' MUHAMMAD AZAM KHAN, J.---The appellant Abdur Rashid son of Abdullah Shah, resident of Village Guli Bagh Hoti Tehsil Mardan, has preferred the present appeal against his conviction and sentence in case F.I.R. No,375, dated 14-5-1992 of Police Station Saddar Mardan, for offence under section 302/404/34, P.P.C. The appellant was found guilty for the offences by the learned Sessions Judge, Mardan and vide his order/judgment, dated 24-4-1995, he was convicted under section 302/34, P.P.C., for the minder of Sher Zada and sentenced to life imprisonment with a fine of Rs,20,000 or in default whereof to undergo further R.I. For one year. He was also convicted under section 302/34, P.P.C., for the murder of Munir Khan and sentenced to life imprisonment with a fine .Of Rs,20,000 or in default of fine to undergo further one year R.I. He was also convicted under section 404, P.P.C., for having misappropriated .30 bore pistol of Sher Zada deceased and sentenced to. Two years' R.I. With a fine of Rs,5,000 or in default to undergo further 6 months' R.I. It was directed that half of the fine, if realised, is to be paid to the legal heirs of the deceased and all the sentences are to run concurrently. Alongwith this appeal the complainant has filed Criminal Revision No,57 of 1995 (Noor Zada v. Abdur Rashid). As both the appeal and revision arise out of the same judgment, therefore, we propose to dispose them of by this single judgment.
' It is alleged that Abdur Rashid accused on 14-5-1992 at 12-00 hours in front of the office of the Mardan Development Authority had committed murders of the two deceased alongwith co- absconding accused Gulshad, Abdullah Shah, Habibur Rehman alias Bakhani sons of Hashim, Mukammil Shah alias Kabul son of Habibur Rehman alias Bakhani, in furtherance of their common intention by firing at them effectively and after having committed the offence they took away licensed pistol from the possession of Sher Zada and misappropriated the same.
2. Facts of the case briefly stated are that on 14-5-1992, Noor Zada complainant made a report in the shape of Murasila before Muambar Khan, Inspector S.H.O., Police Station Saddar Mardan in the Civil Hospital, Mardan at 12-45 hours. According to the narration of the report, on that day complainant alongwith P.W. Shaukat son of Muhammad Zarin resident of Maayar, Sherzada son of Haji Amirzada, his uncle, and Munir alias Manai son of Pazir Gul, came out from the office of M.D.A.
At Sheikh Maltoon Town and at 12-00 noon Sherzada and Munir got into their Car No,MR 660 when in the meantime the accused namely, Rashid, Gulshad sons of Abdullah Shah, Habibur Rehman alias Bakhani son of Hashim, Mukammil Shah alias Kabul son of Habibur Rehman alias Bakhani appeared on the scene duly armed with Kalashnikovs and they started firing at the two deceased who were inside their car. They were hit and killed. The motive for the offence was previous blood feud between the parties. The complainant mentioned in the report that besides him the occurrence was witnessed by Shaukat son of Muhammad Zarin.
3. After recording the aforesaid report Muamber Khan S.H.O. (P.W.12) sent the Murasila Exh.P.A./1 to the Police Station for registration of the case where its contents were incorporated into F.I.R. Exh.P.A.
In the hospital Mukhtiar Ali A.S.-1. (P.W.8) prepared the injury sheet and inquest report of deceased Sherzada which are Exh.P.N./2 and Exh.P.N./3 and that of deceased Munir Khan Exhs.P.M./2 and P.M./3 and handed over the dead bodies to the doctor for post-mortem examination.
4. After the registration of the case P.W.12 Muamber Khan proceeded to the spot and on the pointation of. The complainant prepared the site plan Exh.P.B. With all its foot notes, drawings and sketches. During the investigation he took into his possession one Motor Car in white colour bearing No,MR 660 with broken front screen, as well as the sides panes having bullets marks vide memo.
Exh.P.C./2. From the front seat of the aforesaid car where Sher Zada deceased was killed he took into possession a blood-stained cutting of the piece of cloth of the seat Exh.P.7 and some pieces of broken glasses Exh.P.8. From the rear seat where Munir deceased was hit and killed he took into possession blood-stained piece of cloth Exh.P.9 and were sealed into parcel vide memo. Exh.P.C./1.
From the spot he took into possession 8 empties of 7.62 bore Exh.P.11 freshly discharged, one spent bullet Exh.P.12 of the same bore, 3 empties of .30 bore Exh.P.13, vide memo. Exh.P.C./3. The blood- stained clothes of the two deceased and phial containing three spent bullets were brought from the mortuary by Aslam F.C. And these were taken into possession vide memo. Exh.P.C. He recorded the statements of the ocular witnesses and started search for the accused, therefore, obtained warrants under section 204, Cr.P.C., and proclamations under section 87, Cr.P.C. He also got photographs of the ilfated car of the deceased which are Exh.P.W.12/1 (four copies). On 4-10-1992, P.W. Noor Zada had produced a license copy in respect of a .30 bore Pistol No,68327 foreign made and License No,695-I, dated 18-8-1972 in the name of Hamzada, a brother of the deceased, in which the deceased Sherzada was a retainer, this was allegedly taken away by the accused. He took the same into his possession vide memo. Exh.P.W.12/5. The accused Rashid was arrested on 18-9-1992 by the political authorities of Bajawar Agency, was brought by Waheed Gul A.S.-I. And he arrested him on the same day. The Reader of the Political Agent Muhammad Iqbal sent a letter, dated 3-12-1992 in respect of the recovery of .30 bore pistol and 16 rounds of the same bore which were allegedly taken into possession from the accused during his arrest from the Tribal Territory.
On 24-9-1992 Abdur Rashid accused was produced before a Magistrate for recording his confessional statement vide his application Exh.P.W.12/9 and after completion of the investigation he submitted complete challan against the accused.
5. Dr. Noorul Islam (P.W.1) conducted autopsy on the dead body of Munir Khan son of Pazeer Gul and found the following injuries en external examination:---
(1) Fire-arm entrance wound on the face right side 3" lateral to the outer can, thus, of the right eye, size 1/2" x 1/2".
(2) Fire-arm exit wound on the face left side 3-1/2" lateral to the outer can, thus, of the left eye, size 1/2" x 1/2".
(3) Fire-arm entrance wound over the right clavical at middle third size 2-1/2" x 2" with fracture clavical.
(4) Fire-arm exit wound on the neck left side interior laterally 1" above the left clavical size 2-1/2" x 2".
' On internal examination the doctor found thorax larynx, trachea and blood vessels injured.
Stomach was found healthy and empty, mouth and pharynx were found injured. Death was caused due to injuries to the vital organs like trachea, big vessels i,e,, external and internal carotit orteries, haemorrhage and shock, Time between injury and death was instantaneous and that between death and P.M. Examination two and half hours.
6, Dr. Mumtaz Khan (P.W.2) performed post-mortem examination on the dead body of Sher Zada and found the following external injuries on his person:-
(1) Fire-arm entrance wound 1 x 1 c,m, on the right axilla.
(2) Fire-arm exit 2 x 3 c.m, in the left axilla.
(3) Fire-arm two entrance wounds closed to each other on the right lateral wall of chest at middle 1/3rd posterial,
(4) Fire-arm exit on lateral wall of left chest at middle 1/3rd posterial,
(5) Fire-arm entrance 2 x 2 c,m. On right jaw 2 inches below right ear.
(6) Fire-arm exit 3 x 2 c.m, on forehead 1" above right eye.
(7) Fire-arm entrance 1 c,m. x 1 c.m, on right face 1/2" in front of right ear.
(8) Fire-arm exit 2 x 2 c.m. Right parietal 2=1/2" above right ear.
(9) Fire-arm grazed wound 2" x 3" on right parietal about 3=1/2" above right ear, (10)Fire-arm entrance 1 c.m. x 1 c.m, on lateral wall of right chest 3.1/2" below right axilla, (11)Fire-arm entrance 1 c.m, x 1 c,m, on lateral wall of right chest 1/2" below wound No,10.
(12)Fire-arm entrance 1 c,m. x 1 c.m, on lateral wall of right chest 1" below wound No,11.
(13)Fire-arm grazed 2 c.m. x 2 c.m. On medial aspect of right knee.
(14)Three bullets recovered from back of the left chest along the lateral wall of left chest.
' On internal examination the doctor found cranium and spinal cord, Brain and spinal cord, scalp and skull injured, Thorax walls, cartilages, pleurae, right and left lungs, pericardium and heart and the blood vessels were found injured. Stomach was found normal and healthy. Cause of death was injury to vital organs, (brain, right and left lung and heart) leading to shock and death. Time between injury and death was instantaneous while between death and post-mortem within one hour.
7. Charge was framed against the accused-appellant to which he pleaded not guilty and claimed trial.
8. The prosecution in support of its case examined as many as 15 witnesses. After close of the prosecution evidence the accused-appellant was examined under section 342, Cr.P.C. He professed his innocence.
9. The conviction of the appellant is based on the ocular evidence of the two witnesses namely, Noor Zada (P.W.10) complainant, and Shaukat (P.W,11), the motive for the offence, the recoveries from the spot of the spent bullets, the recovery of .30 bore pistol allegedly recovered from the appellant at the time of arrest, the confessional statement of Abdur Ruhid appellant and the recovery of the damaged Motor Car having blood-stained seats etc., coupled with the abscondence of the appellant on which implicit reliance wu placed by the learned Trial Court.
Assailing the prosecution cue the learned counsel for the appellant raised the following contentions:-
(i) that the motive advanced by the prosecution was false;
(ii) that the ocular testimony of the complainant and P.W. Shaukat is doubtful u no one from the staff of the office of M.D.A. Wu produced to prove the presence of the witnesses;
(iii) that the use of .30 bore pistol wu not mentioned by anyone of the ocular witnesses, therefore, the recovery of the said pistol from the possession of the accused wu of no relevance;
(iv) that the confessional statement of Abdur Ruhid was exculpatory in nature and, therefore, could not be considered u corroboration; and
(v) that abscondence of the accused is of no value as one piece of false evidence will not corroborate another false evidence.
' On the other hand, the learned counsel for the State supported the impugned judgment in its material particulars. The case of the prosecution is that the complainant party had gone to the office of M.D.A. On the eventful day and at about 12-00 noon when they were coming out of the said office the two deceased Sher Zada and Munir was killed inside the car. This fact has been fully supported and corroborated by the two witnesses of the prosecution aforementioned. It is a daylight occurrence and the report in the present case has been promptly made by the complainant in the Civil Hospital, Mardan without any delay before P.W.12 Muamber Khan S.H.O. Of Police Station Saddar, Mardan who after receiving the information of the incident had rushed to the hospital after covering a distance of 1-1/2 Kilometer. Before the arrival of the S.H.O., Mukhtar Ali A.S.-I.
Had already prepared the injury sheets and inquest reports of the two deceased and despatched the dead bodies to the mortuary for post-mortem examination. The complainant of this case namely Noor Zada is the nephew of Sher Zada deceased while P.W. Shaukat is stated to be a family friend of the deceased and according to P. W.11 he was working with the deceased to supervise his field work because Sher Zada deceased being a contractor used to get his assistance. This witness, however, is not related to either of the parties and similarly Noor Zada being a close relation of the deceased does not have any direct ill-will with the accused party. Besides, the accused party is closely related to the deceased and they were brown to epch other. According to the prosecution prior to the present occurrence the appellant and his brother Mir Akbar were charged for the murder of Khalid who was the maternal uncle's son of Sher Zada deceased and thereafter, the niece of the appellant was killed for which Chiragh Mir and Zubair were charged who were said to be relations of the complainant party.
10. The prosecution case mainly rests on the ocular testimonies of Noor Zada and Shaukat. These witnesses were cross-examined at the trial but nothing favourable to the accused could be extracted from them. The presence of these two witnesses at the spot is supported by the fact that at the time of the report they were present in the Civil Hospital, Mardan. Besides, the deceased was a contractor and in connection with his construction work he visited M.D.A., as such Shaukat P.W., who used to assist him in the construction work wu likely to be present with him and so could Noor Zada P.W. Being his nephew. The presence of these two witnesses is, therefore, natural and it cannot be ignored. Their testimonies have fully been corroborated by the fact that they have charged the appellant and 3 others for the offence at the first possible opportunity. The site plan and the recoveries of 8 empties of 7.62 bore, 3 empties of .30 bore, the broken front screen of the car and the position of the assailants given in the site plan would suggest that these witnesses had seen the occurrence themselves and they were present at the spot. The burning marks on the body and clothes of the deceased Munir were observed by the trial Judge as a result of tracer bullets and to our mind this possibility cannot be ignored. Besides, the testimony of P.W. Shaukat seems credible as he appears to be an independent witness as he is neither inimically disposed towards the appellant nor is swa yed by any oblique motive to implicate him falsely in the present case. The ocular account of the two witnesses do not contain any serious contradiction or improvement.
11. Yet there are three types of incriminating evidence available against the accused-appellant; (a) the manner in which he was arrested on 4-10-1992 by the Political Authorities of Bajawar Agency,
(b) the recovery of .30 bore pistol from his possession which was later on found to be licensed in which the deceased was entered as retainer, and (c) the confessional statement made by the accused before a Magistrate which was exculpatory in nature but he has accepted the presence of the absconders namely, Gulshad, Habibur Rehman and Mukammul Shah and the deceased accompanied by a servant, in the vicinity of Sheikh Maltoon Town on the eventful day wherein the present occurrence was narrated in a different manner. The Trial Court considered the aforesaid three types of evidence against the appellant as corroboration of the ocular account and having been convinced of the guilt of the appellant he passed the impugned order of conviction and sentence by taking a lenient view as four persons participated in the crime by way of a joint act and it was not certain as to who started the affair amongst the accused and who acted brutally.
Taking away of the .30 bore pistol from the possession of deceased was not mentioned by the complainant in the report. It was, however, later on introduced and developed probably after the arrest of the present appellant when the political authorities recovered the pistol and despatched a letter to the concerned authorities alongwith the accused in connection with the aforesaid recovery memo, which is Exh P.W.12/6. The First Information Report is always not considered as substantive piece of evidence and entire details of the incident at times are omitted, In the presence of other cogent evidence available on the file these omissions can be ignored because appraisal of evidence which otherwise inspire confidence can be relied upon without other recoveries as the same can only serve as corroborative piece of evidence. We have already held earlier in this Judgment that the presence of all ocular witnesses at the spot seems natural, There is no material available on the file to show that the statements of these witnesses was motivated by III-will or enmity towards the accused appellant, therefore, the evidence of these two witnesses inspire confidence and their testimonies are credible, We, therefore, are inclined to uphold the conviction and sentence of the appellant which is maintained and the appeal is dismissed. In view of what has been stated above Criminal Revision No,57 of 1995 (Noor Vida v. Abdur Rashid) also stands dismissed.