' RAJA FAYYAZ AHMED, J.--- This appeal under section 410, Cr.P.C., has been preferred against judgment, dated 25-3-1998, passed by the Sessions Judge, Lasbella at Hub in Sessions Case No,39 of 1997 whereby the appellant has been convicted and sentenced under section 302, P.P.C. To fourteen years R.I. And under section 324, P.P.C., sentenced to five years R.I. Respectively for causing Qatal-e-Amd of deceased Syed Asghar Ali Shah and for committing murderous assault on Muhammad Siddique A.S.-I., directing that both the sentences to run concurrently with benefit of section 382-B, Cr.P.C., extended to the appellant.
2. Muhammad Siddique, A.S.-I. Victim of the alleged murderous assault has also filed Criminal Revision No,34 of 1998 seeking for enhancement of the sentence awarded to the appellant. As both the matters i,e,, criminal appeal and the criminal revision were heard together and as identical points of facts and law are involved which pertain to the same incident, therefore, we intend to decide the same together by this judgment.
3. Briefly, the stated facts' of the case are that on 11-12-1996, Ghulam Hussain, Constable Police Station Uthal (P.W.1) lodged a written report (Exh.P/1-A) with the S.H.O. Police Station Uthal to the effect that on 11-12-1996 at about 10-15 p.m. He along with A.S.-I. Muhammad Siddique its Official vehicle proceeded on 'Gasht' and for the checking of guards at duty and A.S.-I. Siraj Ahmed also boarded in the said vehicle. According to the informant Hawaldar Muhammad Ali and a sepoy Abdul Sattar also boarded in the said vehicle from Bazar Uthal because Muhammad Ali was the guard incharge. It has been alleged in the report that on their way A.S.-I. Siraj Ahmed got down from the vehicle and fetched-a 'Chadar' from his house situate near petrol pump and handed over the same to A.S.-I. Muhammad Siddique (P.W.4) and himself went back to his house where after they went to the bungalow of S.P. Where guard incharge Muhammad Ali and Abdul Sattar constable alighted from the vehicle and at that time (sic) Muhammad Siddique constable No,414 (convict) was found to be on duty in uniform equipped with service rifle and at that time the suspected person namely Ali Asghar Shah was also found to be sitting with the guard Muhammad Siddique and A.S.-I. Muhammad Siddique inquired from Muhammad Siddique guard, as to why on the mid of night an important guard duty a civil man has been allowed to sit along, which was felt badly by guard Muhammad Siddique who stated that he was on duty for three hours, so he can do whatever he likes and that nobody can check him and thereupon A.S.-I. Muhammad Siddique addressed to guard in charge Muhammad Ali as saying, to note such fact and that he would complain to the S.P. And thereupon constable Muhammad Siddique walked about 10/12 paces, loaded his rifle and fired an aerial shot, then fired second shot on A.S.-I. Muhammad Siddique which passed from his behind and he threw himself on the bush, whereas; third shot was fired at A.S.-I. Muhammad Siddique which hit Ali Asghar Shah who fell down on the ground and fourth bullet hit Muhammad Siddique A.S.-I. And thereafter, accused Muhammad Siddique ran towards R.C.D. Road by making aerial firing. On the basis of written report case Crime No,25 of 1996 was registered with Police Station Uthal under section 324 read with section 353, P.P.C., and consequent upon the death of injured Syed Ali Asghar Shah, section 302, P.P.C., was also added. On registration of the case Abdul Hameed S.-I. Police Station Uthal (P.W.14 (commenced with the investigation of the necessary investigation and challan for the trial of the aforementioned offences against accused Muhammad Siddique Constable was submitted in the Court of learned Sessions Judge, Labella at Hub. The learned Trial Court on 5-5-1997 indicted the accused for the commission of offence under sections 302, 324 and 353, P.P.C., to which the accused did not plead guilty and the prosecution to substantiate the accusation against accused, examined 14, prosecution witnesses namely Ghulam Hussain constable (P.W.1), who lodged the written report and an eye-witness of the incident, Muhammad Ali Head constable Police Station Uthal and guard in charge (P.W.2) being the ocular witness of the incident in whose presence blood-stained earth, sand and blood-stained gravel besides crime empties were secured from the place of incident, Siraj Ahmed A.S.-I. (P.W.3) who initially accompanied A.S.-I. Muhammad Siddique and arrested the accused and in his presence service - revolver of A.S.-I. Muhammad Siddique was taken into possession vide inventory and he is also witness to Exh.P/3-B whereby the blood-stained clothes of deceased etc., were taken into possession, Muhammad Siddique A.S.-1. P.S. Uthal (P.W.4) is also the ocular witness of the incident, who sustained bullet injury, Dr. Muhammad Amin, (P.W.5) Medical Officer District Headquarter Hospital Uthal examined the injured Ali Asghar Shah and Muhammad Siddique A.S.-I.
On 12-12-1996 and respectively issued M.L.Cs. Exh.P/5-A and Exh.P/5-B, Hizbullah, Qanoongo Tehsil Uthal (P.W.6) prepared sketch of the place of incident on the potation of Abdul Hameed SI/S.H.O.
P.S. Uthal, Dr. M.A. Qureshi, Professor Civil Hospital/Dow Medical College, Karachi (P.W.7) treated the injured Muhammad Siddique S.-I. In Anklesaria (Pvt.) Hospital, Karachi who produced the M.L.C.
Issued by him as Exh.P/7-A and the other relevant documents pertaining to the treatment of the injured, Abdul Sattar constable Police Station Uthal (P.W.8) and Muhammad Ayub constable Police Station Uthal (P.W.9), are the cited ocular witnesses of the incident; Sanaullah head constable (P.W.10) is the witness to the taking into possession of the revolver and the service rifle respectively from Muhammad Siddique A.S.-r and accused Muhammad Siddique constable, Muhammad Din constable (P.W.11) produced the blood-stained clothes of the deceased to the S.H.O. Which were taken into possession vide Exh.P/10-B, Abdul Rasheed (P.W.12) deposed about the motive and the mishap taken place between A.S.-I. Muhammad Siddique and accused Muhammad Siddique earlier to the incident, Allah Bakhsh (P.W.13) in whose presence the dead body of deceased Ali Asghar Shah was taken into possession by the S.H.O. Police Station Uthal and the articles recovered from the search of the dead body and (P.W.14) is the Investigating Officer of the crime.
' After close of the prosecution case the appellant/accused was examined by learned Trial Court under section 342, Cr.P.C., in the light of the incriminating pieces of evidence brought on record during the course of trial wherein the accused denied the case of prosecution as a whole, and in disproof of the charge opted to make statement on oath under section 340(2), Cr.P.C. The accused in his statement on oath deposed that he performed guard duty at the residence of S.P. Lasbella at Uthal at 3-00 a.m. To 6-00 a.m. According to him on the next day of the alleged occurrence he had to perform guard duty from 3-00 p.m. To 6-00 p.m. During the day and stated that he used to inscribe his signature on a register lying at the guard duty room of the S.P. Bungalow and thereafter, the guard in charge used to issue him the official gun. He further deposed that after finishing his duty again he used to put his signature before handing over the official gun to the guard in charge and that on the night of the alleged occurrence when he came on his guard duty at 3-00 a.m. In the night, he was informed by the guard recharge that murder has been committed in front of the house of S.P. And he was directed by the guard in charge to go to the Police Station for lodging report. According to the accused on such direction when he reached to the Police station, S.H.O. Police Station Uthal, Abdul Hameed directed him to stay at Police Station and on the next morning he was informed that he has been arrested in the instant case. Accused pleaded to be innocent and stated that he had no connection with the murder of deceased Ali Asghar Shah who has been done to death by A.S -I. Muhammad Siddique and such fact had been conveyed to him by the real brother of the deceased. The accused in defiance produced only one witness namely Amin Shah son of Syed Latif Shah, who is the real brother of the deceased Ali Asghar Shah and deposed that he was no resent at the time of the incident but stated that the accused Muhammad Sidique did not kill his brother but he (Muhammad Siddique Constable) has been wrongly implicated in the case.
' After close of the parties case the learned Sessions Judge convicted and sentenced the appellant as hereinbefore mentioned.
4. Ghulam Hussain constable Police Station Uthal (P.W.1) deposed that on 12-11-1996 he along with Siddique and Siraj A.S.-Is. Left the Police station and reached to Uthal Bazar where Muhammad Ali head constable (P.W.2) and Abdul Sattar, Constable boarded in the vehicle and thereafter, A.S.-I.
Siraj was dropped at his quarter situate near Uthal petrol pump and thereupon at about 10-15 p.m.
They reached to the bungalow of S.P. Uthal where A.S.-I. Siddique (P.W.4) inquired from accused Muhammad Siddique that as to why he has allowed civilian to sit with him during the guard duty hours, on which the accused responded that the civilian sitting with him is his guest and after finishing his duty at 12-00 M./N. Will take him along. According to the witness the accused further stated to Muhammad Siddique A.S.-I. That he being on duty can allow anybody to sit with him and thus, Siddique A.S.-I. Told to the guard in charge namely Muhammad Ali that he to take note of such fact and to bring the same into the notice of S.P. Tomorrow, which annoyed the accused who stepped back about ten paces loaded his official gun and fired in the air and second shot was fired by accused on Siddique A.S.-I. (P.W.4) and on his third fire the witness jumped and concealed himself behind 'kiker' tree but on such fire, he heard voice of said civilian .Person and also heard three more gunshot reports. The witness further deposed that thereafter, another Police guard reached to the place of incident but he did not see him, howler he heard so that such guard had pushed the vehicle started the same and took the injured A.S.-I. Siddique to the Police Station and he also went to the Police station, thereafter, before his arrival to the Police Station they had left for hospital. He stated that report of the alleged occurrence was made by him to the Police and stated that civilian Ali Asghar Shah was shifted to the hospital in Edhi Ambulance which he had seen at the main R.C.D. Road. He produced his written report as Exh.P/1-A and identified the accused in Court who had fired.
' Muhammad Ali, Head Constable Police Station Uthal (P.W.2) deposed that he was performing his duty as guard incharge of the guards deployed at the S.P's. Bungalow for a week's time when on 11- 12-1996, constable Muhammad Siddique was performing his guard duty with service gun from 9- 00 a.m. To 12-00 p.m. And on the same night of 11-12-1996 at about 10-00 p.m. He along with Abdul Sattar constable went to bus stop Uthal, where they had taken tea in a hotel and at that time he found Muhammad Siddique A.S.-I., Siraj A.S.-I. And Ghulam Hussain constable coming out of the hotel after having dinner and on the request of constable Sattar, Muhammad Siddique A.S.-I.
Agreed to drop them in his vehicle at the bungalow of S.P. And according to the witness, when they in the said vehicle stopped at the bungalow of S.P. Where they got down from the vehicle and noticed that the civilian person was sitting with Muhammad Siddique guard, on which Muhammad Siddique A.S.-I. Inquired from accused constable, as to why he has allowed civilian person is sitting with him during guard duty; to which the accused replied that the said person is his guest, so he allowed him to sit with him and thereupon Muhammad Siddique A.S.-I. Told to the accused that he is performing guard duty as such should not allow any civilian to sit with him during guard duty hours, to which the accused replied to Muhammad Siddique A.S.-I. That he is on guard duty and it is for him to allow any person to sit with him during his duty hours. Thereupon; according to the witness, A.S.-I. Muhammad Siddique alighted from the vehicle and told to the guard Muhammad Siddique constable that previously he has also done so; which was not good on his. Part, on which the accused loudly spoke that 'not to abuse' who stepped back 10/12 paces and loaded his official gun and started firing. According to this witness accused Muhammad Siddique fired six shots which hit the said civilian person who fell down on the ground and a bullet also hit Muhammad Siddique, A.S.-I. (P.W.4) thereupon; A.S.-I. Muhammad Siddique went to the Police station on his vehicle and the accused along with the official gun proceeded towards the main R.C.D. Highway and in the meanwhile; Edhi Ambulance reached to the place of occurrence wherein the injured civilian was taken to the civil hospital. The witness deposed that afterwards he, on telephone from the S.P's. Office informed about the incident to the Police Headquarter. The witness further deposed that after occurrence, S.H.O. Police Station Uthal came to the place of occurrence who took into possession cap, Chadar, six empties, blood-stained earth and gravel vide separate memos.
Exh.P/2-A and Exh.P./2-B. He stated that empties were taken into possession vide inventory Exh.P/2- B. The witness identified articles in Court taken into possession vide abovementioned memos. The witness identified accused in Court who having resorted to firing.
' Siraj Ahmed, A.S.-I. (P.W.3) deposed that on 11-12-1996 Muhammad Siddique A.S.-I. Along with Ghulam Hussain constable was on 'gasht' duty on which date Ali Asghar Shah was killed and A.S.-1.
Muhammad Siddique was injured in the incident, S.H.O. Police Station Uthal deputed him and Sanaullah head moharar for the arrest of accused Muhammad Siddique, who was arrested by them in front of the house of Deputy Commissioner. According to the witness at the time of arrest the accused had the service rifle and a bandolier with him who was shifted to Police station and thereafter, he proceeded to the hospital in order to see the injured A.S.-I. Muhammad Siddique. He further deposed that S.H.O., took into possession, the official revolver of A.S.-I. Muhammad Siddique vide recovery memo prepared in the hospital on which he and Sanaullah head Moharar put their signatures and attesting witnesses. According to the witness the S.H.O. Also took into possession the blood-stained concrete and earth besides six empties were also secured from the place of occurrence. The witness stated that the clothes, cap and Chadar of the deceased were also taken into possession by the S.H.O., and recovery memos in respect of the abovementioned articles were prepared in his presence, which he. Produced in Court as Exh.P.2-A and Exh.P/2-B. He produced the parcel of the revolver as Article P.13 and identified revolver as Article P.14 and the bullets as articles P.16 to P.21 and the empty as Article P.23. He also produced the parcel of blood-stained clothes of the deceased and identified the articles thereto in Court. The parcel of the empties secured from the place of incident containing empties was also produced by this witness besides the parcel of the blood-stained concrete and earth was produced by this witness and identified the contents thereof.
' Muhammad Siddique son of Ghulam Muhammad A.S.-I. Police Station Uthal (P.W.4) is the ocular witness of the incident wherein he sustained bullet injury. According to him on 11-12-1996 at about 10-00 or 10-15 p.m. He along with Siraj A.S.-I. And Ghulam Hussain constable (P.W.1) was on 'Gasht' duty and checking of guards. He deposed that after leaving the Police Station they went to the bus stop where they took tea and on the meanwhile Head Constable Muhammad Ali (P.W.2) and Constable Abdul Sattar reached there and asked him to drop them at S.P.'s house. The witness stated that he took them along to the residence of S.P., Lasbella at Uthal and on his way A.S.-I. Siraj Ahmed was dropped and he reached to the destination where also the Head Constable Muhammad Ali and Constable Abdul Sattar got down. According to the witness at that time accused Muhammad Siddique was on guard duty at the residence of S.P., Lasbella and found a civilian person sitting with the accused, so he alighted from the vehicle and asked the accused that he was not supposed to allow any civilian to sit with him during the duty hours and the accused replied to him that since he is on duty, therefore, he is free to allow any person to sit with him, who further asked the witness that he is nobody to ask from him and thereupon he directed the guard in charge Muhammad Ali Head Constable to note such fact and to bring the same in the notice of S.P. Tomorrow; thus, the accused, according to the witness got annoyed who stepped back ten paces and in the meanwhile; the witness took the seat in his vehicle and was about to start the vehicle but the accused fired six shots, out of which one of the bullet fired by accused hit him on his leg and the other bullets crossed in front of his chest and right arm and he concealed himself under the dashboard of vehicle. The witness further stated that he also heard the voice of civilian sitting with the accused saying 'not to fire' addressing to the accused but thereafter, this voice turned feeble. According to P.W.4 who was in semi-conscious condition, asked Ayub constable to apprehend the accused. Further according to the witness the said constable pushed their vehicle which as such started and they went to the Police Station where he became unconscious. According to the witness he was shifted to the hospital at Uthal and from there to Karachi for further treatment.
' Describing about the motive of the occurrence he stated that on 31-10-1996 one Umer constable was chased by him, having a stolen motorcycle who made good his escape in the wild and such matter was reported by him to the S.H.O. Police Station Uthal, who suspended constable Umer but after about 20, days of the aforementioned incident, the accused along with Umer constable came to him and told that being a local person of the area he has, done no good and the accused threatened him that he will see to the witness. The witness stated that for such reason in order to take revenge, he was attacked upon by the accused. The witness further stated that prior to the incident Sardar Abdul Rasheed Jamot (P.W.12) alongwith his brother namely Akram met with the accused and asked him to refrain from extending threats to the witness but the accused did not pay any heed to such request and left the place. The witness stated that due to the intervention of the above said persons he did not report the matter to the S.P. And kept quiet but has been attacked.
' Dr. Muhammad Amin, Medical Officer District Headquarter Hospital Uthal (P.W.5) on 11-12-1996 at bout 11-30 p.m. Examined the injured Ali Asghar Shah who was in serious condition and A.S.-I.
Muhammad. Siddique who was brought to the hospital by the S.H.O., Police Station Uthal. The injured Muhammad Siddique A.S.-I. Was provided first aid by P.W.5 and was referred to the civil hospital, Karachi for treatment. After examination of the injured the Medical Officer issued M.L.Cs. In respect of Syed Ali Asghar Shah deceased and Muhammad Siddique respectively as Exh.P/5-A and Exh.P/5-B under his signatures. P.W.4 A.S.-I. Muhammad Siddique got treatment at Karachi from Dr. M.A. Qureshi in the Anklesaria Hospital who was examined by the prosecution as P.W.7. Dr. M.A.
Qureshi, Professor Dow Medical College, Karachi produced the M.L.C. Of the injured Muhammad Siddique besides treatment chart and other relevant documents pertaining to the treatment of the injured. The medical evidence brought on record by P.W.5 Dr. Muhammad Amin and Dr. M.A.
Qureshi has been dealt with hereinafter in the relevant part of this judgment.
' Hizbullah, Qanoongo, Tehsil Durreji (P.W.6) has produced sketch of the place of the occurrence as Exh.P/6-A, who deposed that he was called by the S.H.O. Police Station Uthal namely Abdul Hameed (P.W.14) and visited to the place of occurrence alongwith P.W.14 and on his pointation he prepared sketch of the place of occurrence.
' Abdul Sattar constable Police line Uthal (P.W.8) deposed that on 11-12-1996 he alongwith Muhammad Ali head constable had gone to the bus stop Uthal for taking tea and A.S.-I.
Muhammad Siddique also came there whereupon they both seated in the vehicle because A.S.-I.
Siddique was going on 'Gasht' and they wanted to be dropped on his way. According to the witness from the bus stop A.S.-I. Siddique proceeded to the quarter of Siraj A.S.-I. Who had taken a Chadar from there and thereafter, they reached to the bungalow of S.P. Where on civilian Shah Jee was found sitting with the accused on which A.S.-I. Siddique asked to the accused, as to why he had allowed the civilian to sit with him during guard duty, to which the accused replied that during his three hours duty he is responsible and he can allow any person to sit with him and further stated to A.S.-I. Muhammad Siddique that he is nobody to ask him about and then A.S.-I. Siddique directed to Muhammad Ali Head Constable to take note of such matter and to bring the same to the notice of S.P. Tomorrow and thereafter, hot words were exchanged between the accused and A.S.-I.
Muhammad Siddique whereupon, accused Muhammad Siddique constable stepped back and made a fire in the air and second fire was missed and on third shot fired by accused, he heard scream of said Shah Jee and he concealed himself in the guard room where he heard three more shots having been fired. According to the witness thereafter, the injured was taken to the hospital in Ambulance.
' Muhammad Ayub constable (P.W.9) stated that on 11-12-1996 he was performing guard duty at National Bank of Pakistan, Uthal Branch and suddenly he heard gun shot reports towards west, on which he asked the guard of bank to see as to who is firing and the bank guard came down and told to him that constable Muhammad Siddique is firing and he thereupon; reached near to the said guard of the bank. The witness stated that 3/4 shots were fired earlier and he had witnessed only two fires having been shot by the accused Muhammad Siddique constable. According to the witness one fire hit a glass and other to a vehicle but he did not see by himself that the bullet hit glass and vehicle. He further stated that he had heard constable Abdul Sattar saying that 'don't fire brother Siddique' and thereupon he asked constable Muhammad Siddique (accused) that on whom he is making fire, to which accused replied there is someone. The witness stated that thereafter, accused called him and told to him that All Shah has fallen down as injured and to shift him to the hospital and thus, the witness reached to the place of occurrence where he found Ali Shah lying on the ground screaming as 'Allah 0 Siddique, died'. According to the witness at such time, he saw A.S.-I. Siddique inside the vehicle in injured condition to whom he asked about the reason for the firing on which he directed him to apprehend accused Muhammad Siddique constable and no sooner he stepped ahead towards the accused he was asked by the accused not to go to him and in the meanwhile A.S.-I. Siddique asked him to push the vehicle and while he was pushing the same Muhammad Salim Operator came there on motorcycle (not examined) to whom the accused asked to shift the injured Ali Asghar Shah to the hospital and Muhammad Salim said that he would bring Edhi Ambulance, for which purpose Muhammad Salim left the place and A.S.-I. Muhammad Siddique in his vehicle left the place of occurrence and thereafter, accused called Muhammad Ali Head Constable and Abdul Sattar constable and stated that 'this person is dying here and you people are inside' on which Abdul Sattar constable stated that he would on telephone, convey the information to the Police station on the bungalow. Further, the witness stated that afterwards head constable hammed Ali directed. The accused to hand over the rifle to him but he refused d stated that he will not hand over the rifle to any one and in the meanwhile hi Ambulance reached to the site, from where the injured was shifted, while accused alongwith rifle also left the place of occurrence.
' Sanaullah, Head Constable (P.W.10) deposed that he was present in the Police station Uthal on 11- 12-1996 when at 11-30 p.m. F.I.R. Was registered on the report of constable Ghulam Hussain and A.S.- I. Muhammad Siddique reached to the Police Station in injured condition who was shifted to the hospital. He stated that the service revolver of A.S.-I. Muhammad Siddique lying in the vehicle alongwith six alive cartridges were taken into possession by the S.H.O. In his presence and that of A.S.-I. Siraj vide inventory signed by him and A.S.-I. Siraj. The witness stated that he and Siraj A.S.-I.
Were directed by the S.H.O., to arrest the accused and they apprehended the accused who was coming in front of the Deputy Commissioner's bungalow and brought to the Police station alongwith his service rifle and the bandolier containing 40 live cartridges, having four bullets in the magazine. According to the witness S.H.O., after having unloaded the rifle took into possession the same alongwith the cartridges vide inventory separately prepared, signed by him and A.S.-I. Siraj.
He further deposed that on the next date constable Muhammad Din produced the clothes of A.S.-I.
Muhammad Siddique and a sweater was produced to the S.H.O. Which contained bullet holes which were taken into possession by the S.H.O., sealed into parcels in their presence vide inventories . Produced by the witness. The witness identified the articles in Court taken into possession in his presence.
' Muhammad Din, Constable Police Station Uthal (P.W.11) deposed that on the night of the alleged incident he' was on his duty in the Police Station, Uthal from where he had accompanied to the S.H.O., who had taken the injured A.S.-I. Muhammad Siddique to Civil Hospital, Uthal and the Doctor at the hospital referred the injured to Karachi for treatment and he on the directions of S.H.O., accompanied the said injured to Agha Khan Hospital, Karachi and from there he brought the clothes of the injured A.S.-I. Siddique and handed over the same to S.H.O., Police Station Uthal who took into possession the clothes of the injured, sealed the same into parcel vide inventory signed by him which he produced as Exh.P/10-B. He identified the parcel and the articles in Court secured vide abovementioned memo.
' Abdul Rasheed (P.W.12) has disclosed about the strained relations between the deceased and A.S.-I. Muhammad Siddique (P.W.4). He states that once he was going to the office of Deputy Commissioner, Uthal and on his way he met with A.S.-I. Muhammad Siddique and the accused constable who both were standing near to the quarter of A.S.-I. Siddique and in order to shake hand and to inquire about the well-being of A.S.-I. Siddique, he went to him and in the meanwhile accused demanded from A.S.-I. Siddique to return to him hi motorcycle which has been taken into possession but A.S.-I. Siddique replied him that the same has been rightly taken into possession, as a consequent< whereof both of them had altercation and A.S.-I. Siddique pushed the constrain accused from his shoulder directing him to stop and not to talk any more. The witness further stated that he and his brother who was accompanying hirn separated both of them.
' Allah Bakhsh (P.W.13) deposed that on 11-12-1998 he was present in 1' the hospital where S.H.O., Police Station Uthal took into possession the dead body of Ali Asghar Shah and on the search of the dead body the 'Tasbih' and a license was recovered which were taken into possession by the S.H.O.
In his presence vide memo. Exh. P/13-A and Exh.P/13-B respectively. He produced the inventories and identified the articles in Court.
' Abdul Hameed S.-I. Police Station Gaddani (P. W,14) is the Investigating Officer of the case who was posted as the then S.H.O. Police Station Uthal. According to him on 11-12-1996 on the basis of Farde Bayan of constable Ghulam Hussain (P.W.1) he registered the Case Crime No,25 of 1996 under sections 302, 324 and 353, P.P.C. Against accused Muhammad Siddique constable and commenced with the investigation of the case, during which he prepared the sketch of the place of 'Wardat' prepared the parcels and the inventories hereinbefore mentioned. According to the witness A.S.-I. Siddique was referred to Karachi by the Doctor for treatment and that he took into possession the dead body of the deceased Ali Asghar Shah and prepared the inquest report and thereafter, handed over the dead body of the deceased to his relatives. He recorded the statements of P.Ws. Under section 161, Cr.P.C. And sent the parcels i,e,, blood-stained clothes of the deceased and the injured, crime empties, service rifle of accused, and the revolver of A.S.-I.
Muhammad Siddique to the F.S.L., Quetta for analysis and report. He produced Farde Bayan of the informant Ghulam Hussain constable as Exh.P/1-A, memo. Of blood-stained earth and concrete as Exh.P/2-A, memo. Of empties Exh.P/2-B, memo of service revolver Exh.P/3-A, memo. Of clothes of deceased Exh.P/3-B, sketch of the place of occurrence as Exh.P/6-A, memo of rifle as Exh.P/10-B and memo pertaining to the taking of dead body of the deceased into possession as Exh.P/13-A. He also produced the sketch of the place of occurrence without scale as Exh.P/14-A. Report of the Chemical Expert and that of Fire-arms Expert of F.S.L. Were also tendered by this witness in evidence as Exh.P/14-B and Exh.P/14-E respectively besides the carbon copy of F.I.R., produced by him as Exh.P/14-F. After completion of the investigation he submitted challah in the Court as Exli.P/14-B.
5. The learned counsel for the appellant Mr. Muhammad Riaz Ahmed, the A.S.-I. Muhammad Siddique in Criminal Revision No,34 of 1998 and Mr. Noor Muhammad Achakzai, the learned Additional Advocate-General have been heard at length. Mr. Muhammad Riaz Ahmed contended that:--
(a) The testimony of ocular witnesses are inconsistent, contradictory and self-conflicting especially that of injured Muhammad Siddique and the version of such witnesses are not capable to implicit reliance because of improbabilities.
(b) Dishonest investigation has been conducted into the alleged "crime in order to provide shelter to the real culprit (P.W.4) who in the circumstances of the case appears to have committed Qatl- e-Amd of deceased Syed Ali Asghar Shah, and; the medical evidence renders support to such plea, inasmuch as; the time of registration of F.I.R., has not been mentioned.
(c) The ocular evidence is in conflict with the medical evidence.
(d) Delayed statement of P.Ws. Ghulam Hussain, Muhammad Siddique and Ayub (P.W.9) recorded under section 161, Cr.P.C. Without any explanation offered by these P.Ws. Or the Investigating Officer, are liable to be kept out of consideration.
(e) Motive described in the F.I.R., and by P.Ws. Are inconsistent and not proved by the prosecution.
(f) The site plans of 'Wardat' are inconsistent rather contradictory to ocular account, as such, the accused is entitled to due benefit.
(g) Although the injured Ali Asghar Shah expired in the hospital but time of his death has not been mentioned nor post mortem was conducted without any reason.
(h) Report of the Fire-arms Expert has been tendered in evidence by the Investigating Officer (P.W.14) and because he is not the notified Fire Arms Expert by the Government, hence his report is not admissible in evidence, hence recovery of alleged crime empties is inconsequential.
(j) The delayed recoveries in absence of any plausible explanation cast serious doubt on prosecution case, which otherwise in highly doubtful. The learned counsel in support of his contentions placed reliance on the reported judgments i,e,, 1982 PCr.LJ 2489, 1992 SCM R 372, 1993 SCM R 550 and PLD 1996 Pesh.
843.
6. The learned Additional Advocate-General contended:---
(a) That ocular account of the P.Ws. Are consistent on almost all the material particulars of the prosecution case supported by medical evidence and the recovery of crime empties which matched with the service rifle of the accused.
(b) there is no evidence on record to suggest that P.W.4 used his service revolver, rather; the evidence of the prosecution reveals that the number of bullets issued to P.W.4 A.S.-I. Muhammad Siddique were intact at the time when soon after the occurrence, the same alongwith the revolver was taken into possession by the police, inasmuch as; the accused in his statement under section 340(2) did not disclose about the contention raised for the first time during arguments that the deceased was fired at by P.W.4 which caused his death, and; even such plea was not suggested to any of ocular witnesses or to P.W.14 (Investigating Officer).
(c) the version of the incident given by P.W.4 is corroborated by the other ocular witnesses and the other circumstantial evidence. The immediate cause for the commission of the offence by the accused remains consistent and reliable, which in the circumstances of the case cannot be doubted. He opposed the position seeking for enhancement of sentence.
7. Mr. M. Salahuddin Mengal, the learned ,counsel for injured Muhammad Saddique contended that the testimony of ocular witnesses arc consistent, free from material contradictions and inherent doubt and in all probabilities reliance can safely he placed on the evidence of ocular' witnesses, which get due corroboration from the medical evidence and the other circumstantial evidence available on record. According to the learned counsel the nature of injuries sustained by P.W.4 and the deceased primarily depends upon the velocity, nature of the projectile of the fire arm used in the commission of the offence and the distance from which it has been fired and thus, simply the nature of injuries alone would not be sufficient to determine about the fire-arm used in the commission of offence,. And; merely the use of word 'Rifle' in the M.L.C. Would not adversely affect the prosecution case. He further contended that the case may be remanded to the Trial Court to examine the fire-arms expert in the interest of justice, to meet with the objection. According to the learned counsel charge against accused has been established beyond doubt, as such, he is liable to be punished appropriately by enhancing the sentence of imprisonment recorded under section 324, P.P.C.
8. We, have considered the contentions put forth on behalf of the parties counsel and the Additional Advocate-General in the light of the record of the case and the impugned judgment, which have been gone through carefully, including the case-law cited by the appellant's counsel.
' The case of the prosecution as disclosed in the F.1.R., (Exh.P/14-F) registered initially under section 324/353, P.P.C., on the written report (Exh . P/ 1-A) of Ghulam Husain constable (P. W 1) submitted to the S.H.O. Police Station Uthal on 11-12-1996 is to the effect that on the said date at about 10-15 p.m.
He along with A.S.-I. Muhammad Siddique (P.W.4) proceeded on asht' and for checking of guards at duty, and; A.S.-I. Siraj Ahmed also oared in the said vehicle. According to the informant Hawaldar Muhammad li and sepoy Abdul Sattar from Uthal bazar also took seat in the vehicle, as hammed Ali happened' to he the guard in charge. It is further the case of the prosecution that on their way A.S.-I. Siraj Ahmed alighted from, the vehicle and fetched a 'Chadar' from his house situated near petrol pump and gave it to A.S.-1. Muhammad Siddique and himself went back, where after; they came to the bungalow of S.P. Where guard in charge got down from the vehicle and at that time Santri Muhammad Saddique (accused) found to be on duty equipped with service rifle, with whom suspected person namely Ali Asghar Shah was also found sitting, and; A.S,-I. Muhammad Siddique inquired from guard Muhammad Siddique that as to why he in the mid of night allowed a civilian to sit with him, to which the accused felt badly who stated that he was on duty for three hours so he can do whatever he likes and that nobody can check him, whereupon; according to the informant P.W.44, addressing to guard in charge Muhammad Ali stated to take note of such fact and that he would complain to S.P., and; thereupon the accused walked about 10-12 paces, loaded his rifle and fired a shot in the air, and fired second shot on A.S.-1. Muhammad Siddique which did not hit him and the informant threw himself on the bush. The third shot fired on A.S.-I. Muhammad Siddique, hit Ali Asghar Shah who fell on the ground and the fourth bullet hit A.S.-I. Muhammad Siddique and thereupon; accused ran towards R.C.D. Road by making Ariel firingConsequent upon death of the deceased section 302, P.P.C., inserted in the Case Crime No,25 of 1996.
9. The case of the prosecution consists of following pieces of evidence:---
(i) Medical evidence.
(ii) Ocular testimony of Ghulam Hussain (P.W.1), Muhammad Ali H.C. (P.W.2), A.S.-I. Muhammad Siddique (P.W.4), Abdul Sattar constable (P.W.8) and Muhammad Ayub, Constable (P.W.9).
(iii) Motive/cause of incident disclosed by Ghulam Hussain (P.W.1), Muhammad Ali (P.W.2), Muhammad Saddique (P.W.4), Abdul Sattar (P.W.8), Muhammad Syub (P.W.9) and Abdul Rasheed (P.W.12).
(iv) Circumstantial evidence i,e,, Recovery of crime weapon, empties etc., and fire-arms expert report.
10. Preferably it would be convenient and appropriate to deal with the medical evidence at the first instance. Dr. Muhammad Amin (P.W.5) Medical Officer District Headquarter Hospital on 11-12-1996 at or about 11-30 p.m. Examined the injured Ali Asghar Shah (who thereafter, expired) and Muhammad Siddique A.S.-I. According to the Medical Officer on the aforementioned date at or about 11-30 p.m. S.H.O./Police Station Uthal brought the injureds namely Muhammad Siddique and Ali Asghar Shah to the hospital 'or treatment who were attended by him and on examination he noted the injuries on the person o1 Ali Asghar Shah and issued M.L.C. Exh.P/5-A relevant part whereof reproduced herein below:---
(1) One wound on the right iliac fossa, hole of bullet due to gun shot, the bullet entrance from the R.I.
Fossa medially in the umbilical region cross the abdominal cavity, penetrated the lower segment of the intestine and got out from the left iliac fossa, the hole from entrance 1-1/2" x 1", and from out about 1/2" x 1/2". The patient was restless, not able to oriented time and place due to severe internal bleeding.
' Duration Fresh.
' Nature Grievous.
'Weapon used - Rifle.
' Result: Patient is expired probably due to hemorrhage tragic shock and severe internal abdominal bleeding.
' Cause of death: Severe hemorrhage.
' Medical Officer (P.W.5) in his deposition before the Court confirmed the fact that he examined the injureds Ali Asghar Shah and Muhammad Siddique on the date and time .Abovementioned and issued M.L.Cs. Respectively as Exh.P/5-A and Exh.P/5-B. According to P.W.5 Muhammad Siddique received gun shot wound having entrance froing the right iliac crest vertically and crossed the muscle straight with exist from the gluteus muscle 1-1/2" x 8-1/2" in diameter. The injured was also found bleeding of his right eye due to broken glasses, who was also noticed to be conscious and well oriented of time and place. According to Dr. Muhammad Amin the above-noted injuries were fresh and simple and the kind of weapon used was rifle, who after providing first aid was referred to Civil Hospital Karachi for treatment. The contents of M.L.C. Exh.P/5-B are given below:-- ' Injuries: In case of gunshot bullet is enter from the Rt: superior iliac crest, vertically and cross the muscle straight open and got out from the gluteal Maximus muscle, 1-1/2" x 8-1/2".
(ii) Bleeding from the Rt eye due to broken glass. Patient was conscious well oriented time and place.
' Duration Fresh.
' Nature Simple.
' Weapon used Rifle.
' Result: First aid given. Pat: referred to Civil Hospital, Karachi for management.
' It may be noted that prosecution also examined Dr. M.A. Qureshi (professor of surgery Dow Medical College Karachi and Ankle-saria (Pvt.) Hospital Karachi) as P.W.7. According to the witness Muhammad Siddique son of Ghulam Muhammad was brought to O.P.D. Of Ankle-Saria Hospital, Karachi, he attended the patient and found him in shock who was resuscitated because of excessive loss of blood. The wound was found to 20 c.m. In diameter long and 12 c.m. Deep of fat muscles and blood vessels. The lacerated injury to sciatic nerve was noticed as paralyzing his right lower limb. The injured was operated on the same day by P.W.7 and by adopting the operative procedure his wound was debrided neurotic skin, fat and muscles were excised, sciatic nerve and vessels repaired and; trans positional mycotanens flap was done by plastic surgery method in order to close the excessive wound. Thereafter, P.W.7 issued the M.L.C. Under his signature produced by him as Exh.P/7-A. He also observed a corneal abrasion on right eye of the injured.
' Relevant part of Exh.P/7-A is reproduced here under for convenience:--- "Professor M.A. Qureshi consultant Orthopedic Surgeon Karachi, dated 15-12-1996.
A.S.-I. Muhammad Siddique son of Ghulam Muhammad. The above named patient was brought to us in a critical condition in the morning of Thursday, the 13th December, 1996. ' ' He is admitted in Anklesaria Nursing Home in Room No,384.
' He was in shock, gasping and having low blood pressure. Initially we resuscitated him. He was operated upon by us in the afternoon of the very day. Operative findings of grevious injuries are given below:-- ' Right eye corneal abrasion. Right gulteal Area: ' High velocity missile injury blowing of 20 c.Ms. Diameter long and 12 c.Ms. Deep area of fat muscles and blood vessels.
' Laceration injury to sciatic nerve which was paralyzing his right lower limb. He is still in hospital."
' According to P.W.5 Dr. Muhammad Amin of ,District Headquarter Hospital, injured Ali Asher Shah and A.S.-I. Muhammad Siddique were brought to the hospital on 11-12-1996 at about 11-30 p.m. And he attended to both of them; out of whom Ali Asghar Shah was found to be in precarious condition, who had sustained bullet injury with its entrance on right iliac fossa, which crossed abdominal cavity medially in the umbilical region, penetrated the lower segment of intestine having exist wound on the left iliac fossa about 1-1/2" x 1" and 1/2" x 1/2" in diameter. The injuries were fresh and grievous caused by Rifle. The cause of death has been described due to' hemorrhage shock and profuse intra-abdominal bleeding. The injured Was not subjected to post-mortem because according to P.W.5 (as disclosed in the cross-examination part of his statement) application was submitted by the relatives of the deceased. It has been proved through medical evidence that the deceased suffered gun shot injury on the vital part of his body which in the ordinary cause of nature was sufficient to cause death. The gun shot injury sustained by the deceased has not been disputed by the defence during trial nor any other cause of death has been suggested. In view of medical evidence it has been established that the deceased expired on account of the fire-arm injury sustained by him. P.W. 5 Dr. Muhammad Amin on the same date and almost at the same time examined A.S.-I. Muhammad Siddique and noted one gunshot injury having entrance on the right superior iliac crest vertically and crossed the muscle straight open having its exist from the gluteal Maximus muscle, 1-1/2" x 8-1/2". The defence has not challenged that Muhammad Siddique did not suffer fire-arm wound. The impeached testimony of P.W.5 establishes the fact that A.S.-I.
Siddique received gun shot wound. According to the medical evidence the injury was fresh and grievous in nature. According to Dr. M.A. Qureshi consultant Orthopedic Surgeon, Karachi; A.S.-I.
Muhammad Siddique was brought to OPD of Anldesaria Hospital, Karachi in critical condition who was gasping, in shock with low blood pressure and was initially resuscitated. As per Exh.P/7-A tendered in evidence by P.W.7 the patient had a high velocity missile wound, blowing 20 c.m.
Diameter long and 12 c.m. Deep area of fat muscles and blood vessels on his right gluteal area with a laceration to sciatic nerve which was paralyzing his right lower limb. The injured was referred to Karachi for further treatment by P.W.5, who examined the injured and provided only first aid, .And; thereafter, the injured got treatment from an expert surgeon at Karachi. The evidence of P.W.7 further abundantly proves the factum that A.S.-I. Muhammad Siddique received high velocity missile injury i,e,, caused by some rifle bullet and the nature of injury coupled with the naked eye examination by an expert leays no room to doubt that the victim did sustain high velocity bullet injury, and; the defence neither challenged nor could discredit the medical evidence.
11. It may be noted that constable Ghulam Hussain (P.W.1), Head , Constable Muhammad Ali (P.W.2)
A.S.-I. Muhammad Siddique (P.W.4), constable Abdul Sattar (P.W.8) and Muhammad Ayub constable (P.W.9) are the cited ocular witnesses of the incident, whereas; A.S.-I. Muhammad Siddique is the victim of the alleged murderous assault, who suffered fire arm injury discussed hereinabove. According to P.W.1 on 11-12-1996 he alongwith A.S.-I. Muhammad Siddique (P.W.4) left the Police station and reached to bazar Uthal om where, Muhammad Ali H.C., Abdul Sattar constable and A.S.-1. Siraj oarded in the vehicle and on their way Siraj was dropped near to his 'house, who gave his 'Chadar' to A.S.-I. Siddique and; thereafter, at about 10:15 p.m. They reached to the bungalow of S.P. Uthal where A.S.-I. Muhammad Siddique inquired from the accused on guard duty at the S.P.'s house, as to why he permitted a civilian to sit with him during guard duty hours, to which the accused replied that the said person is his guest and that he will take along his guest on the end of his duty at 12-00 mid-night, and; further the accused gated that he being on duty can allow any person to sit with him, whereupon; A.S.-I. Muhammad Siddique asked Muhammad Ali, H.C. To note the said fact and to bring the same into the notice of S.P. Tomorrow; which =toyed the accused who stepped back about ten paces, loaded his service rifle and fired a shot in the air, the second fire made on A.S.-I. Muhammad Siddique, on third fire the witness jumped and conceded himself behind the tree, however; on the 3rd fire he heard voice of civilian, whereafter, he heard three more gun shot reports, and; further this witness deposed that he heard that A.S.-I.
Muhammad Siddique went to the Police station in the vehicle after pushing the same and on the R.C.D. Road, he saw the civilian being removed to hospital in Edhi ambulance. Perusal of the statement of P.W.1 reveals that he himself did not see either of the civilian namely Ali Asghar Shah or the A.S.-I. Muhammad Siddique having shot injured or in injured condition except that he stated that accused fired 2nd shot on A.S.-I. Muhammad Siddique and on third fire he heard the voice of civilian (deceased Ali Asghar Shah). The informant (P.W.1) in the cross-examination part of the statement deposed that after reporting about the incident he went to his house and in the morning he was called on to the Police Station for registration of the case, such version of the witness leads us to believe that the F.I.R. Was registered on 12-12-1996 some A after 4-00 a.m. But dishonestly theF.I.R. Is shown to have been registered on 11-12-1996. Even the time of registration of the F.I.R., has not been incorporated although; it was obligatory on the part of the Police Officer to have had mentioned the time of the registration of the F.I.R. And that as to at what time the report of the incident was made. According to the informant and P.W.2 Muhammad Ali H.C. (guard incharge) after firing the accused left towards R.C.D. Road, thus, in this view of the matter when the accused left the place of occurrence and the informant who had hidden himself behind the tree, in the ordinary course when his immediate superior officer was made subject to murderous assault; he at least should have come to the scene to see and help the victims of the alleged offence. Such a conduct on the part of the informant who claims himself to be the eye-witness of the incident creates doubt about his presence on the place of occurrence despite of the fact that the other cited eyewitnesses have spoken about the presence of the informant on spot. The witness in the cross-examination admitted that he is an uneducated person, and the report. Exh.P/1-A was reduced into writing by Abdul Hameed S.-I./S.H.O. Police Station Uthal .(P. W.14). The version of the incident as given in the report in substance is different to what has been deposed in Court by P.W.1.
In the report it has been alleged that the 3rd shot fired by accused on A.S.-I. Muhamma Siddique hit the civilian Ali Asghar Shah who fell down and the fourt bullet hit A.S.-I. Muhammad Siddique but contrary to such version, the informant in his deposition before the Trial Court did not state so; rather disclosed that the second shot was fired on A.S.-I. Muhammad Siddique and on third fire he concealed himself behind the tree and heard the voice of the civilian. In the report the name of the civilian 41as been given but in his deposition, the informant did not mention the name of the civilian. The version of P.W.1 as contained in the report Exh.P/1-A and his deposition about the incident is substantially conflicting, and; his deposition about the incident before the Court indicates that he has made substantial improvement in such behalf.
12. Muhammad Ali Head Constable, the guard in charge of S.P's. Bungalow who stately accompanied A.S.-I. Muhammad Siddique in his vehicle along with the informant to the S.P's. House also contradict the informant (P.W.1) with regard to the exchange of dialogue between the accused and A.S.-I. Muhammad Siddique, the witness added that ultimately the accused shouted on A.S.-I.
Muhammad Siddique not to abuse and thereupon; the accused moved back 10/12 steps, loaded his service gun and fired six shots which hit the civilian who fell down on the ground and bullet also but A.S.-I. Muhammad Siddique. The version of the incident narrated by P.W.2 is directly in conflict with the one given by the informant. It may be seen that according to P.W.2 six bullets fired hit the deceased but as per medical evidence, the deceased received only one bullet, which means that the accused besides an ariel firing had fired seven shots, out of which six hit the deceased and one received by the A.S.-I. Muhammad Siddique. P.W. 2 has also deposed that after the occurrence S.H.O./Police Station Uthal came to the place of occurrence and secured six empties besides blood-stained earth and gravel vide separate inventories in his presence. Such memos are, dated 12-12-1996 and from the evidence of P.W.2 it appears that after the occurrence some time after 12: hours mid-night the S.H.O. Visited to the place of incident and for such reason the memos bear the date as 12-12-1996. On the close scrutiny of evidence of P.W.1 and P.W.2 one can prudently see the presence of P.W.1 and P.W.2 as doubtful on the place of incident. The testimony of these witnesses not only are inconsistent, rather contradictory and unreliable. It appears that since their officer in the incident received bullet injury, therefore, in order to strengthen the prosecution case they have been cited as ocular witnesses of the incident. The given version of these eye-witnesses seems to be hardly convincing and not free from inherent doubts.
13. Muhammad Siddique A.S.-I. Is the principal witness of the occurrence who sustained gunshot injury, according to him on 11-12-1996 at about 10-30 p.m. He along with A.S.-I. Siraj and Ghulam Hussain constable (Informant) was on 'Gasht' and checking of the guards on duty and they from the Police station proceeded to the bus stop where they took tea and in the meanwhile Muhammad Ali, H.C. (P.W.2) and Constable Abdul Sattar (P.W.8) reached there, who requested him to drop them at the bungalow of S.P. According to the witness, he on his way dropped A.S.-I. Siraj and thereafter, reached to the residence of S.P. Where the abovementioned Police personnel's were deployed for guard duty besides the accused. P.W.4 noted that the accused being on guard duty has allowed a civilian with him, so he got down from his vehicle and inquired from the accused as to why he had permitted an outsider to sit with him; to which the! Accused stated that since he is on duty, therefore, it is his outlook to allow any person to sit with him, whereupon; the witness asked the guard in charge (P.W.2) to note such a fact and to bring the same into notice of the S.P.
Tomorrow; which annoyed the accused who moved back about ten paces, loaded his rifle and in the meanwhile P.W.4 (A.S.-I. Mohammad Siddique) occupied his vehicle when the accused fired six shots and one bullet hit on his leg whereas; the other bullets crossed in front of his chest and the arm, and; did not hit him because he had concealed himself under the dash board of the vehicle, and; P.W,4 also heard the voice of the civilian quoted as saying 'don't fire' and such voice turned low, and the witness in the meanwhile became semi-conscious, who asked constable Ayub to apprehend the accused. The witness further deposed that the constable pushed his vehicle which started and he drove to the Police Station, where he became unconscious and was removed to the hospital. Presence of P.W.4 at the place of incident cannot be doubted because such version of the prosecution case could not be discredited nor even challenged by the defiance. The injured from the place of incident went straight to the Police station and from there he was removed to the hospital and was attended by Dr. Muhammad Amin (P.W.5). The nature of wound sustained by P.W.4 as per M.L.Cs. Exh.P/5-B and Exh.P/7-A, proved respectively by Dr. Muhammad Amin and Orthopaedic Surgeon Professor M.A. Qureshi establishes the fact that A.S.-I. Muhammad Siddique received high velocity missile injury, and thus, it can be safely concluded that P.W.5 suffered bullet injury on his right gluteal area. P.W.4 has given altogether a different version of the actual incident, as according to the victim no sooner, the accused moved a few steps back where he was standing already, he occupied his vehicle and was about to put the ignition switch on; when the accused fired six shots, one bullet hit him and the other bullets did not hit him because he had concealed himself under the dash board of the vehicle. It is astonishing to note that none of the bullet struck on any part of the body of the vehicle, and; if the manner of the incident as given by P.W.4.Is admitted to be correct, the other bullets fired by accused necessarily would have ad hit the vehicle because according to P.W.4 such bullets had crossed near to is body. P.W.4 has also not seen the accused firing upon the deceased. It is pertinent to note that as per case of the prosecution the deceased was the guest of the accused who was sitting with him, thus; in absence of any other evidence available on record, in the given facts and circumstances of the case there was no probability on the part of the accused to have fired upon his guest. There is nothing on record to suggest that the deceased and the injured were present at the eventful time nearby as a result whereof the bullet fired on A.S.-I., hit the'' deceased.
14. Medical evidence also negates the prosecution story that the bullet fired , by the accused from his gun hit the deceased, because of the size and nature of injury mentioned in Exh.P/5-A, which ex-facie reveals that such an injury hardly can be result of high velocity bullet' fire i,e,, such as the service rifle of the accused having 7.62 bore whereas; the injury sustained by A.S.-I. Muhammad Siddique as per M.L.Cs.. Suggest that it was the result of high caliber bullet shot. The heavy and extensive wound suffered by P.W.4 is suggestive of the fact that it was caused by some high velocity gun but no such indication emerges from the nature and size of injury sustained by the deceased: thus, it can be safely concluded that the injury as per M.L.C. Sustained by the deceased was not caused by any high velocity bullet. Although the M.L.C. Exh.P/5-A in respect of the deceased indicates that he suffered 'Rifle' wound but such an opinion is not supported from the size of injury and as compared to that suffered by A.S.-I. Muhammad Siddique. Comparative study of the M.L.Cs. Exh.P/5-A, Exh.P/5-B and Exh.P/7-A keeping in view the size and the nature of injuries, indicate that one and the same fire-arm, was not used in causing the injuries rather different kinds of weapon have been used. Required findings have not been recorded in the M.L.Cs. i,e,, Exhs.P/5-A and P/5-B which could have rendered much assistance in determining the kind of weapon used in causing the injury noted in the medico-legal certificates.
15. Adverting to the testimony of P.W.4 A.S.-I. Muhammad Siddique referred to above, it may be noted that he asked P.W. Ayub to apprehend the accused, such a version of the injured indicates that neither Ghulam Hussain (P.W.1) nor Muhammad Ali (P.W.2) who stated to have accompanied the injured to the place of occurrence was asked to apprehend the accused for the reason that, to us; their presence was doubtful on the spot; otherwise, in all probability in the given facts of the case, either of them would have been asked to apprehend the accused, or to help the injured moreover; none of these P.Ws. Accompanied A.S.-I. Muhammad Siddique (injured) after the incident, which fact further creates doubt about the presence of P.W.1 and P.W.2 on the spot.
16. A.S.-1. Muhammad Siddique stated that as he reached to the Police station, he lost his senses and according to S.H.O. The injured A.S.-I. Was removed to the hospital, whereas; Dr. Muhammad Amin stated that P.W.4 A.S.-I. Muhammad Siddique was conscious and well oriented to place and time but his statement in the hospital was not recorded and thereafter, he was shifted to Karachi for treatment. The injured was taken to the Anklesaria Hospital on 13-11-1996 where he was attended and remained under treatment of Dr. M.A. Qureshi. P.W.4 has not stated that as to when he was discharged from the hospital and who however; admitted that his statement was recorded on or about 27-12-1996 whereas; according to the Investigating Officer (P.W.14) statement of the injured was recorded on 27-12-1996 by him but he nor the injured has offered any explanation for such delay in recording the statement. On the direction of the learned Trial Court Dr. M.A. Qureshi placed on record, the treatment chart and other relevant documents pertaining to the injured A.S.- I. Muhammad Siddique. Perusal of these documents reveal that uptill 18-12-1996 he remained under treatment in the said hospital. It is evident from the medical evidence that after providing first aid, he was immediately referred to Karachi for treatment by the doctor because of the severe gunshot injury received by P.W.4 on his right gluteal area which must have been bleeding profusely, therefore, in view of the gravity of the injury P.W.4 may not be in a position to or not justified to record his statement and to deprive him from the immediate medical treatment. According to P.W.11 Muhammad Din constable; from the hospital at Uthal, he took the injured to Agha Khan Hospital Karachi and such version of the witness has not been challenged by the defiance. It appears that from there, he was taken to Anklesaria Hospital where he remained under treatment up till 18-12-1996. P.W.14(I.0.) did not go to Karachi for recording the statement of P.W.4 nor he disclosed as to when he returned to Uthal. There is a considerable delay in recording the statement of P.W.4 under section 161, Cr. P.0 .
' Ordinarily delay which goes unexplained in recording the statement of a witness under section 161, Cr.P.C. Is excluded from consideration, as has been held by the Honorable Supreme Court of Pakistan in the case of Syed Saeed Muhammad Shah and another v. The State reported in 1993- SCMR 550 but in the instant case P.W.4 is not the witness of the incident simplicitor, rather, he sustained bullet injury, and; as above held that his presence on the spot cannot be denied, therefore, despite delay in recording his statement, his deposition would not in the circumstances of the case be liable to exclusive, rather, the same has to be scrutinized with great care and caution keeping in view the entire facts and circumstances of the case, in order to come to a just conclusion and to find out the truth.
' P.W.4 A.S.-I. Muhammad Siddique has not deposed that the deceased was fired upon by the accused nor has alleged that the bullets fired by accused hit the deceased, who simply stated that the accused fired about six shots, one hit him on his leg and the other bullets crossed near to his body and he also heard the voice of the civilian (deceased). The narration of the incident by P.W.4 unequivocally suggest that the accused fired only six stlots, out of which only one bullet hit the A.S.- I. Muhammad Siddique who did not fire on the deceased. P.W.14 (I.0.) has admitted that no bullet was noticed to have hit on the vehicle, whereas; according to P.W.4 he was fired upon while he occupied the vehicle and wanted to leave from the place of incident. P.W.14 secured only six empties of 7.62 calibre. In the site plans Exh.P/6-A (prepared by P.W.6 on the pointation of P.W.14) and Exh.P/14-A prepared by the investigating Officer, the place from where the empties were secured on the next day at 9:30 a.m. Hag not been shown. Exh.P/6-A reveals that in the same line on the RCD Road the vehicle in question was parked wherein, according to P.W.4 he was sitting at the time of firing, and the lead body of the deceased has been shown as was lying at the relevant time on a very close distance from the vehicle whereas; in the same line towards south of the dead body at a distance of sixty feet, the accused resorted to firing. In the given site situation as per Exh.P/6-A and Exh.P/14-A, P.W.4 in all probability must have seen or noticed that one of the bullets fired by accused hit the deceased, more particularly, for the reason that he noticed that one bullet hit him, while the other out of the six fired by accused crossed near to his body, and; for such reason it appears that the deceased was not standing in between the accused and P.W.4, otherwise nothing prcluded him to say so. Exh.P/14-A (site plan) shows that P.W.4 A.S.-I.
Muhammad Siddique was standing near to his vehicle whereas; according to P.W.4 firing was resorted to by the accused when he boarded into the vehicle. P.W.9 Muhammad Ayub constable deposed that he noticed only two shots fired by accused out of which one hit the glass and the other hit on a vehicle but P.W.14 denied that the vehicle contained any bullet mark. This witness has not seen the deceased or P.W.4 having been shot by the accused and according to him before reaching to the place of incident three/four shots were fired earlier; and he was told by the Bank guard on inquiry that accused was firing. It appears from the evidence of Muhammad Ayub that he reached to the place of occurrence after the incident. It may be noted that the statement of P.W.9 Muhammad Ayub Constable was recorded after about 4/5 days of the incident and no explanation for such delay has been offered by this witness or P.W.14 (I.0.) as such, his evidence is liable to be excluded from consideration. In the incident one civilian Ali Asghar Shah guest of accused and P.W.4 A.S.-I. Muhammad Siddique sustained bullet injuries but P.W.9 despite being a police-man, whose officer was subjected to murderous assault did not bother to accompany at least to his injured officer nor cared to give statement about the incident till four/five days elapsed.
Such conduct on the part of the witness created doubt about his presence on the spot.
17. Abdul Sattar constable (P.W.8) is also the cited ocular witness of the incident and according to him on the date of incident he, along with A.S.-I. Muhammad Siddique (P.W.4) Ghulam Hussain (P.W.1) and Muhammad Ali (P.W.2) reached to the bungalow of S.P. On the date of incident in the vehicle, where exchange of hot words took place between the accused and P.W.4 because the accused was found as having allowed a civilian to sit with him during guard duty hours at S.P's. Residence and ultimately accused stopped back and fired shot in the air, second fire missed and on the third shot fired by accused, heard the scream of civilian Shahji and then he heard three more fire reports. The witness admitted that he did not see the deceased having been hit with the bullet because he was inside the guard room. This witness did not depose in examination-in-chief as to how the A.S.-I. Muhammad Siddique sustained gun hot wound but on cross-examination he disclosed the third fire made by accused, P.W.4 Muhammad Siddique was shot but when confronted to his statement recorded under section 161, Cr.P.C. It has been noted that he did not state so. The witness has also not disclosed about the 'Hot-words' exchanged between the accused and P.W.4 nor has stated as to whether the A.S.-I. Muhammad Siddique was inside the vehicle when the incident occurred. From the close scrutiny of the evidence of P.W.8 it transpires that he either was not present on the spot or attracted to the place of occurrence after incident, as such, his evidence too is of no help to the prosecution.
18. The foregoing discussion and re-appraisal of the evidence of ocular witnesses of the incident, leads us to believe that except the presence of the deceased, accused and the A.S.-I. Muhammad Siddique; the presence of the other ocular witnesses on the place of incident at the time of occurrence becomes doubtful. Such ocular witnesses are Police personnels of lower grade as compared to the injured A.S.-I. Therefore, in the given circumstances of the case in all probabilities emerging from their depositions, they have been planted as the ocular witnesses of the incident.
Thus, now it fs to be seen as to whether in the light of the testimony of P. W.4 coupled with the other circumstances of the case, charge against accused has been established or otherwise. The evidence of P.W.4 has been dilated upon hereinbefore. The place of incident where the deceased and P.W.4 received bullet injury respectively discussed above has not been disputed. The empties and the blood-stained earth has also been secured from such site, which has not been challenged or could be discredited by the defence and soon after the occurance, P.W.4 reached to the Police station in the vehicle, who was taken to the hospital by S.H.O./10 (P.W.14) and the accused some time, thereafter, on the same road was arrested in front of the DC's residence by P.W.3 Sicaj Ahmed A.S.-l. And P.W.10 Sana-ullah constable, who were deptited by P.W.14 to arrest the accused. The accused in his statement on oath has denied that he was on guard duty at the residence of S.P. At the relevant time, rather stated that he performed such duty from 3-00 p.m. To 6:00 p.m. And on the next day same were his duty hours. It may be noted that the accused did not deny that he was not on guard duty at S.P's. Residence and what has been denied is the duty hours. In order to come to a just conclusion it is obligatory to find out truth by sifting grain from chaff. It is pertinent to note that to almost all the P. Ws. Suggestion has been given by the defence that the deceased was shot by A.S.-I. Muhammad Siddique (P.W.4). Such a suggestion on the part of the defence in the circumstances of the case does not appear to be without any significance because as above observed the entrance and exit size of the injury received by P.W.4 and by the deceased as per medical evidence carries hardly any resemblance, meaning thereby that both i,e,, the deceased and P.W .4 appear to have not suffered wound by means of the same fire arm. P.W.5 Dr. Muhammad Amin no doubt has opined that the deceased suffered 'Rifle' bullet and in the cross- examination part of his statement disclosed that it was so mentioned because of the history of the case given to him. It may be seen that according to P.W.5 Ali Asghar was in precarious condition when brought to t hospital who expired some time thereafter, due to the injury whereas; P.W. A.S.-I., Muhammad Siddique according to the medical officer was fully conscious and well-oriented to place and time, who himself drove to the Police station from the place of occurrence, thus, it can be safely inferred that the history of gun shot fires must have been given to the doctor (P.W.5), by A.S.-I. Muhammad Siddique and he opined accordingly.
19. In view of the facts and circumstances of the case discussed above, inference can be drawn that P.W.4 and the accused (who suggested to the P.Ws. That deceased was fired upon by A.S.-I.
Muhammad Siddique) suppressed the true facts and the manner in which the incident actually, accrued. There remains no doubt to conclude that the accused was on duty at the bungalow of S.P. At the time of incident, as also for the reason that on the same night after the incident on the R.C.D. Road the accused was apprehended by the Police with the service gun, taken into possession vide inventory Exh.P/I0-A having four rounds in the magazine and forty rounds contained in the bandolier. The recovery of the service rifle and the rounds in a strong circumstance besides the evidence of P.W.3 and P.W.4, to prove the fact that the accused was on duty at the time of incident, and otherwise he would not have been in the possession of service rifle, after his duty hours. The accused himself deposed that on joining duty he used to collect the service gun and used to return after his duty hours as guard. The evidence of P.W.4 independently established that on the date of incident when he reached to the residence of S.P., he found the accused on duty with a civilian (deceased) sitting with him, which was objected to by P.W.4 but the accused stated that he being on duty can allow any person to sit with him and that P.W.4 is no body to ask him about and such cause as we understand eventually resulted into the incident. In such view of the matter there was no reason for the accused to have had shot his guest/companion sitting with him, for whom he had even harshly talked to his officer (P.W.4)..A.S.-I.
Muhammad Siddique even has not alleged that the shot fired on him hit the deceased and the true facts of incident are not disclosed by the prosecution and F even the accused suppressed the same. It looks that on account of exchange of hitter dialogue between P.W.4 and accused, keeping in view the medical evidence in respect of the injury sustained by deceased, coupled with the circumstances of the case it can be inferred that P.W.4 A.S.-I. Muhammad Siddique either fired upon the deceased directly or mistakenly fire made by P.W.4 hit the deceased, as a result whereof, the accused fired on A.S.-I. Muhammad Siddique which hit him.
20. Exh.P/3-A indicates that the service revolver of P.W.4 was also taken into possession by P.W.14 in presence of P.W.3 and P.W.10 along with six bullets as 'case property'. No evidence has been produced by the prosecution to establish that only six rounds along with the revolver were issued to P.W.4 which along with the revolver were taken into possession. In view of the prosecution story there must be a reason with the Investigating Officer (P.W.14) to have had taken into possession the service revolver of P.W.4 A.S.-I. Muhammad Siddique, and; such act on the part of P.W.14 indicates that he had in mind that the same might have been used in the commission of offence. The revolver and rifle taken into possession along with the rounds were sent to Fire Arms Expert whose report Exh.P/14-E tendered in evidence by P.W.14. According to this report as there was no residue gun powder found in the barrel of the revolver therefore, no definite opinion can be offered as to when the same was used lastly, whereas; in respect of the rifle it has been opined that the crime empties matched with the test empties, as such, it was concluded that the crime empties had been fired from the rifle. It is astonishing to note that the expert did not give any finding of residue gun powder having been found in the barrel of the rifle or otherwise, apart from the residue gun powder which may not be found in the barrel of the gun/revolver, the other prescribed methods have not been adopted or carried out to determine as to whether the same was used or not.
Non adopting of the prescribed course for the purpose renders such report as inconsequential.
Admittedly, the Fire Arms Expert of the Crimes Branch Police, Quetta is not the Government appointed expert, as such; his report is not admissible in evidence without being formally proved by its author, hence the same cannot be relied upon for any purpose. It has been argued by the complainant's counsel that the case be remanded to the Trial Court for examination of the fire arm expert but we see no reason to remand the case, because such course if adopted, will not be in consonance with the principles of natural justice and would also amount in making up.The deficiency in prosecution case, and; secondly even in absence of such report, the case can still be decided effectively on the basis of available evidence.
21. There is no doubt that dishonest investigation has been conducted in the case by Abdul Hameed S.H.O. Police Station Uthal, as he did not register the F.I.R. Promptly nor mentioned the time' of the registration of F.I.R., or report made to him, who inspected the place of incident next day at 9:00 a.m., sent the articles i,e,, revolver, rifle and the bullets to the Fire Arm Expert after a considerable delay, recorded the statement of A.S.-I. Muhammad Siddique and P.W.9 very lately who also did not prepare the injury report of P.W.4, and; did not conduct the investigation as legitimately expected, who was duty bound to unearth the truth. It appears that deliberately the required investigation was not conducted for ulterior objects because as above discussed, P.W.4 Police Officer appears to be involved for causing fatal injury to the deceased and the accused being a Police constable has been held responsible for the whole crime. The dishonest investigation on the part of P.W.14 would not affect the trial of the case nor the judgment passed by the Court, unless it uprooted the entire structure and entailed miscarriage of justice, which is not so in the instant case despite of dishonest investigation; golden principle to sift the grain from chaff applies classically in the instant case; as a result whereof the falsehood part of the prosecution case/evidence has been slashed from the truthful one capable of implicit reliance in the light of facts and circumstances of the case.
22. The appellant's counsel contended that motive disclosed in the report and by the P.Ws. Is inconsistent and not proved, therefore, the accused is entitled to due benefit. It is worthwhile to note that the motive disclosed in the report by P.W.1 though gets support from the evidence of A.S.- I. Muhammad Siddique as being the immediate cause of the incident, but as it has been held hereinbefore that the presence of P.W.1 on spot seems to be doubtful, yet independently the cause leading to the incident has been proved by P.W.4 A.S.-I. Muhammad Siddique, which emerged at the spur of moment between the accused and P.W.4, fits in the circumstances of the case and thus, it cannot be said that the cause of the incident has not been proved by the prosecution.
Presence of P.W.8 on the spot at the time of incident has been found to be doubtful, therefore, his disclosure about the cause of incident remains inconsequential. A.S.-I. Muhammad Siddique, the victim of murderous assault has disclosed that on 31-10-1996 Umar Constable was chased by him who was found in possession of a stolen motor-cycle but he made good his escape in the wild and P.W.5 reported the matter to S.H.O., who suspended Umar Constable and about 20 days thereafter, accused and Umar constable came to him stating that he has done no good, by having the constable Umar suspended and that the accused threatened him that he will see to him. P.W. 12 has concerning such matter narrated a divergent event, which took place in presence of P.W.4 but P.W.4 did state so. Such a disclosed motive is not only remote but inconsistent as well, which in our considered view was not the cause of the incident, and; secondly such inconsistency about disclosed motive will not by itself destroy the other prosecution evidence available on record warranting conviction of accused. It is pertinent to note that P.W.4 has also given the immediate cause of the incident which appears to be convincing and also fits in the circumstances, but as above discussed the manner in which the incident took place has been suppressed by P.W.4, thus; for such and the hereinbefore mentioned reasons the prosecution evidence has been scrutinized with great caution and care.
23. In our considered opinion the prosecution has successfully established charge against accused under section 324, P.P.C., only and the defiance failed to impeach the same on any probabilities, thus; the conviction and sentence recorded against the accused under section 302, P.P.C., by the Trial Court for causing Qatl-e-Amd of deceased Ali Asghar Shah is not sustainable.
24. For the foregoing reasons appeal is partly accepted, the conviction and sentence recorded against the appellant under section 302, P.P.C., is set aside, accordingly he is acquitted of the charge under section 302, P.P.C., only. The conviction and sentence recorded against the appellant under section 324,1 P.P.C., by the Trial Court is maintained; consequently Criminal Revision No,34 of 1998 stands dismissed.
We hereby further direct to the Deputy Inspector-General of Police, Sibi Range, to re-investigate the case in respect of the homicidal death of deceased Ali, Asghar Shah through an honest and competent Officer of the Crimes Branch Police and to submit the challah in Court for trial of the offence against the one who may be found liable for commission of such offence. Copy of this Judgment be sent to Deputy Inspector-General of Police, Sibi Range, Sibi for compliance of the above-noted direction.