IFTIKHAR HUSSAIN CHAUDHRY, J.---This statutory appeal under section 7, Suppression of Terrorist Activities Act, 1975 is directed against judgment, dated 14-3-1995 of Special Court, Suppression of Terrorist Activities, Gujranwala Division, Gujranwala whereby Altaf Hussain, Ghulam Abbas, Manzoor Hussain, Shafqat Ali and Ghulam Sagheer, appellants, were convicted under section 302(b)/149, P.P.C., section 324/149, P.P.C., section 440/149, P.P.C. And section 148, P.P.C. And awarded sentences of life imprisonment. Rigorous imprisonment for two years under (2 charges), righorous imprisonment for one year (3 charges), Daman amounting to Rs,2,000 (on three counts), fine of Rs,2,000 each and compensation amounting to Rs,50,000 each
2. The occurrence took place at 9-30 a.m. On 22-12-1993 in front of Sadaat Filling Station, in the area of Village Vehand, on Grand Trunk Road, two miles away from Police Station, Saddar, Lala Musa, District Gujrat. After the incident the injured were removed to Civil Hospital, Kharian, 10 k.m away from the spot. Amer Javed one of the injured prosecution witnesses statingly made statement Exh.P.I, before Muhammad Amin, Inspector/S.H.O. Of Police Station Saddar, Lala Musa, First Information Report Exh.P/I/1 was recorded by Altaf Hussain, M.H.C. (P.W.7) at the police station located 6 k.m. Away from the Hospital at 12-25 p.m. According to Amer Javed (P.W.10), he was resident of Village Ban Kaalas and was cultivator. On the day of occurrence, he, alongwith Riaz Hussain, Azam, Afzal, Niaz Ali and Sikandar, was going from Lala Musa to Gujrat in Car No RIT-6467 (Exh.P.5). The car was being driven by Muhammad Azam (P.W.11) while Sikandar and Muhammad Afzal occupied front seat of the vehicle, Riaz, Niaz Ali and the complainant were sitting on the rear seat. When they reached near the outer octroi-post, they found a yellow' cab, a cream-coloured car and a white Corolla Car parked there, Azmat Ali was sitting on the front seat of yellow cab with a Kalashnikov rifle in his hands, Abbas and Aitkaf Hussain with .222-bore rifles and Altaf Hussain with a shot-gun occupied the rear seat of the vehicle, Saghir and Babar with Kalashnikovs, Manzoor Hussain and Bashir with .222-bore were sitting in the create-coloured car. White Corolla Car was occupied by Shafqat armed with .222-bore rifle, Maulvi Ashiq carrying 222-bore rifle, his son Ashiq equipped with 7 M.M. Rifle, and Zakar Hussain anped with a gun. According to complainant he could identify the drivers of the cars if brought before him, Just as the complainant crossed the octroi-post, the vehicles started after them. At about 9-30 a.m., the complainant party reached in front of Saclaat Petrol Pump, G.T. Road, in the area of village Vehand, the white Corolla Car overtook them and signalled them to stop. In the meanwhile, the yellow cab appeared on the driver's side and Azmat Ali fired with Kalashnikov hitting Riaz on his head and right ears. According to complainant, their car stopped and the accused also stopped their cars and alighted therefrom.
Saghir fired with Kalashnikov and the burst of fire hit: Muhammad Azam in the abdomen and right hand of complainant Amer' Javed. Shafqat, accused, fired with .222-bore rifle hitting Niaz Ali on the right leg. Altaf Hussain, accused, fired with gun injuring Muhammad Afzal on head and back of chest. Thereafter all the accused started shooting with the weapons being carried by them hitting the vehicle as well as the prosecution witnesses. The accused, then, left the spot in their respective vehicles. Amer Javed removed the injured to Civil Hospital, Kharian where Muhammad Riaz succumbed to the injuries. Motive for the attack was stated to be that about seven months before the occurrence, Ghazanfar, a brother of Azmat was murdered and Azam P.W. And others were reported against in that case. In another incident, Saghir, accused, was fired at about five months back and complainant was accused of shooting at him and the accused in order to avenge those incidents had committed the offence.
3. Muhammad Amin, Inspector/S.H.O. (P.W.14) reached the hospital after learning about the incident, recorded statement Exh. P.1, of Amer Javed and sent the complaint for registration of F.I.R.
He examined dead body of Riaz, deceased, prepared injury statement and inquest report Exh.PL and Exh.PL/1 and sent the dead body for post-mortem examination. The Investigating Officer visited the spot and prepared site plan, without scale, Exh.P.M., secured blood from rear seat of the Car No,RIT-6467 P.5, vide memorandum Exh.PJ; Site Plans Exhs.PH and PH/1 were prepared by Akhter Naqash and handed over to Investigating Officer on 30-12-1993.
4. During further investigation, Azmat, Babar, Bati alias Khalid and Shaukat Hussain and an unknown person were found to have committed the offence. Yellow cab used in the incident was recovered at the pointation of Shaukat from one Qamar of Lalamusa. Only Shaukat was arrested on 24-1-1994. Azmat and other accused mentioned above could not be arrested. The Investigating Officer declared all the other accused, named in the F.I.R. As innocent and placed their names in column No,2 of the final report which was submitted against Shaukat Hussain, Azmat and other proclaimed offenders.
5. The trial Court after submission of challan summoned the accused whose names were placed in column No,2, thereof without examining any witness, and framed charge under sections 148, 302, 324 (five counts), and 440/149, P.P.C.
6. Shaukat Hussain accused who was challaned to Court as having been found guilty and yellow cab was also recovered at his instance, was acquitted from the case at the very outset by the trial Court without examining any witness.
7. P.W.1, Dr Farooq Bangash had conducted post-mortem examination on the dead body of Muhammad Riaz at 3-45 p.m. On 22-12-1993 and noted the following injuries on the dead body:
(1) Fire-arm entry wound 3 x 2 c.m. x going inward on the front of right side of head. Soft tissues and bone underneath fractured, blackening was present around the wound.
(2) Fire-arm exit wound 4 x 2 c.m. On the top of middle of head. The edges were everted.
(3) Two fire-arm wounds each measuring 1 x 1/2 c.m. On the outer part of right arm.
(4) Fire-arm wound 1/2 x 1/2 c.m. On the back of right fore-arm.
(5) Fire-arm wound 1 x 1 c.m. On the inner side of right thigh. Injury No,2 was grievous and fatal and caused by fire-arm ante-mortem in nature while injuries No,3, 4 and 5 were simple. Exh.PA was the post-mortem examination report.
8. Dr. Syed Ali Muhammad, M.O. P.W.2 medically examined Sikandar Hayat on 22-12-1993 at 11-30 a.m. And noted 4 injuries on his person. Sikandar died before trial. Muhammad Afzal was brought by Rehmat Khan and was examined by the medical officer at 11-30 a.m. And noted following injuries:--
(1) Fire-arm wound with laceration 4 x 2-1/2 c.m. On the back of head. The wound was skin deep.
(2) Fire-arm wound 3-1/2 x 2-1/2 c.m. On the back of upper part of right side chest 3 c.m from vertebral line. The wound was muscle deep.
(3) Fire-arm wound 1-1/2 x 1/2 c.m. On the back and upper part of right side chest 2 c.m. From injury No,2. The wound was skin deep.
(4) Fire-arm entry wound 1/2 x 1/2 c.m. On the back of upper part of right shoulder. The edges were inverted.
(5) Fire-arm entry wound 1/2 x 1/2 c.m. Going inward and the edges were inverted on the lower part of back of right side of chest.
(6) Fire-arm entry wound 1/2 x 1/2 c.m. On the upper and outer part of right upper arm.
(7) Fire-arm wound 4 x 1-1/2 c.m. On the upper part of back of left side of chest. Wound was muscle deep.
(8) Fire-arm entry wound I x 1/2 c.m. On the back and upper part of right side chest. The edges were inverted.
' All the injuries were caused by fire-arm within 3 hours of examination. Radiological examination revealed a longitudinal metallic fragment about I c.m size at the level of 4th anterior rib while multiple small irregular metallic fragments were seen around right shoulder joint. Exh.PC is the medico-legal report in respect of the injured. Amer Javed, complainant was also examined at 11-30 a.m. By the same medical officer. He noted the following injuries on his person:--
1. Fire-arm wound with laceration 6 x 4-1/2 c.m involving base of right thumb. Soft tissue was badly damaged. The middle and proximal phalanx of right thumb were badly damaged. There was profuse bleeding from the wound. Blackening was present around the wound. Injury was declared jurh ghayr-jaifa munaqillah. Exh.PD was the medico-legal report in respect of the witness. On the same day the medical officer examined Muhammad Azam who was brought by Rukhsar Ahmad at 12'O clock. The injuries noted were:
(1) A fire-arm entry wound 1-1/2 x 1 c.m. On the right cheek. Edges inverted. There was blackening around the wound.
(2) Fire-arm wound of exit 2-1/2 x 1-1/2 c.m going outward. The edges were everted on the right side lower lip damaging the lip. The wound was bleeding.
(3) Fire-arm entry wound 3-1/2 x 2-1/2 c.m. Going inward on the upper part of right arm near shoulder joint. The edges were inverted. There was blackening present around the wound.
(4) Fire-arm exit wound 4 x 2-1/2 c.m. On the lower part of right shoulder. The wound was bleeding.
(5) Fire-arm entry wound 2-1/2 x 2 c.m. Going inward on the back of the middle of right fore-arm.
The edges were inverted. The blackening was present around the wound. The bone underneath was fractured.
(6) Fire-arm wound of exit 4 x 3 c.m. The edges were everted on the medial aspect of right forearm in the middle part.
(7) Fire-arm entry wound 3-1/2 x 2-1/2 c.m. Going inward. Edges were inverted on the outer and lower part of right side chest. Slight blackening was present.
Injuries Nos. 2, 4, 6 were exit wounds. Injury No,(?) was declared as Shajjah Khafifa. Injury No,5 was Jurh Gharyr Jaifa Hashimah. Injuries Nos.3 and 7 were declared as Jurh Ghayr Jaifa Damia. All the injuries were caused by fire-arm within the duration of 3 hours. Exh.PE was the report of the Medical Officer. Niaz Ali was examined the same day and at the same time by the Medical Officer who noted 4 injuries on his person. Niaz Ali, however, did not appear at the trial as witness.
9. P.W.3 Nasir Mahmood, A.S.I. Had escorted the dead body to mortuary on 22-12-1993. Mushtaq Ahmad H.C., P.W.4 had kept bloodstained swabs whereby blood was collected from inside the car, in the storeroom of the police station and had sent the same to Lahore through Sultan Ahmad P.W.5. Akhter Naqaash, draftsman, P.W.6 had prepared site plans Exh.PH and PH/1. Altaf Hussain, Moharrir P.W.7 had recorded formal F.I.R. At the Police Station. Noor Hussain P.W.8 had identified the dead body of Riaz at the time of post-mortem examination. Safdar Ali P.W.9 had witnessed recovery of blood from the car. Nisar Ahmad P.W.13 proved various proclamations issued against Khalid, Azmat Ali and Babar, the proclaimed offenders.
10. Amer Javed, complainant, P.W.10 Muhammad Azam, P.W.11, Muhammad Afzal, P. W.12, provided the eye-witness account of the incident and involved all the accused who were facing trial in the Court with the commission of offence as alleged in the first information report.
11. Muhammad Amin, Inspector and Station House Officer testified as P.W.14 and gave details of various steps taken by him during the investigation. He also stated that only one yellow cab was used in the incident, which cab was recovered at the instance of Shaukat Hussain. According to him the offence was committed by Azmat Ali, Babar, Bati alias Khalid and Shaukat Hussain and that the accused facing trial were declared as innocent by him.
12. The accused when examined under section 342, Cr.P.C. Professed innocence and pleaded false involvement on account of previous enmity or relationship with Azmat Ali.
13. The trial Court believed the prosecution case, on the strength of ocular account, to the extent of Altaf Hussain, Ghulam Abbas, Manzoor Hussain, Shafqat Ali and Ghulam Sagheer and convicted them vide judgment dated 14-3-1995 and awarded various sentences to them, as noted above.
Rest of the accused were acquitted of the charges by extending benefit of doubt to them. Shaukat Hussain, who according to investigation of police was one of the real culprits, was let off at the outset.
14. The convicts have appealed.
15. Learned counsel for the appellants-convicts argued that the appellants were falsely involved in the case after considerable deliberation which preceded the registration of criminal case at the police station. It was submitted that the occurrence had taken place just two miles from the Police Station, Saddar, Lala Musa and the injured were removed to Civil Hospital, Kharian located 6 k.m.
Away from the police station and in the process the injured had to pass by the police station and information was passed on to police. According to learned counsel, Azam, the injured prosecution witness, resided in the Lala Musa Town and, admittedly, his relatives were informed about the incident and several of them had accompanied the injured witnesses when they were medically examined and it would be wrong even to assume that the police was not informed about the mishap. It was submitted that the Station House Officer had left the police station at 10-15 a.m. And had gone to the hospital according to testimony of the Moharrir, and it was claimed by the prosecution that statement of complainant was recorded at 11-30 a.m. And First Information Report found its way in the relevant register at the police station by 12-30 p.m. But the Medical Officer P.W.1 had unambiguously testified that the police papers were handed over to him shortly before 3-45 p.m. When he commenced post-mortem examination and none of those documents contained the number of the first information report which was ample proof of the fact that till then the case was not registered. It was contended that the complainant had clubbed together three different groups who were on loggerheads with one another, and made them accused in the case to settle personal score with them while they could not have come together under one umbrella or to have jointly executed a plan to have eliminated Riaz. It was argued that investigation in the case failed to unearth cars other than the yellow cab and those were introduced only to enlarge the number of accused in the case. It was submitted that the investigation carried out had unmistakably nailed down Azmat (since dead), Bati @ Khalid, Babar and Shaukat as the actual assailants, the yellow cab used in the commission of offence was taken into possession and on the strength of evidence collected during the investigation, a clear finding was given in respect of innocence of the appellants and due weight to have been given to finding of the police in this context. According to learned counsel, trial was conducted in a coloured manner by the trial Court, conviction of appellants involved extreme subjectivity and was, thus, liable to be set aside particularly when the same was founded on interested, inimical and discrepant testimony. Reference was made to 1998 SCMR 32. Learned counsel for the State submitted that the trial Court's Judgment was based on credible evidence and deserved to be upheld. Learned counsel for complainant submitted that the hype about declaration of innocence of accused by the investigating agency was too hollow to merit any serious thought because opinion or ipse dixit of police has never played any part in decision making in a criminal case. According to him, at least three injured witnesses had supported the prosecution case and giving preference to opinion of police in the circumstances would be uncalled for and unjust. It was submitted that it was promptly lodged first information report, and narrative given therein was duly supported by witnesses and case against the appellants-convicts stood proved to the hilt and no indulgence could be shown to them in the matter. Reliance was placed on 1997 SCMR 89; 1993 SCMR 544 and 1992 SCMR 2055.
16. Learned counsel for the convicts appellants had laid great emphasis on the opinion of the Investigating Officer whereby the appellants and the acquitted . Accused were declared innocent and it was stressed with considerable vehemence' that the said opinion should be respected. The proposition was contested by the learned counsel for the complainant equally vociferously. It was urged that the opinion or ipse dixit of the police never played any significant role in deciding the fate of the accused in a criminal trial and the defence plea merited throwing out.
Opinion, according to Webster means a view, judgment, or appraisal formed in the mind about a particular matter, a belief stronger than impression and less strong than positive knowledge; a generally held view; a formal expression of judgment or advice by an expert. Opinion is synonymous with view, belief, conviction, persuasion, sentiment.
IPSE DIXIT Latin according to Webster means 'he himself said it'; An assertion made but not proved.
In Latin ipse means self ipse dixit implies, (of a master or teacher) the master i,e, Pythagoras) has said it. Ipse dixit is, thus, an opinion which is not based on any syllogism, analytical data or reasoning but is a banal, in animate personal opinion or, a mere word of mouth or, a borrowed view based on the opinion of another. A word of mouth of a witness hardly finds favour in any judicial or quasi-judicial proceedings. Opinion is not only a simple word of mouth but also is a term of wider connotation. In judicial proceedings evidence of various genre is led or brought on record keeping in view the nature of controversy. There is direct evidence of witnesses of fact and there is evidence proffered by witnesses who are professionals, experts and in criminal trials particularly, public functionaries, as well. This evidence is not only relevant but is admissible as well. The evidence of experts, professionals or academicians is generally in the form of an opinion, This as a matter of fact, is a departure from the general rule that a witness cannot be asked his opinion upon a particular question, for the witness is required to speak of facts alone which are in his knowledge. But where matters of skill, expertise or professional knowledge are involved the witness might be asked for his opinion and the opinion given would be evidence in the case. For example, a medical officer is often required in a criminal trial to give his opinion regarding the cause of death, the mode of death, the type of weapon employed or the distance from which it was fired and opinion given if supported by necessary data would be accepted almost as a statement of fact though opinion in such a case was an inference made, or a conclusion drawn by the witness from the facts known to him. The opinion of a public functionary such as an Investigating Officer who has had deep association with the matter occupies the same position. Thus, while opinion which ipse dixit only, is never given any credence or weight in judicial proceedings, particularly a criminal trial, an opinion which qualifies to be almost a statement of fact enjoys a measure of respectability and is relevant to the decision of the controversy.
17. Investigatory evidence is an important constituent of a criminal case. The Station House Officer or Investigating Officer is generally the first public functionary who comes to know of commission of a crime. He reaches the scene of crime, starts investigation, collects physical, circumstantial and direct evidence about the crime and on the basis of material collected he forms opinion about the guilt or innocence of the accused which is incorporated in final report under Section 173, Cr.P.C. The Investigating Officer, because of pivotal role played by him in the investigation and the peculiar nature of duties discharged, becomes repository of many truths, half-truths and falsehoods about the case. He has direct knowledge of several relevant facts such as the scene of crime, the environment of locus delicti, the persons who were present or could have been around the place of occurrence at the fateful moments etc. The Investigating Officer is not a provider of opinion alone.
The final report prepared by him which provides a staging ground for launching criminal prosecution of the accused in a case is essentially based on the opinion or judgment of the investigating officer. The opinion of the Investigating Officer which is backed by supportive data, and qualifies, as observed above, like expert opinion, to be almost a statement of fact, can be given and should be given deference in appropriate cases, such an opinion may not provide a legal basis for conviction of an accused in a criminal case but it can create a small dent, a minor crack or a yawning gap in the prosecution case, depending on, and proportionate to weight of material behind it and due benefit of the same can also be extended to the accused. By tradition (and also by training), police officers are ruthless prosecutors and all their efforts are directed towards success of the prosecution case once the same is set up in certain terms. Giving of concession to accused is against the very nature of the traditional investigating officer and when one is forthcoming, and the giver of such opinion is also unbiased, non-partisan and impartial it would not be right to reject it by terming it as a mere word of mouth of an individual.
18. The incident in this case took place in front of Sadaat Petrol Pump located two miles away from Lala Musa Town, on G.T. Road. The most natural witnesses of the incident, other than the victims, were those persons who were present at the petrol pump. In the course of investigation Rehmat Ali, a tyre repairman, Bashir, a tea-stall owner and Sher Badshah employee of the petrol pump, who were actually present at the spot informed the Station House Officer/Investigating Officer that certain persons fired at another vehicle from a yellow cab and that only one vehicle, i,e, a yellow cab had taken part in the incident. The Investigating Officer traced the yellow cab bearing registration number LPT-8042, its driver Shaukat Hussain and then was able to pinpoint the real accused to be Azmat (proclaimed offender, later arrested after trial and since dead), Khalid alias Bati, Babar son of Talib and Shaukat. On the basis of evidence, thus, collected, the Investigating Officer P.W.14 concluded that the offence was committed by aforementioned accused only and the accused named by the complainant in the First Information Report were innocent. Since it was established that only the assailants had used only one vehicle, the number of accused could not have been larger.' A yellow cab is a small car (a medium-sized car according to our standards) having a small cabin which would inhibit larger occupation. The number of occupants of the yellow cab could have been four or five at the most. These occupants were identified and on the basis of that material the Investigating Officer testified on oath that the present appellants and their acquitted co-accused were innocent. It was not alleged that this was a dishonest opinion given by the witness or he had given it due to negative considerations. The testimony of the Investigating Officer P.W.14 is founded on sound footings and we are unable to treat it as garbage.
19. According to Amer Javed and other eye-witnesses, they were proceeding to Gujrat and when they had reached outer octroi-post of Lala Musa Town they found three cars parked there which were occupied by twelve accused besides the drivers. The accused at time, according to witnesses were carrying three Kalashnikovs, five .222-bore rifles, two shot guns and one 7-mm rifle. The complainant party despite seeing their enemies armed to teeth went on in a nonchalantly towards Gujrat. The conduct of complainant party was totally against human nature. Had they seen their enemies in such large numbers and armed with deadly weapons, the complainant party would have turned on their heels and made a retreat at jet speed into Lala Musa Town to take shelter somewhere. Then, it was alleged that the yellow cab pulled up to the right side of the car in which the witnesses were travelling and then Azmat fired with Kalashnikov at Riaz, deceased, where after their car stopped and then all the accused came out of the cars and started firing at the witnesses.
The car in which complainant and others were travelling came to halt. By that time only Riaz stood injured. Neither the complainant nor any of the witnesses tried to come out of the vehicle and attempted to run away from the spot. Instead, they waited for other cars to pull up to their vehicle, waited for the dozen accused to emerge from their cars and then to fire at the witnesses. In case, twelve persons had fired at the deceased and the injured prosecution witnesses from a close range as claimed, the damage to complainant's car and its occupants would have been enormous--they would have virtually been blown into pieces as three Kalashnikovs, five .222-bore rifles, two shot guns and one 7-mm rifle were allegedly used by the accused from a close range.
But the damage actually caused to the vehicle and its passengers was not commensurate with the fire power employed. Obviously, this aspect of the case was engineered in order to show that the witnesses were able to have identified the assailants. The testimony of eye-witnesses is belied by all the attending circumstances of the case.
20. The car in which the complainant party travelled was taken into possession vide memorandum Exh.PK. It had only eleven bullet marks on it. Some of the bullets might have smashed the window- glasses. A perusal of the medico-legal reports in respect of the deceased and the witnesses shows that all the bullets, or projectiles had travelled from right to left. The accused had not fired from an open space or open vehicle at the victims but from inside a car. The cabin of a small car has space limitations and vantage points it can provide to shooters are also limited. A person can fire from a car while occupying the front seat or the rear seat only, particularly when automatic weapons are used by assailants-spent casings eject" at enormous speed and with considerable force and any- body sitting close by faces mortal danger of being hit by these. The complainant party was fired at from the right side. Only two persons one occupying the front seat and the other sitting on the rear left seat of the car could have fired at the complainant party. Even one kalashnikov rifle could have caused the damage which was noticed on the car or on the bodies of victims but to give maximum allowance to the prosecution, a fair inference from the relevant data would be that at the most two weapons were employed in the incident--a Kalashnikov and a .22-bore rifle, because a few of the injuries were caused by weapon of a smaller bore. Analytical data in this context is quite deficient. No slugs or bullets were recovered from the cabin or seats of the victims car or from the road. Radiological examination had revealed existence of small metallic fragments in wounds of different victims. As the bullets had hit the victims after piercing the body of car, the same would have fragmented and caused injuries of various dimensions. Material on record in no way supports the prosecution case with regard to number of assailants, the number of weapons used and the manner in which the shooting had taken place. The defence version, and also the opinion of the Investigating Officer, that the complainant party was fired upon by assailants from one car only appears to-be nearer to truth.
21. It was argued on behalf of the appellants that the criminal case was registered belatedly after preliminary investigation. As observed above the occurrence took place at 9-30 a.m. At a place which was about two miles away from Lala Musa on G.T. Road. The news of the incident must have traveled like wild fire and people of Lala Musa must have known about the occurrence within minutes as G.T. Road is a very busy road. The injured were not taken to Gujrat but were taken to Civil Hospital, Kharian, In the process, the complainant and the injured had to pass by the police station. Azam, the injured witness, resided in Lala Musa and it is in evidence that his relations were informed about the happening and many relatives were with the injured at the time of their medical examination. Altaf Hussain, M.H.C. Admitted that the S.H.O. Had left the police station by 10- 15 a.m. The police had come to know about the occurrence by that time but First Information Report was not recorded. It was shown to have been recorded at 12-25 p.m. At the police station.
The Medical Officer, P.W.1 who conducted postmortem examination on the dead body of Riaz, deceased, was handed over the relevant papers, Exh.PL, Exh.PL/1 and Exh.PL/2, at 3-45 p.m. Where after the examination was conducted. Admittedly, these papers did not contain the First Information Report number meaning thereby that the F.I.R. Was not registered till then. One of few pointers which can assist in determining the time of recording of F.I.R. Are the documents which police has to prepare immediately after start of investigation and these include the injury statement and the inquest report which contain a specific column fall-number of F.I.R. Absence of number of F.I.R. From these documents is a fair indicator of the fact that first information report was not registered till handing over of these papers to the Hospital Authorities. Explanation given for not writing the F.I.R. Number was that the same was not received from the Police Station. In this case the Police Station was only 6 k.m. Away from the hospital and the places are connected by G.T.
Road and there could not have dearth of transport on that road. Explanation furnished for non- receipt of F.I.R. Number till then, was absurd. The F.I.R. Obviously was not recorded till 3-45 p.m.
When the post mortem examination of the dead body was carried out. Even the trial Court observed (para.32 of judgment) that "the matter was reported to police after due manipulations, consultations and deliberations". The F.I.R. In such circumstances cannot be considered to be the first or prompt documentation of the incident, and the same became suspect from the outset.
22. Believability and acceptability of a witness depends on numerous factors being injured is just one of them. The injury on the person of a witness does not transform his nature, or his attitude, or mentality. This would make him more vindictive. The injury primarily proves one fact only, and that is, that he was present at the scene of crime but it by no stretch of imagination proves him to be right or truthful. Where a witness is biased, and inimical towards the opposite party which is the case here, his testimony has to be scrutinized with care and corroboration of prosecution case in all of its materiq aspects is required. In Jahangir Hayat v. The State (PLD 1999 Lah. 285) the principles and guidelines for assessm ent of evidence were stated to be that different constituent factors of prosecution case must support each other and no single factor would suffice for recording conviction unless the same was corroborated in material respects by other constituent factors or elements. In serious cases entailing harsh sentences a single factor in itself would provide too narrow a foundation to base conviction of an accused. Evidence of witnesses of fact who were injured in the incident is just one factor or facet of prosecution case. Viewed in isolation, it might give impression of a plausible story to an untrained mind, but examined in a proper ambience its seamy side would become palpable immediately. The enmity between the parties, in the case under review is writ large on the face of record. The testimony of witnesses is too mechanical and insipid to inspire confidence. They involved a large number of persons as accused in the case without the slightest qualm. Except their word of mouth no other credible evidence excited which could put the noose around the necks of the convicts. Any other circumstance or the attending circumstances do not corroborate the venomous testimony of inimical witnesses. The witnesses tried to improve upon the prosecution' case. Nothing incriminating was recovered from the locus delicti or from the appellants which connected them with the commission of offence, and their case was not distinguishable on facts or the law from that of acquitted accused whose acquittal incidentally, has not assailed by the complainant. On a proper appraisal of the evidence, it has been found that the offence was committed by Azmat and others as concluded by the investigating agency. The appellants were sucked into the case by the complainant on account of vendetta and enmity. It was observed even by the trial Court (para. 34 of the judgment) that it was "undisputed tendency in this area that the net is thrown in a wider manner to involve the maximum number of the accused family so that none is left behind to feed the female and the minors and in that way agonize the adversaries." The appellant deserved the benefit of this observation like their acquitted companions.
23. As a consequence of above discussion, we conclude that the prosecution case against the appellants was not established; that the offence was committed by accused other than appellants-convicts; and that they were falsely involved in the case by the complainant due to enmity. The appeal, consequently, is allowed and the conviction and sentence of the convicts- appellants is set aside. They shall be released from custody if not wanted in any other case.