1998 P Cr (PLP)

P. W.3, Muhammad Hussain injured P. W.4, Mansoor Ahmad injured P. W.5 and Wilayat injured P. W. (given up). He issued the medico‑legal reports about the aforesaid injured.

13. On 8‑9‑1991 Dr. Muhammad Khalid P.W.11 conducted the post‑mortem examination on the dead body of Muhammad Jameel aged 35 years who was identified by his brother Muhammad Khaleel P.W.9. This medical witness found ten injuries on the person of the deceased. It is proper to express that two injuries are numbered as 1.A and 1.B. He expressed that the injuries were ante mortem caused by fire‑arms and that the cause of death was damage to the vital blood vessels. He issued carbon copy Exh.P.J. of the post‑mortem report.

14. Dr. Mahfooz Ahmad P.W.12 conducted the post‑mortem examination on the dead body of Niamat Ali aged 60 years identified by his son Muhammad Ashraf P. W.8. This medical witness found 13 injuries with fire‑arms on the person of this deceased. According to him the cause of death was injuries to the vital organs in the thorax and abdomen alongwith the blood vessels. He issued carbon copy Exh.P.K. of the post‑mortem report and the carbon copy Exh‑P.K./I of the diagram showing the location of the injuries.

15. Jamat Ali, Inspector S.H.O. Police Station Batapur, Lahore (P.W.19) arrested Hafiz Sultan Ahmad appellant on 9‑9‑1992 from a garden of Banasan Wala carrying a klashnikov which he took into his possession and got registered a case under section 13 of the Arms Ordinance against him. He joined him as the accused of this case.

16. After completion of the investigation the challan was submitted before the Trial Court. Both Abdul Majeed alias Fauji and Hafiz Sultan Ahmad PCr.LJ appellants were charged under sections 302, 324, 148/149, Pakistan Penal Code who did not plead guilty and claimed to be tried. At the trial the aforesaid P.Ws. stoud in the witness‑box and supported the prosecution case.

17. Safdar Ali, Constable P.W.14 was handed over the summons Exh.P.W.14/A for the service of Dr. Aziz‑ul‑Islam. The Deputy Medical Superintendent made the report that he remained on leave and thereafter did not join whose whereabouts were not known. Safdar Ali, Constable P.W.14 made his report Exh.P.W.14/B that the whereabouts of Dr. Aziz‑ul‑Islam were not known. On that the prosecution was allowed to produce the secondary evidence Muhammad Hussain Record‑keeper Mayo Hospital, Lahore P.W.16 claimed to be aware of the handwriting and the signatures of the aforesaid Dr. Aziz‑ul Islam P.W. He proved medico‑legal report Exh.P.FF. pertaining to Manzoor Ahmad injured P.W.5, medico‑legal report Exh.P.GG. with respect to .Muhammad Akram injured P.W.3, medico‑legal report Exh.P.HH. pertaining to Wilayat Ali P.W. (given up) and medico‑legal report Exh.P.JJ. about Muhammad Hussain injured P.W.4. According to him the aforesaid medico legal reports were in the hand of Dr. Aziz‑ul‑Islam which were signed by him He was not cross‑examined.

18. Both the appellants were examined under section 342 of the Code of Criminal Procedure who deposed about their non‑participation in the occurrence. They took up the stand that they were falsely involved as there was long standing enmity and pendency of criminal cases between the parties. Abdul Majeed alias Fauji refuted the recovery of klashnikov P.5 who did not claim the same. They did not choose to appear on oath in their own respective defence under section 340(2) of the Code of Criminal Procedure.

19. Muhammad Rasheed D.W.1, Motor Taxation Clerk posted in the office of the Excise and Taxation Department Farid Kot House, Lahore stated that according to the record of his office Mitsubishi station wagon was imported by Mrs. Iffat Begum of Gawal Mandi, Lahore which was subsequently transferred to Sh. Amir‑ud‑Din resident of Shah Almi Gate, Lahore on 7‑10‑1991 and that Mitsubishi wagon was allotted registration No.LOG‑8887 on 7‑i0‑1991 on tic application of Sh. Amir‑ud‑Din. Ghaffar Ahmad, Constable Police Station Faisal Town, Lahore proved copy of E.I.R. No.51, mated 6‑3‑1993 registered at Police Station Faisal Town, Lahore, Sultan Ahmad appellant tendered in evidence documents Exh.D.E. to Exh.D.L as well as Mark "B" to establish the adverse record maintained by the police pertaining to the complainant and other eye‑witnesses and the pendency of the criminal litigation. Abdul Majeed alias Fauji produced in evidence documents Exh.D.M. to Exh.D.P. which are the copies of different F.I.Rs.

20. After hearing the parties the Trial Court gave the weight to the motive, ocular account, recoveries from the place of occurrence, recovery of klashnikov P.5 and the medical evidence. Holding that the prosecution has connected Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants with the charge framed against them the Trial Court convicted both of them on 15‑8‑1993 as narrated above. They have preferred this Criminal Appeal No. 163 of 1994 which has been resisted by the State.

21. The case of the prosecution rests on:‑‑ (i) Motive. . (ii) Ocular evidence. (iii) Recovery of blood‑stained pieces of glass coupled with report of the Chemical Examiner and the Serologist and the recovery of Suzuki Car. (iv) Recovery of klashnikov empties P.1/1‑4 from the spot on 6‑9‑1991 alongwith recovery of klashnikov P.5, three magazines P.6/ P.6/1‑3 and 8 gullets P.7/1‑8 coupled with the positive report of Exh.P.KK of the Technical Services, Lahore.

22. We have heard the learned counsel for the parties and the learned. Counsel as well as gone through the record prepared and maintained by the learned Trial Court. The first contention of the learned counsel for the appellants is that there is long‑standing enmity between the parties and that due to that the appellants have been falsely roped in. He maintained that the occurrence took place when there was darkness and that since the original assailants were not known to the complainant and the eye‑witnesses they have fictitiously named the appellants to wreck the vengeance on the basis of the criminal litigation‑He also referred to the previous record of the eye‑witnesses mentioned in Exh.D.E pertaining to Muhammad Akram complainant P.W.3, his brother Shaukat Ali P.W.18 and Karamat Ali P.W.6 and maintained that the complainant party was locked in litigation with other persons as well and that they were also involved in different cases of smuggling. He made up the arguments that in such a state of affairs the false involvement of the appellants cannot be ruled out. We, however, do not agree with him. As rightly pointed out by the learned counsel for the State it is not a case of substitution as this plea was neither raised during the investigation nor during the trial. In this sensational and gruesome occurrence it cannot be expected that the complainant party cold let off the real assailants so as to falsely, rope in the appellants on the basis of the admitted previous litigation. The taking into possession from the place of occurrence the Suzuki car P.8 bearing No.LHR‑3627 containing the bullet hole owned by Abdul Majeed alias Fauji appellant by the Investigating Officer on his first visit is a strong material and circumstance to repel this assertion of the learned counsel for the appellants. The material produced by the parties has conspicuously established at the parties were locked in criminal litigation since long. The aforesaid canvassing made by the learned counsel for the appellants that the motive is a double‑edged weapon and the chance of their false involvement cannot be ruled out has failed to impress us in the circumstances of the matter and we hold that the motive which stands admitted and established shall play the legal role against the appellants.

23. With respect to the ocular evidence the contentions of the learned counsel for the appellants are, that the same comprises the statements of the interested and inimical witnesses and that some of them were related inter se and that these aspects of the matter have eclipsed the weight of their statements. It was added that even though the occurrence took place on the Canal Bank near Mohallah Takki of village Bhaseen no independent person has been made to stand in the witness‑box. In this regard specific mention was made to Mushtaq Masih injured P.W. who was a passerby and was given up even though he was a Christian by his religion and was an independent witness. On the contrary learned State Counsel has laid the emphasis that Muhammad Akram complainant P.W.3, Muhammad Hussain P.W.4 and Manzoor Ahmad P.W.5 were injured during the occurrence whose presence at the spot cannot be ruled out and that the non‑appearance of Mushtaq Masih is not fatal to the prosecution case especially when he was not brought in defence by the accused persons. Our view is that the reasoning adopted by the learned counsel for the appellants has no legal force and that the Trial Court has rightly placed the reliance on the statements of the eye‑witnesses. Only Karamat Ali P.W.6 was not injured during the occurrence as he was attracted at. the spot on hearing the fire shots. The remaining three eye witnesses namely Muhammad Akram P. W.3, Muhammad Hussain P. W .4 and Manzoor Ahmad P.W.5 were injured at the spot during the occurrence which aspect of the matter has cemented their presence during the occurrence. The fact that the P.Ws. were inimical towards the accused persons due to previous litigation has not to affect the prosecution case especially when they were travelling in the cars alongwith the complainant who was arriving after attending a Prize Distribution Ceremony in a school due to Defence Day of Pakistan on 6‑9‑1991. The said manner of occurrence has enhanced the value of the statements of the injured witnesses. The non‑appearance of any witness from the public is not fatal to the prosecution case on the grounds first that the occurrence did not take place in a Mohallah or in a street which took place on the Pacca road constructed on Bank of B.R.B. Canal. Secondly, the general public always avoid and show the apathy towards becoming of the eye‑witnesses in such cases of long‑standing enmity between the influential persons in the area. During these days the public has to save its own skin as well by not meddling and entering into such affairs and disputes of others. It is a matter of common knowledge that in cases of such nature the independent persons from the public do not take the courage to step‑forward to make the deposition as the eye witnesses. The public rather avoid from becoming the witnesses of recovery etc. etc. As such the said assertion raised by the learned counsel for the appellants has no legal force which is ignored.

24. Learned counsel for the appellants argued that the occurrence took place at 7‑45 p.m. on 6‑9‑1991 when there was darkness, that the assailants could not be recognized in the light of the cars and that the chance of error with respect to the identification of the assailants by the P.Ws. who were in the vehicles ahead of the assailants could not be ruled out.

25. On the contrary it was argued by the learned State Counsel and the counsel for the complainant that the firing was effected by the assailants from the cars as well as from the outside of the same as the empties P.5/1‑104 arid empties P.6/1‑6 were taken into possession vide memo. Exh.P.G. from inside Suzuki Car No.LHR‑3627 as well as from the outer place of the same. They maintained that even according to complaint Exh.P.D. the assailants are alleged to have alighted from the cars who were known to the complainant party due to the previous litigation and whose car numbers must be within their knowledge. They expressed that the assertion raised by the learned counsel for the appellants in view of the aforesaid factual position has no legal force. We are of the view that the reasoning adopted by the learned counsel for the appellants need not be given the weight in the light of the assertions made by the learned Advocate for the adverse party and the learned State Counsel. It is specifically mentioned in complaint Exh.P.D. on the basis of which F.I.R. Exh.P.D./1 was drafted that on their arrival at the spot in two cars the assailants named therein including Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants alighted from the cars. The car(s) of the nears and dears and the cars) of the antagonists can well be identified by the concerned party in no time and this is the reason that the number of both the cars are specifically mentioned in the complaint Exh.P.D. These cars were owned by the appellants. In view of the long enmity it cannot be expected that the owners of the car would give the same to any other person to use the same for some illegal and criminal purpose. The fact that Karamat Ali was injured at the hands of Muhammad Akram complainant P.W.3 during the occurrence who later on remained admitted in Services Hospital, Multan has made us to hold that the assailants were visible to the complainant party. Had no body from the assailants been injured the factual position would have been different. In view of the time of occurrence i.e. 7‑45 p.m. it can be expressed that without the head lights the cars of both the parties could not be driven. The fact that empties P.5/1‑104 of klashnikov and empties P.6/1‑6 of mouser were taken into possession from inside and outside of Suzuki Car No.LHR‑2627 is enough to make out that the assailants came out of the car to participate in the occurrence and they could be identified properly by the P.Ws. An important aspect of the matter which cannot be lost sight off is the statement of Karamat Ali P.W.6 who saw the occurrence after his attraction at the spot due to fire shots. While standing outside of the cars being used by the complainant party he can well be expected to look at the faces of the assailants and the identification of the enemies of the families must have been branded upon his soul. The fact of the matter that Karamat Ali co‑accused was taken away in injured condition by the other accused is also a circumstance in favour of the prosecution to have facilitated the P.Ws. to have seen the assailants. It is proper to refer to the recitals of complaint Exh.P.D: wherein the names of all the assailants with the specific roles have been narrated by Muhammad Akram complainant P.W.3 which means that the F.I.R. has to prove to be a corroborative piece of evidence in this regard. The P.Ws. have stood the test of cross‑examination with regard to this controversy under disposal. We, therefore, hold that the assailants were correctly identified by the eye‑witnesses whose statements have correctly been relied upon by the Trial Court. Further it cannot be expected that in view of the sensational nature of the occurrence in hand, the real culprits would be let off to falsely rope in the appellants on the ground of previous enmity. Hence the ocular account has the positive force in favour of the prosecution.

26. Learned counsel for the appellants referred to rough site plan Exh.P.P. prepared by Atif Hayat Inspector/S.H.O. on 6‑9‑1991 at the time of his maiden visit to the place of occurrence as well as site plan Exh.P.H. drafted by Younas Ali Shah, Draftsman P.W.7 containing the notes of Atif Hayat, S.H.O. and argued that the places from which the empties P.5/1‑104 of klashnikov and empties P.6/1‑6 of mouser were taken into possession have not been shown in rough site plan Exh.P.P. and that in both the aforesaid site plans, viz. Exh.P.P. and Exh.P.H. the points where the assailants were particularly standing have not been shown. He added that this aspect of the matter has made doubtful the presence of the assailants at the place of occurrence and the taking into possession of the empties and that the legal benefit of the said aspect of the matter shall be derived by the appellants. On the contrary learned counsel for the State laid the emphasis that such type of lapses are occurring and the negligence is being shown by the Investigating Officers as well as the Draftsmen intentionally as the interference in the investigation is made on behalf of the accused persons. According to him the assertion raised by the learned counsel for the appellants has no force. We have to express that in the ruling published as Mst. Shamim Akhtar v. Fayyaz Akhtar and others PLD 1992 SC 211 it has been commanded that the site plan of occurrence is not a substantive piece of. evidence. It has been held in Ali Sher v. The State and 3 others PLD 1980 SC 317 that the omission to indicate the position of the eye‑witnesses in the site plan would not lead to the inference of such witnesses being not present particularly when the presence of such witnesses at the spot at the time of occurrence is natural in the circumstances of the case. This ruling was relied upon in the ruling printed as Nauroze v. The State 1986 PCr.LJ 3019 (Quetta) wherein it was held that the mere fact that the presence of the witnesses is not mentioned in the site plan and the places where they were alleged to be present were not shown in the site plan would not invalidate their testimony and that this can be at the most an omission on the part of the Investigating Officer. Likewise the conclusion which can be drawn with respect to the contentions of the learned counsel for the appellants in this case would be that if the points from which the empties were taken into possession and the points where the accused persons were present at the time of the firing on the deceased and the injured P.Ws. were not shown that would not make doubtful the prosecution case, not to speak of that the same would be fatal to the prosecution case. It shall not be out of place to express that such type of negligence and lapse on the part of the Police Officers/Investigating Officers and the Draftsman have become an order of the day. Even though the Investigating Officer and the Draftsman act in hand and glove by showing soft corner towards the accused in respect of the preparation of the site plans not containing all the facts in recalcitrant manner, this laxity need not be given the weight as canvassed by the learned counsel for the appellants especially when the F.I.R. was promptly lodged and all the facts were mentioned therein which have later on been corroborated by the eye‑witnesses. It cannot be expected that the, aforesaid site plans were not prepared according to complaint Exh.P.D. and this aspect has made out that the laxity pointed out by the learned counsel for the appellants shows the weak grip of the Investigating Officer and the Draftsman towards the performance of their respective duty. We are least impressed by this assertion raised by the learned counsel for the appellants and ignore the same.

27. The cumulative effect of the aforesaid discussion would be that the ocular evidence coupled with the complaint Exh.P.D. on the basis of which formal F.I.R. Exh.P.D./1 was drafted has correctly been relied upon by the Trial Court and we also give the weight to the same.

28. With respect to the medical evidence the contention of the learned counsel for the appellants is that the same is in conflict with the ocular evidence as Dr. Muhammad Khalid P.W.11 found the blackening on the injuries found by him on the dead body of Muhammad Jameel. According to him the distance between car No.LHR‑3627 from which and from around of which the firing was effected at Mitsubishi Station Wagon was 36 feet and the burning could not be caused. He also referred to the statement of Dr. Mehfooz Ahmad P.W.12 who conducted the autopsy on the dead body of Niamat Ali according to which no blackening was found on the injuries on the person of this deceased. He made up the argument that from a distance of 36 feet the fire shot would not cause the blackening and, thus, the prosecution case has become doubtful as the statements of the eye‑witnesses are liable to be ignored. On the contrary learned State Counsel laid the emphasis that indiscriminate firing was effected from the klashnikovs and mousers and that the aforesaid types of weapons are that of highly complex and efficient category. He added that the firing was effected from inside and outside of car No.LHR‑3627 and it can be expected that the friction was produced when the firing hit the iron body of Mitsubishi Wagon P.9 while the same may have not generated the heat when crossing the glass screen. He added that due to the aforesaid aspects of the matter the injuries on the persons of both the deceased were received in the aforesaid manner and condition found by both the medical witnesses. We fully appreciate the analysis made by the learned counsel for the State and agree with his reasoning. Due to the indiscriminate firing from the sophisticated weapons of klashnikovs and mousers the deceased had received the injuries while occupying the seats in Mitsubishi Wagon P.9. The fire shots crossed the glass screens and the iron body. The blood‑stained pieces of glass were taken into possession and there were holes on‑the iron body of wagon P.9 which means that the empties crossed through and through. The Medical Officers were not cross‑examined on this point and their statements are of no help in the matter. The aforesaid aspect has to be dealt with and analysed technically. As such we express and hold that the piercing of bullets through and through the iron body of the vehicle produces friction and energy creating the spark and consequently generating the heat which naturally would blacken the injuries on the body of the victim which also occurred in this case regarding the injuries found on the body of the aforesaid deceased named as Muhammad Jameel particularly when from the iron rear body of the vehicle he was at a distance of four to five feet occupying his seat therein. With the passage of time during these days we shall have to bring ourselves out of the old and orthodox opinion already being followed with regard to indigenous and local weapons like single/double‑barrel guns, revolvers and pistols etc. etc. with respect to the injuries in the matter received with such type of fire‑arms. The klashnikovs and mousers of latest inventions and devices with different types of power and velocity can generate such energy which can cause the aforesaid types of injuries containing the burning on the same even from some distance. It is a matter of common knowledge that during these days influential persons having long‑standing enmities inter se prefer to keep 'latest and sophisticated weapons like klashnikovs and mousers etc. which can prove to be more effective and deferent giving better results and impacts against the adversaries. Further we have already believed the eye‑witnesses for the reasoning mentioned supra. We, therefore, hold that the medical evidence has corroborated the ocular evidence.

28. With respect to recovery of klasltnikov P.5 said to have been got effected by Abdul Majeed alias Fauji appellant under Article 40 of the Qanun‑e- Shahadat Order, the contention of the learned counsel for the appellants is that the positive report received from Fire‑arms Expert has to be ignored because Sultan Ahmad, Constable P W.10 stated that he delivered the crime‑empties on 23‑10‑1991 while Muhammad Riaz Moharrir H.C. Q.W.17 deposed that he handed over the same to the said Sultan Ahmad, Constable on 23‑9‑1991. We have to express that the learned State Counsel has rightly pointed out that this a typographical mistake. A perusal of report Exh.P.KK. of the Technical Services has made out that one sealed parcel was received on 23‑9‑1991 and the other on 12‑10‑1991: Obviously ‑the parcels containing tithe crime empties P.5/1‑104 of klashnikov were first taken and thereafter the other parcel containing the klashnikov was delivered on 12‑10‑1991. This reasoning has no force. It was further argued that the recovery of klashnikov P.5 is attributed to Abdul Majeed appellant from an open place on the bank of B.R.B. Canal which was visited by general public and that the same is of no legal effect. Abdul Majeed alias Fauji appellant led to the recovery of klashnikov P.5 after digging the earth on the bank of B.R.B. Canal. It means that the possession of klashnikov and its having been buried at the place of recovery was well within the exclusive knowledge of Abdul Majeed alias Fauji appellant. In the circumstances of the matter the prosecution witnesses of the police force are held to lie competent to attest the memo of recovery. Thus, not only that the recovery has been proved by the prosecution, the positive report Exh.P.KK. of the Technical Services has enhanced its value so as to connect Abdul Majeed alias Fauji appellant with the occurrence. This part of the prosecution evidence has also advanced the prosecution case.

29. The defence evidence produced by the appellants is of no help to them for their exoneration. If on 6‑9‑1991 the Mitsubishi Station Wagon was without registration in the name of Muhammad Akram complainant and without number plate that would not make out that the same was not in possession of the aforesaid complainant as the same wagon P.9 was taken into possession by the Investigating Officer vide memo. Exh.P.D./2 in damaged condition from which the blood‑stained broken glass pieces were also taken into possession from two places. Further the enmity between the parties is not disputed.

30. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that the prosecution has established its case against both Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants against whom the charge has been proved by the prosecution and who have rightly been held criminally liable in the matter of Oils gruesome occurrence wherein two persons Muhammad Jameel and Niamat Ali lost the lives and the murderous assault was made on Muhammad Akram complainant P.W.3, Muhammad Hussain P.W.4 and Manzoor Ahmad P.W.5. As such both the appellants cannot escape their criminal liability in the matter.

31. For what has been said above, we see no merit in this appeal and dismiss the same. H.B.T./A‑233/L Appeal dismissed.