P L D 1999 Lahore 262 (PLP)

MIAN NAZIR AKHTAR, J.‑‑‑Aamir Iqbal, appellant alongwith two others namely Qurban Hussain and Anwar Hussain were tried in the Court of learned Additional Sessions Judge for offences under section 302/34 of the P.P.C. in a case registered against him and 3 others vide F.I.R. No.146, dated 29‑11‑1993 at Police Station Kallar Syedan, District Rawalpindi. He was convicted under section 308, P.P.C. and awarded R.I. for 14 years as Ta'zir with a fine of Rs.50,000 or in default of payment to undergo R.I. for 2 years vide judgment dated 16‑2‑1997. He was also ordered to pay the amount of Diyat for the value of 30,600 grams of silver to the legal heirs of Muhammad Imran and Adalat Hussain, deceased.

2. The F.I.R. was lodged by Sajjad Ahmad, P.W.7 through a written complaint Exh.PH which formed the basis of formal F.I.R. Exh.PH/1. He stated in the report that on 29‑11‑1993 at about 5‑00 p.m. a quarrel had taken place between Mst. Irshad alias Shado wife of Anwar Hussain, accused and Mst.Mubarak Jan, mother of the complainant, whereupon the appellant armed with a pistol, Iftikhar accused (absconder) armed .with a pistol and Qurban Hussain and Anwar Hussain (since acquitted) empty handed came to the spot. Qurban Hussain and Anwar Hussain raised a Lalkara upon which the appellant fired two shots at Muhammad Imran, deceased while Iftikhar (absconder) fired at Adalat Hussain. The two injured persons fell down and died at the Spot.

3. The occurrence was witnessed by five persons including the complainant P.W.7, Mst. Mubarak Jan P.W.8 and three other persons namely Muhammad Taj, Muhammad Safdar and Muhammad Arshad who were given up at the trial. The investigation was conducted by Rabnawaz, S.I. P.W.14 who reached the spot on the same day; prepared the inquest reports Exhs.PK and PN in respect of Adalat Hussain and Muhammad Imran, deceased respectively; secured blood‑stained earth on 30‑11‑1993 vide recovery memo. Exhs.PA and PB, two lead bullets of 30 bore pistol on 30‑11‑1993 vide recovery memo. Exh.PC, recorded the statements of the eye‑witnesses under section 161 of the Cr.P.C.; secured the last worn blood‑stained clothes of Adalat Hussain, deceased Shalwar P1, one shirt P.2, Bunyan P.3 vide recovery memo. E?Ch.PD and last worn clothes of Muhammad Imran, deceased, i.e. Shalwar P.5, Kameez P.4 and Bunyan P.6 vide recovery memo. Exh.PE. He sent the dead bodies of the deceased for post‑mortem examination through Zareen and Muhammad Nazir, Constables. The post‑mortem reports in respect of Adalat Hussain and Muhammad Imran, deceased Exhs.PI and PJ, respectively. He got the site plan prepared through Qamar‑ud‑Din P.W.5 and arrested Amir, Qurban Hussain and Anwar Hussain accused on 6‑12‑1993. Iftikhar accused had absconded and was declared to be a P.O. on a move made by the Investigating Officer.

4. Dr. Basharat Hussain Raja P.W.9 conducted the post‑mortem on the dead bodies of the two deceased persons. He found the following injuries on the dead body of Imran deceased:‑‑ (1) In oval shape fire‑arm entry wound with blackening around it over the epigastriun measuring 1 x 3/4 c.m. irregular margin and inverted shape as shown in diagram. (2) Another oval shape fire‑arm entry wound with blackening measuring 1 x 3/4 c. m. inverted close to injury No. l as shown in diagram and was on the apigastrium. (3) A fire‑arm exit wound 2 c.m. x 1 c.m. 'with overted margin with blackening over the right side of back of middle of chest. (4) Afire arm exit wound 1‑1/2 c.m. x 1 c.m. over the back in its lower part as shown with irregular margin and leading through it. Corresponding fire‑arm marks over bunyan and Kameez were present. About 2‑1/2 liters cc of blood was present in right chest cavity. Injury No.3 was the exit wound of injury No.

1. Bullet had been passed through liver and right lung. Blood was present in abdominal cavity. Injury No.4 was the exit wound of injury No.2. Bullet has passed through stomach intestines to the muscle of back damaging the vessels close to kidneys and gone out. Stomach was damaged and everything was leaked out. Right lung was damaged. Pancreas was damaged. In small intestines greasi material was present. Large intestine was empty. Liver was damaged. About 40 cc urine was present in the bladder.. The doctor also found the following injuries on the dead body of Adalat Hussain, deceased:‑‑ "(1) A fire‑arm entry wound 1 c.m. in diameter with blackening around it over the front of upper part of left side of chest, and inverted as shown in diagram. (2) Abrasion 1 c. m. into 1/2 c. m. over the lower part of right knee joint (3) Abrasion 1‑1/2 c.m. x 1 c.m. over upper part of right knee joint. (4) Abrasion 5 c.m. x 3 c.m. over lower part of left knee joint (5) Abrasion 3 c.m. x 2 c.m. over the upper part of left knee joint (6) Abrasion 1 c.m. x 1‑1/2 c.m. on the back of left elbow joint (7) Abrasion 1 c.m. x 1‑1/2 c.m. over the outer side of upper part of left forearm. (8) Four fire‑arm wounds over the back of chest from right shoulder to left ' hip in direction. (a) Fire‑arm entry wound 2 x 1 c.m. as shown with blackening around it (b) Fire‑arm exit wound of injury No. 1, 1 x 1 c. m. with a everted margin (c) Exit wound of injury No.8‑a, 1‑1/2 x 1 c.m. with blackening over it (d) A fire‑arm friction with blackening 5 c.m. x c.m. as shown in diagram due to 8‑a, 8‑c and 8‑b. Due to injury No. l heart and left lung was damaged. Resulting in blood loss in the chest cavity where 3 litres of blood was present. , Small intestines contained 2 m.l. of greasi material stomach was empty and bladder was full of urine."

5. The appellant's learned counsel contends that the F.I.R. was not recorded at the time and place given therein, in fact, it was recorded on the following day of the occurrence which had taken place at 8‑00 or 8‑30 p.m. and not at 5‑00 p.m. on 29‑11‑1993; that if the occurrence had taken place at 5‑00 p.m. then the F.I.R. recorded by Rabnawaz, A.S.I. at Kallar Bazar at 10‑30 p.m. was clearly delayed by several hours; that the motive set up by the prosecution was not believed by the trial Court, therefore, prosecution must suffer its consequences; that there is a background of previous enmity between the parties, therefore, the ocular evidence could not be relied upon without independent corroboration which is lacking in the present case; that the medical evidence completely belies the ocular evidence; that the post‑mortem report shows that Adalat Hussain, deceased had received more than 2 bullet injuries; that injury No.8‑c is also a wound of entry which was wrongly shown as wound of exit; that in the inquest reports Exh.PK and Exh.PN in column No.4 originally the name of Muhammad Ejaz was written and subsequently changed into Sajjad; that the columns in the inquest report pertaining to two or more respectables of the area are lying vacant; that the Investigation Officer was duly confronted with this who admitted the factum of interpolations but denied the suggestion that originally the name of Ejaz was written which was changed into Sajjad; that the Investigating Officer admitted that there were no initials on the above‑referred interpolations; that the Investigating Officer had also admitted that there was an interpolation qua the name of Sajjad, complainant in the statement of Mst. Mubarak Jan recorded under section 161 of the Cr.P.C.; that these interpolations demonstrate that Sajjad complainant had not witnessed the occurrence and was subsequently made an eye‑witness; that immediately after his arrest the appellant had stated that he was not present at the place of occurrence at the relevant time; that he was present in village Daryal with his tutor Muhammad Shabbir; that the police did not conduct investigation to verify the correctness of the appellant's plea of alibi; that the statements made by P. W.1 Abdur Razzak, P.W.3 Zarin Akhtar and P.W.6 Mumtaz Hussain, constable on the one hand proved previous enmity between the parties and on the other showed that the F.I.R. was lodged at the police station; that Rabnawaz, S.I. after leaving the police station had straight gone to the spot without staying anywhere in the way; that shots were fired at the two deceased by lftikhar, absconder and not by the appellant who was falsely implicated in the case; that at any rate, there was no cogent material on the record to show that the appellant had attained sufficient maturity so as to realize the consequence of his act, therefore, he could not have been awarded sentence of imprisonment of payment of Diyat; that the judgment of the trial Court is not judgment in the eye of law and that the trial Court had not applied its independent mind to the facts of the case and illegally convicted the appellant. The above points are also incorporated in the written statement submitted by the appellant under section 265‑F of the Cr.P.C. which has also been considered.

6. On the other hand, the complainant's learned counsel contends that the F.I.R. was lodged at Kallar Bazar which was situated at considerable distance from ‑the place of occurrence; that even the police station is not far oft from Kallar Bazar; that the complainant's statement was recorded by the Investigating Officer at Kallar Bazar at 10‑30 p.m. and thereafter he reached the spot; that mere failure to prove motive set up by the prosecution does not re=act on the prosecution. story as held in the cases of Manzoor Ahmad v. The State PLD 1983 SC 197; Ghulam Nabi v. Daiam and another 1986 SCMR 1424; that the concessional statements made by Zarin Akhtar, P.W.3 and Mumtaz Hussain, P. W.6 cannot be given any weight; that their cross‑examination should have been confined to the facts stated by them in examination‑in‑chief and that the concessional statements qua other facts were irrelevant, relies on the judgments in the cases of Bagu v. The State PLD 1972 SC 77; Haider Zaman v. The State PLD 1995 PCr.LJ 217; that P.W.9 Dr. Basharat Hussain Raja had explained that injury No.8‑b suffered by Adalat Hussain, deceased was exit wound of injury No. l; that injury No.8‑c was exit wound of injury No.8‑a; that injury No.8‑b was caused due to injuries No.8‑a or 9‑b; that injury No.8‑d was not caused due to any separate shot fired at the deceased; that injuries Nos.2 to 7 were possible due to fall of the deceased on the hard surface or due to his rapid movements in a state of pain and agony after falling down on the ground; that Mst. Mubarik Jan and Sajjad Ahmad, complainant had witnessed the occurrence from points Nos.4 and 8 shown in the site plan; that the gate of the Haveli was open from where both the eye‑witness could conveniently see points Nos. 2, 5 and 6 where Imran and Adalat deceased were injured; that Mst. Mubarik Jan had not entered any room of the house so as to make it impossible for her to witness the occurrence; that by entering the house, she meant to convey her entry in the Haveli through the gate which was open; that the alleged interpolations were not proved to have been made by the Investigating Officer; that the same might have been made by the Investigating Officer; that the same might have been made by some interested party after submission of the challan in order to create doubt in favour of the accused persons; that the appellant after having set up the plea of alibi was bound to prove it, failing which it could be presumed that he was present at the time of occurrence; that in his statement before the police the appellant had stated that he was present with his tutor named Master Shabbir but in cross‑examination of the eye‑witnesses the name of the tutor was given as Master Sultan; that neither Master Shabbir nor Master Sultan was produced at the trial in support of the appellant's plea of alibi; that the appellant was aged about 17 years at the relevant time and had attained sufficient maturity to realise the consequences of his act and was rightly convicted by the Court below.

7. In support of its case, the prosecution produced 14 witnesses. P.W.1 Abdur Razaq had accompanied dead body of the deceased to the hospital on 30‑11‑1993 for post‑mortem examination, had identified the same before the doctor and thereafter, received the dead body. P.W.2 Muhammad Babar had witnessed recovery of blood‑stained earth from the spot on 30‑11‑1993 at 3‑00 a.m. which was secured vide recovery memos. Exh.PA and Exh.PB. P.W.3 Zarin Akhtar, constable had accompanied the dead body of Adalat Hussain, deceased to the mortuary for post‑mortem examination. He had handed over the last worn clothes of the deceased (Shalwar P.1, Shirt P.2 and Bunyan P.3) which were taken into possession vide recovery memo. Exh.PD. P.W.4 Muhammad Nazir had escorted the dead body of Imran deceased to the mortuary for post mortem examination. After the post‑mortem examination, he received the last worn clothes (Shirt P.4, Shalwar P.5 and Bunyan P.6) and handed over the same to the Investigating Officer who secured them vide recovery memo. Exh.PE. P.W.5 Qamar‑ud‑Din had prepared site plan Exh.PF and Exh.PF/1. P.W.6 Mumtaz Hussain was given warrants for arrest of Iftikhar Hussain, absconder on 19‑3‑1994. He went to his residence but could not trace him out. He appeared before the Magistrate and his statement was recorded on 26‑3‑1994. He was entrusted with the proclamation (Exh.PG) of the said accused which was pasted by him at his residence near mosque of the village. P.W.7 is Sajjad Ahmad, complainant who stated that on 29‑11‑1993 ‑he had come back from his duty at 5‑00 p.m.; that Mst. Irshad alias Shado, his relative (aunt) had poured a bucket of water in front of door of his Haveli, whereupon his mother Mst. Mubarik Jan stopped her from doing so; that the women exchanged. abuses and in the meanwhile, Aamir appellant armed with a .30 bore pistol, Iftikhar, absconder armed with a .30 bore pistol, Qurban and Anwar empty handed came there raising Lalkaras from their house that they ‑ be not allowed to go away alive; that the appellant fired 2 shots at his brother Imran who was standing in front of the gate of the Haveli in the street; that he received injuries at his belly, ran inside the Haveli, fell down on the ground and succumbed to his injurie ; that his father Adalat Hussain was coming after attending a funeral ceremony and lftikhar absconder fired a shot causing injuries on left side of his chest; that he returned towards his Baithak in a whirling condition; that Iftikhar absconder fired another shot causing injuries on his back; that he fell down and died at the spot; that the occurrence was witnessed by Muhammad Safdar, Muhammad Irshad and Taj as well; that Anwar and Qurban continued raising Lalkaras in the street; that a large number of persons gathered at the spot; that gate of the Haveli was closed by Safdar and Irshad from inside; that he managed to reach Kallar Syedan and reported the matter to the police at Kallar Chowk through the complaint Exh.PH. P.W.8 Mst.Mubarik Jan mother of Sajjad Ahmad is the other eye‑witness who corroborated the statement made by P.W.7. P.W.9 is Dr. Basharat Hussain Raja who conducted post‑mortem examination on the dead body of Imran, deceased at 9‑00 a.m. on 30‑11‑1993 and on the dead body of Adalat Hussain, deceased at 10‑30 a.m. on the same day. P.W.10 Khan Muhammad, A.S.I. had obtained non‑bailable warrants for arrest of Iftikhar accused on 19‑3‑1994 but could not arrest him as he had absconded. P.W.II Muhammad Ramzan, Constable was posted at Kallar Syedan on I 1‑12‑1993. He was given two sealed parcels containing blood‑stained earth which were delivered by him in the office of chemical examiner on the same day. P.W.12 is Muhammad Sarfraz, A.S.I. who had recorded the formal F.I.R. Exh.PH/1 on the basis of the complaint Exh.PH. P.W.13 Muhammad Ejaz had identified the dead body of his father Adalat Hussain, deceased and brother Muhammad Imran, deceased before the doctor. P.W.14 Rab Nawaz, S.I. had conducted investigation in the case, arrested the appellant as well as Qurban and Anwar accused and submitted challan against them. The prosecution gave up Muhammad Taj, Muhammad Safdar, Muhammad Irshad and Abdur Rashid P.Ws. as being unnecessary on 8‑5‑1996, tendered. in evidence Report of the Chemical Examiner Exh.PR and that of the serologist Exh.PS and closed the prosecution evidence on 7‑10‑1996.

8. When examined under section 342 of the Cr.P.C., the appellant denied the allegation of firing at Imran, deceased. He denied that Iftikhar absconder had fired at Adalat Hussain, deceased. He claimed that he had voluntarily appeared before the Resident Magistrate, Kahuta on 6‑12‑1993 and was arrested by the police. He added that the P.Ws. had deposed against him due to relationship with the deceased and enmity against him. He tendered in evidence a copy of the order dated 21‑9‑1994 passed by this Court in Criminal Miscellaneous No.592‑B of 1994 (Exh.DC) and a copy of order dated 1‑2‑1995 passed by the Supreme Court of Pakistan in Criminal Appeal No.372 of 1994 (Exh.DD). He was questioned whether he would like to make a statement on oath under section 340(2) of the Cr.P.C. to disprove the prosecution allegations against him to which he replied in the negative. However, he filed written statement under section 265‑F of the Cr.P.C. which embodied the above stated arguments raised by the appellant's learned counsel.

9. In the tragic incident two persons i.e. Adalat Hussain and his young son Imran had unfortunately lost their lives. True the motive stated in the 11.1.8. is neither convincing nor satisfactorily established but this, per se, is not sufficient A to doubt the prosecution story. The occurrence appears to be the result of a trivial dispute about throwing of water in the street and subsequent exchange of abuses between Mst. Mubarik Jan P.W.8 (mother of the complainant) and Mst. Irshad Begum alias Shado (mother of the appellant). The complainant stated that the ladies continued to exchange abuses for about 15 minutes but during this time nobody except himself had asked them to stop abusing each other. Probably at some juncture during the exchange of abuses, Imran deceased, a young boy of about 17/18 years, came out to side with his mother. Simultaneously with his arrival, the appellant and Iftikhar, absconder armed with .30 bore pistol and two other co‑accused namely Anwar and Qurban came there. This can be gathered from the statement of the complainant who stated in cross‑examination, "Imran had gone out in the street during the exchange of abuses between the two ladies. The accused had come to the spot after Imran had gone in the street. Imran had gone in the street on hearing abuses between the ladies. The accused also came there on hearing the noise of abuses between the ladies." As long as the dispute remained confined between the ladies the accused showed restraint and did not intervene but the moment Imran deceased came out to side with his mother they lost patience, emerged out from their adjacent house and then the tragedy was enacted. The appellant suddenly fired at Imran deceased who was present just in front of the gate of his Haveli. He ran inside the Haveli and fell down near the stair‑case and died after some time. In the meanwhile the complainant's father reached there and was fired at by Iftikhar absconder. He also died at the spot. The assailants were already known to the complainant who made no mistake in identifying them. After the incident the complainant and his family members were in a woeful condition. They also apprehended more harm at the hands of the assailants and closed the door of the Haveli for safety. In this situation the complainant took some time and then proceeded on foot to lodge the F.1.R. By that time, it had already become dark. He met Rabnawaz, A.S.I. in Kallar Bazar and lodged the F.I.R. Exh.PH/1. Under these circumstances, some delay in lodging the F.I.R. was bound to occur. I am not prepared to doubt the veracity of the prosecution story due to the element of delay in lodging the F.I.R. in the circumstances of the case. The complainant had stated in his examination‑in chief that he had lodged report Exh.PH to the police at Kallar Chowk and signed the same after it was read over to him. However, in cross‑examination, he stated, "at the spot the police had been preparing papers and I had signed there only the F.I.R." From this the appellant's learned counsel has built his argument that the report was lodged at the spot. It appears that the learned defence counsel with his ingenuinity had combined two questions. in cross‑examination, one relating to preparation of papers by the police at the spot and the second about signing of the F.I.R. which confused the witness. The witness had already stated that he had lodged the report at Kallar Chowk which was read over to him and he had signed it there. To the same strain is the statement made by P.W.14 Rabnawaz. A.S.I. Therefore, I am not prepared to give any weight to the argument that the F.I.R. was recorded at the place of occurrence. The complainant was subjected to lengthy cross‑examination but he stood the test squarely and nothing really damaging to his veracity could be elicited. He denied the suggestion that information about the occurrence was conveyed at the police station by some other person and that the police party had directly reached the village without staying anywhere in the way and that he was summoned from his Rawalpindi residence and the report Exh.PH was drafted on the following day after the post‑mortem examination. This suggestion was made in view of the concessional statement made by Zareen Akhtar, P.W.3. As mentioned above, they were merely formal witnesses and had to be cross‑examined about what they had deposed in the examination‑in‑chief. It was laid down in the case of Baggu v. The State 1972 SC 77 that there was a growing tendency and propensity of formal police witnesses to make obliging concessions in favour of defence with regard to matters wholly unconnected with their part in investigation of the case. Such concessions were strongly disapproved by the Supreme Court. The same view was expressed in the D.B. judgment from the jurisdiction‑of Peshawar High Court in the case of Haider Zaman and others v. The State 1995 PCr.LJ 217 (Peshawar). The appellant's learned counsel urged that the most crucial admission on the part of P.W.7 is in these words:‑‑ "I did not mention before the police that I had seen the occurrence." After having narrated the entire occurrence as an eye‑witness, it was hardly necessary for the witness to have specifically stated that he had seen the occurrence. The fact that he had seen the occurrence can be gathered from the statement made by him before the trial Court. The statement made by the complainant is corroborated in all material respects by his mother P.W.8 Mst. Mubarak Jan who was admittedly present at the spot. Regarding her statement the learned defence counsel laid great stress that she had entered her house and was not in a position to witness the occurrence. The argument does not appear to be sound. Mst. Mubarak Jan had seen the appellant and Iftikhar accused armed with .30 bore pistols alongwith Anwar and Qurban accused coming at the spot. Due to fear she entered the Haveli through the open gate. There is nothing to show that she had gone inside any room of the house. She had just entered her Haveli when her son was fired at by the appellant. She was also in a position to see the shot being fired at her husband Adalat Hussain (from point No.8 in the site plan Exh.PF). It is true that she was not fired at by the assailants. May be they had spared her due to her womanhood, old age and close relationship. Iv is in evidence that as long as the tussle remained confined to the ladies, the accused persons did not come out to intervene. The further fight had resulted due to arrival of Imran, deceased at the spot. Although, Mst. Mubarak Jan P.W.8 has stated that after coming out of the house her son Imran just stood in the street and did nothing whatsoever, this does not appear to be correct. Imran being a young boy aged about 17/18 years must have said something to Mst. Irshad Begum, whereupon the accused persons came forward to launch the attack.

10. It is true that there is some background of enmity between P.W.1 Abdur Razak and the accused party but it appears to be fairly old. P.W.1 Abdur Razzaq (maternal‑uncle of Mst. Mubarak Jan, P.W.8) had identified the dead n body of the deceased in civil Hospital, Kahuta and stated in cross‑examination that about 20 years ago, he got a case registered against Malik Mardan Ali, Riyasat, Shafique and Anwar Hussain accused who had injured him, his brother Muhammad Jee, his wife Mst. Maroof Jan and nephew Muhammad Safdar. He admitted that motive for the said case was a dispute about a path and added that there were cases between the parties which had gone up to Martial Law Authorities and the police, Sajjad Ahmad, complainant stated that Mst. Maroof Jan wife of Abdul Razzaq was maternal cousin of Habib alias Habiba whose cousin Barkat was murdered in 1987 for which a case was registered against Muhammad Iftikhar, absconder and his cousin. On the other hand, Ibrar, a nephew of Anwar Hussain accused was murdered in which Habib alias Rabiba and Wajid were challaned. Thereafter, Wajid was murdered and in the said case Qurban and Ajmal were challaned and that Ajmal was sister's son of Qurban accused. It will be seen that the old enmity is primarily between Abdul Razzaq and Habib alias Habiba on the one hand and the accused party on the other. Sajjad Ahmad, complainant and his family members have no direct enmity against the accused persons and were not shown to be concerned with the previous civil or criminal litigation either as a party or witnesses. The complainant party and the accused party are neighbours and closely related. Adalat Hussain, deceased was an uncle of the appellant and Imran, deceased was his‑cousin. There is nothing to show that the complainant party in the present case had been siding with Abdul Razzaq or Habib alias Habiba in thqir previous civil and criminal litigation against Anwar Hussain etc., the accused party. Therefore, the statements of Sajjad Ahmad, complainant and his mother Mst. Mubarak Jan cannot be discarded for the above stated enmity.

12. To shatter the veracity of the eye‑witness account furnished by Sajjad Ahmad, P.W.7, the appellant's learned counsel vociferously urged that the witness was still on his way back from his place of duty, when the occurrence had taken place and that the exact point in the way from where he had seen the occurrence was not shown in the site plan. The argument is wholly misconceived. In the site plan, points Nos.4 and 8 have been indicated from where P.W.7 and P.W.8 had seen the assailants firing at Imran and Adalat Hussain, deceased. In the F.I.R. Exh.PH/1, P.W.7 had stated as under:‑‑ while appearing as a witness in the Court he had made the same statement in the following words (in urdu):‑‑ It clearly meant that he had already reached home. However, in the English rendering of his evidence, the following words were type written:‑‑ "On 29‑11‑1993, was on my way from my duty." This is obviously what the witnesses had not stated. From this error, the appellant's learned counsel tried to build the argument that Sajjad Ahmad, P.W.7 was still in his way back to the house when the occurrence had taken place and that the said point in the way was not shown in the site plan. Since Sajjad Ahmad, P.W.7 had already reached his house. His presence alongwith his mother Mst. Mubarak Jan, P.W.8 was shown in the site plan Exh.PF at point G No.8 from where they had seen Iftikhar accused firing at Adalat Hussain and at point No.4 from where they had seen the appellant firing at Imran, deceased. The witness had further clarified in cross‑examination as under:‑‑ "I did not state in the F.I.R. that while I was on my way from my duty, I saw the occurrence. " In the Urdu version his statement was noted in these words:‑‑ Therefore, there is no substance in the argument raised by the appellant's learned counsel that Sajjad Ahmad, P.W.7 was still in the way when the occurrence had happened.

13. The argument raised by the appellant's learned counsel that the interpolations qua the name of Sajjad Ahmad in column No.4 of the inquest report and the statement of Mst. Mubarak Jan recorded under section 161 of the Cr.P.C. show that Sajjad Ahmad was not present at the spot and was subsequently made an eye‑witness, does not carry much weight. In column No.4 of the inquest reports, the names of two witnesses who had identified the dead body are mentioned. The first witness is Abdul Razzaq son of Akbar Ali. The name of the second witness shows some interpolations. It appears that originally the name of Muhammad Sajjad was wirtten and then an attempt was made to change it into Ejaz. In the inquest report of Adalat Hussain, deceased after the word (MUHAMMAD PBUH)letter ( I ) has been inserted touching the letter (>) of the word (MUHAMMAD PBUH). Another letter ( I ) has been written over the letter (). To me it appears that some interested party had made a crude attempt to change the name of Sajjad into Ejaz for creating doubt about his presence at the time of the occurrence. I have also noticed that even in the complaint Exh.PH an attempt was made to change the word ( left) or (right) regarding locale of fire arm injury received by Adalat Hussain, deceased at the hands of Iftikhar, absconder. Anyhow, the alleged interpolations in the inquest report were not proved to have been made by the Investigating Officer Prior to preparation of the inquest report, the F.I.R. had already been recorded on the statement of Sajjad Ahmad, P.W.7. so far as the interpolation in the statement of Mst. Mubarak Jan recorded under section 161, of the Cr.P.C. is concerned, it is also another crude attempt to create doubt about correctness of the record, The word (SAJJAD) appears to have been written over somewhat dim writing of the earlier word (SAJJAD). This is also inconsequential because at three other places in the statement of Mst. Mubarak Jan, P.W.8, the name "Sajjad Ahmad" is clearly mentioned without any interpolation. Hence, I am not prepared to doubt the presence of Sajjad Ahmad, complainant at the time of the occurrence due to the above‑referred interpolations.

14. The oral evidence gets support from the medical evidence to the extent of infliction of injuries to the deceased persons by fire‑arms. The appellant's 1H learned counsel strenuously urged that the eye‑witnesses had attributed two shots to the appellant and two to Iftikhar, absconder but according to the post‑mortem report, more than four fire‑arm injuries were caused to the two deceased persons. So far as Imran, deceased is concerned the post‑mortem report clearly shows that he had received only two fire‑arm injuries (Nos. l and 2) and the other injuries (Nos.3 and 4) were exit wounds. On the body of Adalat Hussain, 'deceased, the doctor had found injuries Nos. l to 8‑d. Injury No. l is a fire‑arm ‑ entry wound over the front of upper part of left side of chest. Its exit wound is injury No.8‑b. The second wound of entry is 8‑a having exit wound 8‑c. Another injury No.8‑d is shown to be a fire‑arm friction due to injury No.8‑a, 8‑c and 8‑b. Thus, as per the postmortem report, injury No.8‑d had not been caused due to an independent fire shot, The question in what manner injury No.8‑d had been caused was not got clarified in cross‑examination of the doctor. The cross‑examination of the doctor was limited to injury Nos. l, 8-a, 8‑b, 8‑c and 2 to

7. As regards the abrasions (injuries Nos. 2 to 7) found on the knee joint, left elbow joint and outer side of upper part of left fore‑arm, these cold have been caused as a result of sudden fall of the deceased on hard surface and movements of his body in a state of pain and agony. Thus, there is no real contradiction between the oral and the medical evidence. .

15. The appellant as well as Iftikhar, accused had absconded immediately after the occurrence. The appellant surrendered before the Court on 6‑12‑1993 and was formally arrested by the Police while Iftikhar, co‑accused is still a fugitive from the law. Immediately after his arrest, the appellant had set up the plea of alibi before the Investigating Officer He had stated that at the time of occurrence he was present with his tutor named Shabbir and had learnt about the occurrence in his house. After having set up the plea of alibi it was for the appellant to produce evidence to show that his plea was reasonably possible. The appellant's learned counsel urged that the Investigating Officer ought to have verified the correctness or otherwise of the appellant's plea of alibi but he failed to do the needful. This argument is contrary to the record. During the course of investigation, Gul Abbas, D.S.P. had recorded the statement of Muhammad Shabbir, tutor on 19‑12‑1993 (Zimni No.15 dated 19‑12‑1993). However, vide para. 13 of the said Zimni, he opined that the plea of alibi was fabricated and an afterthought, therefore, he did not agree with it. Thus, it is evident that after proper investigation, the appellant's plea of alibi was rejected by the Investigating Officer. During the trial, the appellant's defence of alibi was .l unfolded through cross‑examination of the eye‑witnesses but the name of the tutor was suggested to be Master Sultan instead of Master Shabbir. This might have been due to an error on the part of the learned defence counsel for which the appellant should not be penalized. However, the fact remains that the appellant neither specifically raised the plea of alibi in his statement under section 342 of the Cr.P.C. nor produced any evidence in support of the same. It is settled law that an accused person after taking the defence of alibi had to produce some evidence to show that it was reasonably possible. The burden to call witnesses in support of the plea of alibi is on the accused person as held in the cases of Nem Singh and others v. Emperor AIR 1934 All. 908; Emperor v. Nirmal Jiban Ghose and others 157 IC 387; Muhammad Ayub v. The State PLD 1964 (W.P.) Pesh. 288; Aminullah v. The State PLD 1982 SC 429; Khushi Muhammad v. The State 1983 SCMR

697. In some cases it has been‑held that if the defence plea of alibi breaks down, it can give rise to an inference that in all probability the accused was present where the prosecution says he was. In this connection, reference may be made to the judgments in the cases of Sarat Chandra Dhupi v. Emperor AIR 1934 Cal. 719 and Sheo Shanker and another v. The State AIR 1953 All.

652. However, a contrary note was struck in the case of Ilahi Bux and another v. The State 1969 SCMR 584 in which it was held that failure to prove the plea of alibi does not recoil on the accused and that the burden of proving guilt of an accused remained on the prosecution. True, the t burden of proving its case beyond any reasonable doubt is always on the prosecution and failure of an accused to prove his plea of alibi does not necessarily lead to an inference of his guilt. However, a distinction may be drawn in a case in which a plea of alibi is raised but no evidence produced and in a case in which evidence in support of the plea is produced but not found to be reliable or satisfactory. In the former case, it can be said that after having raised the plea of alibi the accused abandoned it but in the latter he attempted to prove it. In the former case, no adverse inference can be drawn against an accused person but in the latter if it is found that the accused had attempted to fabricate evidence and bring forward false witnesses then it may give rise an inference against him. The present case pertains to the former category. The appellant appears to have abandoned his plea of alibi, hence no inference adverse to him can be drawn for his failure to produce evidence to substantiate the same. The prosecution has to stand or fall on its own legs.

16. The trial Court has recorded a finding that the appellant had attained' sufficient maturity at the time of commission of the offence. As per the entries made in his school leaving certificate (referred to in the order dated 1‑2‑1995 Exh.DD passed by the Supreme Court of Pakistan refusing leave to appeal against appellant's bail order dated 21‑9‑1994 Exh.DC passed by this Court) the appellant's date of birth is shown as 10‑3‑1997. Therefore, on the date of occurrence, i.e. 29‑11‑1993 the appellant's age was 16 years, 8 months and 21 days. A boy of this age generally becomes fairly sensible and fully realizes the N) consequences of his acts. He could very well‑know that by firing two pistol shots at another human being he would cause his death and be guilty of murder. His conduct in the occurrence and replies given to the Investigating Officer during the course of his interrogation fairly indicate that he had attained sufficient maturity. At the time of occurrence, he had taken a pistol from his house, loaded it and came out alongwith his co‑accused, fired two shots in quick succession at Imran, deceased. He acted in a determined manner to cause death of Imran, deceased. Immediately after arrest, he was interrogated by the Investigating Officer on 6‑12‑1993.1 have gone through the relevant Ziminies. The appellant set up the plea of alibi by saying that at the time of occurrence he had gone to the house of Haji Shabbir for tution and that he got the news in the house of his tutor that his brother‑in‑law Iftikhar alias Biloo had murdered Adalat Hussain and lmran. He straight came to the house and saw that his uncle Adalat Hussain had died and Imran was in a seriously injured condition; that his family members sent him to Lahore where he stayed in the house of his uncle; that there he learnt that his brother‑in‑law Iftikhar alias Biloo had also come to Lahore and might have gone to Karachi where he was employed in the Pak Army. He added that there was unpleasantness between his family and that of his uncle Adalat Hussain; that the two families were not on speaking terms but personally he used to have talks with Muhammad Imran deceased. The manner in which he made his statement before the Investigating Officer is indicative of his maturity. Therefore, keeping in view the appellant's age, his conduct in the N occurrence and manner of making a statement before the Investigating Officer, 1 uphold the finding of the trial Court that the appellant had attained sufficient maturity to realize the consequences of his act. Even otherwise, notwithstanding anything contained in subsection (1) of section 308 of the P.P.C., the Court, having regard to the facts and circumstances of the case, in addition to the punishment of Diyat, can award imprisonment of either description for a term 0 which may extend to fourteen years, as Ta'zir. The facts and circumstances of the present case justify award of the sentence of imprisonment to the appellant I by virtue of the provisions of section 308(2) of the P.P.C.

17. For the foregoing discussion, I do not find any merit in this appeal which is dismissed. H.B.T./A‑352/L Appeal dismissed