2018 P Cr. L J 1159
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
ZUBAIR AHMED and another ---Appellants
Versus
The STATE and another ---Respondents
Criminal ATA Appeal No. 234 and Murder Reference No. 11 of 2014, decided on 21st June,
2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 436 & 427---Anti -Terrorism Act (XXVII of 1997), S. 7---Qatl -i-amd,
attempt to commit qatl -i-amd, mischief causing damage to the amount of fifty rupees,
mischief by fire or explosive substance wi th intent to destroy house etc., act of terrorism ---
Appreciation of evidence ---Medical evidence---Prosecution case was that accused along with
other absconding accused made indiscriminate firing upon the passenger wagon, which
resulted into setting on fire the wagon, shops and other vehicles and thereby caused lost of
seventeen innocent lives as well as damage to the properties of general public---Unnatural death of seventeen persons were not disputed--- Soon after the occurrence, the dead bodies
were shifted to hospital, where Medical Officers carried out the medical examinations of dead bodies ---Medical Officers had opined that bodies were severely burnt and were unable to
recognize even the gender and ages of dead bodies ---Medical Officers issued Medico -Legal
Certificates of dead bodies which confirmed the unnatural death of deceased persons ---
Defence had not disputed the unnatural death of deceased but pleaded his false implication---Medical Officers had taken medical aid to the injured witnesses and issued Medico -Legal
Certificates with regard to injuries sustained by the injured witnesses ---Circumstances
established that seventeen persons died unnaturally and due to the act of accused---Appeal against conviction was dismissed in circumstances.
(b) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 436 & 427---Anti -Terrorism Act (XXVII of 1997), S. 7---Qatl -i-amd,
attempt to commit qatl -i-amd, mischief causing damage to the amount of fifty rupees,
mischief by fire or explosive substance with intent to destroy house etc., act of terrorism ---
Appreciation of evidence ---Ocular account ---Ocular testimony produced by two witnesses,
who were driver and cleaner of the wagon, which was torched on fire ---Said witnesses stated
that on the day of occurrence, they were loadi ng the petrol and diesel on the roof of wagon,
when three armed persons came there and started indiscriminate firing on the wagon---
Accused and absconding accused were identified by the witnesses ---Wagon was full of both
male and female passengers, while a passenger was sitting on the roof top of the wagon---
During the firing, said passenger fell down from the roof of the wagon ---Firing bullets hit to
the passengers and the wagon caught fire, due to which the passengers and the nearby shop were burnt to ash es---Witness of ocular account identified the accused in the court as a culprit
of occurrence, who made firing upon the wagon and witnesses ---Other witness of ocular
account recorded his statement, which was in line with the statement of witness and
corrob orating his statement on all counts ---Statements of both the eye -witnesses were found
reliable because their presence at the time of incident being driver and cleaner of wagon, was natural as the wagon was loaded with passenger ---Record showed that both the witnesses
were independent and credible, had no relationship with the accused and had no business rivelry, reason to falsely implicate the accused ---Defence had cross -examined both the
witnesses at sufficient length but had failed to give dent or damage to their testimony ---
Appeal against conviction was dismissed in circumstances.
(c) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 436 & 427---Anti -Terrorism Act (XXVII of 1997), S. 7---Qatl -i-amd,
attempt to commit qatl -i-amd, mischief causing damage to th e amount of fifty rupees,
mischief by fire or explosive substance with intent to destroy house etc., act of terrorism ---
Appreciation of evidence ---Allegation of firing on a passenger wagon killing seventeen
persons injuring several persons resulting into s etting on fire shops and other vehicles as well
as damage to public properties ---Circumstantial evidence ---Prosecution had produced the
evidence of natural witnesses, who were injured at the time of the incident ---Prosecution had
produced the circumstantia l evidence through the statements of eight witnesses ---Though
none of the witnesses had seen the accused making firing but being natural witnesses, mostly shopkeepers and passengers, their presence at the time at the place of occurrence was natural -
--Most of them had received number of bullet injuries on their persons ---Statements of said
witnesses coupled with the statements of the other witnesses rebutted the claim of defence, who alleged that fire ablazed due to some other reason like open sale of petrol and diesel and
not due to firing of accused---All the said witnesses had categorically stated that accused
persons made firing with firearms which resulted into setting the fire in the vehicle and shops ---Contention of defence was further rebutted by the recovery of thirty one empties of
Kalashnikovs that were taken into possession from the place of occurrence ---Circumstances
established that indiscriminate firing had taken place before the incident.
(d) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 436 & 427---Anti -Terrorism Act (XXVII of 1997), S. 7---Qatl -i-amd,
attempt to commit qatl -i-amd, mischief causing damage to the amount of fifty rupees,
mischief by fire or explosive substance with intent to destroy house etc., act of terrorism ---
Appreciation of evidence ---Disclosure by accused ---Admissibility ---Accused disclosed the
names of absconding accused persons as his accomplices and narrated the manner in which
they planned to launch the attack---Accused also pointed the place of occurrence---Since discl osure of accused disclosed the discovery of new facts which earlier was not known,
therefore the same was admissible piece of evidence.
Muhammad Amjad v. The State PLD 2003 SC 704 rel.
(e) Penal Code (XLV of 1860) ---
----Ss. 302, 324, 436 & 427---Anti -Terrorism Act (XXVII of 1997), S. 7---Criminal
Procedure Code (V of 1898), S. 161---Qatl -i-amd, attempt to commit qatl- i-amd, mischief
causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to destroy house etc., ac t of terrorism ---Appreciation of evidence ---Statement of
witnesses recorded belatedly ---Effect ---Defence objected that the statement of witnesses
under S. 161, Cr.P.C. was recorded at belated stage ---Delay in recording the statements of
witnesses by the In vestigating Officer was well explained ---All the witnesses were either
seriously injured or their close relatives had lost their lives in the incident and even they were
shocked being escaped from the death from a heartbreaking incident ---Most of the witne sses
were admitted to the hospital being received bullet injuries ---Few witnesses were busy in
Fateha---Said situation justifiably explained the factum of delay caused in recording statements of witnesses under S. 161, Cr.P.C.
(f) Criminal Procedure Code (V of 1898) ---
----S. 161---Statement of witness recorded under S. 161, Cr.P.C. at belated stage ---Effect ---If
the statement of witnesses recorded under S.161, Cr.P.C. at belated stage, such evidence
could not be given the sanctity as was generally given t o the evidence of a witness whose
statement had been recorded promptly soon after the occurrence ---If the delay was reasonably
and justifiably explained and explanation appealed to the logic and rang true, the evidence of
such witnesses could not be discar ded merely on the ground of being recorded at belated
stage.
Haji Allah Bakhsh v. Intisar Ahmed and others 2012 SCMR 1281; Shabbir Hussain
and others v. The State 1999 MLD 2332; Qaiser Hussain alias Kashi alias Kashif v. The State
2011 PCr.LJ 1126 and Al lah Dina v. The State 2003 PCr.LJ 1946 rel.
Taj Muhammad Mengal for Appellant.
Muhammad Yahya Baloch, D.P.G. for the State.
Date of hearing: 17th May, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.234 of
2014 filed b y the appellant Zubair Ahmed son of Hazoor Bakhsh, against the judgment dated
10th September 2014 (hereinafter referred as, "the impugned judgment") passed by the learned Special Judge, Anti -Terrorism Khuzdar (hereinafter referred as, "the trial Court"),
whereby the appellant along with the absconding accused were convicted under sections 302,
324, P.P.C. read with section 7 of A.T.A., 1997 and sentenced to death on eight (08) counts and they shall be hanged by neck till they be dead; they were also convict ed and sentenced
for life with fine of Rs.100,000/ - (Rupees One Lakh) each under sections 436, 427, P.P.C.
read with section 7 of Anti -Terrorism Act, 1997 and in default to pay fine further suffer
imprisonment for one year's S.I.
2. Facts of the case are t hat on 2nd November, 2012 the complainant Abdul Qadir
Qambarani, SI, lodged FIR No.166/2012 at Police Station City Khuzdar under sections 302, 324, 436, 427, 34, P.P.C. read with section 7 of Anti -Terrorism Act, 1997, stating therein that
on the day of occ urrence he along with other police officials was patrolling the area, when at
about 01.45 p.m. through wireless received information that near Jhalawan Complex fire set on a shop, hence on such information he reached at the Jhalwan Complex new Adda and found that the fire was set on a wagon and five shops and due to fire the passengers were
stuck inside the wagon, hence, through fire brigade the fire was extinguished and on checking twelve persons were burnt inside the wagon and five other dead bodies were found nearby or
inside the shops, while six others were injured. The complainant further averred that on query
it revealed to him that Muhammad Ramzan son of Sawal Khan was sitting in his shop, when unknown accused armed with sophisticated weapon came ther e on motorcycles and made
indiscriminate firing upon him, due to which Muhammad Ramzan was seriously injured, while five others namely Muhammad Rafiq, Muhammad Hanif, Allah Bakhsh, Shah Muhammad and Mst. Murwari were also injured. It is also alleged that due to fire five other shops, Chingchi Rickshaw and two motorcycles were completely burnt to ashes.
3. Pursuant to the above FIR, the investigation of the case was carried out by PW -15
Muhammad Murad Jamot, SHO, who during investigation visited the site and prepared site plan; taken the dead bodies to Civil Hospital and subsequently handed over the same to the legal heirs; he prepared inquest reports of dead bodies and prepared receipts regarding handing over the dead bodies; he obtained medical/death cer tificates of injured/deceased;
recovered empties of Kalashnikov from the place of occurrence; took into possession the
burnt wagon, Chingchi Rickshaw and motorcycles; recorded the statements of witnesses
under section 161, Cr.P.C.; arrested the appellant Z ubair Ahmed; recorded the confessional -
statements of PW -2 and PW -3 under section 164, Cr.P.C.; recorded the disclosure memo of
the appellant, who nominated the absconding accused and on completion of investigation
submitted the challan in the trial Court.
4. On receipt of challan, the trial Court issued warrants of arrest of absconding accused
namely Saadullah son of Haji Muhammad Yaqoob, Muhammad Elliyas son of Noor Muhammad, Samiullah son of Haji Abdul Hakeem and Haji Abdul Hakeem son of Khan Muhammad, w hich were not executed, thus proceedings under sections 87 and 88, Cr.P.C.
were carried out and they were declared as proclaimed offenders.
5. During the trial, the prosecution produced fifteen (15) witnesses, whereafter; the
appellant was examined under s ection 342, Cr.P.C. The appellant neither recorded his
statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and hearing arguments, the trial Court beside awarding life imprisonment to the appellant , also awarded him death sentence as mentioned in para -1 above. The
appellant against his conviction and sentence has preferred the Criminal Appeal No.234 of 2014, whereas the trial Court has forwarded Murder Reference No.11 of 2014 for confirmation or otherwise of the death sentence awarded to the appellant.
6. Learned counsel for the appellant contended that the prosecution has miserably failed
to establish the charge against the appellant; that only interested witnesses that were planted at subsequent st age were produced against the appellant at the trial and no independent
witness was produced before the Court, which is apparent from the fact that their statements under section 161, Cr.P.C. were recorded at belated stage, thus being not admissible reliable; the statements of such witnesses are liable to be discarded from consideration; that all the witnesses made contradictory statements to each other and even made certain dishonest improvements in their earlier depositions; that are alleged disclosure of the appellant is not
admissible being recorded whilst in police custody; that the case of prosecution is full of doubts, discrepancies and illegalities whilst committed during investigation and trial of the case, but the benefit of such doubts were not ex tended to the appellant and the appellant was
treated very harshly.
7. Learned Deputy Prosecutor -General while supporting the impugned judgment and
opposing the arguments so advanced by the learned counsel for the appellant contended that
the appellant alo ng with other absconding accused made indiscriminate firing upon the
passenger wagon, which resulted into setting on fire the wagon, shops and other vehicles and
thereby caused losses of 17 innocent and precious lives as well as damage to the properties of
general public; that the appellant has absolutely failed to point out any ulterior motives and ill-will on the part of PWs with regard to his false implication, hence the appeal deserves
dismissal as the trial Court has rightly awarded penalty of death to the appellant through
impugned judgment, which is not open for any interference by this Court.
8. Heard the learned counsel and perused the available record. Perusal of record reveals
that the unnatural death of seventeen persons are not disputed. Soon af ter the occurrence the
dead bodies were shifted to hospital, where PW -5 Ghulam Sarwar and PW -6 Dr. Rafiq
Ahmed, Medical Officers, D.H.Q. Hospital Khuzdar carried out the medical examination of
dead bodies and opined that the dead bodies were so severely bu rnt that were unable to
recognize even the gender and ages of dead bodies. PW -5 and PW -6 issued MLCs of dead
bodies as Ex.P/5- A to Ex.P/5- J and Ex.P/6- B to Ex.P/6- J and general detail report as Ex.P/5 -
M. The perusal of which confirms the unnatural death of deceased namely (1) Yasir son of
Ahmed, (2) Mst. Kalsoom Bibi daughter of Raza Muhammad, (3) Bibi Khatoon wife of Muhammad Bakhsh, (4) Muhammad Waris son of Abdul Qadir, (5) Mst. Hoorain daughter of
Naseer Shah, (6) Mst. Sameera daughter of Nazeer Shah, ( 7) Haji Muhammad son of Gul
Muhammad, (8) Mst. Khan Bibi wife of Muhammad Umer, (9) Fazal -ur-Rehman son of
Abdul Hayee, (10) Abdul Hakeem son of Ghulam Nabi, (11) Abdul Qadir son of
Muhammad, (12) Bibi Asha wife of Meer Muhammad, (13) Javed Ahmed son of Muneer Khan, (14) Mst. Meerani wife of Kareem Bakhsh, (15) Abdul Qayyum son of Abdul Hakeem and few other unknown persons died. The defence has also not disputed the unnatural death of deceased, but pleaded his false implication. PW -5 and PW -6 also taken medical aid to the
injured witnesses and issued MLCs with regard to injuries sustained by the injured witnesses.
9. Adverting to ocular testimony produced by the prosecution, which is in the shape of
direct, circumstantial and medical evidence. The medical ev idence has already been
discussed above, hence it would be appropriate to discuss the direct evidence produced by the prosecution in the shape of statements of PW -2 and PW -3, who are the star witnesses of the
prosecution. PW -2 Zafarullah, is the Cleaner, w hile PW -3 Muhammad Arif is the driver of
unfortunate Wagon, which was torched on fire. PW -2 Zafarullah stated that on the day of
occurrence at about 1.45 at New Adda Khuzdar, he was loading the gallons of Petrol and Diesel on the roof of the wagon, when three armed persons suddenly came over there and enquired about the ownership of vehicle to be owned by Moula Bakhsh, to which he (PW -3)
replied in negative, but they started indiscriminate firing upon the wagon and whilst making firing, two of the armed per sons faces unveiled, who were identified as Zubair (present
appellant) and Saadullah (absconding accused). further stated that the wagon was full of both male and female passengers, while due to firing a passenger namely Rafiq fell down from the roof of th e wagon, while he (PW -2) also fell down from the roof of the wagon, but he
concealed himself in a nearby hotel. PW -2 further stated that due to firing bullets hit to the
passengers and also the wagon was set on fire, due to which the passengers and the nea rby
shopkeepers burnt to ashes, whereafter the accused escaped towards eastern side. PW -2
identified the appellant Zubair in the Court as a culprit of the occurrence, who made firing upon the wagon and passengers. The second star witness of the occurrence is Muhammad Arif, Driver, who appeared as PW -3 and recorded his statement in line with the statement of
PW-2 by corroborating his statement on all counts. PW -3 also stated that whilst making firing
two of the culprits were demasked, who were identified as Saadullah (absconding accused) and the Zubair Ahmed son of Hazoor Bakhsh. PW -3 admitted in his cross -examination that
he is resident of Archanoo, while the appellant belongs to Zehri area and both the areas are
situated at far distance. PW -3 further admitt ed that he had no business relations nor
relationship with the said Zubair and even he never visited the house of appellant nor the appellant had ever visited his house. PW -3 further admitted that he had no enmity with the
appellant Zubair.
10. We at our u tmost care, caution and by applying judicious minds analyzed the
statements of both the eye -witnesses and found the same reliable, because both the witnesses
being the driver and the cleaner of the wagon, their presence at the time of incident is natural as the said wagon was loaded with passengers and was in the way to its destination. Besides,
both the PWs will never raise their fingers on innocent person leaving the actual and real culprits, who had not only burnt their vehicle, which was only source of their income, but also had taken the lives of innocent passengers including women, who were travelling in the said wagon coupled with the fact that the lives of both the witnesses were also at risk. It has
come on record that both the witnesses had absolut ely no relationship with the appellant and
also had no business rivalry, landed dispute, tribal enmity or any sort of other disputes, thus
there was no occasion for both the PWs to falsely implicate the appellant in the commission of such a heinous crime a nd that too without any rhyme or reason. Thus, in our view both the
witnesses are independent and credible witnesses. The defence has cross -examined both the
witnesses at sufficient length, but has failed to give any slightest dent or damage to their testimony, rather from the cross -examination the commission of crime by the appellant has
been confirmed and new facts were emerged. Although, the learned counsel for the appellant attempted to discredit the case of prosecution on the basis of some minor discre pancies in the
evidence of prosecution witnesses but in our opinion, those are not substantive enough to justify or create reasonable doubt in the case of prosecution about the involvement and guilt
of the appellant.
11. The complainant of the case appeared as PW -1, who reiterated the contents of fard- e-
bayan Ex.P/1- A. According to the PW -1 on the day of occurrence, he along with other police
was patrolling the area, when received information about the occurrence, thus he rushed to the place of occurrence, where he found burning the wagon, other vehicles and five shops, whereafter the blaze were tackled through the fire brigade and the complainant found twelve dead bodies in the wagon, while five dead bodies inside and outside the nearby shops, besides six o thers were also injured.
12. Adverting to the circumstantial evidence, suffice to observe here that the prosecution
has mostly produced the evidence of natural witnesses, who were injured or were luckily saved at the time of tragic incident. PW -4 Ali Asgha r at the relevant time was present at the
place of occurrence, when the tragic incident took place, in which his Chingchi Rickshaw was burnt to ashes. PW -4 confirmed that the fire was ablaze due to sudden firing. PW -7
Muhammad Hanif is the owner of a shop situated nearby the place of occurrence. PW -7
confirmed the arrival of wagon and sudden firing by the muffled faces persons having Kalashnikov and due to such firing two bullets were also hit to the said witness. PW -8
Muhammad Rafiq, was the passenger in t he said wagon, who at the time of firing was sitting
on the roof top of the said wagon, but soon after the firing, he jumped from the wagon, but survived despite he received seven bullet injuries. PW -10 Moula Bakhsh is the owner of the
wagon, who though wa s not present at the relevant time, but he has confirmed that the said
wagon belonged to him. PW -11 Allah Bakhsh and PW -12 are also shopkeepers, who have
narrated the occurrence. The said witnesses had also received bullet injuries. PW -13 is also a
shop ow ner at the place of occurrence and during the said incident his nephew received bullet
injures, but subsequently succumbed to the injures. PW -14 Sikandar is, the owner of a
motorcycle, which was burnt in the said incident.
13. The prosecution has produced the circumstantial evidence through the statements of
PW-4, PW -7, PW -8, PW -10, PW -11, PW -12, PW -13 and PW -14. Though none of the
witnesses had seen the appellant making firing, but being natural witnesses and mostly
shopkeepers, passengers etc. their presence at the time and the place of occurrence was natural, when otherwise most of the witnesses had received number of bullet injuries on their persons. The statements of said witnesses coupled with the statements of other witnesses rebuts the claim of the learned defence counsel, who during cross -examination made an
unsuccessful attempt to say that the fire ablaze due to some other reasons as in the past such incidents of blazing had taken place due to open sale of petrol and Diesel and not due to firing of the appellant. All the witnesses have categorically stated that the accused made firing with fire arms, which resulted into setting the fire in the vehicles and shops. The
contention of the defence has further been rebutted from the recovery of 31 number of
empties of Kalashnikov that were taken into possession from the place of occurrence, which
is suggestive of the fact that before the incident of burning indiscriminate firing had been taken place.
14. The case of prosecution has further been strengthened from the disclosure memo of
the appellant recorded by the Investigating Officer, suffice to observe here that the same was recorded in presence PW -9, who produced the same as Ex.P/9- A and Ex.P/9- B, perusal of
which reflects that the same relates to discov ery of new facts. The names of accomplices of
the appellant were earlier not known to the prosecution. The appellant voluntarily disclosed the names of absconding accused as his accomplices and narrated the manner, in which they
planned to launch the attac k and after commission of crime their arrival in the house of
accused Abdul Hakeem. The appellant also pointed the place of occurrence. Since disclosure of appellant disclosed the discovery of new facts which earlier was not known, therefore, the same is an admissible piece of evidence in the case titled Muhammad Amjad v. The State PLD 2003 SC 704, the Hon'ble Supreme Court held as under:
"Further it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer; such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appel lant under Article 40 ibid relating to
incriminating articles is admissible."
15. We have given anxious thought to the submission made by the learned counsel for the
appellant with regard to recording the statements of witnesses under section 161, Cr.P.C. at belated stage and it has been observed that the delay so occasioned in recording the statements of witnesses by the Investigating Officer is well explained. All of the witnesses were either seriously injured or their close relatives had lost their lives in the said tragic
incident and even they were shocked being escaped from the death and had saw the tragic and heartbreaking incident. Most of the witnesses were admitted to the hospitals being received bullet injuries and few witnesses were busy in Fateh a. This explains the factum of delay
caused in recording statements of witnesses under the provisions of section 161, Cr.P.C. We are conscious of the fact that in a criminal case when 161, Cr.P.C. statement is delayed; such evidence may not be given that s anctity as is generally given to the evidence of a witness
whose statement has been recorded promptly soon after the occurrence, but simultaneously
where the delay is reasonably and justifiably explained and such explanations appeals to the
logic and rings true, the evidence of the such witnesses cannot be discarded merely on the
sole ground of being recorded at belated stage. In the case in hand, the delay so caused has well reasonably explained by the witnesses in recording their statements, thus such ground is also not helpful to the case of appellant. Even otherwise, it is the sole discretion of the Investigating Officer to when record the statement of a witness. Reliance in this regard is placed on the case of Haji Allah Bakhsh v. Intisar Ahmed and othe rs, 2012 SCMR 1281,
wherein it has been held as under:
"Learned counsel has vigorously argued that if Talib Hussain was present in the hospital at the time of recording of FIR, he should have made his statement then and there. In this regard, it may be not ed that it is dependent upon the Investigating
Officer as at what time he would record the statement of a witness..."
Likewise, the Hon'ble Federal Shariat Court in the case of Shabbir Hussain and others
v. The State 1999 MLD 2332, has overruled such like objection of defence, whereby the 161,
Cr.P.C. statement of a witness was recorded at belated stage. The relevant portion is reproduced hereinbelow: --
" ...However, it is worth mentioning that the statements under section 161, Cr.P.C. of
both these P.Ws. were recorded after about ten months of the occurrence ... This
explains the factum of delay caused in recording statements of P. W. 4 and P.W.6, under the provisions of section 161, Cr.P.C. The reason why the local police opted to occasion such a long del ay must be known to them as nothing is available on record in
this connection. However, keeping the very fact in view that P.W.5 and P.W.6 had
been going to the police throughout after the occurrence for recording their statements, the case of complainant who had no enmity with the accused cannot be allowed to be adversely affected merely for this reasons. We may mention here that we are conscious of the fact that in a criminal case when it comes on record that the witness has appeared before the police of first available opportunity but his statement under section 161, Cr.P.C. was delayed, his evidence may not be given that sanctity as is generally given to the evidence of a witness whose statement has been recorded no sooner he made appearance before the police. However, where the delay in recording the statements has been explained, the evidence of the witnesses cannot be discarded merely on this ground and especially so when evidence on the file reflects that the investigation was mala fide. It may also b e mentioned that section 161, Cr.P.C. gives
the Investigating Officer discretion in the matter of recording the statement of witnesses but that discretion is to be exercised soundly and not arbitrarily and certainly not in such a manner as to either handic ap the accused in their defence or
deprive the Court of valuable material ascertaining the truth. Any omission of Investigating Officer in this respect, therefore, must be viewed with caution and weighed properly so that neither any side is prejudiced nor the purpose of law to arrive at just conclusion is frustrated. Therefore, the evidence of P.W.5 and P.W.6 which provides an important link in the chain of events that culminated in the murder of Abdul Razzaq cannot be discarded merely for the reasons that their statements were not recorded in time as sufficient explanation exists on record for the same and they have subsequently made statements on oath before the trial Court and have been duly subjected to lengthy cross examination by the defence but to no advantage.
Similar view has been taken by the Hon'ble Lahore High Court in the came of Qaiser
Hussain alias Kashi alias Kashif v. The State, 2011 PCr.LJ 1126, wherein it was held that,
"Recording of statement of prosecution witness with delay is not by it self sufficient to discard
its value, the circumstances make it so... If statement is delayed due to certain ulterior motives like filling up certain lacunas in prosecution version, then it becomes valueless and if circumstances justified then every statement recorded with delay is not to be discarded." This Court in the case of Allah Dina v. The State, 2003 PCr.LJ page 1946, has held as under:
"Now reverting to the contention that, statements of witnesses since were recorded with delay of six months, there fore, same may be excluded from consideration. Mr.
Aslam Chishti, learned counsel contended that explanation given by the Investigating Officer regarding delay in recording statements is not plausible. We are not persuaded to agree with the learned counsel . Soon after the incident appellant absconded and it
appears that relatives of the deceased persons came to the place of incident and before arrival of police, the dead bodies were removed as they did not want to lodge report, as the parties were closely r elated. Removal of the bodies further supports this fact,
which further strengthens the statement of Investigating Officer. The Elders did not allow for exhumation of dead bodies and further it has come on record that, the Elders and Notables of the deceas ed and appellant did not allow the said witnesses to be
examined and further when the Notables stopped interference, both the ladies appeared and got recorded their statements. The explanation given by the Investigating Officer regarding delay in recording statements of both the witnesses
appears to be satisfactory and appeals to a prudent mind. Thus, the contention the learned counsel regarding delay in recording statements of the witnesses is repelled."
16. The reappraisal of entire prosecution evidence e stablishes the fact that the prosecution
has succeeded in proving the charge against the appellant through direct, circumstantial and medical evidence. No major contradiction or dishonest improvement has been pointed out by the learned defence counsel to t he statements of prosecution witnesses. The recovery of 31
empties of Kalashnikov from the place of occurrence coupled with the volunteer recording of disclosure of the appellant have further strengthened the case of prosecution. Throughout the proceedings the appellant has not taken any specific plea with regard to his false implication
nor he has brought any ill -will or ulterior motives for his false implication by the witnesses
and specially against the PW -2 and PW -3, who being natural witnesses directly witnessed the
crime. The learned trial Court has discussed and dilated upon each and every aspect of the case and rightly convicted and sentenced the appellant for capital punishment as there were no mitigating circumstances to award lesser punishment to the appellant. The impugned judgment of the trial Court being well -reasoned is not open for any interference by this Court.
For the above reasons, the appeal is dismissed and the Murder Reference sent by the
learned trial Court is answered in affirmative.
JK/114/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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