' ZAFAR PASHA CHAUDHRY, J.---Criminal Appeal No,722 of 1993 as well as Criminal Revision No,137 of 1994 and Criminal Revision No,140 of 1994 have been taken up together as they arise out of the same judgment dated 3-11-1993 passed by Ch. Zahoor Hussain, Judge Special Court (Suppression of Terrorist Activities), Gujranwala.
2. Through Criminal Appeal No,722 of 1993, Nasar Iqbal, Muzafar lqbal, Amjad Mehmood, Imtiaz Ahmed and Ghulam Abbas have challenged their conviction and sentence. Whereas, Criminal Revision No,137 of 1994 filed by Muhammad Aslam complainant has assailed the order of acquittal passed in favour of Ansar Mahriood, Amjid, Mushtaq Ahmed, Muhammad Ilyas, Muhammad Saleem, Zafar Iqbal and Feroze Khan. Muhammad Aslam complainant has filed another Criminal Revision No,140 of 1994 against the five convicts who are appellants in Criminal Appeal 1810.722 of 1993 i.e Nasar Iqbal and four others praying that the amount of fine and compensation as ordered to be paid by them is inadequate, the same may be revised and enhanced.
2-A. The prosecution case as disclosed through F.I.R. Exh. PO recorded at the instance of Muhammad Aslam P.W.6 (complainant) is that on 26-6-1989 at 6-00 am. He (complainant) alongwith Naviz Akhtar his cousin, Muhammad Arif and Zafar residents of Pooch, Muhammad Rafi alias Warryam, resident of Malikpur, Waris, resident of Rengrah and Syed Muhammad Shah, resident of Madina were awaiting to board a bus at bus stop of Malikpur to attend the Court hearing, when Imtiaz Ahmed armed with Klashinkov, Ghulam Abbas with Klashinkov, Muhammad Iqbal (proclaimed offender) with Klashinkov, Ansar and Amjad sons of Fateh Muhammad, Feroz Khan, Amjad Khan s/o Lal Khan, Saleem resident of Peero Shah all armed with rifles, Nasar, Muzafar, Ilyas (since dead), Zafar s/o Ahmed Khan, Muhammad Ilyas and Mushtaq sons of Nawab Khan also armed with rifles were sitting in ambush within the premises of Government Middle School, Malikpur. They suddenly emerged from their hiding and opened attack, Ghulam Abbas fired from his Klashinkov on Naviz Akhtar who fell flat on the ground; Imtiaz Ahmed fired from his Klashinkov aiming Muhammad Arif who also fell flat on the ground; Muhammad lqbal fired his Klashinkov at Muhammad Rafi who also fell flat on the ground; Nasar and Muzaffar fired three or four fires from their respective rifles one after the other at Muhammad Waris who was injured and fell down. The remaining accused persons also fired from their respective weapons. A fire shot by Amjad son of Fateh Muhammad hit Zafar (P.W.7), as a result of aforesaid firing Naviz Akhtar, Muhammad Waris, Rafi alias Waryam and Muhammad Arif succumbed to the injuries there at the spot.
' The motive as alleged by the complainant is that Muhammad Akram father of Naviz Akhtar deceased had been murdered by Iftiaz Ahmed (convict appellant in the State case) and others who were both acquitted but the enmity in between the parties continued, the accused persons, therefore, in prosecution of their common object committed the aforesaid murders.
3. After witnessing the occurrence Muhammad Aslam P.W.6 (complainant) proceeded towards the police station while on his way he met Abdul Ghafoor, S.I. P.W.11 at Sobhitian near Jalapur at a distance of about one and a half miles from the place of occurrence, who was on patrol duty. He made the aforesaid statement which was recorded as Exh. PO at 8-00 a.m. On the same day i,e, 26-6-1989..The complaint was sent to the police station on which formal F.I.R. Was drafted. He (Abdul Ghafoor) reached the place of occurrence alongwith police officials located in Malikpur near metalled road, prepared injury statement Exh.PV and inquest report Exh.P.W. Relating to the dead body of Naviz deceased, injury statement Exh.PX and inquest report Exh.PY relating to Arif deceased, injury statement Exh.PZ and inquest report Exh.PAA of Muhammad Rafi deceased and prepared injury statement Exh.PBB and inquest report Exh.PCC relating to the dead body of Waris deceased. All the dead bodies were despatched to mortuary for post-mortem examination. Blood- stained earth was collected from all the four spots. He prepared rought site plan of the place of occurrence. He also recorded the statement of the eye-witnesses including Zafar Ali P.W.7 who had been injured at the spot. After the postmortem examinations, he secured the last-worn clothes of the deceased persons. On 10-7-1989 (about 14 days after the occurrence) he arrested Nasar, Zafar, Muzaffar, Ilyas son of Rehmat Khan (since dead), Amjad son of Lal Khan and Feroze, Ansar and Amjad sons of Fateh Muhammad. Five days thereafter, i,e, on 15-7-1989 he arrested Mushtaq and Ilyas both sons of Nawab Din.
' On 14-8-1989 Munawar Hussain, Inspector/S.H.O. Arrested Muhammad Saleem son of Nawab Khan who, however, decamped from jail after his arrest. On 15-9-1990 he (P.W.I2) formally arrested Iftiaz and Ghulam Abbas who were in the judicial lock-up.
4. P.W.11 Abdul Ghafoor (1.0.) got declared Iftiaz, Ghulam Abbas, Saleem and Iqbal as proclaimed offenders on 31-7-1989 after completing the proceedings under section 87, Cr.P.C. After declaring those aforesaid co-accused as proclaimed offenders, incomplete challan was submitted in Court.
5. On completion of the investigation four of the accused persons namely Iftiaz, Iqbal, Ghulam Abbas and Saleem were shown as proclaimed offender. Subsequently anyhow Iftiaz Ahmed and Ghulam Abbas appeared and challan was submitted against them on 18-9-1990. Out of the two remaining accused Iqbal and Saleem who were shown absconders in this challan, Muhammad Saleem also appeared and he too was challaned on 20-12-1990 leaving behind Iqbal the only accused as proclaimed offender, as such 12 accused persons namely Nasar, Zafar, Muzaffar all three sons of Ahmed Khan, Muhammad Amjad son of Lal Khan, Feroze Khan sou of Ahmed Khan, Ansar, Amjad son of Fateh Muhammad, Mushtaq Ahmed and Ilyas son of Nawab Khan, Iftiaz son of Ashraf, Ghulam Abbas s/o Kalu and Muhamad Saleem son of Ghulam Farid were sent up to face trial in the Court of Ch. Zahoor Hussain, learned Special Judge (Suppression of Terrorist Activities), Gujranwala.
6. The prosecution in order to prove its case examined 12 witnesses. Out of them Dr. Muhammad Waqar P.W.1 and Dr. Abbas Gondal P.W.2 furnished the medical evidence.
' Dr. Muhammad Waqar P.W.1 conducted the post-mortem examination of Rafi deceased on 26-6- 1989 and found the following injures on his person:-- ' I .A A fire-arm wound of entry measuring 0.5 c.m. x 0.5 with inverted margins in front of lower aspect of right side of chest, 11 c.m. Below the right nipple blackening was present around the wound.
' B A fire-arm wound of exit measuring 1.5 x 1.5 c.m. Everted margins on back lower aspect of right side of chest below the tip of right scapula.
2.A A fire-arm wound of entry measuring 3 x 2 c.m. In inverted margins on middle of lateral aspect of right upper arm blackening was present around and inside the wound. Right humerous was fractured.
B. A fire-arm wound of exit measuring 1 x 1 c.m. On medical aspect middle of right upper arm margins were everted.
3(a) A fire-arm wound of entry measuring 4 x 4 c.m. Inverted margins on the upper part of right side of neck just below the right ear Blackening was present around the wound and inside the wound.
(b) A fire-arm wound of exit mesuring 3 x 3 c.m. Everted margins on right pertital region of scapl just above and behind the right ear. On the same day he conducted the post-mortem examination of Muhammd Arif deceased and found the following inuries:-- 1-A. A fire-arm wound of entry measuring 6 x 3 c.m. Inverted margins oval on right side of face at the right angle of mendible blackening was present around the wound and inside the wound. B-I. A fire-arm wound of exit measuring 0.5 x 0.5 c.m. Everted margins on left side of face just below the left ear. B-11. A fire-arm wound of entry 4 x 3 c.m. Inverted margins of face about one inch below the injury No,B-1.
2. (a) A fire-arm wound of entry 4 x 3 c.m. Inverted margins oval in front of right side of chest below the lateral 1/3rd of right clavical.
(b) A fire-arm wound of exit 11 x 6 c.m. Oval everted margins of lateral aspect of right lower chest.
3. A fire-arm wound measuring 12 x 6 c.m. Continuous on front of middle of right upper arm entering from medial side towards laterally.
4. (A) A fire-arm wound of entry measuring 0.5 x.
0.4 c.m. Inverted margins on front of upper aspect of right side of chest about 1-1/2 c. m. Below the medial of right clavical. Blackening was present around the wound.
(B) A fire-arm wound of exit mesuring 1 c.m. x 1 c.m. Everted margins on back of right side of chest about 2 inches below the tip of right scapula.
5. A fire-arm wound of entry measuring 0.5 c.m. x.
0.5 inverted margins in front of left lower chest 10 c.m. Below the left nipple blackening was present around the wound. B-i. A fire-arm wound of exit 1 c.m. 1 c.m. Everted margins on posterior aspect of right lower chest about 6 inches below the tip of right scapula. B-ii. A fire-arm wound of exit 1 c.m. x 1 c.m. Everted margin on lateral aspect of right upper abdomen.
6 (A) A fire-arm wound of entry measuring 0.5 x 0.5 c.m. Inverted margins in front of left side of abdomen 5 c.m. Lateral and 2 c.m. Below the umblicus blackening was present.
(B) A fire-arm wound of exit measuring 1.5 x 1.5 c.m. Everted margins on uper outer guardaned left glutial region. On the same day post-mortem examination of Muhammad Waris deceased was conducted and the following injuries were found on his person:-- 1-A Fire-arm wound contusion 10 x 3 c.m. On left side of face lateral to the left angle of mouth directing from medial to lateral side blackening was found around and inside the wound, left medible was fractured.
2.(A) A fire-arm wound of entry 1.5 x 1.5 c.m. Circular inverted margins in front of lower aspect of neck blackening was present around the wound.
(B) A fire-arm wound of exit measuring 0.5 x 0. 5 c.m. On back of mid of right side of chest medial to right scapula region.
3-A. A fire-arm wound of entry measuring 2 x 1 c.m. Vertically oval shaped in the middle of upper aspect of left shoulder inverted margins blackening was present around the wound.
(B) A fire-arm wound of exit measuring 0.5 c.m. x 0.5 c.m. Everted margins on the back of right side of chest 2 inches below and 2 inches later to the injury No,2-B.
4-A A fire-arm wound of entry measuring 4 x 3 c.m. Oval vertically in front of left side of chest 1 inch above and one inch medial of left nipple. Blackening was present. B. A fire-arm wound of exit measuring 0.5 x 0.5 c.m. Circular everted margins on the back of left side of chest medial to scapula region.
5-A. A fire-arm wound of entry measuring 1 c.m. x 1 c.m. Inverted margins circular in the mid sternal region in front of chest blackening was present. B. A fire-arm wound of exit measuring 0.5 x 0.5 c.m.
Circular everted margins 4 inches below and slightly medial to injury No,2-B on the back of right side of chest.
6-A. A fire-arm wound of entry measuring 1 x 1 c.m. Inverted margins 1 c.m. Below the left nipple blackening was present around the wound. B. A fire-wound of exit, measuring 2 c.m. x 2 c.m.
Everted margins on lateral aspect of left lower chest.
7-A. A fire-arm wound of entry 1 c.m. x 1 c.m. Inverted margins 2 inches below and slightly medial to injury No,6-A, blackening was present. B. A fire-arm wound of exit measuring 2 x 2 c.m. Everted margins on leteral aspect of left side of abdomen in the line of umblicus large intestine was coming out.
8-A. A fire-arm wound of entry 0.5 x 0.5 c.m. Inverted margins of right side of abdomen 2 inches lateral and 2 inches above the umblicus blackening was present around the wound. B. A fire-arm wound of exit 2.5 x 2.5 c.m. Oval vertically in front of left side of abdomen 3 inches paternal and one inch below umblicus.
9-A. A fire-arm wound of entry measuring 0.5 x 0.5 c.m. Inverted margins in front of right side of abdomen one inch below the injury No,8-A, blackening was present around the wound. B. A fire- arm wound of exit measuring 1.5 x 1.5 c.m. Everted margins on lateral aspect of left abdomen one inch below the injury No,7-B.
10-A. A fire-arm wound of entry measuring 0.5 x 0.5 c.m. Inverted margins 2 inches lateral and 2 inches below the umblicus on right side of front of abdomen, Blackening was present around the wound. B. A fire-arm wound of exit measuring 2 x 2 c.m. Everted margins on the back of right lower lumber region.
11-A. A fire-arm wound of entry 1.5 x 1.5 c.m. Inverted margins on medial aspect of back of distal end of left forearm, blackening was present around the wound. B. A fire-arm wound of exit 2 c.m. x 2 c.m. At the outes of middle finger of left hand on front part.
12-A. A fire-arm wound on entry 1.5 x 1.5 c.m. On the back and middle of left hand inverted margins, blackening was present.
B. A fire-arm wound of exit 2 x 2 c.m. Everted margins in front of middle of left hand. All the injuries were found to have been caused by fire-arm, were antimortem and sufficient to cause death in the ordinary course of nature.
2. P.W.2 Muhamamd Abbas Gondal on 26-6-1989 medically examined Zafar P.W.7 and found the following injures on his person:-- (1). A lacerated wound of entry with inverted margins and surrounding blackening measuring about 2.5 x 0.5 c.m. On the upper lateral part of the left fore-arm.
(2). A lacerated wound of exit measuring about 2.5 c.m. x 0.5 c.m. On the lateral of the left elbow.
' The injures were of fire-arm.
9. He also conducted post-mortem examination on Naviz Akhtar and found the following injures on his dead body:-- 1.(a) A fire-arm wound of entry measuring about 2 x 2 c.m. Below the right mendible.
(b) A fire-arm wound of exit 3 x 3 c.m. On the left of head.
2. An excavated furrowed wound of the lateral of the left hand with fracture underline of the first metacarpal bone.
3(i). 10 fire-arms wounds of entry on the front of the chest on the lateral side.
(ii) A lacerated wound of entry 1 x 1 c.m. On the front of left shoulder.
(iii) A lacerated wound of entry 3 x 2 c.m. On the upper right chest front side.
(iv). A lacerated wound of entry 1.5 x 1 c.m. On the upper right chest lateral to the above injury No,iii.
(v) A lacerated wound of entry 3 x 1.5 c.m. On the middle of left chest.
(vi) A lacerated wound of entry 4 x 2 c.m. On the lower middle of the chest.
(vii) Fire-arm wound of entry 5 x 2 c.m. On the right lateral chest.
(viii)A lacerated wound of entry 1.5 x 1 c.m. On the lower of the front of chest.
(ix) A fire-arm wound of entry 3 c.m. x 1.5 c.m. On the right hypochondrion.
(x) A fire-arm wound of entry on the lower right lateral chest.
4. A fire-arm wounds of exit on the back of the chest each measuring 5.5 x 5.5 c.m. On the lower side of back of chest in the right lumber region.
5-(i) A fire-arm wound of entry .5 x .5 c.m. On the lower lateral side of right thigh.
(ii) A fire-arm wound of exit measuring about 6 x 3 c.m. On the inner of lower of right thigh.
6-(i) Fire-arm wound of entry 2.5 x 2 c.m. On the inner of the part of left leg.
(ii) An exit wound 2 x 2 c.m. On back of left leg.
7. Fire-arm wound of entry .5 x .5 c.m. On the right buttock.
' Injuries were caused with fire-arm and were sufficient to cause death in the ordinary course of nature.
10. P.W.3 Muhammad Adalat identified the dead bodies at the time of Post-Mortem Examination.
P.W.4 is the draftsman who prepared the site plan. P.W. 5 Nasar Abbas, Constable obtained the warrants for the absconding accused, as such is a formal witness, P.W.6 Muhammad Aslam is the complainant in this case. He deposed about the occurrence and also with regard to the motive. He reiterated the statement what he had made in his statement Exh.PO. P.W.7 Zafar Ali is an injured P.W. He is another eye-witness. He made the statement in line with that of the complainant P.W.6 and corroborated his statement on all material points. P.W.8, P.W.9 and P.W.10 are police officials.
They are formal witnesses and performed various functions assigned to them during the investigation.
11. P.W.11 is Abdul Ghafoor, S.I. He is the Investigating Officer as well. Various steps taken by him during the investigation and functions performed as such have already been enumerated above.
P.W.12 Munawar Hussain, Inspector only arrested three of the accused which has also been detailed supra.
12. The learned D.D.A. Gave up the remaining witnesses as being unnecessary and tendered in evidence the report of Chemical Examiner Exh.PGG and undertook to submit the report of Serologist which was subsequently produced as Exh.PHH, and with that he closed the case of the prosecution.
13. After the close of the prosecution case the accused persons were examined under section 342, Cr.P.C. All of them pleaded not guilty and stated that they have been implicated on account of enmity and party faction as they happened to be partymen of Aslam. Muhammad Saleem who stated that his real name was Ghulam Haider since Muhammad Saleem was not available, therefore, he was implicated as accused person. None of the accused opted to appear as their own witnesses as envisaged under section 340 (2), Cr.P.C. To rebut the charges against them. They also opted not to produce any evidence in defence.
14. The learned Special Judge on the conclusion of the trial convicted Ghulam Abbas appellant under section 302/149, P.P.C. And sentenced him to death for the murder of Naviz Akhtar with a fine of Rs,25,000, in default thereof to undergo R.I. For two years.
' He was convicted for causing murder of Rafi alias Warryam and sentenced to imprisonment for life with a fine of Rs,25,000, in default thereof to undergo R.I. For two years.
' He was also convicted for the murder of Arif and sentenced to imprisonment for life, with a fine of Rs,25,000 in case of default to undergo R.I. For two years; convicted for the murder of Warris and sentenced to imprisonment for life with fine of Rs,25,000 in default thereof to undergo R.I. For two years; Ghulam Abbas was also convicted under section 307/149, P.P.C. For causing injuries to Zafar and sentenced to R.I. For five years and to pay a fine of Rs,5,000, in default thereof to undergo R.I.
For six months.
14-A. Iftiaz Ahmed was convicted under section 302/149, P.P.C. And sentenced to death for the murder of Arif with a fine of Rs,25,000 in default thereof to undergo R.I. For two years; for the murder of Naviz sentenced to undergo imprisonment for life with a fine of Rs,25,000; for the murder of Waris sentenced to imprisonment for life with fine of Rs,25,000, in case of default to undergo R.I. For two years; for the murder of Rafi alias Warryam sentenced to imprisonment for life with fine of Rs,25,000 in default thereof to undergo R.I. For two years.
' Iftiaz Ahmed was also convicted under section 307, P.P.C. Read with section 149, P.P.C. For causing injuries to Zafar and sentenced to pay a fine of Rs,5,000, in default thereof to undergo R.I. For six months.
15. Nasar Iqbal and Muzaffar Iqbal both were convicted under section 302/149, P.P.C. And sentenced to death for the murder of Warris and each one to pay a fine of Rs,25,000, in default thereof each one to undergo R.I. For two years; both were convicted for the murder of Naviz Akhtar and sentenced to imprisonment for life with a fine of Rs,25,000 in case of default to undergo two years'
R.I.; both were convicted for the murder of Arif and sentenced to imprisonment for life with a fine of Rs,25,000, in default thereof to undergo R.I. For two years; both were convicted for the murder of Rafi and sentenced to imprisonment for life with a fine of Rs,25,000 in default thereof to undergo R.I. For two years; both were convicted under section 307/149, P.P.C. For causing injuries to Zafar and sentenced to R.I. For five years with a fine of Rs,5,000, in default there of the undergo R.I. For six months.
16. Amjad Ali (Amjad Mehmood) accused was convicted under section 302 read with section 149, P.P.C. And sentenced to imprisonment for life on four counts for causing murders of Naveez Akhtar, Arif, Rafi and Warris and also to pay Rs,25,000 on each count, in default to undergo R.I. For two years on each count; he was also convicted under section 149, P.P.C. For causing injuries to Zafar Ali and sentenced to R.I. For five years and to pay a fine of Rs,25,000 in case of default to undergo R.I. For six months.
' The fine if realized, half of it to be paid to the legal heirs of all the aforesaid deceased persons and the amount of fine if realized for conviction under section 307, P.P.C. To be paid to the injured P.W.
Zafar. All the sentences were ordered to run concurrently. The benefit under section 382-B, Cr.P.C.
Was extended to all the accused persons. The remaining co-accused against whom no specific allegations of causing injuries were made were acquitted of the charges by extending them the benefit of doubt. It is, however, pertinent to wait out that a page after 30 is missing from the judgment, the same could not be traced out from the original file as well. It appears that the same was misplaced and nobody took note of it. Anyhow, the fact remains that Zafar, Feroze, Ansar, Amjad Mehmood, Mushtaq, Ilyas son of Fateh Muhammad and Muhammad Saleem have been acquitted of all the charges against them.
17. It has been argued on behalf of the appellants that admittedly there is enmity in-between the complainant party and the deceased persons on one hand and the accused persons on the other, therefore, the testimony of witnesses cannot be accepted unless corroborated by some independent evidence; that there are discrepancies in between the statements of the P.Ws., which go to very root of the case, as such their testimony is unworthy of credit; that the occurrence is an unwitnessed one but the complainant party after due deliberations and guesswork implicated the accused persons. It was argued with vehemence and emphasis was laid on the point that Zafar P.W., did not suffer any injury at the time of the incident, rather, the injury was received from some friendly hand so as to show that he was present at the place of occurrence; that the eye-witness account as furnished by the prosecution witnesses and the prosecution as a whole is unbelievable for the reason that it is humanly impossible to retain and reproduce the injuries by each accused and thereafter, describe the respective receipt of injuries, It was also urged that during the trial when Zafar was asked to pick up Amjad accused who had fired at him he instead picked up Ansar accused the brother of Amjad. It was, therefore, argued 'with vehemence that P.W., who could not identify his own assailant cannot be relied upon qua other accused and last of all that acquittal of the seven co-accused of the appellants adversely effects the whole of the prosecution case as the testimony of the witnesses has not been relied upon the acquitted co-accused, therefore, their testimony cannot be safely accepted against the accused who have been convicted by the learned trial Court. It is, therefore, argued that the prosecution has not been able to prove the guilt of the appellants beyond doubt, therefore, they are entitled to be acquitted.
18. As against that the learned counsel for the State as well as learned counsel for the complainant have supported the impugned judgment and submitted that the prosecution has proved the case beyond doubt against the accused persons. The presence of injured P.W., at the place of occurrence cannot be denied and the deposition made by him cannot be discarded. Zafar P.W.
Has received injuries with fire-arm which has wound of entry as well as exit. It is impossible that the same would have been caused by friendly hands. His statement was recorded on the same day soon after the occurrence and he fully supported the prosecution version. Since he was present at the place of occurrence it is impossible to believe that he would have spared the real culprits and instead would have substituted the appellants who were innocent. It was further argued in support of their revision petition that the testimony of the witnesses should be relied upon against the acquitted co-accused as well and as such they are also liable to be convicted accordingly.
However, no serious stress was laid to press the Criminal Revision No,140 of 1994 on the question of enhancement of fine and amount of compensation.
19. We have considered the arguments addressed by the parties at length and have also gone through the relevant record. The unfortunate incident took place on 26-6-1989 at 6-00 a.m. During the month of June sun rises quite early and by 6-00 a.m. There is almost a daylight, therefore, there remains no difficulty in identifying the assailants. As such, there cannot be any mistaken A identity by the P.Ws. Muhammad Aslam complainant from the very outset stated that they were proceeding to attend the Court of Magistrate Section 30, Gujrat, therefore, their leaving for Gujrat together is quite natural. The P.Ws., therefore, cannot be treated as chance witnesses. Their presence at the place of occurrence as such has sufficiently been explained. The defence has not been able to controvert the assertion that the complainant as well as other witnesses were present at the place of occurrence to attend the Court proceedings. Had the statement been false or incorrect the same could very easily be rebutted by showing that there was no date of hearing fixed as alleged by the prosecution. The occurrence took place at 6-00 a.m. Whereas the matter was reported at 8-00 a.m. Just two hours after the incident at a place which is located at a distance of one and a half kilometre from the spot. The complainant made detailed statement with regard to the presence of the witnesses and the various weapons carried by them. A vague and uncertain type of argument was advanced to indicate that it is a routine practice that on receipt of any information especially with regard to murder, Roznamcha is stopped and time of reporting is shown to be soon after the occurrence to lend credibility to the prosecution version. It cannot be denied that there may have been some instances where the Roznamcha is stopped and the reporting time is stated to be closer to time of occurrence but it cannot be accepted as universally true. There is not even an iota of evidence that the F.I.R. Was not lodged promptly and the same was ante-timed. No adverse inference can be drawn either against defence nor against the prosecution if the same is borne out of the evidence. The fact that the injured was examined in the afternoon on the same day and the post-mortems were conducted also on the afternoon on the same day leave no doubt to believe that the matter had been reported to the ( Police promptly and without any loss of time.
20. The argument that since the parties were inimical to each other, had Muhammad Aslam been present there he would also have been done to death, does not carry much. Weight. Assailants already committed four murders and caused fire-arm injuries on the person of Zafar P.W.7. A tremendous damage had been done to the complainant party, therefore, the argument that the complainant and other witnesses were not injured does not appear to be convincing.
21. The learned counsel has laid lot of stress to establish that Zafar P.W.7 was not in fact injured at the spot but subsequently the complainant got an injury fabricated so that his presence at the place of occurrence may be made as certain and acceptable. A good deal of emphasis has been laid on the conduct of Zafar that after receipt of injuries instead of running to the hospital he remained at the spot and kept on waiting for his brother who reached per chance at the place of occurrence and thereafter, carried him to the hospital. It is supplemented with the argument that in his statement before the police he had not stated so and as such improvement has been made to explain as to why he did not straightaway rush to the hospital and kept on waiting at the place of incident. There is nothing unusual in his conduct. Quite obviously when a number of murders have been committed there must have been a lot of commotion and panic in the vicinity; also dead bodies were lying over there and complainant had proceeded to the police station to report the matter, to remain on the place of occurrence at such a circumstance does not indicate any improbability. Keeping in view the nature of injuries although the same had been caused by fire- arm yet it was not so severe that witness could not wait for some time especially when four of his companions have been brutally murdered and were lying at the spot. To evaluate whether the injuries could be caused by friendly hands, the injuries itself have to be examined and considered minutely. According to the doctor he received lacerated wound of entry with inverted margins and surrounding blackening measuring about 2.5 x .0.5 c.m. On the super lateral part of the left forearm.
The injury has also a corresponding wound of exit. Say for example a person with an attempt to create evidence causes an injury on the left side of the body, as the injury is on the left arm there is every possibility of missing the target and hitting the trunk. Had the injury been received on the body the same would have been proved fatal and witness could have even succumbed to the same. After considering the arguments from various angles we are not convinced to believe that injury on the person of Zafar was self-suffered or had been caused with friendly hands. Another aspect of the case which has not been kept in mind by the learned counsel is that after such a damage there is loss of four lives the complainant and the P.Ws. Cannot keep normal and cannot possibly think of manoeuvring or fabrication. It is unbelievable that a person would have been called and the injury would have been received by fire-arm merely to create the evidence. We, therefore, believe that Zafar was present and in fact had witnessed the occurrence. If the witness has seen the actual assailants then the possibility of exonerating the real culprits and substituting them with innocent persons is almost non-existent.
22. Although an attempt has been made to point out serious discrepancies in the statements of the P.Ws., yet we think that there is no discrepancy material enough to discredit the testimony of the witnesses. Both the witnesses have supported each other on all material points pertaining to the assailants, their respective weapons and commission of crime by them. Although they have been subjected to lengthy cross-examination yet nothing material came out of the same which could damage the prosecution version and render it unplausible. While pointing out the discrepancies it has been argued with vehemence that Zafar could not even pick up his own assailant. When during the cross-examination he was asked to pick up Amjad he instead picked up his brother Ansar accused. The learned trial Judge has quite elaborately discussed this aspect and observed that the same has been done deliberately with a view to grant some concession to the accused person. According to him the trial was conducted after four years, during all those four years nobody even thought of getting the identification parade conducted. It appears that clever move was made to to rnish the credibility of the witnesses because it was otherwise known to the accused person that Zafar being injured P.W., his statement has substantial evidentiary value. The observations made by the learned trial Judge are extremely significant because he had the privilege of seeing the witnesses and noting their demeanour. The incident was described as a drama under pre-arranged understanding. All the prosecution evidence has rightly been appraised by the learned trial Judge, we also endorse the views recorded by the learned trial Judge and place reliance on the testimony of Zafar P.W.
23. The statements made by both the eye-witnesses are supported by the medical evidence.
Although it is said that the medical evidence only supports the factum of receipt of injuries by fire- arm but the same cannot be treated as supporting evidence with regard to the identity of the assailants. The medical evidence especially in this case has immense importance because the statement made by a layman with regard to receipt of injuries by a specific fire-arm has been proved by the medical evidence and the description given by him is supported by the medical opinion. The medical evidence, therefore, lends reasonable support to the prosecution version.
24. According to the prosecution the motive as got recorded in the F.I.R. And specifically reiterated during the trial that father of Naveez Akhtar deceased had earlier been murdered by Iftiaz Ahmad and others, thus, indicate that enmity in-between the parties subsists and the murders were committed to eliminate the deceased person who happened to be their enemies. Of course where the witnesses are inimical then the possibility that the accused persons may not have been falsely implicated is always kept in view but considering the facts and circumstances of the present case and the damage caused to the deceased and the complainant party does not support the argument that by exonerating the real culprits innocent persons would have been falsely involved.
25. The argument that witnesses have been disbelieved qua seven acquitted co-accused and during the investigation also a number of accused persons were stated by the Investigating Officer to be innocent, therefore, the witnesses should not be believed against the accused persons who were convicted, cannot be accepted. The controversy of proposition of law that once a witness is disbelieved qua one accused the same cannot be relied upon qua the other has been set at naught by the Hon'ble Supreme Court in "Tawab's case" by holding that falsus in uno falsus in ominibus is not of universal application, so this G principle is being followed persistently by all the Courts. The learned trial Judge, therefore, assigned cogent reasons to differentiate the case of the appellants (convicted accused) and the acquitted accused. He has recorded the conviction of the accused persons against whom specific allegations of causing injuries on the deceased have been made whereas the accused persons against whom general allegations have been levelled were extended the benefit of doubt out of abundant precaution and were ordered to be acquitted.
We also after appraising the relevant evidence come to the conclusion that safe administration of justice demand that the acquitted co-accused who have not been alleged to have specifically fired at a particular person are entitled to the benefit of doubt, therefore, the same has not caused any miscarriage of justice. Through Criminal Revision No,137 of 1994 the complainant has prayed that acquittal of the respondents be set aside and acquitted accused be ordered to be retried, does not have much substance, the same, therefore, cannot be accepted. Similarly Criminal Revision No,140 of 1994 that amount of fine imposed on the appellants i,e, convicted accused be enhanced and also amount of compensation be enhanced also does not appear to be convincing.
The learned trial Judge has imposed fine on all the appellants on four counts and similarly the fine has been imposed for inflicting injuries to Zafar P.W., and each of the appellant has been fined Rs,25,000. The aggregate of all the fines becomes quite substantial, especially when considered with the fact that four of the appellants have been sentenced to death and one to imprisonment for life. This revision as such has no merits and the same merits to be dismissed.
26. As a result of the above discussion, Criminal Appeal No,722 of 1993 is dismissed and the conviction and sentence of the appellants as recorded by the I learned trial Judge as noted above in paras. Nos.14, 15 and 16 of the judgment, is upheld and maintained. Both Criminal Revision No, 137 of 1994 as well as Criminal Revision No,140 of 1994 fail and are as such dismissed.