1998 P Cr (PLP)

It is in evidence that Mazhar lqbal yours co‑accused also made a confessional statement before M.I.C. What have you to say? A. I know only this much that Mazhar lqbal was meted out similar treatment by the police as it was done to me. Beyond that the question may be directed to Mazhar lqbal for answer. Q. Why the P.Ws. have deposed against you? A. There is no independent witness examined against me before the Court. The Court premises being public place and overcrowded by persons from various walk of life at the relevant time, only the policeman and one odd individual related to the deceased have been trumped as P.Ws. It could have been demonstrably proved before the Court had I been allowed through my present counsel to cross‑examine further such trumped up witnesses of the police. The witnesses are not the witness of occurrence. They have been brought up only to support a concocted and fabricated version of the occurrence, since, dozens of independent witnesses of occurrence available on the spot did not support the version developed by the police in-collusion with the complainant party and the doctor. Thus, there is no evidence against me which can be legally and judicially accepted. I am innocent and have been implicated for collateral motive. Q. What is your statement and why are you charged? A, I am innocent and have been falsely charged. My detailed answers about my false implication in the case have already been recorded. Q. Do you wish to produce defence evidence? A. Yes, I have already moved an application before the Court for summoning of Daily Diary Registers of Police Station Haripur and Police. Post Haripur for 13‑6‑1990 through the concerned Moharrirs which after examining I would place on record the relevant entries therein. Q. Do you wish to appear as your own witness on oath as required under section 340(2), Cr.P.C.? A. Yes. Q. Do you add anything in your above statement? A. No, except, I may state before the Court on oath. R.O. & A.C. (Sd.) 11‑11‑1991 A.S.J.‑I, Haripur.

21. On 6‑1‑1992, the joint statement of the appellants as well as their counsel, Mr. Mushtaq Ali Tahirkheli, Advocate. Haripur, was recorded (page 162 of the Print Book) by the Trial Court. It would be appropriate to reproduce the same here:‑‑‑ "Statement of accused and counsel for the accused on oath. Muharrirs Police Station and Officer of Haripur were summoned as D.Ws. to produce relevant entries of daily diary registers for bringing on those on record. The said registers were inspected by the counsel for the accused on 21‑12‑1991 and also today i.e., 6‑1‑1992. The previous pages and entries have been taken off the record and new pages and entries have been made to support the prosecution evidence already, adduced Hence the said two witnesses are abandoned as D.Ws. We do not want to produce the relevant diaries and Muharrirs in our defence, however, we request the Honourable Court to call the said two Muharrirs alongwith the daily diary registers as C.Ws. to enable the defence to cross‑examine them with respect‑to the alteration changes in the entries/pages of the said registers An application to this effect has already been moved before this Court i.e. today on 6‑1-1992." R.O & A .C. (Sd.) Dated 6‑1‑1992. A.S.J.‑I. Haripur. Sd/‑ in English Muhammad Siddique. Sd/‑ in Urdu. Sd/- Mr. Mushtaq Ali Tahirkeli, Advocate, counsel for the accused.

22. The Trial Court, most probably, keeping in view the serious allegations made against Gharib Shah; Madad Muharrir Police Station Haripur and Muhammad Sarwar, Madad Muharrir, Police Post, Haripur, by the appellants and 'their counsel, in the joint statement, mentioned above, summoned the two F.Cs. As Court witnesses, although they had been abandoned by the appellants to be produced /examined as defence witnesses. Both these witnesses were thus, examined as C.W.1 and C.W.2 respectively on 21‑7‑1992 and the appellants/ complainant were allowed to cross‑examine them (pages 133‑140 of the Print Book).

23. Thereafter, on 26‑7‑1992, the appellants produced their defence evidence and the following persons were examined on oath:‑‑‑‑ D.W.1 Shahzada son of Faiz Aslam. D.W.2 Zarin son of Juma Khan.

24. The case was then adjourned for recording the statements of the appellants under section 340(2). Cr.P.C. However, both of them refused to depose on oath and their statements (Page‑151). in this respect, were, therefore, recorded on 30‑11‑1992 by the Trial Court which are to the following effect:‑‑‑ "Statement of Mazhar lqbal son of Fazal Dad, Caste Awan, resident of Dheena presently Mankarai Accused. I do not want to give my statement on oath. R.O.& A.C. (Sd.) dated 30‑11‑1992 A.S.J. Haripur. Statement of Muhammad Siddique son of Abul, Salam, Caste Awan, resident of Dheenda presently Mankarai. Accused. I do not want to give my statement on oath. R.O. & A. C. (Sd.) dated 30‑11‑1992 A.S.J., Haripur.

25. Mr. Mushtaq Ali Tahirkeli, Advocate, learned counsel for the appellant addressed his arguments for two days i.e., on 2-4‑1997 and 3‑4‑1997. Mr. Saeed Akhtar Khan, Advocate, learned counsel for the complainant assisted by Mr. Muhammad Aslam Khan Tanoli, Advocate, learned counsel for the State was heard on 4‑4‑1997.

26. We have gone through the record of the case, with the assistance of the learned counsel for the parties, carefully.

27. In the main, reliance has been placed on the direct evidence (eye witness account) of complainant, F.C. No.767 Dilawar Shah, Process Server, (P.W.7), F.C. No.731, Abdur Rashid, Process Server (P.W.8) attached with the Court of Extra‑Assistant Commissioner (I), Haripur, Abdul Salam Son of Nawab Khan, Caste Quresh, aged about 34 years (P.W.9), recoveries i.e., revolver (Exh.P.2), four empties (Exh.P.3), two missed cartridges (Exh.P.4) and 9 live cartridges (Exh.P.5), blood‑stained chhuri (Exh.P.1), blood‑stained earth and stand (Exh.P.W.2/1), post‑mortem report (Exh.P.M.) and the confessional statements (Exh.P.W.5/2 and Exh.P.W.5/5) of the .appellants, motive apart

28. Let us process to discuss these one by one. Ocular evidence is taken up in the first instance.

29. There is no denying of the fact that the eye‑witness account has been furnished by P.W.7 to P.W.9. One of them, i.e., Abdul Salam (P.W.9) is admittedly related to the deceased though distantly (page 87 of Print Book). Since he is an interested witness,, therefore, his evidence would require to be put to close and critical analysis. It is now settled principle of law that if the statement of: such a‑witness inspires confidence and if no other independent witness is available even then the Court cart rely on the testimony of the "interested witness" provided it is otherwise free from doubt. In case Roshan etc v. The State reported as PLD 1977 SC 557 it was held:‑‑‑ "There is also no universal rule that the evidence of an interested witness must be invaribly corroborated by independent evidence. If that were so then why should the. Court at all take into account the testimony of interested witness. Secondly, if the presence of a witness is provided beyond doubt and no other independent witness is available in the case, if would result in grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot‑free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where the Supreme Court has upheld the conviction of the accused based entirely on the testimony of the ' interested' witness".

30. In another case, Sharif and another v. The State, reported as 1973 Supreme Court (M.R.) 83 it was observed by their Lordships of the Supreme Court as under:‑‑‑ "Corroboration may be offered by anything in circumstances of the case which tend to satisfy the mind of the Court that the witness has spoken the truth."

31. In case, Niaz v. The State PLD 1960 SC 387, His Lordship, Mr. Justice Kaikaus had observed:‑‑‑ "Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there is no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders a further question arises as to whether they can be relied upon for convicting the accused without corroborated. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accented without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundation for it."

32. Similarly, in case Shihab Din v. The State PLD 1994 SC 177, His Lordship, Mr. Justice Cornelius, Chief Justice, observed:‑‑‑ "The mere relationship of witness does not necessarily render a witness's account of the occurrence doubtful provided his presence on the spot is proved beyond doubt. In so far as there were injuries on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced the witnesses in the circumstances were entitled to be believed."

33. Keeping in mind the abovementioned principle as laid down by the august Supreme Court of Pakistan for appreciating the ocular testimony of the related/interested witnesses, we find that the occurrence took place at day time (7‑30 a.m.). Abdul Salam (P.W.9) while deposing on oath supported the version of the prosecution case as disclosed in the F.I.R., (Exh.P.A.). According to him on the day of occurrence (13‑6‑1990) he (Abdul Salam P.W.9) and P.W. Abdul Qayum (not produced) had accompanied Raja Zafar Ali (deceased) to the court. where the deceased was to appear in the Court in the case registered under section 307, P.P.C., pending against him and :he accused party. He further stated that when all of them reached the Court premises, accused Mazhar Iqbal and accused Muhammad Siddique also reached these. According to P.W.9, it was accused Mazhar Iqbal. who fired four shots at Raja Zafar Ali (deceased) with which he was hit whereas accused Muhammad Siddique gave him a Chhuri blow on his abdomen; that because of the firing and the Chhuri blow Raja Zafar Ali sustained serious injuries and fell down. That thereafter he was rushed to the Civil Hospital Haripur. That after receiving first‑aid the deceased then injured, was referred to the D.H.Q., Hospital Abbottabad. P.W.9 further stated that while on his way to Abbottabad, the accessed succumbed to his injuries and breathed his last near a place called Shah, Maqsood. That, therefore the dead body was brought back to the Civil Hospital. Haripur. This witness categorically stated that the motive for the commission of the offence was the criminal case, pending in the Court of Extra‑Assistant Commissioner (I) between the accused party and the deceased.

34. This witness was thoroughly cross examined.‑In his cross‑examination lie admitted that he was the maternal aunt's son of one Raja Pervez who was the brother‑in‑km of the deceased. (deceased's sister was married to Raja Pervez). He also admitted and, in point of fact, supported his own version, given in his examination in‑chief, that prior to the occurrence the deceased had injured one Khalid and was therefore, challaned under section 307, P.P.C. He, however, refuted the suggestion that he was not present on the spot and had not witnessed the occurrence He also refuted the suggestion that he was deposing falsely against the accused because of his relationship with the deceased. He further stated that it was incorrect to suggest that he had not accompanied the deceased, then injured, to the Civil Hospital, Haripur. He also denied the suggestion that lie was not present on the spot and that it was at about 12 Noon, on the day of occurrence, that he was summoned by the police for giving false statement. 35 Although this witness (P.W.9) was subjected to lengthy cross- examination by the learned counsel for the appellant but nothing was brought on record to suggest, even remotely, that he was either planted witness or that he had and motive/enmity to depose against the accused falsely. The testimony of this witness, therefore, remains un-shattered.

36. Next, we take up the eye‑version account of the complainant, F.C. No.767 Dilawar Shah Process Server of the Court of Extra‑Assistant Commissioner (I), Haripur. When examined on oath, as P.W.7, he narrated the manner, in which the occurrence took place, in detail. He stated that he was present out side the Court of Extra‑Assistant Commissioner (I) Haripur alongwith other Process Server, F.C. 731 Abdur Rashid (P.W.8), when at about 7‑30 a.m., Raja Zafar Ali (deceased) alongwith his two companions came there. All of them stood in front of the said Court. That in the meantime accused Mazhar Iqbal and accused Muhammad Siddique, present in the Court, also arrived there. He further stated that it was Mazhar lqbal who fired four shots, with .32 bore revolver, at Raja Zafar Ali with which the deceased was hit. That accused, Muhammad Siddique in the meantime stabbed the deceased with a chhuri on the left side of his abdomen. That due to the injuries the deceased fell down. He further stated that both the accused then tried to escape from the scene of the occurrence. According to him, he overpowered accused Muhamamd Siddique on the spot, alongwith blood‑stained Chhuri (Exh. P.1), that accused Mazhar Iqbal ran away from the spot who was then chased by F.C. Abdur Rashid (P.W.8), and apprehended near the gate of the Court. .32 bore revolver, alongwith 9 live cartridges, was recovered from his personal search, that the revolver contained 4 empties cartridges and two missed cartridges. He further stated that thereafter the police arrived at the scene of occurrence and he (P.W.7) and Abdur Rashid (P. W.8) handed over both the accused. alongwith the weapons of offence, to the police party, that the‑ same were taken into possession by the Investigating Officer (P.W.12). According to him, it was he who then reported the matter to A.S.I., Muhammad Nazir Khan (P.W.12) on the spot, that his report was reduced into writing in the form of a murasila (Exh.P.A./1) which was read over and explained to him and he after admitting the same to be correct signed the same. He stated that the murasila was also signed by F.C. Abdur Rashid (P.W.8) in token of its being correct.

37. This witness was subjected to lengthy cross‑examination by the learned counsel for the appellant. However, nothing was brought on record to show that this witness was either an interested witness or had any enmity with the accused or any other motive to depose falsely against the accused. This witness, in his cross‑examination, stated:‑‑‑ . "It is correct that my companion Abdur Rashid had hauled up accused Mazhar Iqbal in the gate of the Courts. There were many petition writers near the gate and other people when accused Mazhar lqbal was apprehended by Abdur Rashid. Since I was at a distance of 6 yards I did not try to stop the accused from firing nor did I prevent Siddique accused from giving Chhuri blow. I had kept the blood‑stained chhuri of Siddique accused with me for 10 to 15 minutes when the police i.e., to say the Investigating Officer arrived there. I had produced the Chhuri to the Investigating Officer in presence of many people who were present at the spot. Similarly, at the same time Abdur Rashid F.C. produced the revolver and the cartridges to the Investigating Officer in presence of many people who were present at the spot "It is incorrect to suggest that I never knew the deceased or the accused prior to this occurrence and the entire story was concocted by the local police against Mazhar Iqbal and the co‑accused on account of previous strained relations of the police with the accused It is incorrect to suggest that none of the accused was present in the Court premises but they were summoned from their houses in the police post where they were arrested. (The entire suggestion is incorrect). I do not know the names of all the persons who attend the Court daily in connection with their cases. It is incorrect to suggest that I was not present in the Court premises on the day of occurrence nor Abdur Rashid constable was present there at that time. (The entire suggestion is incorrect). It is incorrect to suggest that since no disinterested person supports the prosecution version so we all the police men have been cited witnesses in the present Court. (The entire suggestion is incorrect). "

38. From the perusal of the cross‑examination of this witness it has become crystal clear that P.W.7 (complainant) had no enmity whatsoever with the accused for charging them falsely for killing Raja Zafar Ali (deceased). In the circumstances it can be safely concluded that this witness is a truthful witness and that his testimony can be relied upon.

39. F.C. Abdur Rashid, Process Server attached with the Court of Extra Assistant Commissioner (I), Haripur was examined on oath as P.W.8. In his examination‑in‑chief he supported, in toto, the prosecution version as contained in the F.I.R. lie also corroborated the statements of the other two eye‑witnesses i.e., P.W.7 and P.W.9. This witness stated that he was present in the Court premises on the day of occurrence alongwith Dilawar Shah F.C. (P.W.7) when Raja Zafar. Ali, (deceased) came there alongwith his two companions; that thereafter accused Mazhar Iqbal alongwith accused Muhammad Siddique arrived there; that within his presence and sight accused Mazhar lqbal effectively fired 4 shots at Raja Zafar Ali (deceased); that accused Muhammad Siddique gave the deceased a Chhuri blow on the left side of his abdomen; that because of the said injuries Raja War Ali fell down. According to this witness both the accused after committing the offence tried to decamp from the spot. However, accused Muhammad Siddique was apprehended by F.C. Dilawar Shah (P.W.7) alongwith blood‑stained Chhuri. Since Mazhar Iqbal accused had ran away from the spot, therefore, he was followed and apprehended by him (P.W.8) near the main gate of the Kutcheri. The witness further stated that he recovered .32 bore revolver from him which contained 4 empties and 2 missed cartridges. He further stated that the personal search of the accused Mazhar Iqbal led to the recovery of 9 live cartridges from his possession. According to him, on the arrival of A.S. ‑I. Muhammad Nazir Khan (P.W.12) he handed over the accused to him alongwith .32 bore revolver (Exh.P.2), 4 empties (Exh.P.3), two missed cartridges (Exh.P.4), 9 live cartridges (Exh.P.5). He corroborated the statement of P.W.7 and stated that he (P.W.7) handed over accused Muhammad Siddique, alongwith blood‑stained chhuri, to A.S.‑I. Muhammad Nazir Khan A.S.‑I. (P.W.12) who took the same in his possession and sealed the same into a parcel. He further stated that Dilawar Shah (P.W.7) then narrated the incident to A.S.‑I. (P.W.12) who reduced his report into writing in the form of a murasila (Exh.P.A./1) and that the same was also signed by him in token of its being correct. According to him, the site‑plan (Exh.P.B.) during the spot inspection, was prepared by the Investigating Officer on his and Dilawar Shah's pointation. He stated that his statement was also recorded by the Investigating Officer under section 161, Cr.P.C.

40. P.W.8 was cross‑examined thoroughly by the learned counsel for the appellant. At the out‑set P. W .8 stated that he had produced the record of his duty/presence within the Court premises before the Investigating Officer. He also stated:‑‑‑ "I had apprehended Mazhar Iqbal accused in the Main Gate of the Kutcheri premises in the presence of large number of people. I had not prepared any recovery memo of the revolver and the cartridges mentioned in my examination‑in‑chief after their recovery from the accused It is correct that I had recovered the revolver and the cartridges from the accused Mazhar Iqbal in the presence of disinterested persons who were present in the main gate."

41. According to this witness, Muhammad Nazir Khan A.S.‑I. (P.W.12) had reached the spot 10/15 minutes after of the occurrence and that lie (P.W.8) had produced the revolver and the cartridges before the Investigating Officer. He admitted that before the arrival of the A.S.‑I. the injured was removed from the spot. He also admitted that till 11‑00 a.m. the A.S.‑I., had not prepared the site- plan and that on the arrival of the S.H.O., the S.H.O., had himself prepared the site‑plan on their (P.W.7 and P.W.8) pointation. He refuted the suggestion that the report was not lodged on the spot and that the same was lodged in the Police Post City, Haripur. He also refuted the suggestion that the report was lodged after deliberation and consultation between the police official at 10 a.m. He stated:‑‑‑ " . It is incorrect to suggest that since no independent person, present on the spot at the time of occurrence, was going to support the false version of the prosecution so the Investigating Officer, and the S.H.O., made the present case as policeman show and involved the present accused on account of previous ill‑will."

42. A perusal of the entire cross‑examination of this witness would reveal that he was quite consistent on all most all the material points. He not only corroborated the version of the complainant (P.W.7) but also corroborated the other eye‑witness, Abdul Salam (P.W.9). In fact he supported P.W.7 and P.W.9 on almost all the material points. Besides, it may be noted, that nothing could be brought on record to show that this witness had either any enmity with the accused or any ill‑will to implicate them in the present case falsely. Similarly the defence miserably failed to bring on record any evidence to show that this witness had any motive to depose on oath against the accused appellant falsely. No reason exists and none indeed has been made out as to why the testimony of his disinterested/independent witness be discarded.

43. Muhammad Banaras, Traffic Head Constable Abbottabad (P.W.4), while in the witness‑box, confirmed that F.C. Dilawar Shah (P. W.7) had produced accused Muhammad Siddique, alongwith blood‑stained churri (Exh.P.1) to the Investigating Officer. He further stated that accused Mazhar Iqbal was produced by F.C. Abdur Rashid (P.W.8) before the Investigating Officer alongwith .32 bore revolver (Exh.P.2) containing 4 empties (Exh.P.3), two missed cartridges (Exh.P.4) and 9 live cartridges (Exh.P.5); that the Investigating Officer took the same in his possession vide Recovery memo. EXh.P.W.4/1. He further stated that the said recovery memo. was duly signed by him as its marginal witness. According to him, he had also signed Recovery Memo. Exh.P.W.4/2 as a marginal witness, vide, which the Investigating Officer took into his possession the deceased's blood‑stained shirt (Exh.P.6), Shalwar (Exh.P.7), having corresponding cut marks, and the phial containing bullet led (Exh.P.8), produced before him by F.C. Abdul Latif (P.W.6) and sent by the doctor.

44. When cross‑examined this witness stated that the recoveries, Exh.P.1 to Exh.P.5, were produced by the two F.Cs. in the Court premises at 7.45 a.m. whereas articles, Exh.P.6 to Exh.P.8, were produced before the Investigating Officer at about 10‑30 or 10‑45 a.m. He further stated that at that time Advocates including litigants were present on the spot. According to him, the Investigating Officer, had given him the murasila (Exh.P.A./I) for delivering the same at the police station. That he took the Murasila to the police station where, on its basis, F.I.R. (Exh P .A.) was duly registered. He further stated that after the registration of the case he brought a copy of the said F.I.R., to the spot at 10/10‑15 a.m. He, however, admitted that nothing was recovered from the accused in his presence but refuted the suggestion that he, being a Police Official, was falsely deposing against the accused. He also refuted the suggestion that Memo. Exh.P.W.4/1 and Exh.P.W.4/2 were prepared in the police post arid that he had signed these documents there.

45. A.S.‑

1. Muhammad Ilyas Khan was examined as P.W.3. He stated that on the receipt of Murasila (Exh.P.A./1) he correctly incorrporated its contents in the F.I.R., (Exh.P.A.). According to him the F.I.R., was correct and was duly signed by him. He further satted that after the registration of the case he sent a copy of the F. I. R., to the Investigating Officer for the investigation of the case.

46. Muhammad Saleem son of Abdul Aziz, caste Turak aged about 50 years deposed on oath as P.W.2. he stated that he was the marginal witness to Recovery Memo. Exh.P.W.2/1 Vide: which the Investigating Officer had taken in his possession the blood‑stained earth and sand from the spot who then sealed the same in a parcel.

47. Raja Pervez son of Raja Khan Bahadur caste Turak, aged about 37 years appeared as P.W.1. He had identified the dead body of the deceased in the Hospital at the time of post‑mortem examination.

48. The blood‑stained knife, blood‑stained earth, blood‑stained sand and blood‑stained shirt/Shalwar of the deceased were sent to the Chemical Examiner/Serologist who opined:‑‑‑ "Chemical and Serological examination of the suspected blood stains on the articles contained in the abovementioned parcel revealed that It was Human Blood and of the same group. "

49. Similarly four .32 bore crime empties marked C.1 to C.4, two .32 bore missed cartridges marked M.1 and M.2, one .32 bore revolver and one crime bullet marked B, were sent to the Fire‑arm Expert for examination. His report is in the positive and is reproduced for the sake of convenience:‑‑‑ "Microscopic Examination of the case has revealed as under:‑‑‑ (1) The four crime empties of .32 bore were fired from the .32 bore revolver in question in view of the following major points that is striker pin marks and breach face marks etc. are similar. (2) One .32 bore crime bullet marked B was fired from the 32 bore revolver in question in view of the following major points that is number of land grooves and striation marked etc., are similar. (3) The two .32 bore miss cartridges marked M.1 and M.2 lack sufficient, identifiable data for examination and comparison hence no opinion can be expressed as to whether or not they were missed from .32 bore revolver in question. "

50. Muhammad Naseem Khan, M.I.C. Haripur empowered under section 30, Cr.P.C. deposed as P.W.5. It was he who had recorded the confessional statements of accused Mazhar Iqbal (Exh.P.W.5/2) and accused Muhammad Siddique (Exh.P.W.5/5) after observing all the legal formalities.

51. The Magistrate was subjected to lengthy cross‑examination. by the learned counsel for the accused. In his cross‑examination he refuted the suggestion that both the accused were produced before him at the same time. He stated that he was the Illaqa Magistrate of the area where the occurrence had taken place. He refuted the suggestion that after hearing the report of fire‑shots he had gone to the scene of occurrence alongwith other Magistrate/Advocates. According to him he remained in side his Court Room and did not leave it. The Magistrate 1st Class further stated that when the accused were produced before him for recording their confessional statements, he fully know that they (accused had remained in Police custody for about 24 hours, that be knew about this fact because he was the Illaqa Magistrate. He stated that no signs of violence were present on the accused. He, however, admitted that he had not mentioned anywhere in the questionnaire that he had personally checked the persons of the accused. He admitted that he had not mentioned, while recording the confessional statements, that the accused were given "three warnings" before their confessional statements were recorded. He also admitted that he had not enquired from the accused if they were extended any promise by the police or that they were given oath for becoming approver. fie further admitted that the weapons of offence were not produced before him by the police at the time of recording the confessional statements of both the accused.

52. He stated that:‑‑‑ "It is incorrect to suggest that I copied out the statements of the accused recorded in police files, and it is also incorrect to suggest that the statements of both the accused appear, to be parrot like narration and is similar with the police statement."

53. The Magistrate further stated that after he had recorded the confessional statements of the two accused, he handed them over to the Judicial Guard. It may be pointed out that the learned counsel liar the accused patently failed to bring on record anything which might have persuaded us to believe that the Magistrate 1st Class was not a truthful witness and that, therefore, his testimony did not inspire confidence.

54. Dr. Noor Wahab Shah, Medical Officer/Incharge Civil Hospital, Haripur (P.W.11) had in the first instance examined the deceased (then injured) ion 13‑6‑1990 and found him to be unconscious restless and in shock. After giving him emergency treatment the doctor sent him (deceased) to the D.H.Q. Hospital, Abbottabad.

55. On the same day, after the death of the deceased his post‑mortem examination was conducted by the said doctor at 10 a.m. He found the following on:‑‑‑ External Examination: (1) Fire‑arm enterance wound 1 /3" x 1 /3" on the right side of the chest in the middle. Charring marks were present. (2) Stab wound on the left side of hypochondrium 2" x 1/2" entering the plureal cavity. Omentum was seen protruding out of the wound. (3) Fire‑arm enterance wound on the left side of neck 1/3" x 1/3". Charring marks present. (4) Fire‑arm exit wound on the back of right side neck 1/2" x 1/2" and continous with injury No.3. (5) Fire‑arm enterance plus Exit wound which considers each other on the left side of head 2" x 1‑1/2" x underlying bone was found fracture and brain was injured. Charring marks present. (6) Firearm grazing wound on the palm of right hand 1 1 /2" x 1/2 " x 1 /3 " Internal Examination. Abdominal wall, peritonium, disphram left side injured, small intestine large intestine, and splene are also injured. Stomach was round in act and full of semidigested foods. Scalp and partial bone of the skull on the left side were found fractured. Membrane and brain were injured Pleura (right side) chest wall on the right side were injured. Trachea right lung were also injured Caroted and mesenteric blood vessels were also injured.

56. In the opinion of the doctor the death was the result of shock and heamorrhage due to fracture of the skull and injuries to the brain, lung, splene, and intestines by fire‑arm and sharp‑edged weapon. Probable time that elapsed between injury and death was about 1‑1/2 hour and death and post‑mortem about one hour.

57. Although the doctor has cross‑examined at length and most of his cross- examination consists of question and answers, nothing was brought on record to suggest that he was not a truthful witness or that he had not conducted the post- mortem examination properly. In the circumstances, his testimony stands un-shattered and cannot be brushed aside.

58. A.S.‑I. Muhammad Nazir Khan (P.W.12), who had mainly investigated the present case, stated on oath that on. 13‑6‑1990 he was on patrol duty when he learnt about the occurrence. Accordingly he rushed to the spot. He stated that F.C. Dilawar Shah (P.W.7) and F.C. Abdur Rashid (P.W.8) met him in the Court premises; that the mattcr was reported to him by Dilawar Shah (P.W.7); that he scribed the murasila (Exh.P.A./1) which duly signed by Dilawar Shah (P.W.7). Additionally it was signed by F.C. Abdur.Rashid (P.W.8). He further stated that at the time of lodging the report F.C. Dilawar Shah (P.W.7) produced blood‑stained Churri (Exh.P.l) whereas F.C. Abdur Rashid (P.W.8) produced .32 bore revolver (Exh.P.2), four empties (Exh.P.3), two missed empties (Exh.P.4) and nine live cartridges (Exh.P.5) before him, that he took the same into possession vide recovery memo. (Exh.P.W.4/1) in the presence of its marginal witnesses. He stated that after arresting both the accused he sent the murasila to. the Police Station for the registration of the case; that he then left for the Hospital where he prepared the injury‑sheet (Exh.P.M./1) and the inquest report (Exh.P.M./2) of the deceased. He further stated that initially, the murasila was drafted under section 307/34, P.P.C., read with 13 Arms Ordinance, but later the offence was changed vide his application (EXh.P.W.12/1) because the injured had expired. He also stated that he prepared the sketch of revolver and churri on the back side of Recovery Memo: (Exh.P.W.4/1). According to him when S.H.O. Fareed Khan (P.W.10) arrived at the scene of occurrence he handed over the remaining investigation to him. He further stated that on 14‑6 1990, the S.H.O. handed over both the accused to him for getting their confessional statements recorded. 59.' This witness was thoroughly cross‑examined (pages 110 to 125 of the Print Book) but nothing was brought on record to show that he had any motive or enmity with the accused for concocting a false case against them. Besides, nothing was brought on record to show that he had investigated the case dishonestly. His testimony, in the circumstances, remains un-shattered and is fully supported /corroborated in substance by the other P.Ws. The contention of the learned counsel for the defence that this witness had investigated the case dishonestly is without any force and is accordingly repelled.

60. S.H.O. Muhammad Fareed Khan, who had partly investigated the case, appeared as N.W.10. He stated that on the eventful day he was on patrol duty in Haripur City when he was informed about the occurrence; that on receipt of said information he straightaway went to the Court premises where the occurrence had taken place. According to him, during the course of investigations, he took into his possession blood‑stained earth and blood‑stained sand (Exh.P.W.2/l) from the scene of occurrence and sealed the same into a parcel. He further stated that on the pointation of P.Ws. he prepared the site‑plan (Exh.PB) with all its foot notes etc, correctly. According to him, F.C. Abdul Latif (P.W.6) had handed over the blood‑stained) shirt (Exh.P.6), blood‑stained Shalwar (Exh.P.7) of the deceased having corresponding cut marks and a phial containing bullet led (Exh.P.8) to him, sent by the doctor and that he took all these articles into his possession vide Recovery Memo. Exh.P.W.4/2. He stated that later on, these articles were sent for chemical analysis/blood grouping vide his application Exh.P.W.10/1. He further stated that the Chemical Examiner's Report (Exh.P.W.10/2) was received by him in respect of the said items which was it the positive. He further stated that he had recorded the statements of the accused under section 161, Cr.P.C., that most of the investigation in the case, w a; carried out by A.S.I. Muhammad Aziz Khan (P.W.12) and that after the completion of the investigation he had submitted complete challan against the accused for trial.

61. It may be noted that this witness was also cross‑examined at length (pages 90 to 107). However, the defence failed to bring anything on record to show, even remotedly, that this witness had some ulterior motive or ill‑wit towards the accused as a result of which he was prompted to involve them in the case falsely. Similarly there is nothing on the record to establish that the S,H.O had investigated the case dishonestly. We are, therefore, of the view that the testimony of this witness inspires confidence and can be relied upon safer especially when the same is in line with the un-shattered testimony of the rest o the P.Ws.

62. After having gone through the evidence produced by the prosecution, to minute detail, we are of the considered view that the prosecution has proved its case against the appellant‑accused beyond reasonable doubt.

63. On the other hand, the accused produced evidence in their defence and tried their level best, to make out a new case i.e., that it' was the deceased who had tried to kill them with a pistol; that in order to save their skin the accused appellants had grappled with him and that in the process, the deceased was killed with his own pistol. in support of their contention they produced the following witnesses:

D. W.1 Shahzada son of Faiz Aslam. D.W.2 Zarin son of Juma Khan. 63‑A, it would be sufficient' to say that the D.Ws. do not seem to he truthful witness in the circumstances of this case. Firstly, because if they had seen the occurrence, as alleged by them, then they should have been produced by the appellants before tile Investigating Officer during the course of investigation Secondly, the conduct of both the D.Ws., immediately after the occurrence, sterns to us to be most unnatural. Shahzada (D.W.1) in his examination‑in‑chief stated that during the grappling between accused Mazhar lqbal and Raja Zafar Ali (deceased), that pistol kept on discharging and as a result of which Raja Zafar Ali was hit and fell down and that thereafter both the accused decamped from the scene of occurrence. He further stated that Raja Zafar, Ali was then taken by some persons, present iii the Court premises, to the Hospital and that those persons had also taken away the pistol with them. According to him, after staying for about 5/10 minutes on the spot he went away to his house.

64. To the same effect is the statement of Zarin (D.W.2). The relevant portion of his examination‑in‑chief, in this respect, is produced as under:‑‑‑ " .. In the mean time, scuffle started between Raja Zafar on one side Mazhar and Siddique on the other. Mazhar was trying to snatch the pistol from Zafra while Siddique had held him from the back. During the scuffle pistol kept discharging and Raja Zafar fell down. On this Mazhar and Siddique decamped from the spot. The public present in the Court premises took Raja Zafar to the Hospital. They had also taken away the pistol. I stayed there for about 5/ l0 minutes and went away to lily house."

65. Both the D.Ws. in their cross‑examination, stated that they had met one Gul brother of accused Muhammad Siddique and had informed him that they had seen the occurrence. They further stated that they were appeared as D.Ws. as requested by Gul in‑ the interest, of justice.

66. We fail to understand as to what had prevented the said D.Ws. from, appearing before the Investigating Officer during the course of investigation, which took quite some time. No explanation whatsoever is forthcoming in this respect. Accordingly we have no hesitation to hold that the D.Ws. are compulsive liers and their testimony hardly inspires confidence: The same is accordingly discarded.

67. Similarly in their statements, recorded under section 342, Cr.P.C., both the accused alleged that Raja Zafar Ali (deceased) was killed with his own firing. We are afraid that this is not true. Firstly, because the accused did not cross‑examine the P.Ws., especially the eye‑witnesses (P.W.7 and P.W.9), on this score and secondly no sane person would believe the story advanced by the accused that the deceased during the grappling with the appellants, had kept on firing and resultantly injured himself as a consequence thereof he was killed The nature of injuries, mentioned in the post‑mortem report, totally belie this fact. The assertion of the appellant is‑ accordingly discarded being fanciful and untrue.

68. In the circumstances and in view of what has been discussed above we hold that the appellant was rightly convicted/sentenced by the Trial Court. This appeal is without any substance‑and is accordingly dismissed.

69. Since one of the appellants who had effectively fired at the deceased with the pistol and who was sentenced to death, has already expired the Death Cell, and the appellant who was charged only for giving a churri blow to the deceased, we feel that the sentence of life imprisonment awarded to him, meets the ends of justice and it would not be appropriate to enhance his sentence to death. The Criminal Revision is, therefore, dismissed. N.H.Q./2217/P Appeal dismissed.