Investigating Officer had taken in his possession the blood-stained earth and sand from the spot who then sealed the same in a parcel.
47. Raja Pervez son of Raja Khan Bahadur caste Turak, aged about 37 years appeared as P.W.1, He had identified the dead body of the deceased in the Hospital at the time of post-mortem examination.
48. The blood-stained knife, blood-stained earth, blood-stained sand and blood-stained shirt/Shalwar of the deceased were sent to the Chemical Examiner/Serologist who opined:--- "Chemical and Serological examination of the suspected blood stains on the articles contained in the abovementioned parcel revealed that It was Human Blood and of the same group."
49. Similarly four .32 bore crime empties marked C.1 to C.4, twd .32 bore missed cartridges marked M.1 and M.2, one .32 bore revolver and one crime bullet marked B, were sent to the Fire-arm Expert for examination. His report is in the positive and is reproduced for the sake of convenience:--- "Microscopic Examination of the case has revealed as under:---
(1) The four crime empties of .32 bore were fired from the .32 bore revolver in question in view of the following major points that is striker pin marks and breach face marks etc. Are similar.
(2) One .32 bore crime bullet marked B was fired from the 32 bore revolver in question in view of the following major points that is number of land grooves and striation marked etc., are similar.
(3) The two .32 bore miss cartridges marked M.1 and M.2 lack sufficient - identifiable data for examination and comparison hence no opinion can be expressed as to whether or not they were missed from :32 bore revolver in question."
50. Muhammad Naseem Khan M.I.C. Haripur empowered under section 30, Cr.P.C. Deposed as P.W.S. It was he who had recorded the confessional statements of accused Mazhar Iqbal (Exh.P.W.5/2) and accused Muhammad Siddique (Exh.P.W.5/5) after observing all the legal formalities.
51.. The Magistrate was subjected to lengthy cross-examination by the learned counsel for the accused. In his cross-examination he refuted the suggestion that both the accused were produced before him at the same time. He stated that he was the Illaqa Magistrate of the area where the occurrence had taken place. He refuted the suggestion that after hearing the report of fire-shots he had gone to the scene of occurrence alongwith other Magistrate/Advocates. According to him he remained in side his Court Room and did not leave it. The Magistrate 1st Class further stated that when the accused were produced before him for recording their confessional statements, he fully know that they (accused had remained in Police Custody for about. 24 hours, that be knew about this fact because he was the Illaqa Magistrate. He stated that no signs of violence were ' present on the accused. He, however, admitted that he had not mentioned anywhere in the questionnaire that he had personally checked the persons of the accused. He admitted that he had not mentioned, while recording the confessional statements, that the accused were given "three warnings" before their confessional statements were recorded. He also admitted that he had not enquired from the accused if they were extended any promise by the police or that they were given oath for becoming approver. He further admitted that the weapons of offence were not produced before him by the police at the time of recording the confessional statements of both the accused.
52. He stated that:--- "It is incorrect to suggest that I copied out the statements of the accused recorded in police files and it is also incorrect to suggest that the statements of both the accused appears to be parrot like narration and is similar with the police statement."
53. The Magistrate further stated that after he had recorded the confessional statements of the two accused, he handed them over to the Judicial Guard. It may be pointed out that the learned counsel for the accused patently failed to bring on record anything which might have persuaded us to believe that the Magistrate 1st Class was not a truthful witness and that, therefore, his testimony did not inspire confidence.
54. Dr. Noor Wahab Shah, Medical Officer/Incharge Civil Hospital, Haripur (P.W.11) had in the first instance, examined the deceased (then injured) on 13-6-1990 and found him to be unconscious, restless and in shock. After giving him emergency treatment the doctor sent him (deceased) to the D.H.Q. Hospital, Abbottabad.
55. On the same day, after the death of the deceased his post-mortem examination was conducted by the said doctor at 10 a.m. He found the following on:--- External Examination:
(1) Fire-arm enterance wound 1/3" x 1/3" on the right side of the chest in the middle. Charring marks were present.
(2) Stab wound on the left side of hypochondrium 2" x 1/2" entering the plureal cavity. Omentum was seen protruding out of the wound.
(3) Fire-arm enterance wound on the left side of neck 1/3" x 1/3". Charring marks present.
(4) Fire-arm exit wound on the back of right side neck 1/2" x 1/2" and continous with injury No,3.
(5) Fire-arm enterance plus Exit wound which consides each other on the left side of head 2" x 1-1/2" x underlying bone was found fracture and brain was injured. Charring marks present.
(6) Firearm grazing wound on the palm of right hand 1 1/2" x 1/2" x 1/3". Internal Examination.
' Abdominal wall, peritonium, disphram left side injured, small intestine, large intestine, and splene are also injured. Stomach was found in act and full of semidigested foods. Scalp and parital bone of the skull on the left side were found fractured. Membrane and brain were injured Pleura (right side) chest wall on the right side were injured. Trachea right lung were also injured Caroted and mesenteric blood vessels were also injured.
56. In the opinion of the doctor the death was the result of shock and heamorrhage due to fracture of the skull and injuries to the brain, lung, splene, and intestines by fire-arm and sharp-edged weapon. Probable time that elapsed between injury and death was about 1-1/2 hour and death and post-mortem about one hour.
57. Although the doctor has cross-examined at length and most of his cross-examination consists of question and answers, nothing was brought on record to suggest that he was not a truthful witness or that he had not conducted the postmortem examination properly. In the circumstances, his testimony stands) unshattered and cannot be brushed aside.
58. A.S.-1. Muhammad Nazir Khan (P.W.12), who had mainly investigated the present case, stated on oath that on 13-6-1990 he was on patrol duty when he learnt about the occurrence. Accordingly he rushed to the spot. He stated that F.C. Dilawar Shah (P.W.7) and F.C. Abdur Rashid (P.W.8) met him in the Court premises; that the matter was reported to him by Dilawar Shah (P.W.7); that he scribed the murasila (Exh.P.A./1) which duly signed by Dilawar Shah (P.W.7). Additionally it was signed by F.C. Abdur Rashid (P.W.8). He further stated that at the time of lodging the report F.C. Dilawar Shah (P.W.7) produced blood-stained Churri (Exh.P.1) whereas F.C. Abdur Rashid (P.W.8) produced .32 bore revolver (Exh.P.2), four empties (Exh.P.3), two missed empties (Exh.P.4) and nine live cartridges (Exh.P.5) before him, that he took the same into possession vide recovery memo. (Exh.P.W.4/1) in the presence of its marginal witnesses. He stated that after arresting both the accused he sent the murasila to the Police Station for the registration of the case; that he then left for the Hospital where he prepared the injury-sheet (Exh.P.M./1) and the inquest report (Exh.P.M./2) of the deceased. He further stated that initially the murasila was drafted under section 307/34, P.P.C., read with 13 Arms Ordinance, but later the offence was changed vide his application (Exh.P.W.12/1) because the injured had expired. He also stated that he prepared the sketch of revolver and churri on the back side of Recovery Memo: (Exh.P.W.4/1). According to him when S.H.O. Fareed Khan (P.W.10) arrived at the scene of occurrence he handed over the remaining investigation to him. He further stated that on. 14-61990, the S.H.O. Handed over both the accused to him for getting their confessional statements recorded.
59. This witness was thoroughly cross-examined (pages 110 to 125 of the Print Book) but nothing was brought on record to show that he had any motive or enmity with the accused for concocting a false case against them. Besides, nothing was brought on record to show that he had investigated the case dishonestly. His testimony, in the circumstances, remains unshattered and is fully supported/corroborated in substance by the other P.Ws. The contention of the learned counsel for the defence that this witness had investigated the case dishonestly is without any force and is accordingly repelled.
60. S.H.O. Muhammad Fareed Khan, who had partly investigated the case, appeared as P.W.10. He stated that on the eventful day he was on patrol duty in Haripur City when he was informed about the occurrence; that on receipt of said information he straightaway went to the Court premises where the occurrence had taken place. According to him, during the course of investigations, he took into his possession blood-stained earth and blood-stained sand (Exh.P.W.2/1) from the scene of occurrence and sealed the same into a parcel. He further stated that on the pointation of P.Ws.
He prepared the site-plan (Exh.PB) with all its foot notes etc. Correctly. According to him, F.C. Abdul Latif (P.W.6) had handed over the blood-stained shirt (Exh.P.6), blood-stained Shalwar (Exh.P.7) of the deceased having corresponding cut marks and a phial containing bullet led (Exh.P.8) to him, sent by the doctor and that he took all these articles into his possession vide Recovery Memo.
Exh.P.W.4/2. He stated that later on, these articles were sent for chemical analysis/blood grouping vide his application Exh.P.W.10/1. He further stated that the Chemical Examiner's Report (Exh.P.W.10/2) was received by him in respect of the said items which was in the positive. He further stated that he had recorded the statements of the accused under section 161, Cr.P.C., that most of the investigation in the case, was carried out by A.S.I. Muhammad Aziz Khan (P.W.12) and that after the completion of the investigation, he had submitted complete challan against the accused for trial.
61. It may be noted that this witness was also cross-examined at length (pages 90 to 107). However, the defence failed to bring anything on record to show, even remotedly, that this witness had some ulterior motive or towards the accused as a result of which he was prompted to involve them in the case falsely. Similarly there is nothing on the record to establish that the S.H.O. Had investigated the case dishonestly. We are, therefore, of the view that the testimony of this witness inspires confidence and can be relied upon safely especially when the same is in line with the unshattered testimony of the rest of the P.Ws.
62. After having gone through the evidence produced by the prosecution, in minute detail, we are of the considered view that the prosecution has proved its case against the appellant-accused beyond reasonable doubt.
63. On the other hand, the accused produced evidence in their defence and tried their level best, to make out a new case i,e,, that it was the deceased who had tried to kill them with a pistol; that in order to save their skin the accused-appellants had grappled with him and that in the process, the deceased was killed with his own pistol. In support of their contention they produced the following witnesses:--- ' D.W.1 Shahzada son of Faiz Aslam. D.W.2 Zarin son of Juma Khan.
63-A. It would be sufficient to say that the D.Ws. Do not seem to be truthful witness in the circumstances of this case. Firstly, because if they had seen the occurrence, as alleged by them, then they should have been produced by the appellants before the Investigating Officer during the course of investigation. Secondly, the conduct of both the D.Ws., immediately after the occurrence, seems to us to be most unnatural. Shahzada (D.W.1) in his examination-in-chief stated that during the grappling between accused Mazhar Iqbal and Raja Zafar Ali (deceased), that pistol kept on discharging and as a result of which Raja Zafar All was hit and fell down and that thereafter both the accused decamped from the scene of occurrence. He further stated that Raja Zafar Ali was then taken by some persons, present in the Court premises, to the Hospital and that those persons had also taken away the pistol with them. According to him, after staying for about 5/10 minutes on the spot he went away to his house.
64. To the same effect is the statement of Zarin (D.W.2).The relevant portion of his examination-in- chief, in this respect, is produced as under:--- ' In the meantime, scuffle started between Raja Zafar on one side Mazhar and Siddique on the other. Mazhar was trying to snatch the pistol from Zafra while Siddique had held him from the back.
During the scuffle pistol kept discharging and Raja Zafar fell down. On this Mazhar and Siddique decamped from the spot. The public present in the Court premises took Raja Zafar to the Hospital.
They had also taken away the pistol. I stayed there for about 5/10 minutes and went away to my house."
65. Both the D.Ws. In their cross-examination stated that they had met one Gul brother of accused Muhammad Siddique and had informed him that they had seen the occurrence. They further stated that they were appeared as D.Ws. As requested by Gul in the interest of justice.
66. We fail to understand as to what had prevented the said D.Ws. From appearing before the Investigating Officer during the course of investigation, which took quite some time. No explanation whatsoever is forthcoming in this respect. Accordingly we have no hesitation to hold that the D.Ws.
Are compulsive Tiers and their testimony hardly inspires confidence. The same is J accordingly discarded.
67. Similarly in their statements, recorded under section 342, Cr.P.C., both the accused alleged that Raja Zafar Ali (deceased) was killed with his own firing. We are afraid that this is not true. Firstly, because the accused did not cross-examine the P.Ws., especially the eye-witnesses (P.W.7 and P.W.9), on this score and secondly no sane person would believe the story advanced by the accused that the deceased during the grappling with the appellants, had kept on firing and resultantly injured himself as a consequence thereof he was killed. The nature of injuries, mentioned in the post-mortem report, totally belie this fact. The assertion of the appellant is accordingly discarded being fanciful and untrue.
68. In the circumstances and in view of what has been discussed above we hold that the appellant was rightly convicted/sentenced by the Trial Court. This appeal is without any substance and is accordingly dismissed.
69. Since one of the appellants who had effectively fired at the deceased with the pistol and who was sentenced to death, has already expired in the Death Cell, and the appellant who was charged only for giving a churri blow to the deceased, we feel that the sentence of life imprisonment awarded to him:meets the ends of justice and it would not be appropriate to enhance his sentence to death. The Criminal Revision is, therefore, dismissed.