' Muhammad Akhtar and Sikandar Hayat have filed this statutory appeal under. Section 410, Criminal Procedure Code, 1898 (hereafter 'the Code') against the judgment dated 21-6-2000 passed by Mr. Ghulam Hussain Awan, Additional Sessions Judge, Mandi Bahauddin whereby they were convicted on .Charges under section 302/34 Pakistan Penal Code, 1860, and under section 324/34 of the said Code and sentenced to imprisonment for life and payment of Diyat amounting to Rs,2,50,000 and a sentence of five years' rigorous imprisonment, each and a tine of Rs,5000, each.
2. Ghulam Rasool, resident of village Mangat, District Mandi Bahauddin lodged first information report No,117 dated 2-7-1994 under sections 302, 324, 148, 149 and 109, P.P.C. At Police/ Station City, Mandi Bahauddin at 9-30 p.m. According to Ghulam Rasool-complainant, he was a cultivator and his son, Muhammad Abbas Zia was an Advocate and resided near Ghausia Mosque, Mandi Bahauddin City. According to complainant, he, along with Sarfraz and Muhammad Azam, came to Mandi Bahauddin for purchasing certain tubewell boring material and as the trader was not available, he and witnesses after waiting for him for quite some time, went to the residence of Muhammad Abbas Zia where he was informed that his son had gone to a shop situated at Sessions Court Road. The complainant and witnesses went there and were sitting at the shop when at 7-00 p.m. Muhammad Akhtar Muhammad Ashraf, Allah Yar sons of Shana, Sikandar son of Ahmad Khan, Tariq son of Shafi, Ijaz son of Muhammad Sharif armed with pistols and Mukhtar son of Roshan armed with .222 bore ritle, all resident of Mangat, came in front of the Station House Officer. Akhtar and Sikandar shouted that they be taught a lessons for murder of Safdar lqbal.
Muhammad Akhtar fired a shot with pistol which hit Muhammad .Abbas Zia at his chest. Shot fired with pistol by Sikandar hit Abbas Zia on his back. Shot fired by Ashraf hit Abbas Zia on his right buttock. Tariq fired with pistol hitting Abbas Zia at his right thigh. Ijaz and Ahmad Yar also fired at the complainant and P.Ws. But they were not hit . Masood alias Bhola and Shahid alias Billu were also injured.
2. The accused fled while firing in air when complainant raised alarm.
3. The injured were removed to District Headquarters Hospital Mandi Bahauddin. Muhammad Abbas Zia was referred to C.M.H Kharian but he died while being taken there. Masood and Shahid injured prosecution witnesses, were admitted in Civil Hospital, Mandi Bahauddin.
4. According to complainant, Safdar Iqbal brother of Muhammad Akhtar-accused, was murdered in August, 1989 and he, his son Ehsan and .10 other persons were nominated as accused in the case but they were acquitted of the charge, According to complainant, the accused committed the offence on account of, aforesaid grievance.
5. Allah Yar ASI, P.W-8 recorded F.I.R. Exh.P.A , on the statement of Ghulam Rasool, on 2-7,1994. He went to District Headquarters Hospital and prepared injury statement Exh.P.K of Muhammad Abbas Zia. He also prepared inquest report Exh.P.L and recorded statements of Nasir Masood and Shahid Ali who were injured in the incident.
6. Muhammad Akram Inspector/Station House Officer, P.W-10 took over the investigation the next day. He recorded statements of prosecution witnesses, inspected the place of occurrence on 3-7- 1994 and took into possession blood, and blood-stained pieces of cloth, from the places-where Abbas Zia, Masood and Shahid Ali were injured. Six spent bullet casings of .30 bore pistol and one spent .12 bore cartridge were recovered from the place of occurrence. Station House Officer also got prepared site plans Exh.P.N, Exh.N/1. The accused were arrested by the. Station House Officer.
Muhammad Yar and Ijaz accused led to recovery of pistols from their houses on 23-8-1994.
7. After due investigation Muhammad Akram. Inspector/Station House Officer challaned Muhammad Yar, Ijaz Ahmad, Muhammad Sharif and Ahmal Khan to Court. Names of Muhammad Akhtar, Sikandar Hayat (appellants), Muhammad Ashraf, Tariq Mehmood and Mukhtar Ahmad were placed in Column No,2 of the report submitted under section 173 Cr.P.0
8. Charge against Ahmad Khan and Muhammad Sharif was framed under section 302/109 Pakistan Penal Code for abetment of murder of Abbas Zia. Charge against Muhammad Akhtar and four others was framed under sections 302, 324, 148, 149 Pakistan Penal Code. The accused did not plead guilty and claimed trial.
9. The prosecution examined 10 witnesses at the trial. P.W.-1 Iftikhar Ahmad H.0 was Station Clerk who kept the parcels of blood-stained earth/cloth as well as parcels of empty casings/cartridge in police storeroom and handed over the said parcels to Basharat Ali. Costable, for taking to the relevant offices 'at Lahore. He also kept in safe custody, a pistol, which he delivered to Ghazanfar Constable for taking the same to the Forensic. Science Laboratory. P.W.-2 Ghazanfar Ali Constable, took the parcels of pistols to the Forensic Science Laboratory on 1-8-1994. Ghulam Rasool, complainant P.W.3, Masood, an injured witness P.W.4, Muhammad Azam P.W.-5 an eye-witness of the.. Incident furnished the ocular account. The said P.W. Also witnessed the recovery of blood- stained earth/pieces of cloth as well as, the spent casings. He attested the recovery memos Exh.P.B, Exh.P.0 and Exh.P.D. Dr. Shamim Hussain Naqvi P.W.-6 medically examined. Shahid Ali, Nasir Masood injured P.Ws. As well as Abbas Zia on 2-7-1994. The said. P.W. Also conducted post-mortem examination on' the dead body of Abbas Zia on 3-7-1994 at 9-00 a.m. P.W.7 Basharat Ali , Constable took the parcels of blood-stained earth and of other crime articles and delivered the same to the relevant offices on 12-7-1994 P.W.8 Allah Yar, Assistant Sub-Inspector, carried the initial investigation. P.W.9 Muhammad Aslam Constable got the postmortem examination conducted 'on 3-7-1994 and he also delivered last worn clothes of the deceased-Shirt Exh.P.1, Shalwar Exh.P.2, Vest Exh.P.3 and a Phial containing metallic body, to the Investigating Officer who took the same into possession vide recovery memo. Exh. P.M. P. W. 10 Muhammad Akram Inspector/Station House Officer completed the investigation and prepared the Chalan under section 173 Cr.P.C. The Assistant District Attorney gave up Manzoor Ahmad, Ghulam Ali, Shakeel Ahmad, Zafar lqbal, Arshad Mehmood, Shahid Ali, Sarfraz Ahmad, Mazhar Iqbal, Farooq---prosecution witnesses, as being unnecessary. Muhammad Siddique Draftsman had died by that time. He tendered in evidence the reports of Chemical Examiner Exh.P.R, of Serologist, Exh.P.S and closed the prosecution case.
10. The accused in their statement recorded under section 342 of the Code professed their innocence and pleaded their false implication in the case due to enmity. The accused also claimed that the police declared them innocent.
11. Trial Court believed the prosecution case to the extent of Muhammad Akhtar and Sikandar accused and convicted them and sentenced them as noted above. Rest of the accused who faced trial, however, were acquitted of the charge by judgment dated 21-6-2000 passed by Additional Sessions Judge, Mandi Bahauddin.
12. The convicts appealed. Ghulam Rasool complainant also filed criminal revision petition for enhancement of sentences awarded to convicts.
13. Learned counsel for the appellants contended that the trial' Court had not allowed proper opportunity to the accused to cross-examine one of the injured witnesses who had made a statement during the investigation and the defence was not permitted to confront him with his previous statement and failure of justice had, thus, occasioned and trial stood vitiated on this short, ground alone. Sajjad Hussain v. State (PLD 1996 Lahore 286) was relied upon in this regard. It was further contended, that complainant and other eye: witnesses were not present at the spot and they were summoned subsequently and then this case was fabricated against nine accused. It was submitted that the convicts and three other accused were declared innocent by the Investigating Agency and trial Court had ignored the consistent result of investigation which had gone in, favour of the convicts though that investigation was never challenged by the complainant party and the opinion of the. Police should have been given due weight. Reliance in this regard was placed on Altaf Hussain and 4 others v. State (PLD 2000 Lahore 216). It was submitted that the prosecution failed to prove its case against the present appellants and they deserved acquittal from the case. Learned counsel for .State on the other hand strenuously argued that the occurrence had taken place at about sun set and presence of complainant and Muhammad Azam P.W.5 was quite natural at the spot and they had nominated the present convicts as well as their co-accused in the case and trial Court believed the presence of witnesses at the spot and the appellants were convicted justifiably on the strength of record. It was submitted that police had not given any good ground for declaring the appellants as innocent and as such that opinion was rightly ignored by the trial Court.
14. I have heard the learned counsel for the parties at length. Record has also been examined with care. The first ground of assault on the judgment being impugned here relates to not allowing the defence to confront one of the witnesses with the previous statement made by him in the course of investigation. A police officer may examine orally any person supposed to be acquainted with the facts and circumstances of case, and may reduce into writing any statement made to him under section 161 of the Code. Section 162 of the Code prescribes the scope of use of a statement recorded under section 161 of the Code. The relevant provision reads as:-- "Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved may be used to contradict such witness in the manner provided by Article 140 Qanun-e-Shahadat Order, 1984."
' The purpose for which the witness might be referred to his previous statement is given in Article 151 of Qanun-e-Shahadat Order, 1984. The relevant provision reads as under: ' Article 151. Impeaching credit of witness: The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:
(3) "By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted".
' The procedure for impeaching the credibility of a witness is given in Article 140 of the Order and reads as under: ' Article 140: "Cross-examination as to previous statements in writing. A witness may be cross-examined as to previous statements made by him in writing or reduce into writing and relevant to matters in question without such writing being shown to him, or being proved: but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved; be called to those parts of it which are to be used for the purpose of contradicting him."
Provisions of section 162 of the Code, Article 140 and Article 151(3) of Qanun-e-Shahadat Order, 1984 have to be read together. A perusal of the above provisions shows that an accused (or the adverse party) has an inalienable right to cross-examine the witness, (subject to limitations contained in Chapter X of the Order) in order to discredit a witness, to show that the witness was prone to falter, or had propensity to falsehood, was susceptible to prevarication or was an outright liar.
Contradicting a witness by previous inconsistent statement made by him is a usual and often effective mode of discrediting him. By virtue of Article 140, a witness may be cross-examined as to previous statement made by him in writing or reduced into writing PLD 1960 Karachi (sic) (PLD 1964 Peshawar 194).
' Article 151(3) says that credit of a witness may be impeached by proof of former statements which are inconsistent with any part of his evidence which is liable to be contradicted. Since independent proof of a former inconsistent statement may be given, the witness in cross-examination may be asked whether he has, on previous occasion, made any statement concerning a fact relevant to the matter in issue and which is inconsistent with any part of his testimony given in the Court.
When a witness denies having made a previous statement, the former statement has to be read over to him and exhibited. Where previous statement of a witness is hot put to him nor is the witness confronted with the previous statement and called upon or afforded opportunity to explain contradiction, the previous statement cannot be used as evidence in the case. Reference for the view might be made to PLD 1971 SC 730, PLD 1973 SC 160, 1989 M LD 298, 1996 SCM R 601. The accused (or the adverse party) is fully entitled to bring on record any contradiction found in the previous statement of a witness and the deposition at the trial of the case. In such an event the Court is required to bring on record the fact that the witness was so confronted with the previous statement. Not allowing the accused to confront the witness with his previous statement and not bringing on record the contradiction amounts to procedural unfairness in trial warranting quashing of the Court's decision or the conviction recorded by it. Denial by a witness of not having made any previous statement or any part of it is no ground for disallowing the cross-examiner to confront the witness with his previous statement. In such a situation, the defence has a right to lead evidence in respect of existence of the previous statement, by reading out the entire statement to the witness and by summoning or producing as witness the police officer or the person who had scribed the statement.
15. In Muzaffar Khan and others v. Emperor (AIR 1939 Lahore 268) it was observed as under: "Where a Court has not allowed counsel effectively to cross-examine the witnesses called for the Crown, when they had made previous statements which contradicted their statements in the Sessions Court as (a) their previous statement had not at that stage been proved, and (b) the witnesses were illiterate, there has been a failure of justice in the hearing of the case. The mere fact that the Judge may have taken into consideration any discrepancies which might exist before he wrote his judgment does not cure the failure of justice".
' In Abdul Ghafoor v. Kalicharan (AIR 1934 Rangoon 273) it was observed as under: "In the civil case of damages for false and malicious prosecution the statements made by various witnesses at the trial were compared with the statements which they had made in the criminal proceedings but the provisions of section 145 Evidence Act, were entirely ignored. The statements made in the criminal trial were not properly proved and the witnesses did not have their attention drawn in cross-examination to the particular points in which their evidence in the civil trials differed from the statements which they had made in giving evidence before the Magistrate" It was held that trial had been conducted wrongly throughout and case should be tried ab initio.
16. In this case, Masood and Shahid besides Abbas Zia, were also injured and were treated in the District Headquarters Hospital. Muhammad Yar A.S.I, prosecution witness No,8, the first Investigating Officer had recorded their statements under section 161 of the Code. Shahid Ali did not appear at the trial. Masood testified as prosecution witness No,4 and the defence desired to confront the witness with his previous statement which admittedly was on record. The trial Court disallowed the defence to do that when the witness denied having made any statement before police. The trial Court committed an illegality which was not curable. The defence had a right to take benefit of any material contradiction in the statements made by the prosecution witness. This right could not have been taken away from the defence as was done by the trial Court.
' The law and the precedent fully support the plea raised by defence qua failure of justice in trial of the case. Retrial of the case could have ordered but that course was avoided as further scrutiny of record made decision of the appeal on merit quite possible.
17. The time, the place and the manner in which the occurrence had taken place (murder by shooting) have not been denied by the appellants. The evidence in that regard, therefore, is not being re-evaluated.
18. The shoot-out in this case had taken place in a small bazaar. Abbas Zia, Masood and Shahid were sitting at a tailor's shop, on 2-7-1994. Certain assailants opened fire on them. All three were injured and removed to District Headquarters Hospital Mandi Bahauddin. Dr. Shamim Naqvi prosecution witness No,6 attended on the injured at 8-00 p.m. The Medical Officer testified at the trial that the injured were brought to Hospital by police. The Medico-legal reports-Exh.P.F, P.G, & P.0 also show that the injured were brought by police and Umer Hayat, Constable had received the afore-referred reports. Ghulam Rasool and Muhammad Azam, prosecution witnesses No,3 & 5 had neither taken Abbas Zia and other to Hospital nor had received the medico-legal reports as being relatives of the injured for producing the same before the police for getting a criminal case registered. This aspect of the matter alone is sufficient to show that Ghulam Rasool, father of Abbas Zia, deceased and Muhammad Azam, were not present at the scene of crime at the time of occurrence. Both the witnesses, otherwise were chance witnesses. They were not residents of the locality where the incident took place. Ghulam Rasool was resident of village Mangat located 7/8 miles away from Mandi Bahauddin. Muhammad Azam was resident of village Mangat and explanation furnished by them for their presence at the spot was that they had to purchase Tube- well boring material from a trader (not named anywhere) in Mandi Bahauddin who was not present in his shop and the witnesses thereafter went to the residence of Abbas Zia from where they learnt that he was sitting at a tailor's shop. The witnesses went there and within a short span of time, the accused came there, fired at them and then went away. The entire story given by complainant regarding the purpose of his visit to the City, about his visit to some shop, and later to the tailor's shop appears to so mechanical and coined that it would not appeal to any reasonable mind.
19. According to prosecution, the accused had employed pistols and a .222-bore Rifle in the shooting. The police recovered six .30-bore casings and one .12 bore spent cartridge from the spot indicating that Pistols and a shotgun (or a country-made .12 bore pistol) were used by the accused. Recovery of .12 bore spent cartridge indicates that more shots than one, were fired with a shotgun. The witnesses never uttered a word about a shotgun being used in the incident. The ocular account of the incident is belied by the physical evidence, as well.
20. The site plan of the scene of crime, though not substantive evidence in a criminal case, constitutes explanatory evidence and be looked into to probe into certain aspects of the case.
Occurrence in this case had taken place at a tailoring shop which according to site-plan measured about 8)(12 feet. The deceased and both the injured witnesses were sitting inside the shop at the time of attack. The points where the accused stood at that time has not been given in the site-plan. The plan is also silent as to direction from where the accused came or the direction towards which the accused escaped. The police had collected spent casings and cartridge from point "E" located right in front of the shop. The accused apparently had fired at the deceased from that place. Ghulam Rasool and Muhammad Azam, alleged eye-witnesses, were statingly, sitting at point "D". If the accused were present at point "E" their handguns and shotgun would have been touching the faces of these witnesses. In the criminal case relating to murder of Safdar Iqbal (the motive case), Ghulam Rasool and Muhammad Azam were the nominated accused and would have been the first targets of the accused. They did not receive even a scratch. These witnesses, obviously, were not present at the spot when the incident had taken place.
21. A police-diary is maintained in the investigation of every criminal case. Brief facts of the prosecution case are always incorporated in the first entry in the police-diary after the first information report is recorded in the F.I.R. Register. Muhammad Yar A.S.I---the first Investigating Officer, recorded the first diary but, as admitted by him, had not given any detail/ or summary of the case. Even names of the accused were not given in ,the first case-diary. The version which finally was brought on record as prosecution version of the case, without doubt, was recorded belatedly. The defence plea, that the complainant was summoned from his village and criminal case was registered after considerable deliberation, appears to be quite forceful.
22. After weighing and assessing the record with care, it has been found that the deceased and the injured were taken unawares when they were sitting at the tailor's shop. The witnesses were unable to identify the assailants who were 2 or 3 in number as has been evidenced by the first statement of Masood, injured prosecution witness. Masood-P.W., admittedly did not know present appellants and they were implicated by him at a later stage. This witness was shown to be unworthy of any credit. The police had, in successive investigations, found the appellants innocent. The opinion of the police was not shown to be coloured in any manner and was not challenged by the complainant/ or the prosecution and as such can be considered along with other material on record to record a finding qua guilt or innocence of the convicts-appellants.
23. The prosecution failed to establish its case against the convicts-appellants. Their conviction accordingly is quashed and they are acquitted of the charges. The appellants shall be released from custody if not required in any other case.