MUAZZAM IQBAL, ADVOCATE, PRESIDENT, WATTAN PARTY, PUNJAB Versus PUNJAB GOVERNMENT
SALEEM DIL KHAN, J. --- This appeal is directed against the judgment and order of conviction dated 24-5-1990 passed by Additional Sessions Judge-II, Haripur. Through the impugned judgment, appellant Saleh Rehman son of Said Usman was found guilty of murder and was convicted under section 302, P.P.C. and was sentenced to life imprisonment and a fine of Rs.20,000 and to further three years' R.I. in default of payment of fine. Appellants Said Usman, Muhammad Saleh and Abdul Qadoos were also convicted through the same judgment and order under section 307, P.P.C. and were sentenced to three years' R.I. each and a fine of Rs.2,000 each and to further six months' R.I. each in default of payment of fine. All the four appellants were extended the benefit arising from section 382-B, Cr.P.C. One Criminal Revision No.25 of 1990 has also been filed for enhancement of the sentence awarded to the appellants. There is also Criminal Appeal No. 37 of 1990 under section 417, Cr.P.C. against the acquittal of Said Usman, Muhammad Saleh and Abdul Qadoos under section 302, P.P.C. We propose to decide all these three matters by our consolidated judgment.
2. The prosecution story, as spelt out in the F.I.R., is that Muhammad Arif complainant was brought in injured condition to Police Station Ghazi in a Suzuki Van. There were other injured, namely, Mul:ammad Farid, Mst. Shaheen Bibi and Khalid brought with him in the same Suzuki. Pick-up. They reached the police station at 21-00 houts of 5th of June 1985. The report was lodged by Muhammad Arif wherein he alleged that a quarrel had taken place between Muhammad Farid injured P.W. and Muhammad Saleh accused over the objection raised by Muhammad Farid on taking bath in the village water-spring by Muhammad Saleh accused. It was also alleged that Muhammad Saleh had threatened Muhammad Farid with dire consequence. On the evening of the eventful day at about 19-00 hours Muhammad Arif P.W. and Muhammad Farid P.W. had come to the said water-spring for fetching water while, in the meantime, Abdul Qadoos and his son Muhammad Saleh accompanied by Said Usman together with his sons Saleh Rehman and Shamsur Rehman appellants duly armed came to the spot. Shamsur Rehman commanded to shoot. Saleh Rehman fired with his .7 m.m. rifle at lbrar deceased effectively while Abdul Qadoos armed with .7 m.m. rifle fired at Farid which resulted in injuries on the left forearm and forehead of Farid P.W. Muhammad Saleh fired with his .12 bore shotgun which hit Mst. Shaheen Bibi (minor girl) and also Khalid (minor boy). Appellant Said Usman also fired with his .7 mm rifle which caused injury to Muhammad Arif complainant P.W.3. As per F.I.R., the occurrence was witnessed by Saleh Rehman, Said Rehman and other residents of the village. It is pertinent to mention that a cross F.I.R. was also lodged with regard to the same occurrence by Said Usman appellant against the present complainant party and a case was registered under section 307/148/149, P.P.C. through F.I.R. No.65, dated 6-6-1985. But, this F;I.R. could not stand the test of investigation and was consequently cancelled. Appellant Said Usman then filed a private complaint but that was also dismissed in limine. A revision petition was filed against the said order of dismissal in this Court but that revision petition was also dismissed by this Court.
3. The aforesaid report was recorded in F.I.R. Exh.P.A. by Ghulam Mehdi S.I. (then A.S.I.) P.W.16. The injury sheet of the complainant Muhammad Arif P.W.3 was prepared which is Exh.P.W.16/1. The injury sheets of Khalid Exh.P.W.16/2 and that of Mst. Shaheen Bibi Exh.P.W.16/3 and that of Farid Exh.P.W.16/4 were also prepared by this witness. All these injured were despatched for medical examination. The injury sheet of deceased Ibrar Exh.P.W.12/10 and inquest report Exh.P.W.12/9 were also prepared by this witness. He then proceeded to the spot where he partially recorded the statements of the P.Ws. and conducted search of the houses of the accused and prepared memo. Exh.P.W.5/1 in this behalf. This witness took into possession one .12 bore shotgun Exh.P.6 alongwith the licence copy Exh.P.7 and empties of .12 bore, 7 in number, Exh.P.8 through memo. Exh.P.W.5/2 and these articles were sealed through the same memo. One .7 m.m. rifle Exh.P.9 alongwith licence copy Exh.P.10 and three missed cartridges Exh.P.I 1 produced by Saleh Rehman accused were also taken into possession packed and sealed through memo Exh.P.W.5/3 by this witness. This witness also arrested accused Said Usman, Saleh Rehman and Abdul Qadoos and then handed over the investigation to Muhammad Farid Khan, S.H.O.
4. Dr. Muhammad Qasim P.W.12 has stated that on 6-6-1985 at 8-30 a.m. he performed the post-mortem examination on the dead body of Muhammad Ibrar son of Muhammad Aman Mashawani of Village Ramdara aged about 20 years and found the following:--
External appearance:
A young man of about 20 years age. Lean built wearing Shalwar and, Qameez and Chappli. Qameez slightly blood-stained with mark on left upper side. Post-mortem stain and rigor mortis present.
Injuries:
A small rounded wound (Fire-arm entrance wound) on left side of chest in the second intercostal space. No exit wound or other marks of injuries seen on the body.
Internal:
(1) Thorax walls injured on left side in the second intercostal space
(2) Pleaurae injured on left side in the upper part.
(3) Left lumb injured in the upper part
(4) Blood vessels injured
(5) Stomach healthy and empty
In his opinion death has occurred due to injury to vital organs mentioned -above causing haemorrhage, shock and death. He further stated that bullet recovered from the mediastinum lodged in the great vessels alongwith clothes, Qameez were only signed by him and bullet in a sealed container was handed over to the police.
According to the doctor the probable time that elapsed between injury and death was about 1 to 2 hours and between death and P. M. about 10 to 12 hours. The post-mortem report Exh.P.W.12/8 (six pages) including pictorial is in his handwriting and bears his signatures correctly. The inquest report and injury sheet Exh.P.W.12/9 and Exh.P.W.12/10 were also signed by him. The injuries on the person of Ibrar deceased causing damage to the vital organs were sufficient in the ordinary course of nature to cause his death.
This witness also examined Mlihammad Farid P.W.6 on 6-6-1985 at 10-30 p.m. and found the following injuries on his person:--
(1) A fire-arm entry wound about 1/2 c.m. and more than skin deep on left upper arm just below the shoulder on anterior aspect. No exit wound seen.
(2) Another wound of entry on the right side of forehead above the right eyebrow measuring about 1/2 c.m. in diameter and more than skin deep.
(3) Another wound above wound No. 2 and exit about 1/4 c.m. x 1/8 c.m into more than skin deep.
(4) Patient in semi-conscious condition cannot reply to vocal questions and command.
(5) Patient referred to Neuro-Surgeon D.H.Q. Hospital, Abbottabad for expert opinion and management.
The doctor handed over clothes Qameez and Chaddar blond-stained to the police. According to him the injuries were by fire-arm about 2 to 4 hours duration and nature of injuries after neuro-surgeon report. The medical report Exh.P.W.12/1 is in his handwriting and bears his signatures correctly.
On the same day this witness also examined Shaheen Bibi daughter of Mir Afzal aged about 10 years at 11 p. m. and found the following injuries:--
(1,1 A fire-arm entry wound on the right lower leg middle part on lateral aspect rounded about 3/4 c.m. diameter and more than skin deep.
(2i Another wound of exit on the right lower leg middle -part on medial aspect about 3/4 c.m. x 3/4 c.m. x more than skin deep.
(3) Right leg swollen and tender, movement painful
(4) Patient admitted in the hospital
According to the doctor the injuries were caused by fire-arm within 3 to 4 hours duration and nature after X-ray. The doctor handed over Shalwar to the police. This witness advised X-Ray of right lower leg. The medical report Exh.P.W.12/2 is in his handwriting and bears his signature correctly.
On the same day at 11-30 p.m. Khalid son of Abdul Malik aged about 12 years was also examined by this witness and the following injuries were found on his person:--
(1) A fire-arm wound of entry on ulnar side of right forearm just above the wrist measuring about 1 c.m. in diameter and than skin deep.
(2) Right lower arm swollen and tender, movements painful.
(3) Patient admitted in the hospital.
According to the doctor the injuries were caused by fire-arm within 3-/1-2 to 4-/1-2 hours duration and nature of injuries after X-ray. The doctor advised X-ray of right forearm A.P. and lateral. The doctor also handed over Shalwar to the police. Medical report Exh.P.W.12/3 is in his handwriting and bears his signatures correctly.
This witness examined Arif son of Shah Ghufran P.W.3 aged about 35 years on the same day and found the following injuries:--
(1) A fire-arm entry wound right lower leg middle part, lateral aspect measuring about 1/2 c.m. x 1/4 c.m. into more than skin deep.
(2) Another wound on same level of right leg over medial side measuring about 1/2 c.m. x 1/2 c.m. into more than skin deep.
(3) Patient admitted in the hospital. Advised X-ray right lower leg A. P. and lateral view. Shalwar alongwith fire-arm marks handed over to police. Nature of injury after X-ray. Duration about 4 to 5 hours. and caused by fire-arm. Medical report Exh.P.W.12/4 is in his handwriting and correctly bears his signature.
The doctor further stated that Shaheen Bibi was X-rayed and the X-ray showed fracture of upper tibia of right lower leg. The X-ray report Exh.P.W.12/3 is in his hand and bears his signatures correctly. Hence the nature of injuries of Mst. Shaheen Bibi was grievous. He also X-rayed Khalid son of Abdul Malik for right forearm on 7-6-1985 and the X-ray showed impacted pellet and fracture of right lower Ulna. The X-ray report Exh. P. W.12/6 is in his handwriting and bears his signatures correctly.
Muhammad Farid P.W.6 was also examined by Radiologist D.H.Q. Hospital Abbottabad, namely, Dr. Shah Jehan Afridi P.W.11. This witness stated that on 6-6-1995 Muhammad Farid son of Zawar Shah resident of Sirikot Police Station Ghazi was X-rayed for both view of skull and left shoulder joint. As per his observation after reading the skygram his report is to the following effect:--
(1) Skull: Multiple opacities of metallic density of various sizes and shapes were seen inside the skull with perforation of vault of skull in right frontal area F.B.
(2) An opacity of metallic density was seen adjacent to medial border of ' upper shaft of humerus F.B.
The report Exh.P.W.Il/1 is in his handwriting and bears his signatures correctly. The report was sent by this witness to the police on 11-61985.
5. P.W.l Abdul Majid A.S.I. is witness to the recovery of shirt Exh.P.l belonging to Muhammad Ibrar deceased alongwith phial Exh.P.2 containing bullet lead Exh.P.3 sent by the doctor through Muhammad Bashir F.C. Riasat Khan F.C. No.1197 P.W.2 is also witness to the recovery of phial Exh.P.4 containing bullet lead Exh.P.6. He has correctly signed Exh.P.W.2/I. Shafir Khan P.W.5 had accompanied the Investigating Officer during the search of the house of accused. In his presence the house of Abdul Qadoos was searched by the Investigating Officer who recovered a shot gun .12 bore P.6, licence copy P.7 and seven empties of .12 bore P.8 giving smell of fresh discharge and to this effect memo. Exh.P.W.5/2 was prepared by the Investigating Officer and signed by this witness. Accused Said Usman was also arrested by the Investigating Officer in his presence. The Investigating Officer also took into possession one .7 m.m. rifle P.9, licence copy Exh.P.10 and three missed cartridges Exh.P.l l produced by Saleh Rehman accused in the presence of this witness. The I. O. had prepared memos. with regard to each act, which were admitted by this witness to have been correctly signed by him. The dead body of Muhammad Ibrar was also identified by this witness at the time of post-mortem examination. Fazalur Rehman No. 860 I.H.C. P.W.13 took into possession a phial Exh.P.4 containing bullet lead Exh.P.5 produced by Dr. Abdur Rauf Civil Hospital through Safdar Zaman and he prepared memo. Exh.P.W.2/1 in this behalf. He is witness to the taking into possession of a phial containing bullet lead recovered from the dead body of Muhammad Ibrar by the Investigating Officer through memo. Exh.P.W.I/2. Muhammad Jawaid H.C. P.W.14 took into possession a Shalwar Exh.P.13 belonging to Muhammad Arif injured which was sent by the doctor through memo. Exh.P.W.14/l. He also took into possession a Chaddar Exh.P.15 belonging to Muhammad Farid and also took into possession shirt P.16 of Khalid injured and also took into possession Shalwar P.17 belonging to Mst. Shaheen Bibi. This witness testified that all the memos prepared in this behalf are correct and are signed by him. Muhammad Khalid No. 1192 P.W.15 is marginal witness to memos. Exh.P.W.14/l. Exh.P.W.14/2. Exh.P.W.14/3 and Exh.P.W.14/4. Muhammad Bashir P.W.17 had escorted the dead body from inside Civil Hospital Ghazi to the mortuary Safdar Zaman, F.C. P-WA was entrusted with the warrants of arrest against Muhammad Saleh appellant. He had also pasted on the house of the accused-appellant proclamation under section 87, Cr.P.C.
6. The first informant in this case, Muhammad Arif, has been examined as P.W.3 during the trial. This witness has narrated almost the same story which has been detailed by us in the initial paragraphs of this judgment. He was subjected to lengthy cross-examination wherein the defence has tried to secure certain points which we shall discuss in the operative part of this judgment in the forthcoming paragraphs. Muhammad Farid P. W .6 is also an eye-witness of the occurrence who was seriously wounded on the spot and he has also corroborated the prosecution story. He was cross-examined at length which we shall discuss later. Khalid son of Abdul Malik aged about 11/12 years. P.W.7 was of tender age at the time of examination and, therefore, an inquiry was made under Article 3 of the Qanun-e-Shahadat, 1984 by the learned trial Court. Consequent to the inquiry, it was found that the witness was capable to understand the question put to him and was also capable to give rational answers to such questions. This witness has also supported the prosecution version and was also cross-examined at length. Mst. Shaheen Bibi aged about 8/9 years P.W.8 was not found fit for deposition in Court after the inquiry under Article 3 of the Qanun-e-Shahadat, 1984. Muhammad Aman Khan P.W.9 is the father of deceased Muhammad Ibrar. He testified to the events which took place on the spot and fully supported the prosecution version. This witness was also cross examined quite at length. Saeedur Rehman P.W.10 has also provided the ocular account of the occurrence and has fully supported the prosecution version. He was also cross-examined at a considerable length.
7. Muhammad Farid Khan, Inspector P.W.18 was the S.H.O. of Police Station Ghazi during the days of occurrence. The investigation was taken over by him from Ghulam Mehdi, A.S.I. who had conducted the initial investigation. This witness inspected the spot at 7-30 a.m. on 6-6-1985 and prepared the site plan Exh.P.W.18/1. He also took into possession one .12 bore empty Exh.P.12 and also blood-stained sand P.18 from the place where Mst. Shaheen Bibi had received injury. This witness also took into possession blood-stained earth and pebbles P.19 from the place where Muhammad Farid P. W. had received injury. He also took into possession shirt Exh.P.1, bottle Exh.P.2 containing bullet lead Exh.P.13 produced by F. C. Bashir. All these articles were packed and sealed by this witness and respective recovery memos were prepared by him. The statements of the P. Ws. were recorded by this witness. This witness despatched the various articles for chemical analysis to the F.S.L. through parcels Nos.5, 10, 6, 12, 8 and 11 and also sent parcels Nos. 1, 2, 7 and 3 for comparison. His applications, dated 3-7-1985 in this behalf have been placed on record as Exh.P.W.18/2 and Exh.P.W.18/3. The reports of the F.S.L. were received by this witness which were placed on record as Exh.P.W.18/4 and Exh.P.W.18/5. After the completion of the investigation, this witness submitted complete challan to the Court against the accused.
8. Accused Shamsur Rehman (acquitted) was examined, who totally denied the allegations levelled against him and stated that he was employee of P.A.F. and that during the days of occurrence he was present on duty in his unit at Chaklala. Appellant Muhammad Saleh was also examined under section 342, Cr.P.C. wherein he denied the charges against him and also posed a defence version that the complainant party had aggressed upon them and that he had made a report in the police station with regard to the same occurrence. He further stated that the Investigating Officer had not placed the counter-version before the Court. Said Usman accused also made similar statement and also took the same plea of defence that the complainant party were they aggressor and the Investigating Officer had dishonestly brushed aside their side of the version. Statement of Abdul Qadoos appellant is also the same. Similarly the statement of Saleh Rehman appellant is, also the same.
9. Mirza Abdullah Jan, counsel for the appellant argued the case at length and had discussed almost all the aspects of the prosecution evidence and also the defence version given in the cross-F.I.R. tvhich was cancelled. We need not reproduce his arguments here because we will be discussing all his arguments in tire forthcoming paragraphs. On the other hand learned A.A.-G. for the State and Mr. Muhammad Akbar Khan Swati counsel for the complainant also argued in reply to the arguments advanced by the learned counsel for the appellants and stressed that most of the arguments advanced, were not supported by the evidence recorded. It was further stressed that the prosecution witnesses are carrying the stamp of injuries and have given correct version of the events which have taken place at the relevant time. It was further stated that the prosecution has not withheld any ocular witness nor any circumstantial evidence and they have come to the Court with clean hands. It was also stated that the witnesses have stood the test of very lengthy cross-examination and have also given statements which, on their faces, ring true.
10. After hearing the learned counsel for the rival parties and going through the record of the case and also the evidence recorded it transpired that there was a cross-F.I.R. No.65 which was lodged by Said Usman appellant. The statements of the accused-appellants recorded under section 342, Cr.P.C. also indicate that, excepting Shamsur Rehman appellant, they do not deny their presence on the spot at the time of the occurrence. Appellant Said Usman has again reiterated in his Court statement that the complainant party were the aggressor and that the complainant party had suppressed their role and material facts in the commission of the crime. He has also stated in his said statement that he had lodged a report at the police station about the same transaction but the Investigating Officer had not placed his version before the Court.
11. Learned counsel for the appellants argued that the version set forth in F.I.R. has been given a go-by during the course of trial in a bold manner by Arif P.W.3, lodger of the report as regards the manner of initiation of attack and sequence of shots fired and instead he has offered a radically different story. He insisted that Arif P.W.3 categorically stated in the F.I.R. that Saleh Rehman was the first to fire effectively on Ibrar deceased followed by Abdul Qadoos, who fired effectively at Farid and then Muhammad Saleh fired at Shaheen Bibi and Khalid and that lastly Said Usman fired effectively at him i.e. Arif P.W.3. He stressed that Arif P.W.3 has changed the sequence in his Court statement by stating that Abdul Qadoos fired the first shot effectively at Muhammad Farid hitting him on his left arm and also on forehead with second shot while Said Usman followed by firing effectively at him i.e. Arif P.W.3 who was then followed by Saleh Rehman while Muhammad Saleh was the last to fire a shot effectively at Shaheen Bibi and Khalid. The perusal of the F.I.R. and the Court statement of Muhammad Arif complainant reveals that this argument of the learned counsel for the appellant is not substantiated by the record. In the F.I.R. the complainant has never stated as to who was the first to fire and who followed whom. The complainant has stated in the F.I.R. that the accused armed with gun arrived and Shamsur Rehman shouted at the accused to fire. Saleh Rehman fired with .7 m.m. rifle on Muhammad lbrar deceased. Abdul Qadoos fired with his .7 m.m. rifle at Farid. Muhammad Saleh fired with .12 bore gun at Shaheen Bibi and Khalid, Said Usman with his .7 m.m. rifle fired at him i.e. the complainant. Similarly in his Court statement also he does not disclose or narrate the occurrence in a manner where he gives the detail as to who was the first to fire and who was the second and who followed the suit. The comparative reading of both the statements indicates that he has only narrated the occurrence and has not categorically stated rather has not, at all, stated the sequence of fires shot by each appellant. In these circumstances we feel that it is incorrect to make a derivation from the statements that since complainant took the name of Saleh Rehman first in the F.I.R., therefore, meant that Saleh Rehman was the first to open fire and, similarly, that he named Abdul Qadoos first in the Court statement, therefore, we should presume that Abdul Qadoos was the first to open fire. In the cross-examination of this witness we find that, in reply to the questions of the learned counsel for the defence, he has given some explanation to the extent of giving the sequence of firing but this is of no avail to the appellants because he cannot be contradicted as he has not given out this fact in his F.I.R. nor in his examination-in-chief. Furthermore, this is now established law that F.I.R. is not an exhaustive statement of the complainant. It is enough if he gives the names of the accused and the injured, kind of weapons and names of the witnesses present, together with the brief narration of the event having taken place at the relevant time. Enhanced allowance should be afforded to the first informant in this behalf, when he is injured, because, bodily compulsions are beyond human control.
12. Impeachment of the first informant was also sought on the ground that he has attributed only one shot to Abdul Qadoos appellant which he fired effectively on Muhammad Farid whereas the medical evidence reveals two injuries on the person of Muhammad Farid P.W.6. But, the close scrutiny of the F.I.R. shows that there is no such word to suggest that only one fire was shot by Abdul Qadoos appellant at Muhammad Farid. In fact, it has been vividly stated that Abdul Qadoos fired at Farid with his .7 m.m. rifle as a result of which he C was hit on his left arm and front of his forehead. These words clearly indicate that, actually, there were two shots although it has not been so specifically mentioned in the F.I.R. Nevertheless, this fact was explained in very plausible terms by this witness in his Court statement. To our mind, this is not a contradiction nor an improvement which can make the entire evidence of this witness as untrustworthy.
13. It is pertinent to note in this context that deceased Muhammad Ibrar was allegedly hit with the fireshot of Saleh Rehman appellant. It is also alleged that this fire was made with a .7 m.m. rifle. The doctor has also extracted a bullet from tre body of deceased Muhammad Ibrar. The contention of learned counsel for the appellants that the opinion of Arms Expert, with regard to the deformation of the said bullet, has considerably dented the prosecution case,-is not well-founded. The report of the F.S.L. denotes that the arms expert showed his inability to give positive opinion as to whether or not the said bullet was fired from the rifle sent for examination to him. This is quite understandable because very slight deformation of a spent bullet would make it difficult for the Arms Expert to find it matching or otherwise with the rifle from which it was allegedly fired. But this would not mean that it was not a bullet at all as the learned counsel for the appellants contended.
14. It is very pertinent to note that the father of deceased Muhammad Ibrar who was neither a party to the quarrel between the two rival parties nor he was inimically disposed towards the present appellants has also categorically charged Saleh Rehman appellant for the murder of his son. There is no ostensible reason available on the record of the file as to why father of the deceased should charge Saleh Rehman falsely for the murder of his son. False charge can be attributed to the complainant and the P.Ws., because, according to the prosecution story they were inimically disposed towards each other but the father of the deceased is not on inimical terms with the appellants nor he is a party to the quarrel between the rival parties.
15. The contention that Farid should have received the injury on his back because he was running at the time of receipt of injury does not hold water because, in the first instance, the site plan very clearly shows that, even if Farid was running towards his house, he was not having his back towards Abdul Qadoos. The perusal of site plan clearly indicates that the left side and the front of his body was exposed to Abdul Qadoos. Secondly, living human beings are not supposed to stand like statues in front of firing or any other kind of assault. The common human behaviour is that he will keep on changing his position in any such eventuality. The location of point No.9 (Abdul Qadoos) and points Nos.3 and 4 (Farid) on the site plan also fully supports the prosecution and fully negates the contention of the learned counsel for the appellants.
16. The Investigating Officer raided the house of Said Usman appellant and he recovered a shotgun and empties from his house. Much premium was attempted to be derived from the number of the empties because only one shot of .12 bore shotgun was attributed by the P.Ws. But, this is also a fact which does not give any assistance to the appellants. The P.Ws. had attributed one shot of .12 bore and, corresponding to that, only one empty shell was recovered from the spot. If the Investigating Officer has recovered 7 empties from the house of Said Usman, it would not cast any doubt on the prosecution story. Because, the house of Said Usman is quite away from the scene of occurrence. Recoveries from the scene of occurrence and recoveries from the house of the appellants are two independent facts. We do not find ourselves in agreement with the learned counsel for the appellants that recovery of 8 empties from the house of Said Usman has given serious blow to the prosecution version.
17. The refusal of some of the witnesses to give description of rifles with precision is not a fact to discredit the injured witnesses. It is admitted that the distance between the witnesses and the assailants was quite large. It is on record that in some places it is 43 yards whereas in some places it is 47 and 52 yards. In these circumstances, particularly when it is the "Ifteri" time, and, the sun is also about to set; it is difficult to fully describe and to distinctly see the kind of rifle or gun held by certain persons at such a long distance. Therefore, non description of specific weapons in specific terms is not a' fact which shall go against the prosecution.
18. The prosecution is further fortified in its stand by the circumstantial evidence that all the P.Ws., who got injured on the spot, have been produced as witnesses in Court. The stamp of injury on the person of these witnesses makes l their presence on the spot, at the time of occurrence, fully established. IE Furthermore, the innocent children namely Khalid aged about 11 years and Mst. Shaheen aged about 8 years were also produced in Court; which shows the clean hand attitude of the prosecution. It is pertinent to note that Khalid aged about 11 years was subjected to -very lengthy cross-examination but he stood the test of cross-examination. However, Mst. Shaheen was found to be so innocent, that, the Court, after its inquiry, did not find it proper to examine her as witness, which fact, nevertheless, strengthens the prosecution case because the prosecution had tendered her in evidence as she was bearing the stamp of injury. Similarly, the number of injuries, the number of the injured persons and the number of accused are fully compatible with each other and this fact further cements the prosecution case. Other circumstantial evidence, such as the water spring, which has been shown by the prosecution as the bone of contention for the present unfortunate occurrence, is very much present on the spot and has not been denied by either of the rival parties. Blood-stained earth has been recovered from the places of three of tile injured witnesses which also corroborates the prosecution story. The argument that the citus of the injuries have not been specifically mentioned in the F.I.R. would hardly affect the prosecution-case adversely, because, in the first instance, F.I.R. is not an exhaustive document and, secondly, it has never been considered as the decisive factor in criminal G cases. Human beings are not supposed to act mechanically because emotions are the integral part of the personality of every individual. Therefore, in a situation where a person is being fired upon together with his other relations, and, he is injured and his relations are also hit and injured within his sight, as a result of the fireshots made by the assailants; it is difficult to expect such a person to keep himself so calm in emotions as to note each and every details of events taking place on the spot. For this very reason, the Courts have always given much importance to the situation in which the witness was placed at the time of occurrence. While taking into consideration the attending circumstances of the case, we hold that such minor details as to determine the locale of each injury in such a large number of injured persons was not humanly possible.
19. The presence of Muhammad Aman P:W.9 was tried to be made doubtful by learned counsel for the appellants because he is the only uninjured 1 eye-witness but his presence is natural in his house, as the other injured witnesses were, because, it was the month of Ramazan and the occurrence took place close to the time of Iftar. Ordinarily people try to reach their respective houses at the time of Iftar and they are present in their houses.
20. The report .of the F.S.L. is indicative of the fact that the bullet recovered from the body of deceased Ibrar was deformed. It was argued that in fact it was deformed deliberately by the Investigating Officer because it was not a bullet. This argument is not well-founded on two-fold grounds because the F.S.L. report declared it deformed as it could not be put to test of grooves of the barrel of the .7 m.m. rifle sent for laboratory test because slight deformation renders a spent bullet unfit for such test in view of the highly sensitive nature of this test, but, the report never says that it was so deformed that it could not be identified as bullet and, therefore, the F.S.L. report has very clearly termed it as bullet. Secondly, if, at all, the Investigating Officer was bent upon replacing the bullet he could do so very easily in accordance with his requirements because all the articles were sent back to him by the F.S.L. on 2-8-1985 and he resubmitted the same afterward to the F.S.L. for test purpose. If he was having any doubt about the bullet recovered from the body of Ibrar he could very easily manipulate by firing a bullet from the crime rifle and then to put the same in place of the deformed bullet because both the gun and the articles which were going to be sent to F.S.L. were in his exclusive possession at that time. By not doing so, the Investigating Officer has proved that he had not fallen in practice of replacing or deforming or changing the shape of the recovered items.
21. It was also argued that the distances amongst the assailants and the victims are so large that 'the infliction of injuries were not possible. The site plan clearly indicates that these distances are at the maximum, 43 yards and 52 yards, and, rest of the distances are approximately the same. For a rifle as well as for a shotgun 40 to 50 yards is not a distance where these rifles/guns are not effective.
22. The law has now become quite settled on the point that minor discrepancies in the statements of the witnesses are not fatal to the prosecution I case. It has been repeatedly held that discrepancies alone are not fatal to the prosecution case but, in fact, the discrepancies must be of such a nature as to give rise to a substantial suspicion. Mere hypothetical doubt is not a doubt which can give benefit to the accused. In the same wake, it is also important to note that the statement made in cross-examination by a formal witness is not accepted to impeach his main statement because it has been noted by the Courts that the formal witnesses ordinarily allow concession to the accused-in their cross-examination by making statement with regard to the main occurrence. This practice has been deprecated by the august Supreme Court and almost all the High Courts.
23. So far as the cross-version is concerned it is also of no avail to the accused-appellants because the cross-case was found false by the Investigating Agency and was, therefore, cancelled. A private complaint was filed in the Court with regard to the same F.I.R., but, the complaint was also dismissed. The complainant Said Usman appellant came up to this Court praying for entertaining his private complaint but could not succeed and his revision petition was also dismissed by this Court. In these circumstances the story of cross version shall be considered as closed once for all.
24. Pursuant to the above discussion, while dismissing this appeal, we maintain the conviction and sentence of the appellant Saleh Rehman under section 302, P.P.C. and, we also maintain the conviction and sentence of the appellants Said Usman, Muhammad Saleh and Abdul Qadoos under section 307, P.P.C. We find that the learned trial Court has not passed any order with regard to payment of compensation to the victim, namely, Muhammad Arif P.W., Shaheen Bibi P.W., Khalid P.W. and Muhammad Farid P.W. under section 344-A, Cr.P.C. We order that compensation to these victims shall be paid in the following terms:--
(1) Said Usman appellant No.2 shall pay Rs.3,000 as compensation to Muhammad Arif complainant and P.W. in default whereof he shall suffer 6 months' R.I.
(2) Appellant No.3 Muhammad Saleh shall pay compensation to the tune of Rs.2,000 to Mst. Shaheen Bibi daughter of Mir Afzal and Rs.1,000 to Muhammad Khalid son of Abdul Malik P.W. in default whereof he shall suffer 6 month R.I.
(3) Appellant No.4 Abdul Qadoos shall pay compensation to Muhammad Farid to the tune of Rs.5,000 in default whereof he shall .suffer 6 months' R.I.
25. The appellants have already been given the benefit of section 382-B, Cr.P.C. which we accordingly confirm. Moreover, in view of the reasons recorded above we are not convinced to enhance the sentence of the appellants and, therefore, dismiss Revision Petition No.25 of 1990. Similarly we also dismiss Criminal Appeal No.37 of 1990 under section 417, Cr.P.C. filed against the acquittal of appellants Said Usman, Muhammad Saleh and Abdul Qadoos from the charge under section 302, P.P.C.
N.H.Q./1594/P Appeal dismissed.