' MIAN MUHAMMAD JAHANGIER, J.--- By this judgment Criminal Appeal No,263 of 2000 filed by Muhammad Jaffar Saleem and Room-i-Azam, both sons of Muhammad Saleem, the appellants, is being disposed of which has emerged from the judgment passed by Mr. Gulshad Hassan Alvi, Judge Special Court, Suppression of Terrorist Activities, Faisalabad Division, Faisalabad, dated 21-2- 2000, whereby in the case bearing F.I.R. No,140, dated 29-5-1997, registered under sections 302 and 324 read with section 34, P.P.C., which Police Station Sadar, Gojra, District Toba Tek Singh, after conclusion of the trial the appellants were convicted and sentenced as under:-- ' Under section 302(b), P.P.C. To death sentence on each count and to pay Rs,50,000 to legal heirs of each deceased on each count, in default whereof each one had to undergo six months' S.I. On each count.
' Both the accused were acquitted of the charges under section 324/34, P.P.C. On each count.
2. Briefly stated the facts of the prosecution case as disclosed by Muhammad Anwar son of Taj Din, caste Cobbler, resident of Chak No,90/J.B. Thharu, in his statement Exh.P.G. Recorded in .Civil Hospital. Gojra on 29-5-1997 on basis of which formal F.I.R. Exh.P.G. Was recorded at about 10-40 p.m. On the same day with Police Station Sadar, Gojra, are that at about 6-30 p.m. On 29-5-1997 Muhammad Anwar complainant, his brothers Abdul Khaliq, Muhammad Sarwar and father Taj Din were carrying the crush of dung on Rchrhi near to their house, meanwhile his brother Liaqat Ali came from the Dera and informed that Muhammad Room-i-Azam and Muhammad Jaffar Saleem sons of Muhammad Saleem residents of their village Thharu have flred with the weapons at their Dera and they by causing threats had been harassing. On receipt of this information Muhammad Anwar complainant, his brothers and father alongwith Muhammad Sadiq son of Sher Muhammad, caste Cobbler, resident of village proceeded towards their Dera. When they reached near the house of Nazeer Ahmad, Cobbler, Room-i-Azam and Muhammad Jaffar Saleem while armed with rifles came from the front side and started firing indiscriminately with their weapons straightway towards Muhammad Anwar, etc. And kept on raising Lalkaras that they would tell them the taste to support Paija, etc, and as a result of firing Muhammad Sarwar on right thigh, Abdul Khaliq on his abdomen and Taj Din on his right leg sustained bullets injuries. On hearing the noise of Muhammad Anwar, Liaquat Ali and Muhammad Sadiq and report of firing many residents of the village Thharu assembled at the spot, while Room-i-Azam and Jaffar Saleem went away alongwith their weapons by causing threats. Muhammad Sarwar and Abdul Khaliq yielded to the injuries in the way while Taj Din was admitted in the hospital.
' The motive behind the occurrence was that three days earlier Muhammad Room-i-Azam and Jaffar Saleem had given beating to Parvaiz alias Paija due to which Muhammad Anwar, etc. Had expressed their sympathies with Pervaiz. Having this grudge Muhammad Room-i-Azam and Muhammad Jaffar Saleem assaulted on the complainant party resulting into two casualties and injuries to the father of the complainant.
' Muhammad Anwar complainant left Muhammad Sadiq and Liaquat Ali with the dead bodies in the hospital and having medico-legal report of Taj Din, proceeded towards the police station.
3. Muhammad Ayub, S.-I. (P.W.12) posted at Police Station, Sadar, Gojra on 29-5-1997 alongwith other police employees came in Civil Hospital, Gojra. He recorded the statement (Exh.P.G.) of the complainant at 10-30 p.m. It was sent through Shaukat Ali; F.C. To the police station for registration of the case.
' After preparing the injury statements and the inquest reports of both the deceased he sent the dead bodies through Liaquat Ali constable for post-mortem examination. On 30-5-1997 he collected the bloodstained earth from two spots where both the deceased had fallen and after making the same into sealed parcels, took into his possession. Thereafter this witness raided at the house of the accused and took into possession some articles belonging to Room-i-Azam and Muhammad Jaffar Saleem. When, after post-mortem examination the last-worn clothes of the deceased were produced before him, he took the same into his possession. He prepared the rough sketch of the place of occurrence and recorded the statement of Taj Din injured but, thereafter, he was transferred.
4. On 8-6-1997 Arif Ali, A.S.-I. (P.W.15) as being S.H.O. Of Police Station Sadar, Gojra partly conducted the investigation in this case. He recorded the statements of some prosecution witnesses and made the efforts for arrest of the accused but he could not succeed.
5. On 14-11-1997 Javaid Ali, Inspector (P.W.16) as being the S.H.O. Of Police Station Sadar, Gojra arrested Muhammad Room-iAzam and Muhammad Jaffar Saleem. On 20-11-1997 Room-i-Azam led to the recovery of .222 bore rifle alongwith 10 live bullets and on the same day Muhammad Jaffar Saleem led to the recovery of 8 mm rifle with live bullets. Javaid Ali, Inspector took these articles into his possession after preparing the recovery memos. Attested by the witnesses. After completion of necessary investigation he submitted the challan for trial of the accused.
6. When the trial commenced the prosecution produced seventeen witnesses in toto to establish its case based upon the motive, ocular account, medical evidence, recoveries and other circumstances.
' It appears from the statement of Liaquat Ali (P.W.1) that prior to recording of the prosecution evidence Muhammad Anwar complainant of this case had been murdered by the accused party, therefore, Liaquat Ali brother of the complainant and Sadiq son of Sher Muhammad, named in the F.I.R., could be produced as eye-witnesses of this case.
7. Liaquat Ali (P.W.1) mainly stated that at about 6-30 p.m. About two years and three months back when he was feeding fodder to his oxen, Room-i-Azam armed with .222 bore rifle and Jaffar Saleem armed with 8 mm rifle came at the Dera and enquired about Khaliq and Sarwar (deceased) and said that they would teach a lesson for supporting Pervaiz alias Paija. Thereafter, both the accused made firing at their Dera and threatened to kill them whereupon he ran from there and informed to his brothers and father who were loading the cart with Roorhi/Dungmanure and they while throwing their Kassies (hoes) there proceeded towards their Dera and when they reached near the house of Nazeer Mochi (cobbler), Room-i-Azam and Jaffar Saleem by arriving there made firing. Jaffar Saleem fired with his rifle which hit on the belly of Khaliq while Room-i- Azam fired with his rifle which hit on the thigh of Sarwar and then on the right leg of Taj Din, Jaffar Saleem made reckless firing but they laid down and, therefore, many people came out of their houses. He further stated that they transported Khaliq, Sarwar and Taj Din to Gojra by wagon but Sarwar and Khaliq succumbed to the injuries in the way and Anwar ran away with Taj Din. He added that when the postmortem examination was conducted, he identified the dead bodies while Anwar reported the occurrence at the police station. He further stated that when the blood-stained earth was collected from two spots vide memos. Exh.P.A. And Exh.P.B. He and Muhammad Sadiq attested the same and that the occurrence was witnessed by his paternal-uncle Sharif, Nazir, Siddique, Sadiq and Liaqat. Sadiq (P.W.2) furnished the ocular account almost in line with the statement of Liaqat Ali (P.W.1).
8. Dr. Khalid Rehman, Medical Officer (P.W.13) while examining Taj Din on 29-5-1997 observed that Taj Din sustained an entry wound 1.5 c.m. x 1.5 c.m. x DNP on front of lower part of right thigh with inverted margins and no burning of edges were seen, and also an entry (exit) wound, 10 c.m. x 6 c.m. x DNP with missing of some portion of skin viz. Everted margins on back of right knee-joint caused by fire-arm and in cross-examination he deposed that Taj Din did not qualify any course of mental illness or of psychologist.
9. Dr. Bashir Ahmad, Medical Officer (P.W.14) conducted the post-mortem examination on the dead body of Abdul Khaliq on 30-5-1997 and found that Abdul Khaliq deceased had suffered a lacerated wound of entry 7-1/2 c.m. x 3 c.m. On the right side of abdomen, consequently the intestines had come out and in his opinion the cause of death was shock and haemorrhage due to injuries as mentioned above caused by fire-arm.
' Thereafter he conducted the autopsy on the dead body of Muhammad Sarwar and found that Muhammad Sarwar had sustained a lacerated wound of entry 2 c.m. z 1 c.m. x DNP on the medial side of right thigh, the margins of the wound were inverted and secondly, there was a lacerated wound of exit of 3 c.m. x 2 c.m. On the lateral side of right thigh and in his opinion the cause of death was shock and haemorrhage due to the injury on right leg and mentioned above caused by fire-arm. He added that upon an application moved by the local police on 30-5-1997 he gave his opinion that Taj Din was fit to make his statement.
10. Razzaq Ahmad (P.W.7) deposed that about one year and eight or nine months back Room-i- Azam led to the recovery of .222 bore rifle alongwith 10 live bullets from underneath the beddings in a room of his house and on the same day Jaffar Saleem also led to the recovery of 8 mm rifle with live bullets from a Jasti Petty lying inside his house and when these articles werq taken into possession vide recovery memo. Exh.P.U. He and Anwar Ali attested the same.
' Shaukat Ali (P.W.8) stated that on 30-5-1997 some articles belonging to the accused like National Identity Card etc. After a raid at their house were recovered and 'taken into his possession vide recovery memo. Exh.P.F. Attested by him, Liaquat All (P.W.6) deposed that after post-mortem examination he produced the last-worn clothes of both the deceased before the Investigating Officer and when these articles were taken into possession vide memo. Exh.P.D. And Exh.P.E. He attested the same.
' The remaining witnesses are formal in nature while Muhammad Ayub, S.-I. (P.W.12), Arif Ali, A.S.-I.
(P.W.15), Javed Ali, Inspector/ S.H.O. (P.W.16) and Muhammad Arshad, S.-I. (P.W.17) are the Investigating Officers who explained different aspects of the investigations conducted by them.
11. Reports of Chemical Examiner Exh.P.Y., Exh.P.Z. Reports of Serologist Exh.P.AA and Exh.P.BB and the report of Forensic Science Laboratory Exh.P.C. Were produced as documentary evidence and, thereafter the prosecution case was closed.
12. At the close of the prosecution case the statements of Muhammad Room-i-Azam and Muhammad Jaffar Saleem were recorded under- section 342, Cr.P.C. They denied the allegations as levelled by the prosecution and professed about their innocence. When Room-i-Azam was questioned as to why this case was-against him and why the prosecution witnessesc deposed against him, ne submltted his reply as under:-- "All the P.Ws. From public were members of same family and inimical to me, therefore, they deposed against me falsely. Both the deceased Sarwar and Abdul Khaliq were desperate criminals.
My brother Zulfiqar had made written complaint against them to S.S.P., Toba Tek Singh in consequent to which police had raided to arrest them and they attacked at my house after having been armed in retaliation. The inmates of the street encountered them and cross-firing occurred in which they were injured. Since, they had animosity against me, therefore, they got registered this false case against me and my brother Jaffar Saleem."
' While Jaffar Saleem followed the statement of his brother Roomi-Azam.
13. Zawar Hussain, Revenue Patwari (D.W.1) brought the Daily Diary pertaining to Rupt No,498 dated 29-5-1997 and produced attested copy Exh.D.F. In the Court. Muhammad Hussain, Revenue Patwari (D.W.2) deposed that on 29-5-1997 Room-i-Azam was posted as Revenue Patwari in Patwar Circle No,154-JB and Muhammad Sadiq had moved an application for demarcation of Square No,33, Chak No,367/JB on which the Tehsildar had ordered the Girdawar Halqa Muhammad Naseer, Muhammad Room-i-Azam, Revenue Patwari of contiguous village and himself would demarcate the land. They reached Chak No,367/JB at about 11 a.m. And completed the demarcation proceedings at about 2-30/3-00 p.m., whereafter they left that place; that Entry No,498 dated 29- 5-1997 was in his handwriting and the demarcation application has been consigned to record room while he recorded the demarcation proceedings of Daily Diary. So, Entries Nos.495 and 496 bear the signatures of Girdawar Halqa and Tehsildar and Entries Nos.502 and 503 have also been signed by the Girdawar Halqa; that every page of Daily Diary had been signed by some one. He further stated that Entry No,498 is in his hand and correctly recorded, as per proceedings made and written by Girdawar. Muhammad Khalid Parvez, Fire-arm Licence Clerk, D.G. Office, T.T. Singh deposed that as per Entry No,228/GJ dated 4-3-1993 a licence of NPB rifle was issued in favor of Muhammad Saleem son of Muhammad Tufail and it is also entered against his name. The .Licensee is the Government servant, therefore, as per this record the licensee had purchased rifle No:AM4950 of NPB bore. The licence was issued in the year 1993 with the same number which was entry number in this register but he cannot say whether the said licence is still valid; that it has not been cancelled as per record; that the weapon purchased by the Licensee does not appear to have been changed from this record and that Licence No,640GJ was issued in favor of Muhammad Arshad son of Asghar Ali resident of Chak No,365-JB, Tehsil Gojra, District T.T. Singh and as per record the licence has not been cancelled nor the weapon has been changed. Thereafter the defence evidence was closed.
14. While concluding the trial the learned trial Court arrived at this conclusion that the prosecution had proved its case, therefore, the appellants were convicted and sentenced as mentioned above.
15. We have heard the learned counsel for the parties and have also gone through the relevant record placed before us.
16. Learned counsel for the appellants argued that the appellants have been convicted on basis of contradictory and inconsisting evidence of the related witnesses. They further submitted that the ocular account was belied by the medical evidence. They further, added that the F.I.R.. In this case was lodged after consultation and preliminary investigation; that the eye-witnesses were not present at the spot, which fact is proved when the eye-witnesses deposed about the presence of the witnesses and the accused at the spot contradictory to the locations as given in the site plan; and that this material contradiction is such which certainly gives the benefit to the appellants, therefore, they after setting aside the conviction and sentence are entitled for their acquittal, even the defence version is more reliable than the prosecution version if compared in juxtaposition.
17. Whereas the learned State Counsel opposed these arguments advanced by the learned counsel for the appellants and submitted that the prosecution had fully proved its case, therefore, the judgment passed by the learned trial Court calls for no interference.
18. We have taken into consideration the arguments advanced by the learned counsel for the parties and we see that the occurrence in this case took place at 6-30 p.m. On 29-5-1997. On receipt of information about the occurrence Muhammad Ayub, S.-I. (P.W.12) arrived in the Civil Hospital, where the statement Exh.P.G. Of Muhammad Anwar complainant was recorded and at that moment Muhammad Anwar also produced the medico-legal report of Taj Din his father. This statement Exh.P.G. Was recorded at about 10-20 O'Clock, on which formal F.I.R. Bearing No,140 was recorded at the Police Station Sadar, Gojra at about 10-40 p.m. On the same day i,e, 29-5-1997. The distance between the place of occurrence and the police station was 12 miles while the statement Exh.P.G. Was recorded in Civil Hospital, Gojra. There are two or three things worth examination in this regard; firstly, if Muhammad Ayub, S.-I. Had received the information through wireless message then why he did not record the First Information Report. It is obvious that wireless message may be conveying incomplete information whereas the First Information Report is to be recorded upon the receipt of complete information. Therefore, if Muhammad Ayub, S.-I. (P.W.12) had proceeded to the hospital to have a contact with the complainant it makes no difference nor it can be argued that the F.I.R. Was recorded after consultation and preliminary investigation. Moreover, Anwar P.W. Was murdered prior to commencement of the trial in this case, therefore, this point raised by the defence could not be thrashed out in detail at the stage of trial.
' The second point for examination is that the time 10-20 a.m. Is mentioned in the Karwai Police whereas it should have been 10-20 p.m. As the alleged occurrence had taken place at 6-30 p.m. It appears that this mistake on the part of Muhammad Ayub, (P.W.12) is nothing because according to him, he received information at night time that two persons were murdered whose dead bodies were lying in the hospital. Therefore, this mistake of writing the time as 10-20 a.m. Carries no importance. Muhammad Ayub, S.-I. (P.W.12) arrived in the hospital, recorded the statement and dispatched the same to police station for registration of the F.I.R. The distance between the place of occurrence and the police station was about 12 miles, therefore, the consumption of two or three hours in recording the F.I.R. Is not fatal for the prosecution case and it should be believed that F.I.R.
In this case was promptly lodged.
' The perusal of the statement of Muhammad Anwar complainant (since murdered) reveals that they were carrying the dung manure on a Rehri (cart) at 6-30 p.m. When Liaquat P.W. Came from the Dera and informed that Room-i-Azam and Muhammad Jaffar Saleem had fired at their Dera and on hearing so they also proceeded towards the Dera. Due to death of Muhammad Anwar complainant the prosecution produced Liaquat Ali (P.W.1), brother , of Muhammad Anwar complainant and Sadiq (P.W.2) to furNsh the ocular account. If Investigating Officer at the initial stage did not visit the Dera or collected any other evidence of carrying of dung manure on a cart, it was nothing except slackness on his part. But these things are not fatal for the prosecution case because the prosecution witnesses were supposed to narrate the main occurrence. But despite this it would appear from the statement of Liaquat Ali (P.W.1) that he narrated the incident which had taken place at the Dera in his presence and when he came back to the house, Taj Din and others were loading the cart with Roorhi/dung manure. It means that these two backgrounds came on the record through an eye-witness.
19. Liaquat Ali (P.W.1) and Sadiq (P.W.2) furnished the ocular account which found full corroboration from the medical evidence and at the later stage the learned counsel for the appellant agreed in this regard and submitted that this aspect of the case is of no importance however, he added that the prosecution witnesses were not present at the spot because of material discrepancy in case of location of the witnesses and the assailants which occurred between the statements of the eye- witnesses and the site plan Exh.P.C. The examination of the site plan Exh.P.C. Reveals that house of Nazir Ahmad has been shown towards the northern side of the street wherein the occurrence had taken place. It appears that there are houses around this street in all directions and after crossing the road towards South the Ahatas for residence and for cattle owned by Alam, Muhammad Riaz and Muhammad Adrees are situated.
' The paints with regard to presence of both the deceased, injured persons, eye-witnesses and that of the assailants have been shown in the street. While explaining the positions of the eye-witnesses and the assailants, the two material prosecution witnesses might have stated that on back of point No,1, the house of Asghar, Zaid or Bakar was situated and in the same way the names of owners of the house at back of points Nos.2, 4, 5, 6 and 3 might have been wrongly mentioned but any such mistake cannot be treated as fatal for the prosecution case for the reason that Asghar might be brother of Akbar Ali whose house was situated behind point No,1 in the west of the street. No doubt the site plan is a substantive piece of evidence but the facts and circumstances of each case should be taken into consideration to arrive at a just decision. It appears to us that while cross- examining Liaquat Ali (P.W.1) and Sadiq (P.W.2) no material discrepancy could come on the record due to which their testimony could be doubted and actually their statements inspire confidence and same are worth reliance.
20. The motive behind the occurrence is also proved through the statements of above mentioned eye-witnesses, they are related to the deceased but no long-standing enmity could be brought on the record due to which it could be believed that they advanced a false motive or that they substituted the real culprits in this case.
21. The next point for examination is as to what is the force in the defence version advanced by the appellants. It would appear from the statement of Zawar Hussain, Revenue Patwari, (D.W.1) that Entry No,498 dated 29-5-1997 was not recorded by him, it does not reflect on the time and its recording. Chak No,367 was at a distance of 10/12 kilometres from Chak No,90/JB. Thereon and one may reach Chak No,90/JB/from Chak No,367/JB within 45 minutes or an hour by a motor-bike.
While Muhammad Hussain, Revenue Patwari (D.W.2) stated that he alongwith Room-i-Azam appellant went to Chak No,367/JB for demarcation apd the proceedings were completed at about 2-30/3-00 p.m. And, thereafter, they came back to their office in Tehsil Gojra and remained in their office for about half an hour. He stated that Entry No,498 dated 29-5-1997 was in his handwriting and in cross-examination he admitted that he did not join the investigation nor produced the record during investigation and that the place of demarcation was not fallen in Patwar Circle of accused Room-i-Azam.
' It is obvious that there are material circumstances on the record to believe that in case of Room- i-Azam the defence version was an afterthought. Even in case of Jaffar Saleem appellant no sound evidence could be brought on the record that at the time of occurrence he was not present at the spot. The learned trial Court has discussed each and every aspect of the prosecution case and the defence version in detail which appears to be convincing and calls for no interference.
22. In view of the above discussion, we upheld the judgment passed by the learned trial Court, dated 21-2-2000 and that this appeal having no force is hereby dismissed.