' FAZAL-UR-REHMAN, J.--- Appellants Azizullah son of Ghulam Muhammad and Ghulam Raza alias T.T. Son of Barat Ali were convicted by Additional Sessions. Judge-I/Special Judge, Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter called Special Judge) for offence under section 302, P.P.C. For Qatl-i-Amd of Sajjad Hussain son of Ghulam Ali having been committed on 9-12-1997 at about 8-30 p.m. At Kasi Graveyard within territorial jurisdiction of Police Station Gwalmandi, Quetta. Appellant Azizullah was sentenced to death vide judgment, dated 9-8-1999.
Appellant Ghulam Raza alias T.T. Was convicted under section 302(b)/34 and 109, P.P.C. And sentenced to suffer imprisonment for life as Tazir and to pay compensation amounting to Rs,1,00,000 to the legal heirs of deceased as per provisions contained under section 544-A, Cr.P.C.
Or in default to suffer R.I. For 5 years. The sentence in default of payment of compensation was ordered to run consecutively. The benefit of section 382-B, Cr.P.C. Was also extended in his favour.
The convicts/appellants Azizullah and Ghulam Raza alias T.T. Submitted Criminal Appeals Nos.194 and 214 of 1999, respectively. The matter has been referred by the trial Court vide Murder Reference No,15 of 2003 for confirmation of the sentence of death imposed on convict Azizullah. The criminal appeais and murder reference have been taken together and will be disposed of by one and the same judgment.
2. The occurrence is stated to have taken place on 9-12-1997 at about 8-30 p.m. At Kasi Graveyard.
The report of this incident was made by P.W.2 Ghulam Mehdi son of Ghulam Ali, brother of the deceased vide report Exh.P.B. According to him, he was present in the house at 8-30 p.m. When somebody knocked the door, he came out and saw Ghulam Rasool present at the door. At a short distance Ghulam Raza alias T.T. And Azizullah were also standing. Ghulam Rasool told that Sajjad Hussain was wanted by Aziz and. Ghulam Raza. He conveyed the message to Sajjad. It is stated that Sajjad while leaving asked that the door be closed. It is stated that he got worried for which reason, after they had gone some distance, he had also followed them. From Pir Muhammad Road, they turned towards Kasi Graveyard and he also followed them. It is stated that on reaching graveyard Ghulam Raza alias T.T. Abused Sajjad and then attacked upon him. It is alleged that he asked Aziz to fire at him (Sajjad). It is stated that Aziz made two fires with pistol/revolver which hit his brother who fell down on the ground. It is stated that on hearing fire report, he also ran towards them but Aziz and Ghulam Raza fled away towards opposite direction. It is further stated that when he reached near Sajjad he told that Aziz fired at him. It is stated that the complainant then took his brother wi:h the help of people of the locality to Pir Muhammad Road from where, he was taken to Civil Hospital. It is stated that the deceased died at Civil Hospital, Quetta. According to complainant his brother. Sajjad was killed without any reason by Azizullah with the help of Ghulam Raza alias T.T.
The motive for the occurrence was stated to be a dispute between Sajjad and accused over a paltry amount of money. It is stated that on receipt of information, the police went to Civil Hospital where, they found the dead body of deceased Sajjad lying in the Casualty Department. The Fard- e-Bayan of complainant Ghulam Mehdi was reduced into writing by I.P./S.H.O. Muhammad Arif in Civil Hospital, Quetta. The same was then incorporated in the F.I.R. Being Crime No,194/97 under section 302/34, P.P.C. After registration of the case, the investigation was entrusted to S.-I. Akhtar Buzdar. He held inquest vide Exh.P./10-A. He then went to the place of occurrence and prepared site and memo. Of site inspection vide Exh.P./10-B and Exh.P./4-A. He secured blood-stained earth from place of occurrence through recovery memo. He secured one empty bullet of Mega rove from the place of occurrence and taken into possession through recovery memo. He recorded statements of the witnesses under section 161, Cr.P.C. From the place of occurrence, he then went in search of accused persons. It is stated that the appellant Ghulam Raza was arrested from the place known as Sara-e-Namak while he was coming from 16 Acre Medani. On 10-12-1997, the Investigating Officer went to Civil Hospital where, the duty doctor delivered one spent bullet led and the same was taken into possession through recovery memo. On the same day, he also took into possession blood-stained clothes of the deceased and prepared parcel. The dead body was handed over to the legal heirs after obtaining receipt. It is stated that on 11-12-1997, he proceeded on leave and the investigation file was handed over to I.P./S.H.O. Muhammad Arif. On 15-12-1997, the investigation of the case is stated to have been entrusted to Sher Nawaz Khan, S.-I. Who got recorded statement of witness Ghulam Rasool through Judicial Magistrate-II, Quetta under section 164, Cr.P.C. It is stated that on 23-12-1997 appellant Ghulam Raza made disclosure and pointation of the place of occurrence in presence of Magistrate Muhammad Aslam. It is stated that on 24-12-1997 on spy information appellant Azizullah was arrested 'from Kasi Graveyard. It is stated that as a result of personal search, one Mega rove pistol with two live cartridges were recovered from right side pocket of his shirt. On 2-1-1998 this appellant is stated to have disclosed and led the police party to the scene of incident. After usual investigation, the accused/appellants were sent to face their trial.
3. On 20-8-1998 formal charge under section 302, 34, P.P.C. Was framed by the learned Special Judge against the appellants to which, they pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined as many as eleven (11) witnesses, the brief description whereof, is as under:-- ' P.W.1 Dr. Muhammad Umer who at the relevant time was posted as Senior Medico-legal Officer/Police Surgeon, Civil Hospital, Quetta examined the dead body of deceased Sajjad Hussain and observed as under:-- ' External examination ' He was a male of about 30 years of age wearing militia colour Shalwar Kamiz. The condition of the body was stout and clothes were stained with blood and black margins at the site of entrance and were torn. Rigor mortis developed. Post-mortem lividity present. Eyes and mouth closed. Oral and nosal cavity stained with blood. Tongue health in oral cavity.
' Surface wounds and injuries
(1) Circular wound of fire-arm entrance with black tattooing around the injury 1 c.m. x 1 c.m. In size on left side of chest at level of 10th rib 15 c.m. Below and lateral to left nipple with inverted margins.
(2) Circular wound of fire-arm entrance with inverted margins with black totoo marks around the wound 1 x 1 c.m. In size at the level of right illiac possa 9 c.m. Lateral of umbilicus. Injuries mentioned were anti-mortem in nature.
' Internal examination Head: Healthy. Neck Healthy ' Thorax: On exploration injury to skin/muscles spleen was damaged. There were two perforations on the right lung. Thorosic cavity was full of blood. Bullet recovered from back right side of chest beneath the skin of right scapular region.
' Abdomen: On exploration injury to skin/muscles/peritoneum appendix and cessum were perforated and damaged to great vessels. Injury pelvic cavity, blood mixed with fical matter were evident in abdominal cavity.
' Duration between death and post-mortem was 24 hours.
' From the examination of dead body of the deceased the doctor is of opinion that the death has occurred on account of damage to thorasic and abdominal contents. According to doctor, the injuries were antimortem and certified to have been caused by fire-arm and were sufficient in the ordinary course.Of nature likely to cause death. He has produced report Exh.P.A. In cross- examination, the Medical Officer replied that there was no exit of the wounds. According to him, he recovered one led from the dead body which he handed over to police. Replying another question, he has stated that the black tattooing around the wound is due to fire from a close range. He has, however, denied the suggestion that black tattooing in the present case could be caused by constant fire. He has also denied that in such cases death occurs instantly.
' P.W.2 Ghulam Mehdi (complainant), is brother of deceased Sajjad Hussain on whose report case was registered. He reiterated almost the same story which he stated in his Fard-e-Bayan which he has produced as Exh.P.B. He identified both the appellants in the Court while replying certain questions put to him by the learned counsel for appellant Azizullah, he has stated as under:-- "In the graveyard I was at a distance of 40 paces from Sajjad the place of incident would be at a distance of 41 paces from the gate of graveyard, it is incorrect that I had not heard the conversation of accused and Sajjad, there are houses adjacent to the gate of graveyard, it is correct that there is a Chowkidar of graveyard, voluntarily said that he was not present at that time, it is incorrect that I had not heard accused Ghulam Raza saying to accused Azizullah to kill Sajjad. I did not see whether it was pistol or revolver, it is incorrect that I had not seen accused Azizullah firing at deceased. I was standing at the main gate of graveyard before the firing, it is incorrect that I had not seen accused Azizullah and Ghulam Raza running away in the graveyard, it is incorrect that deceased had not told me that accused Azizullah had made firing upon him, 10/12 persons gathered at spot, it is correct that no money transaction was effected in between accused and deceased in my presence, voluntarily stated that Ghulam Rasool told me about the transaction, it is not correct that I had not followed deceased and accused persons to graveyard, it is incorrect that my brother was murdered by unknown persons, I used to take heroine but now a days, I do not take heroine."
' For accused Ghulam Raza, the learned counsel also relied upon cross-examination of counsel for accused Azizullah, however, he had put certain questions and the replies of relevant questions are as under:-- "During the days of incident Ghulam Rasool was living in Brewery, it is correct that whenever deceased used to go outside the house at night, I did not follow him, it is correct that after dinner every day deceased used to go outside the house, it is incorrect that deceased was dealing in drug, 'it is incorrect that accused Ghulam Raza did not attack deceased after abusing him and it is also incorrect that he had not asked Azizullah to fire upon deceased, it is correct that I had not stated in Exh.P.B. That Sajjad told me that firing was at the instance of accused Ghulam Raza."
' P.W.3 Ghulam Rasool. He is stated to be an eye-witness of the occurrence. According to this witness, he found accused Azizullah and Ghulam Raza sitting in the street, who told him on his query that deceased Sajjad owed them some money for which he was called but had not come out. According to him he found both the accused convicts in a state of intoxication. It is stated that this witness however, settled the matter by undertaking to pay Rs,500 and later told Sajjad to go back to his house as he had settled the matter. It is stated that deceased Sajjad asked both the accused persons to accompany him to graveyard. He has further added that all three of them proceeded and reached graveyard. According to him Sajjad and Ghulam abused each other. He intervened and tried to separate them. He has stated that Ghulam said to Azizullah to kill Sajjad. He has stated that then Azizullah pushed him and thereafter, Azizullah fired two shots at Sajjad.
According to him Sajjad fell down on ground. According to Ghulam Rasool, thereafter, Mehdi brother of Sajjad came there and asked Sajjad as to what happened to which Sajjad replied that he was assaulted by Ghulam and Azizullah. According to him people gathered at the spot and deceased was then removed from the spot to road wherefrom, the deceased was taken to hospital in a vehicle. He identified both the appellants in the Court. He was subjected to lengthy cross- examination by the learned counsel for the appellants. The defence has however, succeeded in bringing some improvements over previous statement of this witness but the same is not fatal to the prosecution to the extent of appellant Azizullah. This witness was not in a position to tell the exact time of arrival of Ghulam Mehdi to graveyard. He has also stated that he had told to Sajjad that he had settled the dispute and told him to go back to house. He has also denied the suggestion that no altercation took place between the accused person and Sajjad in the graveyard. P.W. Ghulam Rasool while replying the question put to him by the learned counsel for appellant Ghulam Raza has stated that he had not stated to police that Sajjad told Mehdi that accused Ghulam Raza also assaulted him.
' P.W.4 Muhammad Aslam, he is a marginal witness of inspection report Exh.P./4-A, blood-stained clothes of deceased Exh.P./4-B. He also stood as a marginal Mashir of recovery memo. Exh.P./4-C in respect of one spent bullet stated to have been recovered from the dead body of deceased. He has also stated that one empty of .38 bore was taken into possession through a seizure memo. And sealed in a parcel. In cross-examination he admitted that there was darkness on spot and also stated that no civilian was present at the spot. He has, however, stated that empty of .38 bore cartridge was not lifted from the spot in his presence.
' P.W.5 Syed Abdul Jabbar, Chemical Expert. According to him as a result of chemical and serologist examination, the blood-stained clothes were found to be stained with human blood. He has produced certificate Exh. P. /5-A.
' P.W.6 Abdul Aziz who at the relevant time was posted in Police Station Gwalmandi as a gunman with S.H.O. According to him S.H.O. Secured blood-stained earth from the place of occurrence vide recovery memo. Exh.P./6-A. He also stood as a marginal Mashir of one empty .38 bore Mega rove stated to have taken into possession from place of occurrence vide recovery memo. Exh.P./6-B. He is also co-Mashir of Exh.P.14-B. In cross-examination he has admitted that it was dark but voluntarily stated that they made these proceedings in the light of vehicles. He has also denied the suggestion that the empty was not recovered and taken into possession in his presence.
' P.W.7 Muhammad Aslain. On 23-12-1997, he was posed as EAC/VIII and stated to have attested the disclosure memo. Exh.P./7-A, memo. Of pointation and site plan Exh.P./7-C. In cross-examination he has however, admitted the suggestion put to him by the learned counsel for appellant Ghulam Raza that the place of occurrence was known to the police.
' P.W.8 Jamul Ahmad, S.-I. He is marginal Mashir of recovery memo. Exh.P./8-B whereby, one Mega rove pistol was taken into possession stated to have been recovered from the right side pocket of Azizullah. He has produced .38 bore pistol as Article P.10 and two live cartridges as Article P.11. He also acted as a marginal Mashir of disclosure memo. In respect of appellant Azizullah and pointation memo. Exh.P./8-C. It may be stated that according to this witness, the place of occurrence was known to the police.
' P.W.9 Ghulam Akbar. He is fire-arm expert who had carried out the test in respect of pistol and issued Certificate Exh.P./9-A.
' P.W.10 Akhtar Muhammad Buzdar, Investigating Officer. He at the relevant time was posted as Additional S.H.O. And has testified about various steps taken by him during investigation and also produced documents vide Exh. P.110-A and Exh.P./10-B.
' P.W.11 Sher Nawaz Khan. He is also Investigating Officer and has testified about various steps including arrest of appellant Azizullah, recovery of pistol from his possession etc. According to him on completion of investigation, he handed over the file to S.H.O. For the purpose of challan and has identified the signature of S.H.O. On Exh.P./11-B. He has also identified signature of Muhammad Qasim, S.H.O. On Exh.P./ 11-C and Exh. P. / 1 1-D.
5. In their statements recorded under section 342. Cr.P.C. The accused/appellants have disputed the case of prosecution and pleaded their innocence. Both the accused/appellants have also made their statements on oath as per provisions contained under section 340(2), Cr.P.C. Appellant Ghulam Raza produced D.W.1 Anwar Ali and D.W.2 Safdar Ali in his defence..
6. The learned trial Court formulated the following points for determination and consideration;--
(1) Whether the deceased Sajjad Hussain died due to unnatural death - after receiving fire-arms injuries?
(2) Whether the accused Azizullah and Ghulam Raza are responsible for causing the death of deceased Sajjad Hussain in furtherance of their common intention?
(30 If afore-noted point are determined in affirmative? Then what offence has been made out?
And what should be the quantum of sentence?
7. After assessm ent of evidence, the learned trial Court found the appellants guilty for the murder of deceased Sajjad Hussain and convicted them in the manner hereinabove mentioned. The learned trial Judge while resolving point No,2 in the affirmative has concluded in the following words:-- "For the reasons discussed above, I am of the opinion that the prosecution has established the charge against the accused persons as it is crystal clear from the evidence of eye-witnesses that the accused Azizullah fired upon the deceased Sajjad Hussain on the instance of accused Ghulam Raza who received injuries. As a result of firing by the accused upon the deceased, he lost his life.
The ocular account furnished by the prosecution witnesses fully supported the prosecution version without any material contradiction, or dishonest improvement and without false motive or The ocular account fully gets support from medical evidence as well as recovery .Of crime weapon from the accused Azizullah and empty secured from the spot and bullet lead secured from the dead body of the -deceased have mailed with fire-arm recovered from accused Azizullah, report of Firearm Expert had fully corroborated the prosecution version. It is also proved on record that the act of firing made by accused Azizullah at the deceased Sajjad Hussain in furtherance of common intention fully shared by the accused Ghulam Raza. In view of the above, I am inclined to hold that both the accused persons are responsible for causing the murder of deceased Sajjad Hussain, therefore, the point No,2 is decided in affirmative."
8. Feeling aggrieved of their convictions and sentences, appellants Azizullah son of Ghulam Muhammad and Ghulam Raza alias T.T. Son of Barat Ali filed appeals under section 7 of the Suppression of. Terrorist Activities Act.
9. We have heard M/s Muhammad Aslam Chishti and H. Shakil Ahmed, Advocates learned counsel for the appellants Azizullah and Ghulam Raza respectively and Mr. Abdul Karim Yousafzai, Advocate learned counsel for the State while Mr. Ali Ahmed Kurd, Advocate has appeared for complainant.
10. The main contentions put forth on behalf of the appellant Azizullah are that the prosecution story is improbable, that witnessing the scene of occurrence by P.Ws.2 and 3 was quite impossible due to darkness, P.Ws.2 and 3 do not appear to be eye-witnesses of the occurrence, the recovery of pistol from the possession of the appellant is doubtful, there is delay in dispatching of the fire-arm to the Expert without any explanation, grounds for opinion has not been expressed in report and that the trial Judge being Additional Sessions Judge lacking experience of three years. In the end learned counsel for the appellant Azizullah stressed that it was not a case in which, the death sentence could legally be imposed, as it was a dark night and motive has not been established although alleged by the prosecution. Learned counsel in support of his contentions has relied upon the authorities reported in 1998 SCM R 25(d), 1995 PLD SC 590(c), 1976 PLJ 70/74(ii), 1992 SCM R 196/216(n) and 1999 SCM R 1418.
11. The submissions made. On behalf of appellant Ghulam Raza alias T.T. Are mainly to the extent that there is no evidence of common intention, no charge under section 109 or 34, P.P.C. Has been framed. There was no evidence regarding abetment of the offence. The statement of P.Ws. 2 and 3 is contradictory and cannot be made basis for conviction of the appellant.
12. On the other hand Mr. Abdul Karim Yousafzai, Advocate learned counsel representing the State assisted by Mr. Ali Ahmed Kurd, Advocate learned counsel for the complainant supported the impugned judgment by contending that the appellants have rightly been convicted by the trial Court. Reliance is placed on the authorities reported in 1996 SCM R 1747(a). PLD 1978 SC 298(c), 2002 SCM R 20(c), 2001 SCM R 1334(d), PLD 1991 SC 923, 1997 PCr.LJ 280 and PLD 2000 SC 1.
13. Learned trial Judge after assessment of evidence has resolved point No,1 which he has formulated for consideration in the affirmatives. As far unnatural death of deceased Sajjad Hussain is concerned, the same has even not been disputed by the defence but with the different version that the deceased was murdered by unknown persons. There is evidence of Dr. Muhammad Umer, Police Surgeon regarding examination of deceased Sajjad Hussain. From the examination of dead body of the deceased, the doctor is of the opinion that the death was caused due to damage to thorasic and abdominal contents, accessive concealed, haemorrhage, shock and death. From the nature of injuries sustained by Sajjad Hussain and medical evidence it can be concluded that whoever. Caused the injuries had intention to cause such injuries, as were sufficient in the ordinary course of nature, likely to cause death or, knowledge that the act was so imminently dangerous that it must be in all probability to cause death. Learned counsel for the appellant Azizullah has submitted that the endorsement of the police on Fard-e-Bayan Exh.P.B. Is in conflict with the medical evidence furnished by Dr. Muhammad Umer. According to the learned counsel, the doctor has certified both the wounds to be entrance one while according to endorsement of the police one wound has been indicated to be entrance and the other to be exit while according to doctor there was no exit of the wounds. He has further submitted that only one lead has been recovered from the body of the deceased. Minor difference or variation in the police endorsement and medical report does not have any material significance or bearing on merits of the case. Moreover, the police personnel are not experts in order to certify regarding entrance and exit wounds and cannot be given preference over evidence of police surgeon who has certified both the wounds to be of entrance. Medical evidence in the circumstances of the case do not show any serious conflict which can make the case of the prosecution doubtful. Moreover, the statement of the Investigating Officer is merely an opinion, therefore, he cannot he a substitute for any piece of evidence nor he is the author of the medical certificate which has been produced by the doctor. Reference can also be made to the authorities reported in PLD 1958 SC (Pak.) 275 and 1992 SCM R 2055.
14. As far the involvement of appellant Ghulam Raza with the commission of offence is concerned, even, the complainant made improvement over his statement which he had made to the police as in cross-examination while replying a question put to him by the learned counsel for accused/appellant Ghulam Raza, complainant has stated that he had not stated in Exh.P.B. That Sajjad told him that firing was at the instance of accused Ghulam Raza. It was also not possible to have heard Ghulam Raza saying to Azizullah regarding making of fire upon deceased Sajjad Hussain from a distance indicated by the complainant in his deposition before the Court. It may also be pointed out that the firing is stated to have been made from a close range. The facts of the case do not suggest sharing of common intention for causing death of Sajjad Hussain nor there was sufficient evidence to connect him with the abetment of the murder of the deceased. The grain has to be sifted from the chaff. It may be pointed out that appellant Ghulam Raza having committed no overt act at the time of occurrence and a mere Lalkara was not sufficient to make him vicariously liable for the act of appellant Azizullah. The abetment can be through instigation, conspiracy or intentional aid, but there is no such valid evidence as to bring the case of accused/appellant Ghulam Raza within the ambit of section 109, P.P.C. Section 109 has even not been applied nor indicated in the charge framed against the appellant. There is no valid 'evidence as to indicate that appellant Azizullah done the act in furtherance of common intention, as mere presence hardly brings the case under vicarious liability. There appears to be force in the contention of learned counsel for appellant Ghulam Raza that the prosecution has failed to bring the case within the mischief of common intention beyond any reasonable doubt against the appellant Ghulam Raza. Even according to P.W.3 who claims to be an eye-witness of the occurrence has not stated in respect to Ghulam Mehdi to have followed the accused persons and deceased while going towards graveyard'. According to this witness Mehdi brother of Sajjad came there when Sajjad fell down on ground after receiving two shots made by the accused Azizullah.
Ghulam Rasool has further added that Mehdi asked Sajjad as to what happened which indicates that Mehdi had not himself witnessed the occurrence and came at the spot after firing. P.W.
Ghulam Rasool was also not able to tell the exact time of arrival of the Ghulam Mehdi to graveyard while he was being subjected to cross-examination. Similarly, the pointation of the place of occurrence stated to have been made by Ghulam Raza on 23-12-1997 is not helpful to the prosecution as P.W.7 has already admitted in his cross-examination that the place of occurrence was known to the police. It is an admitted fact that no firing has been made by accused Ghulam Raza. Similarly no overt act was attributed to accused except that there is allegation that he made a Lalkara. There is also a tendency among the people to involve more persons related to the accused in the case. In 1999 SCM R 1418, it has been held:-- "The maxim `falsus in uno falsus in omnibus' has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence of a witness against some of the accused in a case, the Court cannot accept his evidenced against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in case and at the same time not relying on his version against other accused in the case (see Muhammad Ahmed v.
State 1997 SCM R 89 and Khairu v. State 1981 SCM R 1176."
' As already observed, evidence in order to bring the case within the mischief of common intention is lacking and the prosecution has not been able to establish its case against accused Ghulam Raza alias T.T. Beyond reasonable doubt and he is liable to be acquitted. The Criminal Appeal No,214/99 filed by appellant Ghulam Raza alias T.T. Is accordingly allowed by extending benefit of doubt and he is acquitted of the charge. Appellant Ghulam Raza alias T.T. Who is present on bail is discharged from his bail bonds.
15. Learned counsel for the appellant Azizullah has also submitted that private persons have not been associated and the version of P.Ws. 2 and 3 is not probable. Non-examination of other persons stated to have been gathered at the spot 'after occurrence hardly makes the prosecution case doubtful. Even otherwise, the prosecution cannot be compelled to produce all the witnesses who have gathered at the spot. In the circumstances, no adverse inference can be taken for non- examination of other persons stated to have gathered whose names have not been disclosed by the defence and the prosecution case is not doubtful in respect of appellant Azizullah.
16. It may be pointed out that appellant Azizullah was arrested on 24-12-1997. The recovery of pistol is stated to have been effected from his possession. One empty of pistol stated to have been recovered from the place of occurrence where, Sajjad Hussain was done to death. The articles were received by the Fire-arm Expert on 25-5-1998. The Firearm Expert submitted his report whereby, the crime-empty was found to have been fired from the pistol in question. Learned counsel for the appellant has contended that the report of the fire-arm does not indicate the grounds and the same is doubtful and there is delay in dispatching of the articles to the Fire-arm Expert therefore, the case of the prosecution is doubtful. It has been held by the superior Courts that sending of recovered articles to the Expert with delay can only be termed fatal to the prosecution case, where, the defence has been able to establish malice or ill will on the part of the police to show that the empties have been substituted to match the crime weapon.If the dispatch is found to have been delayed. The said act of the Investigating Officer can be termed as an irregularity committed during course of investigation, but it is settled principle of law that the procedural defects and irregularities and sometimes even the illegalities committed during the course of investigation, shall not demolish the prosecution case nor vitiate the trial. In the instant case, it cannot be stated that the Investigating Officer on account of some mala fide intention, sent the articles with delay nor anything has been brought, which can indicate substitution of crime weapon and empty. Mere delay in dispatching of the articles to the Expert cannot nullify the evidentiary value of the same in the absence of attending circumstances causing doubt as to the genuineness of the recovery. Reliance is also placed on the authority reported in PLD 2001 SC 107 and the report of Fire-arm Expert is available on record which indicates that the crime-empty (mark as "C") was fired from the pistol bearing No,OA003789. The pistol in question was taken into possession from the possession of appellant vide recovery memo. Exh.P./8-A and there is hardly any defect in report which makes the case doubtful. We see no reason to discard the evidence regarding recovery of the piitol from the possession of the appellant in view of the provisions of section 8 of the said Act. As regards certain contradictions in the statements, the same cannot make the prosecution case doubtful in respect of appellant Azizullah as the same have nothing to do with the main offence. In criminal cases, the evidence of the police officials cannot be discarded without considering the same on merits, police officials who have no ill-will against the accused person, would be competent witnesses and their evidence cannot he discarded for the reason that they are police employees. In these circumstances this Court can infer on the basis of evidence, recovery of crime weapon and report of Fire-arm Expert, that the version given by the prosecution is more probable in respect of appellant Azizullah. The prosecution has been able to establish case against him, so far as murder of Sajjad Hussain is concerned for which. He has rightly been held responsible.
17. Regarding jurisdiction learned counsel representing the State has submitted that Additional Sessions Judges were competent to adjudicate upon the matter as per Notification No,SO(JUDL.)7(15)/974812-74, dated 25-3-1999. Even otherwise, learned counsel for the appellant has not been able to indicate as to what prejudice has been caused to the appellant nor brought on record anything which can indicate that the learned trial Judge was not competent to adjudicate upon the matter.
18. Regarding motive it has been contended that the same has not been established by the prosecution. It is stated that even according to trial Court, the motive set up by the prosecution was not proved. God alone knows the mind of man. The proof of motive is not necessary in every case, it appears that both the parties have suppressed the real facts which resulted into occurrence of this incident as according to P.W. Ghulam Rasool, he settled the matter and asked Sajjad to go back to his house but deceased told the accused to accompany him to graveyard, meaning thereby, the deceased himself was responsible for taking the accused to the graveyard.
There is also force in the contention that from the circumstances, it appears that it was not a premeditated offence and the same has taken place all of a sudden. The appellant was also stated to have been found in a state of intoxication as per statement of P.W.3 Ghulam Rasool an eye-witness of the occurrence. This coupled with other circumstances bring the case of appellant Azizullah for award of lesser punishment as provided under section 302(b), P.P.C.
19. Keeping in view the circumstances of the case we are, of the view that the ends of justice would be met, if the death sentence awarded by the trial Court to appellant/convict Azizullah is reduced to life imprisonment. . As per provisions contained under section 544-A, we also direct that (sic).
20. For the aforesaid reasons (Criminal Appeal No,194/99 to the extent of appellant Azizullah stands dismissed subject to above mentioned modification in the quantum of sentence. Similarly Murder Reference No,15/2003 stands disposed of in the above terms.