' SARDAR MUHAMMAD NAWAZ KHAN, J.---The above-titled appeals and the reference made by the District Court of Criminal Jurisdiction, Mirpur arise out of the same judgment, therefore, these shall stand disposed of through the following judgment.
2. Before dealing with the case in detail, we propose to record our observation regarding the appeal of convict accused Liaqat Ali. This appeal was received at the registry office of this Court on 21-12-1995 and it was placed before this Court on thesame day. This appeal merits no consideration. The reason being that the same is not competent on two grounds. Firstly the appeal is time-barred and secondly the convict appellant absconded at the time of pronouncement of judgment and he did not surrender before the Court order. The impugned judgment was pronounced on 12-6-1995. The limitation provided for filing of an appeal against the judgment of District Court of Criminal Jurisdiction is six months from the date of order. Therefore, the prescribed limitation for filing the instant appeal ended on 12-12-1995, but this appeal was received in the Registry Office of this Court on 21-12-1995. Thus, this appeal is hopelessly time-barred. As the convict appellant did not surrender before Court order and deliberately absconded at the time of impugned judgment, therefore, he has no right of audience. The convict accused had been facing trial and remained present during trial and deliberately absconded at the time of pronouncement of judgment. He was not exempted by the trial Court from personal appearance.
3. The other two appeals one by the complainant Muhammad Shafique and the other by the convict appellant Abdul Aziz shall be taken after answering the reference made by the trial Court under section 374, Cr.P.C., for confirmation of sentence. Before answering the reference, we feel it necessary to reproduce the relevant provision of law which gives the powers to this Court while sitting on a reference under section 374, Cr . P. C . The relevant provisions ection 376, Cr.P.C., which reads as under-- "376. In any case submitted under section 374, the High Court--
(a) may confirm the sentence, or pass any other sentence warranted by law, or
(b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or a new trial on the same or an amended charge, or
(c) may acquit the accused person: Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within the such period, until such appeal is disposed of.
' The above-quoted provision of law shows that when a reference is made under section 374, Cr.P.C., this Court has to satisfy itself as to whether a case beyond reasonable doubt has been made out against the accused person for the infliction of the penalty of death or Qisas. In fact the proceedings before this Court are reappraisal and reassessment of the entire facts and law in order that this Court should be satisfied on the material about the guilt or innocence of the accused persons by coming to an independent conclusion of its own and in so doing this Court will be assisted by the opinion of the District Court of Criminal Jurisdiction. It is clear from the perusal of the sections 374, 375, 376 and 377, Cr.P.C., that in such circumstances the entire case is before this Court and in fact it is the continuation of the trial of the accused on the same evidence. Thus, while exercising its powers as reference Court under section 374, Cr.P.C. This Court is competent to pass any order, e.g., it may confirm the sentence or pass any other order warranted by law. The convict accused may be acquitted or the conviction may be annulled. Even the accused may be convicted for any offence of which the District Court of Criminal jurisdiction might have convicted him. To order a new trial on the same or amended charge is also permissible under section 376, Cr.P.C. Similarly this Court may also direct to take additional evidence or further inquiry or trial.
Therefore, we proceed to answer the reference after examining the facts of the case and the evidence thereon.
4. A Crime No,129 of 1996 was registered at Police Station City, Mirpur on 22-7-1996 at about 00-15 a.m. At night. It was alleged in the report that at the night between 21/22 July, 1996 at about 11-45 p.m. Abdul Shakoor, Ghazanfar Ali, Muhammad Shafique, Muzaffar Ali and Abdur Rehman were sitting at Octroi Post Chittar-Parri when a Suzuki Van No, ID 1925 arrived from Mangla side. It was stopped and the driver was asked to pay octroi duty when a Toyota Corolla Car No,260 AJK arrived at the scene. It was occupied by Liaqat Ali, Javeed and was being driven by Abdul Aziz. They asked the Suzuki driver to move on, on which both the vehicles left the octroi post. The complainant and his associates suspected that the Suzuki Van was carrying some prohibited goods or the accused were otherwise avoiding the payment of octroi duty, therefore, they followed the Suzuki Van in their Car No,3213 Mark-11. The Suzuki Van driver, apprehending the chase of his vehicle, accelerated the speed. The accused's car driver attempted to hit the car of the complainant but they luckily escaped. On arrival near the Para Medical Project at Allama Iqbal Road, the car of the complainant party was stopped by Abdul Aziz driver by halting his car in the road, thus, blocking the road. The Suzuki driver on the direction of accused fled towards Chowk Shaheedan. Liaqat Ali, Javeed and Aziz came out of the car, Abdul Shakoor Muhammad Shafique, Ghazanfar Ali, Muzaffar Ali and Abdur Rehman also came out of their car. Mr. Liaqat Ali was armed with revolver whereas Mr. Javeed was armed with pistol/revolver. Abdul Aziz was having a baton in his hand at the relevant time. They attacked on the complainant, Abdul Shakor and his associates. Mr. Liaqat Ali fired on Ghazanfar Ali which hit on his right elbow. The other fire made at the complainant hit the car of the complainant on the right side. He also fired on Abdul Shakoor which hit him and he fell down.
Javeed also fired on the complainant but he missed the target. Abdul Aziz assaulted the complainant with his baton which caused in by on his right hand. The complainant party for their safety left the place of incident while Abdul Shakoor remained lying there. The accused continued firing. The Suzuki Van driver disappeared from the sight of the complainant and his associates.
5. The complainant Muhammad Shafique firstly took the injured person Ghazanfar Ali to the hospital and by leaving him there, he proceeded to lodge the report at Police Station, Mirpur.
6. The police concerned after registration of the case proceeded to the place of occurrence and by reaching there prepared site sketch and, thereafter, the dead body of Abdul Shakoor was shifted to the hospital. The post-mortem was c inducted and it was opined by the doctor that the deceased Abdul Shakoor died on account of fire-arm injury. A bullet was also recovered from the body of the deceased and was handed over to the police in a sealed position. The statement of the complainant and other eye-witnesses were also recorded by the police. The medico-legal reports pertaining to the injuries on the person of P.W. Ghazanfar Ali and the complainant Muhammad Shafique were also obtained from the concerned doctor and were made part of the file. The accused persons after alleged commission of murder, absconded and they were arrested after a couple of days from Pakistan. The weapons of offence i,e,, revolvers and baton were also recovered by the police at the potation of the accused persons. The revolvers and the blood-stained clothes of the deceased were sent to the experts and after obtaining their opinion, the reports were brought on file. The police after completion of investigation, found all the three accused as guilty of the offence with which they were charged. A challan was submitted before the District Court of Criminal Jurisdiction, Mirpur on 4-9-1996.
7. The trial Court examined the accused persons under section 242, Cr.P.C., wherein they denied the allegation levelled against them. Thus, the prosecution was directed to lead to evidence in support of its claim. According to the list of witnesses there were as many as 18 P.Ws. Out of which P.Ws.
Nos.3, 6, 7, 9, 17 and 19 were given up by the prosecution whereas the rest of the witnesses were produced before the trial Court. After completion of the prosecution evidence, the accused persons were again examined under section 342, Cr.P.C., and they once again denied the allegation against them. The evidence produced by the prosecution was also put to them and they termed the same as wrong and malicious. The accused Abdul Aziz was examined under section 342, Cr.P.C., on 28-11- 1993 whereas the other two accused Liaqat Ali and Javeed were examined on 16-2-1994 and the defence was directed to produce evidence to support their version, if any. The accused were granted as many as 12 opportunities spreading over a period of 7 months at least but they failed to do so. The trial Court then fixed the case for purgation and arguments on 22-10-1994, but on the aforesaid date the arguments could not be heard and the case was adjourned for six times and consequently on 3-12-1994 an application from the complainant side was moved that the accused persons who were at large at the relevant time were taking undue advantage of their bail, therefore, a request to hear the arguments were made but the trial Court again on the request of the accused Liaqat All adjourned the case to 7-12-1994. On the aforesaid date Mr. Baseer Ahmad Qurashi, Advocate was engaged by the defence, therefore, he again sought an adjournment and the case was shifted to 17-12-1994 and the arguments were heard partly. The case was again adjourned to 24-12-1994 but the arguments could not be concluded on the aforementioned date also. The case was adjourned to 26-12-1994 and an application by the defence to summon the P.Ws. Nos.2, 4 and 5 was submitted as, according to the defence, the aforesaid witnesses had retracted from their previous statements and some affidavits were also placed on the file of the trial Court. The trial Court dismissed the application and fixed the case for arguments on 27-12- 1994. The defence approached this Court through a revision petition against the order of the trial Court dismissing the application for summoning the witnesses. The arguments could not be heard on account of the fact that the matter pertaining to the rejection of the application remained pending before this Court and before Honourable Supreme Court of Azad Jammu and Kashmir for some time. The revision petition, filed by the defence was dismissed 'by this Court and it was left open to assess the matter while deciding the case. The accused persons approached the apex Court also against the order of this Court but later on they withdrew their appeal. Therefore, the order of rejection of application pertaining to summoning of P.Ws. Nos.2, 4 and 5 remained intact. The case was once again fixed for arguments but another application to review the order of the trial Court pertaining to P.Ws. Nos.2, 4 and 5 was presented before the trial Court on 2-5-1995. This review application also stood dismissed by the trial Court on 4-5-1995 and the case was fixed for arguments on 16-5-1995. The trial Court remained engaged in hearing the arguments till 4-6-1995 and on the aforesaid date the arguments were concluded. The impugned judgment was pronounced on 12-6-1995. The principal accused Mr. Liaqat Ali was sentenced to Qisas whereas Abdul Aziz was awarded a sentence of Hakoomat-e-Addal. Rs, Twenty Thousand and in case of default in payment, he had to undergo a further imprisonment for six months. The accused respondent Javeed was acquitted through the aforesaid order. Hence the above-titled appeals by the parties and the reference made by the trial Court for confirmation of sentence awarded to the principal accused Mr. Liaqat Ali.
8. The learned counsel representing the co-accused Abdul Aziz during his arguments submitted that though the principal accused did not surrender before the conviction order and as such he had no right of audience but unless the liability of the principal accused was determined, it was not possible to hold the co-accused vicariously liable for the act of principal accused, therefore, the learned counsel requested the Court to allow him to reopen the entire case. As stated earlier that this Court was sitting on a reference made under section 374, Cr.P.C., also and we were under legal obligation to examine the whole case in the light of the evidence on record. Thus, we allowed the learned counsel for the co-accused Abdul Aziz to argue the case on merits.
9. The learned counsel for the convict accused Abdul Aziz while assailing the impugned judgment raised the following points on the basis of which he stressed the acquittal of his client:
(1) The F.I.R. And the station diary (Roznamcha). On the basis of which the prosecution has raised its edifice were tailored and fabricated documents, thus, making the case doubtful.
(2) The two alleged eye-witnesses namely Ghazanfar Ali and Muzaffar Ali had retracted from their previous statements before the trial Court through different affidavits placed on record and this fact had a definite bearing on the case casting a serious doubt.
(3) As the aforesaid witnesses has retracted from their statements before the trial Court, therefore, those were wrongly relied upon by the trial Court.
(4) The evidence of the aforesaid witnesses, even if the fact of retraction was not accepted, were not trustworthy.
(5) The evidence of complainant Muhammad Shafique was also not confidence inspiring.
(6) The direct evidence and the site sketch when placed in juxtaposition, it did not suggest the fatal injury to the deceased to have been inflicted by -the convict accused, Liaqat Ali.
(7) The Ballistic Expert Report that the bullet found and taken out of the dead body could not be fired from the revolver allegedly recovered at the pointation of the accused Liaqat Ali, was also fatal to the prosecution case.
(8) That each and every ground mentioned above merited acquittal of the accused persons, therefore, the impugned judgment was bad in law.
' On contrary, the learned counsel for the complainant assisted by Additional Advocate General raised the following points to support the prosecution story:---
(1) The accused party stopped the vehicle of the complainant and his associates while they were chasing the Suzuki Van bearing No,ID-1925 carrying some contraband goods or perhaps avoiding the octroi tax and mounted attack on them.
(2) The presence of all the eye-witnesses and the accused party is an admitted fact and the F.I.R., was lodged immediately after occurrence by an injured person whose presence is admitted, therefore, the evidence of the complainant and the other eyewitnesses could not be discarded.
(3) The contradictions pointed out in the F.I.R., and Roznamcha were baseless having no negative bearing on the case.
(4) Defence had been continuously trying to destroy the prosecution evidence and the P.Ws.
Ghazanfar Ali and Muzaffar Ali did not retract from he previous statements. They did not swear the affidavits placed on record by the defence and in fact it was an attempt to destroy the prosecution case.
(5) The bullet found and taken out of the dead body was changed during the course by the concerned Official who fell in connivance with the accused persons and only then the same was sent to Ballistic Expert to destroy the prosecution case. There was no reason to disbelieve the testimony of eye-witnesses especially when they were injured and their presence was admitted.
(6) That even if the defence argument regarding the retraction of Ghazanfar Ali and Muzaffar Ali was accepted' to be correct, the evidence of the complainant Muhammad Shafique being perfectly impartial and confidence inspiring was sufficient to convict the accused persons.
(7) The principal accused was also charged with commission of offence under section, 707, APC and 15, IPL and the evidence on record also suggested to convict him for commission of the offence but the trial Court had inadvertently omitted to record the order of the sentence in this respect.
(8) The co-accused Abdul Aziz was wrongly awarded to lesser punishment whereas the, acquittal of co-accused Javeed was not warranted by the facts of the case.
(9) That the accused persons remained fugitive from law from some time, therefore, this fact acted as a strong presumption against them.
(10) That the Courts in Azad Kashmir are bound by the codified law and the Parliament or any other competent authority has not legislated any provision regarding retraction from the evidence, thus, the same could not be considered.
10. The learned counsel for the co-accused Abdul Aziz argued that the entries made in the Roznamcha Waqiati were at variance with the entries of F.I.R. There was no specific role attributed to Liaqat Ali accused in Roznamcha Waqiati whereas firing had been attributed to him in the F.I.R., by which he was alleged to have caused the death of Abdul Shakoor, the learned counsel contended. It was a further argument of the learned counsel that the original form on which the F.I.R., of the incident was recorded was bearing Serial No,15, therefore, the rest of the copies should have borne the same serial number, but one of the forms was with Serial No, as 16, thus, in the estimation of the learned counsel, the F.I.R., was subsequently changed. According to the learned counsel, had the F.I.R., been not replaced all the 4 copies of the F.I.R., would have had the same serial Number. We have closely examined the copies of the F.I.R., placed on the record of the trial Court and the original Register pertaining to F.I.R., and Roznamcha which have been placed on record before the trial Court. The contents and the substance of the report bearing its Serials Nos.15 and 16 was the same. The case number 129 of 1996 also found place on both the forms. The specimen signatures of the concerned police officer were also compared by the Court and found as resembling to each other. The difference in serial numbers of the forms on which the F.I.R., was recorded appeared due to misprinting. After examining the relevant Register, containing from on which the 1st Information Report was recorded, we found some other printing mistakes regarding the serial number out of the four forms which normally would bear identical serial numbers. Some of the same were bearing different serial numbers as a result of misprinting. Therefore, after close examination of the Register pertaining to the F.I.R., we are of the view that the difference ' in serial number is a printing mistake and the F.I.R., in this case has been not subsequently changed and is the same which was lodged by the complainant at the relevant time and stood corroborated by the complainant during his statement before the trial Court. Roznamcha (station diary) is a subsequent document prepared by the concerned official and, under law, only brief account is to be recorded on the aforesaid document after registration of the F.I.R. The register. Pertaining irn Roznamcha was also carefully examined by the Court. It bears the lame case number which finds place on the F.I.R. Exh.PA. This fact suffices to hold that the F.I.R., in the instant case was not subsequently changed. However, according to Roznamcha, no specific role has been attributed to Liaqat Ali accused but as stated earlier the Roznamcha Waqiati is a document, subsequently prepared by an official having domain on it and, under law, only a brief account of the incidence is to be given in it. The Court has to see whether the F.I.R. On the basis of which the prosecution has raised its edifice stands corroborated by the evidence or not. If any official having control over an official register, inadvertently or carelessly makes an entry in the register concerned, how can a report given by an injured eye-witness can be disbelieved.
11. The second objection raised by the learned counsel was about the retraction of P Ws, Ghazanfar Ali, Zafar Ali from their previous statements recorded by them before the trial Court. To meet this objection the learned counsel for the complainant maintained that as there was no provision in Islamic Penal Laws Act, 1974 regarding the retraction of witnesses from their statements previously recorded, therefore, this objection merited no consideration. It is felt proper to resolve this controversy first. The relevant provision contained in Islamic Penal Laws Act, 1974 is section 29 of the aforesaid Act which reads as under: {{URDU TEXT}} ' Under Islamic Laws any witness may retract from his previous statement at any time before the execution of the sentence and it is correct that the aforesaid provision of law is hopeful to arrive at the conclusions that if a witness retracts from his previous statement it shall affect the execution of the sentence. But the difficulty is that no procedure for retraction has been laid down in Islamic Penal Laws Act, 1974. However, there are certain conditions precedent for the Court to arrive at the conclusion whether or not a witness has retracted from his previous statement. The retraction must be made through a statement by the witness before the Court in presence of the parties and that the same must be volunteer in the estimation of the Court. The presence of the witness before the Court is possible only in two situations. The witness may voluntarily appear before the Court or he/she may be called by the Court when an application or any other material requiring the summoning of the witness is placed before it.
' As the aforesaid witnesses did not appear voluntarily and there is no procedure provided in Islamic Penal Laws Act, 1974 for procuring the attendance of the witness, therefore, there is no alternative but to have a resort to Criminal Procedure Code. The relevant provision of Criminal Procedure Code pertaining to the proposition in hand is section 540, Cr.P.C., which is reproduced as follows: "540. Power to summon material witness or examine person present.---Any Court may, at any stage of enquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined; and Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
' The above-referred section primarily is intended to enable the Court seized with the matter to dig- out the truth. It consists of two parts. In its first part discretionary powers have been granted to a Court to summon or even recall any witness for recording the statement if his statement appears to have been essential for the just decision of the case. It is also correct that powers to the Court under this section can be exercised at any stage of proceeding in a case. However, these powers can be exercised for judicial consideration only and not to advance the cause of prosecution or that of the defence. This section is basically intended to record the statement of such a person who can help the Court in reaching a just decision of the case. The powers under this section can be exercised in order to know about something which could not be brought on record either due to negligence of the parties or intentional act .Of the parties. No doubt a person who has appeared as a witness and recorded his statement before the Court, can be resummoned and re-examined by the Court, if, in his earlier statement there is some ambiguity or some fact had been deposed to either due to failure of the parties examining him or for any other reason.
12. The learned counsel for the accused Abdul Aziz during his argument relied upon PLD 1987 Shariat Court (AJ&K) 6 and PLD 1985 SC 233. The relevant portion of the judgment of the Shariat Court (AJ&K) is reproduced as under: "S-540. Scope and application.---On completion of trial or conclusion of final arguments, the Court vested with authority to recall a witness, in order to allow him to retract or to examine him to ascertain the retraction made before the Court through an affidavit or otherwise.
' Section 540, Cr.P.C. Is the provision of law which enjoins upon a Court holding trial or inquiry or either or other proceedings under the Code, to summon any person as a witness or examine any person in attendance or to the satisfaction of the Court his evidence appears to be essential to the just decision of the case. These provisions obviously, conferred vide jurisdiction on the trial Court for summoning a person as a witness or examining a person in attendance or recalling and reexamining a person already examined as witness, provided the Court believes that it is essential to do so to enable it to give a right and just decision of the case. The second part of section 540, Cr.P.C., makes it imperative for the Court to recall or re-examine a witness, if in its opinion, it was necessary for a right and just decision of the case. The condition precedent, therefore, was that the Court must believe in good faith that it was imperative for a just decision to recall and re-examine a witness. In absence of the condition precedent confirming to a just decision in no other circumstances, under the second part of this section, it was enjoined upon the Court to recall and re-examine a person."
(Underlining is ours).
13. The perusal of the judgment delivered by then learned Chief Justice of Azad Jammu and Kashmir shows that while exercising the powers under section 540, Cr.P.C., the condition precedent is that the Court must believe in good faith that it was imperative for a just decision to recall and reexamine a witness. In absence of condition precedent confining to a just decision in no other circumstances under the second part of this section, it shall enjoin upon the Court to recall and re- examine a person. It means that the Court has to satisfy itself before recalling a witness that it was necessary to do so far just decision of the case and there were genuine reason to do so. If the Court, keeping in view the overall circumstances of the case arrives at the conclusion that recalling or reexamining a witness is not necessary it is within the competence of the Court to refuse.
' The other authority relied by the learned counsel is PLD 1985 SC 233 and the relevant portion of the aforesaid judgment is as under: ' Section 540 (second part)---Witness (a boy) after recording statement at trial against accused again appearing in Court with defence counsel to support a deposition made by him in a duly sworn affidavit, disowning entire prosecution version and making a statement favourable to accused---Trial Court started unnecessary argumentative clash with lawyer on assumption that witness might have been coerced by lawyer or his client and handing over witness to his parents to be brought again in Court-witness re-appeared in trial Court and had by then changed his position for third time by making another volta face---Held, trial Court should have acted under section 540 (second part), Cr.P.C., and examined witness straightway as it was an important development---Such witness, even if, was coerced should have been removed to a neutral custody for some days before examination---Trial Court, therefore, acted in contravention of mandatory provisions of law viz. Section 540, Cr.P.C., without any justifiable cause---Non- compliance with mandatory provision of 5.540 of Cr.P.C., therefore, cause very serious prejudice to accused in circumstances.
14. The perusal of aforesaid judgment of the Supreme Court of Pakistan shows that the witness in that case after recording his statement before the trial Court against the accused once again appeared before the trial and supported a deposition made by him in a duly sworn affidavit disowning entire prosecution version making a statement favourable to the accused but the trial Court did not record his statement and he was handed over to the parents already interested in the conviction of the accused person. Therefore, this judgment has no bearing on the instant case for the reason that here in the present case no witness personally appeared before the trial Court at the time of submission of the affidavits allegedly sworn by them. Moreover, the Courting the instant case was not satisfied to summon the aforesaid witnesses. The trial Court closely examined the conduct of the accused person in delaying the case and destroying the evidence, therefore, it declined to summon and re-examine the witnesses once again. It is felt proper to have a brief survey of the facts which gave rise to the present controversy.
15. There are different applications on the file of the trial Court. (Nathy A and B) submitted by the complainant party to the Court and different high-ups of the executive time and again. It was alleged in the applications that the accused persons were delaying the case deliberately and were making the Continuous attempt to destroy the prosecution evidence. An F.I.R., against P.W., Muzaffar Ali by the accused Javed is also on record which was lodged at Police Station Gujar Khan, Pakistan. This is something which shows that continuous efforts were being made to win over the prosecution witnesses. But, they did not appear before the trial Court after recording their statement, favoring the prosecution case.
16. The prosecution evidence was concluded in a period spreading over seven years. The accused persons were granted as many as 17 opportunities for their examination under section 342, Cr.P.C.
They were given a period of seven months to produce the evidence in their defence, if any. Despite the aforesaid facts, neither P. Ws. Ghazanfar Ali and Muzaffar Ali voluntarily appeared before the trial Court to retract from their previous statements nor the defence even attempted to seek the help of the Court to produce them for retraction from their statements before closing the defence.
The defence could easily produce the aforesaid witnesses before the Court or a request could be made to the Court to procure their attendance. The affidavits allegedly sworn by the aforesaid witnesses were placed on record for the first time alongwith an application on 20-12-1994 i,e,, not on the date fixed for hearing in the instant case. This application along with affidavit was submitted to Sessions Judge (single member of the Court) and the trial Court on 24-12-1994 rejected this application. The trial Court, after due application of mind disallowed the application for summoning the aforesaid witnesses for examination and this order of the Court was challenged before this Court. The order of the trial Court was upheld by this Court also. The accused persons challenged the order of this Court before the Supreme Court of Azad Jammu and Kashmir and subsequently withdrew their appeal. Therefore, the order of the trial Court passed on 24-12-1994 remained intact. However, through this order the Trial Court kept its mind open to consider the objection about retraction once again at the time of final judgment and it did so but the same conclusion was drawn at the time of impugned judgment. The trial Court observed that there was no need to re-examine the aforesaid witnesses keeping in view the facts and circumstances of the instant case. Therefore, neither the aforesaid witnesses voluntarily appeared before the Court nor the trial Court felt itself satisfied to re-examine them.
17. Another application to place two other affidavits by the same witnesses was also placed on record on 21-5-1995. The aforesaid date was not the date of hearing in the instant case. This application was submitted to learned Sessions Judge. However, the affidavits were placed on record but there is nothing to show that who presented this application along with affidavits. The perusal of these affidavits submitted on 21-5-1995 show that it is a reiteration of the affidavits placed on record on 20-12-1994. It further shows that the necessity to place these affidavits on record had arisen on account of some other affidavits allegedly sworn by the aforesaid witnesses disowning their counter-affidavits placed by the prosecution on record on 20-12-1994. This shows that the aforesaid witnesses being Pakistani Nationals were being chased by the defence on different occasions. The statements recorded by the trial Court were in corroboration of the F.I.R., and the statements recorded under section 161, Cr.P.C., immediately after occurrence. These statements were recorded on oath by the trial Court. Therefore, in order to re-examine a witness, satisfaction of the Court is a condition precedent. The cases cited by the learned counsel for the defence have no bearing on the instant case as the facts are not identical to the cases referred by the learned counsel. In the case titled "The State v. Afsar' the trial Court felt itself satisfied to or examine the complainant being eye-witness as an affidavit duly sworn by him was placed on record. The order of the trial Court was challenged before this Court and it was opined by the learned Chief Justice that primarily it was for the trial Court to satisfy itself to re-examine witnesses, therefore, no illegality was committed. Here in this case the trial Court did not feel itself satisfied and refusal by the trial Court was based on reasons. Thus, we agree with the order of the trial Court not to re-examine Mr. Ghazanfar Ali and Mr. Muzaffar Ali P.Ws. In the other case cited by the learned counsel decided- by the Honourable Supreme Court of Pakistan, the witness himself appeared before the Court and the Court did not re-examine him. There was no question of summoning the witness. Had there been any volunteer appearance of the witnesses before the Court and the trial Court had refused to record their statements, then certainly the case would have been otherwise.
But if a witness is to be resummoned and re-examined while invoking the powers under section 540, Cr.P.C., it can only be done by fulfilling condition of satisfaction of the Court. Therefore, we hold that the trial Court had rightly refused to re-summon and re-examine the aforesaid witnesses.
Thus, the result is that unless the Court is satisfied that the witness being penetent on his previous statement has voluntarily retracted from it, it has no bearing on the case and furthermore for re- calling a witness to re-examine under section 540, Cr.P.C., the condition precedent is the satisfaction of Court. The trial Court did not itself satisfied about the alleged retraction, therefore, it rightly declined to summon and re-examine the aforesaid P.Ws.
18. Another point vehemently argued by the learned defence counsel was that the bullet taken out of the body of the deceased by the doctor was not fired from the revolver allegedly recovered at the pointation of accused Liaqat Ali as the report of Ballistic Expert shows. The learned counsel during his arguments substantiated his view-point by displaying the revolver, pistol, and the bullets used in high and low velocity weapons. He argued that the bullets used in pistols were always jacketted by steel whereas the revolvers were low velocity weapons and the bullets used in revolvers were lead bullets. Therefore, according to the learned counsel, the bullet recovered from the dead body of the deceased being jacketted bullet was not fired from the revolver .32 bore allegedly recovered at the instance of accused Liaqat Ali and this fact further made the prosecution story as doubtful. According to the recovery memo. Exh.PK, the concerned doctor, after conducting the post-mortem of the deceased, handed over a lead bullet recovered from the body of the deceased on 23-7-1986. This lead bullet was sealed in a Shishi (bottle) bearing the title of the case and the signature of the concerned doctor in presence of witnesses. An attesting witness namely Nazir Ahmed also appeared before the Court and testified the fact of handing over the lead bullet sealed in a Shishi bearing signature of the doctor and the title of the case. This lead bullet was not sent to the Ballistic Expert during investigation and it remained in Malkhana for a period more than three years. Subsequently when the instant case was at the stage of evidence and the statement of-the complainant was also recorded, an application by the accused was submitted before the trial Court to send the abovementioned lead bullet to the Balastic Expert. The learned Sessions Judge invited the objections from the other side. An objection was raised by the complainant that as the lead bullet was not sent to Ballistic Expert and a considerable time had been elapsed, therefore: the possibility of the change of the bullet could not be ruled out. The learned counsel for the complainant vehemently maintained that if at all the disputed bullet was to be sent to the Ballistic Expert it was proper to send the same after recording the evidence of doctor and the attesting witnesses of the recovery memo. Exh.PK. The learned Sessions Judge, however, declined the request of the complainant and, by allowing the application submitted by the accused, sent the lead bullet and the revolver .32 bore allegedly recovered from the accused Liaqat Ali to the Ballistic Expert. The above articles were sealed in parcels bearing the seals of learned Sessions Judge. These parcels were received by the Ballistic Expert on 18-6-1989 and a report was sent to District Court of Criminal Jurisdiction, Mirpur showing therein that the crime jacketted bullet was of .9 mm-bore and it could not be fired from the .32 bore revolver allegedly recovered from the accused Liaqat Ali.
19. We have examined the recovery memo. Prepared at the time of handing over the bullet recovered from the body of the deceased and the order of the learned Sessions Judge pertaining to dispatch of the parcels containing the bullet and the revolver along with Ballistic Expert Report Exh.C.A. And two other reports prepared by Ballistic Expert and Chemical Examiner Exh. P.B.B. And P.C.C. For our own satisfaction in order to reach at some conclusion.
20. Controversy between the parties is that whether the bullet sent to the Ballistic Expert by the Sessions Judge was the same which was recovered from the body of the deceased or it was changed subsequently. Before arriving at some conclusion, we feel it proper to observe that it was not proper for the learned Sessions Judge to send the disputed bullet without first examining the concerned doctor and the attesting witnesses to the recovery memo. Pertaining to the bullet. The fairplay was to ensure first that the bullet recovered by the doctor from the body of deceased and sealed in a Shishi (small bottle) bearing the title of the case and the signature of the doctor was the same and after ensuring this fact the bullet sealed in the small bottle was to be sent to the Ballistic Expert alongwith revolver but the learned Sessions Judge failed to do so. Another aspect of this case is that no data or explanation were given by the learned Sessions Judge whether or not the disputed bullet was in the same condition as the recovery Memo. Exh.P.K. Revealed. The order of the learned Sessions Judge shows that he sent only a lead bullet with no mention as to whether the same was sealed in a small bottle and, if so, whether the seal of the doctor was intact at the relevant time. He simply enclosed a lead bullet and the revolver in the parcels prepared by him and affixed his own seals on the parcels. Even if it is assumed that the disputed bullet was in the same position as stated through Exh.P.K. It can safely be said that a lead bullet was sent to the Ballistic Expert and not the jacketted bullet. Moreover, the Ballistic Expert when opened the parcels sent by the learned Sessions Judge he found only a revolver and a jacketted bullet. There is no certificate by the Expert showing that whether the seals of learned Sessions Judge were intact or not whereas it was necessary for the Expert to ensure at the time of receipt of parcels that the seals were intact. A comparison of Exh.C.A. May be made with the other documents pertaining to different reports of Experts Exh.P.BB. And Exh.P.CC. Both the Experts while giving their reports through the aforesaid documents have given a certificate that the seals of the parcels containing different articles were intact but while submitting the report marked as Exh.C.A. No certificate was given by the Ballistic Expert. The Ballistic Expert when opened the parcel of Sessions Judge he found a jacketted bullet inside whereas as a lead bullet was sent by the Sessions Judge. According to the site-sketch prepared during investigation, the victim was hit by fire-arm from a distance of 10 feet by the assailant Liaqat Ali. It is correct that the jacketted bullets are always used in high velocity weapons and we also agree with the learned defence counsel that the bullets used in high velocity weapons are always jacketted by steel. The pistol (9 mm-bore) is a high velocity weapon. It is not possible that if a fire is made by a high velocity weapon from a distance of 10 feet by the assailant and the same hits the victim and the bullet shall remain inside the body of the victim. It will definitely pierce through the body leaving an exit wound behind it. The bullet was taken out from the body of the deceased and the same was found as lead bullet but subsequently another bullet jacketted by steel was sent to Ballistic Expert. Therefore, we are of the firm opinion that the bullet recovered from the body of the deceased was subsequently changed by the defence in order to damage the prosecution case. When this fact is considered coupled with the different applications, affidavits and an F .1. R . , placed on file by the parties leaves no doubt to hold that the defence had been continuously trying to destroy the prosecution evidence. The revolver was recovered at the potation of accused Liaqat Ali and the lead bullet was also recovered from the body of the deceased. The bullet was sealed by the doctor and was handed over to the police in presence of witnesses bearing the signatures and the title of the case. An attesting witness was also examined by the trial Court, therefore, it is observed that the bullet, recovered from the body of the deceased, was changed subsequently.
21. Another objection was raised by the learned counsel for the defence that keeping in view the direct evidence, and the site-sketch it was not possible that the injury sustained by the deceased to have been inflicted at the hands of accused Liaqat Ali for the reason that the direction and the angle of the injury did not correspond to the direct evidence and the site-sketch prepared by the police during investigation. We would like to observe that the case of the prosecution is that the victim was hit by the assailant while he was running away and the assailant was chasing him. In such-like situation, the possibility of change of direction and angle cannot be ruled out.
22. The accused were nominated in the F.I.R., which was lodged at Police Station City, Mirpur without any delay. The role attributed to the accused Liaqat Ali is unambiguous. The report was given by an injured person whose presence at the spot is also admitted by the defence. He is a natural witness.
The presence of other eye-witnesses is also admitted by the defence. One of the eye-witness namely Ghazanfar Ali is also injured during the incidence. All the eyewitnesses alongwith the complainant appeared before the Court and corroborated the version given in the F.I.R. The presence -of accused at the place of occurrence is also an admitted fact.
23. The statements of eye-witnesses were closely examined. These witnesses were cross-examined at length. P. Ws. Ghazanfar Ali and Muzaffar Ali are Pakistan Nationals who were serving with the deceased and the complainant at the relevant time at Mirpur. They did not have any enmity with the accused party. They were examined immediately after the occurrence by the police and they also deposed the fact of incidence before the trial Court corroborating the version given in the F.I.R.
One of them was also injured during incidence and the medico. Legal report pertaining to his injuries is also on the file which corroborates the version given in the F.I.R. The purgation report regarding these witnesses is also positive. The defence has been chasing them to change their statements, but they never appeared before the Court and the affidavits allegedly sworn by them are not reliable. It is interesting to note here that the affidavits show that these witnesses are eye- witnesses to the incidence and one of them was also injured. It is also stated in the affidavits that the deceased also received fatal injury but nothing is disclosed in the affidavits that by whom the injuries were caused. It means that the affidavits allegedly sworn by the aforesaid witnesses is nothing but an attempt on behalf of the defence to destroy the case of the prosecution. When the presence of both the parties at the place of occurrence is an admitted fact, then there should have been a clear stand as to how they were injured in case the prosecution story is not correct.
24. Even if for the sake of arguments it is accepted that the eye-witnesses Ghazanfar Ali and Muzaffar Ali have retracted from previous statements, the conviction can be based at the sole statement of the complainant Muhammad Shafique which stands corroborated by the post- mortem report and other circumstantial evidence brought on record. The police officers who at different times investigated the occurrence of murder also appeared before the Court and deposed that they found the accused persons as guilty of the offence they were charged with. The complainant, belongs to the tribe of the accused. They were living in the same Mohallah (vicinity) at the relevant time. The accused Liaqat Ali and Javeed Hussain belong to Jat Community whereas the deceased belonged to Qureshi Community. There is nothing on record to show that the complainant was having any grudge, enmity or rivalry to the accused party. He is A-Class Contractor having good repute in the society. His presence at the spot is admitted by the defence, and he was injured during the incidence. The fact of his injury is also borne out by the medico-legal report placed on the file. The concerned doctors also appeared before the trial Court and corroborated the reports given by them regarding the postmortem of the deceased and the different medico-legal reports pertaining to the injuries sustained by the complainant and the eyewitness Ghazanfar Ali. Therefore, the complainant being a natural witness lodged an F.I.R.
Without any delay giving all the details of the incidence. He was cross-examined by the defence at length. There is nothing to discredit his testimony. The trend of cross-examination also shows that the defence tried to build up his case that the fatal injury to the deceased and the injuries sustained by the eye-witnesses were given by the complainant party by fire-arm. Had it been true, the accused should have not absconded immediately after occurrence but they were expected to have a legal course by lodging a report against the complainant party. The accused absconded immediately after occurrence and later on after a couple of days they were arrested from Pakistan area. The fact of absconsion is also a circumstance to lend support to the prosecution story.
Therefore, we have no hesitation to believe the prosecution stand.
25. The trial Court after due application of mind declared the accused Liaqat Ali and Abdul Aziz as guilty of the offence with which they were charged. Liaqat Ali accused was sentenced to Qisas and Abdul Aziz was awarded a punishment of Hukoomale-e-Adl Rs, Twenty Thousand and, in case of default in payment, he had to undergo a further punishment of six months. The co-accused Javeed Hussain was acquitted by the trial Court. It is pertinent to note here that the principal accused Liaqat Ali was held responsible for commission of an offence under section 15 of Islamic Penal Laws Act and 307, A.P.C. Also but the trial Court while recording the judgment inadvertently omitted to award any sentence for offence under sections 307, A.P.C., and 15 I.P.L. The accused Liaqat Ali absconded at the time of pronouncement of judgment as such he did not surrender before the conviction order, therefore, we were unable to serve him with a show-cause notice in the appeal filed by the prosecution titled Muhammad Shafique and others v. Liaqat Ali and others.
However as stated earlier this Court is sitting on a reference submitted by the trial Court under section 374, Cr.P.C., as well. The powers given to this Court while answering a reference are very wide. This Court is competent under section 376, Cr.P.C., to convict an accused for any offence the trial Court might have convicted him. Through the evidence on record, the trial Court also arrived at the conclusion that the principal accused Liaqat Ali was also responsible for an attempted murder of P.W. Ghazanfar Ali but at the time of recording the impugned judgment the Court inadvertently omitted to record the punishment for commission of offence under sections 307/A.P.C. And 15/I.P.L. Therefore, this Court is competent to award punishment for offence under sections 307/A.P.C. And 15/I.P.L., while deciding the reference made to this Court for confirmation of sentence.
26. After close examination of the facts of the case and by assessing the situation under which the incidence took place, we are of the opinion that the element of premeditation and common intention to murder the deceased is missing in the instant case. Thus, each accused is responsible for what he did during the incident. The facts of the case do not warrant to award capital punishment to the principal accused Liaqat Ali. Therefore, we order the sentence of life imprisonment to principal accused Liaqat Ali for commission of an offence under section 5, I.P.L.
And a further punishment of 5 years for commission of offence under section 307/A.P.C. And 15/I.P.L.
As the incidence pertains to year 1986, thus, the terms of life imprisonment shall be 14 years. Both the punishments shall start one after the other. The accused Abdul Aziz is proved to be guilty for infliction of simple injury to the complainant, therefore, the punishment awarded to him by the trial Court is upheld. The allegation against Javeed Hussain has not been proved satisfactorily and as stated earlier the fact of common intention and premeditation is missing in this case, thus, he was rightly acquitted by the trial Court. Therefore, the result is that the appeal filed by the complainant Muhammad Shafique and others stands succeeded in the manner indicated above and the cross- appeals filed by Liaqat Ali and Abdul Aziz being devoid of force are hereby dismissed. The reference also stands answered accordingly.