Rustam Ali Malik, J.--Through this Judgment we intend to dispose of Crl. Appeal No. 1165/1999 as well as Murder Reference No. 479/1999, both arising out of the Judgment dated 3.11.1999 passed by the learned Additional Sessions Judge, Gujranwala, whereby he had convicted the appellant as under:--
(1) U/S 302 (a) P.P.C.: Death on two counts.
(2) U/S 394 P.P.C.: Imprisonment for 14 years on two counts. The accused/appellant was also directed to pay a fine of Rs. 50,000/- and in case of default in payment of fine, to undergo further R.
I for 2 years on each count. It was further directed that in case of recovery of fine, the same shall be paid to the legal heirs of the deceased as compensation.
2. The case against the accused/appellant is based on F.I.R. 151/95 U/S 302/94 P.P.C. registered on 4.4.1995 in Police Station Saddar Kamonke, District Gujranwala.
3. The formal F.I.R. Exh. PD/1 was registered on the basis of statement Exh. PD of Muhammad Ramzan, complainant (P.W.2) and wherein he had stated that he was engaged in the occupation of agriculture. 'On the day of occurrence he alongwith Muhammad Akhtar and Abdul Majeed P.Ws was present at the tubewell of Manzoor s/o Sardar. His paternal cousin Allah Rakha s/o Barkat Ali and nephew Muhammad Younas alias Farman Ali were proceeding, on a YAMAHA Motorcycle No. GAF-8733 towards Kamonke. The motorcycle was being driven by Muhammad Younas alias Farman Ali while Allah Rakha was sitting behind him. Around 1:15 p.m., they reached the Rajbah near the tubewell of Manzoor s/o Sardar when two unknown persons, (whose description is given in the F.I.R) and S.H.O equipped with pistols, suddenly emerged from the wheat crop, stopped their motorcycle and tried to snatch the same from them. Allah Rakha and Muhammad Younas resisted whereupon the aforesaid two persons fired at them with their respective pistols and who fell down after getting injured. Thereafter both the culprits proceeded on the motorcycle towards Dargahpur. The P.Ws took the injured to the Civil Hospital, Kamonke. Allah Rakha expired soon after reaching the hospital. Muhammad Younas alias Farman Ali was referred by the Doctor to General Hospital, Lahore but he expired while still on the way and hence the dead body brought back to Civil Hospital, Kamonke. Leaving Master Muhammad Sharif and Faqir Muhammad P.Ws near the dead bodies, the complainant was proceeding to the Police Station when the S.I./S.H.O. of Police Station Saddar Kamonke met him and who recorded his statement at 2:30 p.m.
4. After the investigation, the challan was submitted against the appellants. The formal charge was framed by the learned trial Court against the accused (whose name was inadvertently typed in the Charge Sheet as Mustqeem Mehmood). However he pleaded not guilty and the prosecution was thus asked to produce its evidence.
5. In this case the prosecution has examined as many as 13 P.Ws. Of them P.W.-12 Nisar Ali Shah, Inspector was posted as S.H.O. in Police Station Saddar Kamonke on 4.4.1995. On the said day he was present in Chowk City Kamonke in connection with patrolling duty when Muhammad Ramzan, complainant, met him. He recorded his statement Exh. PD and sent the same to the Police Station through a Constable for registration of formal F.I.R. Then he proceeded to the Civil Hospital, Kamonke and examined he dead bodies of the deceased persons and prepared the injury statements and also the inquest reports. Thereafter he proceeded to the place of occurrence and inspected the same. He asked Arif Hussain, Draftsman, to prepare the site-plan of the place of occurrence and who accordingly prepared the site-plans Exh. PL and Exh. PL/1. He took into possession three empties Exh. P1/1-3 of .30 bore pistol from the place of occurrence, collected the blood-stained earth from the spot and recorded the statements of the witnesses U/S 161 Cr.P.C. He took into possession the last Worn clothes of the deceased persons, which were produced before him by Muhammad Ashfaq, Constable No. 1405, after the post-mortem examination of the deceased.
6. P.W-13 is Dil Muhammad, S.I., who stated that on 17.7.1995 Mustahsam accused while in police custody made a disclosure and then led to the recovery of pistol i.e. weapon of offence from a bush near the bridge known as Ghania on G.T. Road. The pistol (P. 10) which was wrapped in a 'plastic shopper was taken into possession by him vide memo Exh. PH.
7. P.W.-6 is Dr. Riasat Ali, Medical Superintendent, Tehsil Headquarters Hospital, Kamonke, who on 4.4.1995 had conducted the post-mortem examination on the dead body of Allah Rakha deceased and had found three injures on the dead body. According to him all the injuries were caused with fire arm and were ante-mortem and the death had occurred due to excessive haemorrhage and shock. Seven de-shaped foreign bodies were found from pelvis and were handed over to the police in a sealed bottle. According to him the time between injuries and death was about 1/2 hour and that between death and post-mortem examination was about 2 hours. Exh. PJ is the carbon copy of the post-mortem report while Exh. PJ/1 is sketch of injuries.
8. On the same day, at 4:30 p.m., P.W-6 had conducted the post-mortem examination on the dead body of Muhammad Younas alias Farman Ali deceased and had found three injuries on the dead body. According to him all the injuries were ante-mortem and had been caused by fire-arm and the death had occurred due to brain trauma, haemorrhage and shock as a result of Injury No. 1.
Two de-shaped foreign bodies were recovered from Injury Nb. 1 while one such object was recovered from Injury No. 3 and which were handed over to the police in a sealed bottle. According to him the time between injuries and death was about 15 minutes and that between death and post-mortem examination was about 12 hours. Exh. PK is copy of the post-mortem report while Exh.
PK/1 is the sketch of injuries.
9. The eye-witness account in this case is furnished by P.W-1 Abdul Majeed and P.W-2 Muhammad Ramzan, complainant and who deposed on the same lines as indicated in the F.I.R.
10. On the conclusion of the prosecution evidence, the statement of accused U/S 342 Cr.P.C. was recorded and wherein he denied all the incriminating circumstances. In answer to a question as to why this case against him and why the P.Ws had deposed against him, Mustahsam accused replied as under:-- "That two young men were murdered in broad day light and their motorcycle was allegedly snatched by the unknown culprits. The police tried its level best to trace out the real culprits but in vain. There was pressure from the police as well as from the higher police officers upon the local police to trace out this case of robbery with murder. I have been made scape goat in this case although I am quite innocent. The occurrence is unseen. The witnesses Muhammad Ratnzan complainant and Sharif P.Ws are very closely related to the deceased. They have falsely deposed in this Court at the instance of police. The third alleged eye-witness has been cited in this case is Muhammad Akhtar who has been withheld by the prosecution although he was an independent witness who told the complainant party that he was not going to depose falsely against me or any innocent person. It is a case of no evidence.
Under the law and rules no body has identified me in jail in an identification parade held before the Magistrate. My name was not mentioned in the F.I.R. and as such my test identification parade was very essential.
11. The accused, however, did not make statement on Oath U/S 340(2) Cr.P.C. nor did he produce any evidence in defence. On the conclusion of trial, the learned trial Court convicted and sentenced the accused/appellant as aforesaid. Aggrieved of the impugned Judgment dated '3.11.1999, Mustahsam Mehmood, accused/appellant has filed the appeal (Crl. Appeal No. 1165/99).
The learned trial Court has sent a reference (Murder Reference No. 479/99) for confirmation of sentence of death awarded to the accused/appellant on two counts, in this case.
12. The learned Counsel for the appellant has argued that admittedly the accused were not known to the P.Ws. at the time of occurrence and the culprits were described as unknown in the F.I.R, yet no identification parade was held in this case; that the eye-witnesses in this case are clearly the chance witnesses and are related to the deceased and as such their testimony cannot be treated as trustworthy; that the medical evidence does not support the ocular account and that the other alleged accomplices of the appellant had remained absconders and no serious effort was made to arrest them; that the prosecution evidence in this case is clearly discrepant and does not inspire confidence; that the medical evidence furnished by P.W-6 does not fully corroborate the ocular account; that the report of Forensic Science Laboratory Exh. PW in respect of the crime empties is negative and which means that the crime empties were not found wedded with the weapon of offence (.30 bore pistol) allegedly recovered from the appellant during the course of investigation and hence the whole structure of prosecution story falls to the ground; that the learned trial Court had drawn incorrect conclusion from the conflicting and discrepant prosecution evidence; that the prosecution has miserably failed to prove any of the 'charges against the accused in this case and hence the accused/appellant is entitled to benefit of doubt and hence to acquittal.
13. On the other hand, the learned Counsel for the State has supported the Judgment of the learned trial Court and has argued that there is convincing evidence on record to warrant conviction; that in this case the prosecution has produced unimpeachable evidence and the charges in this case are fully established against the accused/appellant beyond reasonable doubt and hence the learned trial Court had rightly convicted and sentenced the accused/appellant in this case. He has requested that the appeal filed by the appellant be dismissed and the sentence of death on two counts awarded to the appellant by the learned trial Court for the commission of Qatl-i-amd of two innocent persons be upheld.
14. We have carefully considered the arguments advanced from both sides. Admittedly the eye- witnesses of the occurrence i.e. P.W-1 and P.W.-2 had no previous enmity with the accused. Their relationship with the deceased does not render their testimony as untrustworthy. It is not believale that they would like to let off the actual culprits and to implicate the accused/appellant falsely in this case. Even though no identification parade was held in this case but this is not sufficient to strike down the prosecution story. The eye-witnesses deposed about the occurrence before the learned trial Court in the presence of the appellant and there was no reason for them to depose falsely against him. Even through the crime empties were not found to the wedded with the pistol (Exh. P.10) as per report of the Forensic Science Laboratory, yet as the recovery of weapon of offence is merely a corroborative piece of evidence, it does not make any difference if a weapon of offence is not at all recovered or if recovery is not found wedded with the crime empties. The eye witnesses of the occurrence i.e. P.W.-1 and P.W.-2 were subjected to lengthy cross-examination but could not be shaken. The ocular account in this case is fully corroborated by the medical evidence furnished by P.W-6 Dr. Chaudhry Riasat Ali, who had conducted the post-mortem examination on the dead bodies of the deceased persons on 4.4.1995. Nothing favourable to the accused had come on record during the course of investigation as well. The defence version of the accused/appellant does not inspire confidence. It is not understandable as to why under public pressure and as a result of the pressure of the higher police officers, any one would be made an scape-goat and would be falsely implicated in a case of this nature. There is no reason as to why the eye witnesses would depose falsely against the accused. Giving up of the third eye-witness in this case by the prosecution does not have any adverse effect on the prosecution story because it is not necessary for the prosecution to examine all the eye-witnesses in a case. In order to snatch a Motorcycle only, the accused/appellant and his accomplice (since absconding) had done to death two innocent persons.
15. In view of the evidence on record, the learned trial Court had rightly held the appellant guilty.
However, as the proof of the offence of Qatli-amd liable to Qisas as required U/S 304 P.P.C. is not available in this case, we are inclined to convert the conviction of the accused/appellant from Section 302(a) P.P.C. to Section 302(b) P.P.C. Therefore, we accordingly convert the conviction of the accused/appellant from Section 302(a) P.P.C. to 302(b) P.P.C. but maintain the sentence of death on two counts as awarded by the learned trial Court. The accused/appellant shall be liable to pay an amount of Rs. 50,000/- on each count to the legal heirs of the deceased persons as compensation U/S 544-A Cr.P.C. instead of payment of fine of Rs. 50,000/-. In case of default in payment of compensation, he will undergo S.I for six months on each count.
16. With the above modification in the impugned Judgment, the appeal (Crl. Appeal No. 1165/99) filed by Mustahsam Mehmood, appellant, is dismissed. The sentence of death awarded to him by the learned trial Court on two counts for committing Qatl-i-amd of Allah Rakha and Muhammad Younas alias Farman Ali, deceased, is confirmed. Murder Reference (No. 479/99) is answered in the Affirmative.