1. ' The above titled appeals arise out of single incidence therefore, the following judgment shall decide both of them.
2. ' The convict-appellant (appellants hereinafter) were found guilty on the charge of double murder, by District Court of Criminal Jurisdiction Bhimber vide its order, dated 30-9-1998 and they were awarded sentence of rigorous imprisonment for a period of 30 years, 15 years for each murder.
3. ' The brief facts as stated in the F.I.R. Are that the alleged incident took place on February 20, 1991 at 'Asr' time wherein Ghazanfar alias Janoon and Muhammad Siddique suffered fatal injuries by 'fire- arms and died on spot. Mst. Sardaran Bibi, mother of Ghazanfar deceased lodged F.I.R. At the concerned Police Station. The complainant involved ten accused in the report. She also described herself Mst. Jafy and Messrs Mazhar Iqbal and Ghulam Qadir as eye-witnesses. The motive disclosed in the report was prior enmity between the parties.
4. ' The police on the conclusion of investigation released six accused out of the total number by giving them the benefit under section 169, Cr.P.C. Adalat Khan accused absconded during investigation as such proceedings under section 512, Cr.P.C. Were initiated against him. The appellants were found guilty of offence of double murder and they were sent to face the trial before competent Court. The trial Court at the conclusion of trial convicted all the three accused as stated in the preceding paragraph of this judgment. Hence these appeals by them to reverse the judgment and order.
5. ' The learned counsel for the appellants while challenging the validity of the impugned judgment argued that venue of incidence was not the same as disclosed by the prosecution and it was sufficiently proved from the evidence on record that the deceased were found dead in another place and a false case account of enmity was concocted with the con livance of police. It was further submitted that all the witnesses were interrelated and there was nothing on record to corroborate their testimony as such the same w to be discredited in absence of dependent corroboration. The deceased were fugitive from law and they were killed by the police themselves in a police encounter and a false case was fabricated against the appellant in order to save them by taking benefit of enmity existing between the parties. To elaborate his viewpoint, he contended that the statements of different witnesses under section 161, Cr.P.C., were recorded with a considerable delay and all the incriminating articles claimed by the prosecution to have been recovered from appellants were denied by the recovery witnesses therefore, in the light of evidence it could easily be established that the appellants were falsely implicated. It was further argued that the complainant was not an eye-witness and another eye-witness Ghulam Qadir had retracted from his previous statement under section 161, Cr.P.C. As such he was declared hostile. The only direct evidence which remained in this case was the statement of Mazhar Iqbal P.W. He is close relative of the deceased and, in the absence of any independent corroboration, his testimony did not suffice to convict the appellants. The Investigating Officer was not produced in the Court so as to testify the fact of investigation neither any secondary evidence was adduced. To conclude his arguments, it was argued that only direct evidence consisted of a sole statement of close relative of the deceased Ghazanfar and as it lacked independent corroboration therefore, the conviction order recorded against the appellants was not sustainable in the eye of law. Moreover, the statements of Mazhar Iqbal and Ghulam Qadir was not reliable for the reason that Ghulam Qadir was declared hostile and Mazhar Iqbal was not found as 'Aadil' witness.
6. ' On the contrary, the learned Additional Advocate General while supporting the impugned Judgment and order contended that the case was registered on a report promptly lodged at concerned Police Station and this fact by itself wiped out any chance of false implication. It was further argued that it was a day light murder in presence of eye-witnesses and the direct evidence in the instant case stood corroborated by circumstantial evidence like post-mortem reports and recoveries of incriminating articles at the instance of appellants.
7. ' Before going into detail, it may be observed that appellant Muhammad Sulaman is not found to have been examined under section 242, Cr.P.C.
8. ' Arguments were heard and judgment was reserved but during perusal of record it transpired that the statement of appellant Muhammad Sulaman was not available on file. Therefore, the learned counsel for he parties were asked to assist the Court in this respect. The learned counsel for defence, while dealing with this point, referred section 537, Cr.P.C. Along with two reported cases titled" Iqbal Hussain v. The State (PLD 1969 Lahore 217) and "State v. Abrar Hussain Shah and two others" (1986 PCr.LJ 2941 Shariat Court AJ&K).
9. ' In Iqbal Hussain's case it is observed as under:--- "Criminal Procedure Code (V of 1898). ---Ss. 242 & 537---Omission to examine accused under section 242 before recording prosecution evidence and lumping together of various offences--- Regrettable---Such omission, however, curable under section 537 and not fatal to proceedings of trial unless failure of justice caused---Accused an educated person represented by Counsel having cross-examined all prosecution witnesses, adduced evidence in defence and put to detailed examination under section 342 and all incriminating circumstances appearing against him in evidence of prosecution witnesses having been put to him---Nothing shown to have misled him in his defence---No objection as to omission on part of Court to examine him under section 242 raised---Order sheet showing that Court itself took notice of such omission on part of predecessor and having heard arguments found that no prejudice had been caused to accused-- Contention that omission, in circumstances, had vitiated trial---Not accepted".
10. ' In Abrar Hussain's case it was held as 'under:- "Criminal Procedure Code (V of 1898). ---Sections 242 & 537--- ' Provisions of section 242, Cr. P . C . ---Compliance imperative- -- True test whether disobedience to provisions of section 242 was an illegality or irregularity, held, rested on question whether any prejudice or injustice was caused to accused---Unless Court by the non-compliance of provisions by trial Court was satisfied that such departure from mandatory provisions of procedure had occasioned prejudice or injustice to accused, such omission would be merely an irregularity curable under section 537, Cr. P.0 C. ---Trial otherwise found unbiased and just could not be vitiated on grounds of technicalities".
11. The above referred case-law definitely helps to resolve controversy. It is clearly laid down in section 537, Cr.P.C. That any error, omission or irregularity have found to have occasioned failure of justice then of course any sentence order or finding shall be reversed. It is also provided in the same provision of law that in determining where any error. Omission or irregularity in any proceeding under the Code of Criminal Procedure has occasioned failure of justice, the Court is under legal obligation to have regard to the fact whether the objection could and should have been raised at an earliest stage of the proceeding.
12. ' After going through statutory provision of law and the case-law referred by the learned defence Counsel, this Court is of the view that no injustice has occasioned in the present case. Here in this case all the accused were present on the relevant date and order-sheet of the Court shows that they were examined under section 242, Cr.P.C. But the statement of accused Muhammad Sulaman under section 242, Cr.P.C. Is not available on the file of the case. Therefore, it could not be said with certainty whether or not he was examined under section 242, Cr.P.C. But this omission is not fatal to the proceeding of the trial unless failure of justice is. Caused. The accused was being represented by a counsel and all the prosecution witnesses against him were fully cross-examined. He was put to a detailed examination under section 342, Cr.P.C. And all incriminating circumstances and direct evidence appearing against him were put to him. Nothing was shown to mislead him is his defence. No objection in either side was raised during the trial. Therefore, under the circumstances of the case, no prejudice appears to have been caused to the accused, so the trial does not vitiate in this case.
13. Now taking up the case of appellants on merits, it may be observed that a severe enmity on account of different murders allegedly committed by one of the deceased namely Ghazanfar existed between the parties prior to the present incidence. The appellants while recording their statements under section 342, Cr.P.C. Stated that they were falsely implicated on account of enmity as their close relatives father. Brother and uncle etc. Were murdered by Ghazan far deceased and the complainant party on account of this enmity suspected them to be involved in the murder as such a false case was registered .Against them. It is admitted by the complainant party also that different criminal cases were registered against Ghazanfar deceased for murder of close relatives of appellants and, they, in order to take revenge, murdered Ghazanfar along with his companion Muhammad Siddique while they were travelling to village Heer from another village Pindi Abdal. Thus, severe enmity being an admitted fact on both the sides along with possibility to take revenge shall remain in the mind before arriving at a conclusion.
14. ' Mst. Sardaran Bibi an old lady of about 75 years whose son was murdered, according to her statement, when reached on the spot after hearing firing sound witnessed the appellants equipped with fire-arms and dancing over the dead-bodies. She after having seen this unfortunate incident, ,rushed to a road leading to Police Station but on account of non-availability of transport she went on foot to the Police Station and lodged F.I.R. The distance from the place of occurrence to Police Station, .The age of the lady and the fact of the murder of her real son when seen together suggest to arrive at the conclusion that there was no delay in lodging F.I.R. Therefore, the prompt lodging of by wipes-out any chance of false implication. When her Court statement is examined in its true perspective, she appears to be a natural witness. She whatever saw stated in a natural manner and there appears no reason as to why her statement should be discredited. No doubt, Mazhar Iqbal and Mst. Sardaran Bibi are the close relatives of the deceased but at the same time, Ghulam Qadir P.W. Is admittedly an independent witness whose purgation report is positive.
15. Though he is declared hostile but this fact by itself is not sufficient to discard his evidence totally. It is settled principle of law that the statement of an hostile witness to the extent it corroborates the other evidence is reliable especially when he is found as 'Aadil witness'. Here in this case, the prosecution claimed that Mazhar Iqbal, Ghulam Qadir, Siddique and Ghazanfar went to village Pindi Abdal at the time of 'Zohr' and it is admitted by Ghulam Qadir, P.W. That Mazhar Iqbal P.W.
16. Was with them while travelling back to village Heer. The time, date and place of occurrence as stated by Ghulam Qadir P.W. Is the same as disclosed by Mazhar Iqbal. Therefore, it can safely be said that P.W. Mazhar Iqbal was present at the time of occurrence. Mazhar Iqbal and Mst. Sardaran Bibi P.Ws., in the light of record made available to this Court, appears to be natural witnesses.
17. Therefore, the fact of lodging Ist Information Report without any delay when seen in the light of the Court statements of aforesaid prosecution witnesses leaves no doubt to reach the conclusion that the appellants are the real culprits and mere fact of relationship cannot be allowed to discredit the prosecution case under its peculiar circumstances.
18. The objection pertaining to the venue of occurrence to be different was never pleaded or raised during trial. The appellants were examined and they did not plead the place of occurrence to be a different one. No suggestion whatsoever in this regard was put to prosecution witnesses during cross-examination neither a defence evidence showing the dead bodies to have been recovered from another place was adduced. There fore, this objection at this stage cannot be allowed to prevail. However, for my own satisfaction, the record was examined carefully. The statement of Patwari is not helpful in this case as he prepared site-sketch on verbal statements of prosecution witnesses and police. He failed to locate the boundaries of village Heer through measurement. The complainant stated that her house situated on the border of village Heer and the alleged incident took place in another village for about 1-1/2 furlong away from her house. Therefore, it is possible that the incidence might have taken place in an adjacent village. It is correct that according to prosecution witness Allah-Ditta, the occurrence took place in 'Chhamb' but he is declared as hostile and his statement to this extent does not find corroboration from any other evidence. Thus, his statement is discarded. The venue of occurrence when seen in the light of entire record on the file is also found the same as disclosed by the prosecution.
19. ' The learned defence counsel laid much emphasis that the deceased were fugitive from law and they were killed by the police themselves in an encounter and the appellants were falsely implicated as an old enmity existed between the parties and same was in the knowledge of the police. Had it been so, then there appears no reason as to why six persons nominated in the F.I.R.
20. Out of total ten were released by the police. They could easily be challaned before the Court by relying on the statements of the prosecution witnesses but the police did otherwise and by sifting the case during investigation fixed the liability of double murder on four persons only. This fact shows no ulterior motive or mala fide on the part of the police. Another objection was raised that when six persons were released by the police in presence of same evidence on which the other four were challaned, it made the whole case as doubtful. This Court is constrained to accept this argument for the reason that the purpose and intent of investigation is to find the truth and it is within competence of the investigating agency to disbelieve any information totally or to accept any part of it after thorough investigation. Therefore, when the police after scrutinizing the statements of different witnesses in presence of their own information and attending circumstances arrived at the conclusion that some persons were falsely implicated or there was no sufficient evidence against them, they could release them and this fact does not suggest to discredit the entire prosecution case.
21. ' While dealing with the objection by the learned defence counsel that the Doctor observed the distance of the assailants from the victim less than 10 feet whereas the site-sketch prepared by the concerned Patwari showed the distance much more than the distance disclosed by the Doctor, it may observe that the Doctor while preparing his report observed that the distance between the assailants and victim was definitely more than three feet but it might be less than ten feet. It does not mean that the distance was definitely less than ten feet. Moreover the Patwari recorded the distance on the verbal statements of witnesses and police and it is not possible for him to disclose the exact distance in absence of measurement and, that too is possible when exact location of victim and assailants is traced. Furthermore, numerous exit and enterance wounds were found on the dead-bodies and the weapons used were of high velocity. Thus, this objection cannot be allowed to prevail so as to discredit the case.
22. ' The learned defence counsel also raised objection that the statements of prosecution witnesses namely Mazhar Iqbal and Mst. Sardaran Bibi under section 164, Cr.P.C. Were recorded with delay therefore, this fact cast a serious doubt on prosecution story. After examining the record it is found that the statements of these witnesses were recorded on 21-2-1991 as it appears on the face of the statement under section 161, Cr.P.C. Placed on file. As the Court statements of these witnesses were recorded after considerable delay of about four years thus, possibility of lack of memory cannot be excluded. Moreover, when the date of recording of statements under section 161, Cr.P.C. Is incorporated as 21-2-2001 on the face of document, then the defence was enjoined upon to confront the prosecution witnesses on this point and its failure debars them to raise it at appellate stage. It was argued by the learned counsel for the appellants that the prosecution witness Mazhar Iqbal did not attempt to retailate the assailants and ran away to his home while he was equipped with fire-arms also. He was expected to resort to firing in order to save his uncle or take revenge from appellants. This act of Mazhar Iqbal appears to be un-natural and it could be said that he was not present at the relevant time. It may be observed that each case has its own peculiar facts and circumstances. The role of any individual appearing as witness depends upon the angle of his thinking/attitude, character and boldness etc. It cannot be said with certainty that every one shall stand with his relatives or friend at odd hours. This is something which varies from man to man.
23. ' The record shows that the Investigating Officer in the instant case was dead at the time when he was called by the trial Court for recording his statement. However, another Police Officer who after satisfying himself by the investigation allowed to submit the challan appeared as P.W. And testified the fact of investigation as correct therefore, it makes no difference if the Investigating Officer on account of death could not appear as P.W.
24. The upshot of the above discussion is that the prosecution case is supported by the direct evidence of Mazhar Iqbal. His statement is corroborated by the statements of Mst. Sardaran Bibi and Ghulam Qadir. Though the purgation report of Mazhar Iqbal is not positive but his presence on spot is admitted by Ghulam Qadir who is declared as a truthful witness. It may be observed that a prosecution witness who has not been found as Aadil cannot be disbelieved merely on this point and if his statement in peculiar circumstances of the case is found convincing and stands supported in material particulars by the statements of truthful witnesses, it bears definitely a weight. The sentence of Qisas cannot be awarded in this case as the standard of evidence is not available but at the same time the convict appellants could be sentenced of Ta'zir. Mst. Sardaran Bibi being a truthful witness reached immediately on the place of occurrence who saw the appellants with fire-arms dancing over the dead bodies. Mst. Sardaran Bibi, Mazhar Iqbal and Ghulam Qadir as it appears from the record are natural witnesses. The F.I.R. In this case was lodged without any delay. The direct evidence also stands corroborated through post-mortem reports of the deceased. Therefore, this Court is fully convinced that the appellants were rightly convicted by the trial Court. The evidence relating to recoveries is immaterial and does not deserve to be discussed as the recoveries were denied by the prosecution witnesses.
25. ' The result is that the appeals being without substance are hereby dismissed.