M. Naeemullah .Khan Sherwani, J.--The way in which this appeal arises is this Khubaib son of Manzoor, Zulfiqar son of. Muhammad Hayat and Basharat Ali son of Mubarak Ali were tried by a learned Additional Sessions Judge at Kasur for the murder of Muhammad Siddique brother of Abdul Majeed complainant. By virtue of his judgment dated 24.12.1996, the learned trial Judge found them guilty of the said charge, convicted them under Section 302(b) PPC and punished them with imprisonment for life each. They were also directed to pay an amount of Rs. 50,000/- each to legal heirs of the deceased by way of compensation as envisaged by the relevant provisions of Section 544-A Cr.P.C. or in default whereof to further undergo simple imprisonment for six months.
2. By filing Criminal Appeal No. 115 of 1996 Khubaib and Zulfiqar and by filing Criminal Appeal No. 241 of 1996, Basharat Ahmad convicts have impugned conviction and sentence passed against them by the said learned Judge. Abdul Majeed complainant has filed Criminal Revision No. 57 of 1996 praying therein that appellants be awarded capital punishment provided under the law. It was admitted to regular hearing on 22.12.1997 only to the extent of Khubaib convict. Notice for enhancement of sentence was issued to him. All these matters are being disposed of together through this single judgment.
3. Occurrence of the alleged incident took place on 18.1.1995 at about 9.00 a.m. in the area of village Kotli Rai Abdul Bakar situate at a distance of fifteen kilometers from Police Station Sadar, district Kasur. The said occurrence was reported by Abdul Majeed, complainant (P.W.6), brother of the deceased, to Abdul Haq SI (PW.12) who was available at police post Teh. Shaikhum and dictated his statement (Ex. PD) Abdul Haq recorded his statement faithfully and correctly and despatched the same to the police station for formal registration of a case. Consequent upon receipt thereof Muhammad Ibrahim, M.H.C. (PW.8) drew up F.I.R. (Exh. PD/l) at 11.00 a.m. on the same day, without any addition or subtraction on his part.
4. Abdul Majeed complainant (PW.6) expounded the following version: He is a cultivator by profession and lives in village Kotli RothRai Abu Bakkar. On 18.1.1995 his younger brother Muhammad Siddique was going to cut fodder for the cattle. His son Muhammad Hayat, Muhammad Azeem his brother and one Manna son of Khushi Muhammad were following him at some distance. They had to catch a bus bound for Kasur. Muhammad Siddique reached opposite to the house of Basharat son of Mubarak on the metalled road. Basharat, his friend Zulfiqar and Khubaib all armed with 7 M.M. rifles were concealing their presence near a culvert on the back of acacia arabica tree. They resorted to firing at Muhammad Siddique who in order to save his life got down from the metalled road. Khubaib fired at Muhammad Siddique. The bullets struck right side of his neck and produced a through and through injury. Companions of Khubaib continued firing at Muhammad Siddique. The witnesses raised commotion, which attracted co-villagers. The accused decamped from the spot while still firing. Complainant and others approached near Muhammad Siddique who had died by that time. He was besmeared with blood. General Public gathered at the spot. The dead body was placed on a cot and kept out side of his house. He then left for the police station to make a report of the occurrence. The complainant came across Abdul Haq SI (PW.12) at police post Teh. Shaikham and dictates his statement (Ex. PD). That is how he laid a foundation for criminal trial of the accused.
5. Now the vital interest of the police was to reach the spot to despatch the dead body to the mortuary for autopsy purpose, collect other important evidence from the spot and apprehend the accused as early as possible. Abdul Haq (PW.12) forthwith set at the most difficult task of investigation. After recording statement of the complainant, he rushed to the place of occurrence and carried out spot inspection, prepared rough site-plan (Exh. PL) of the place of occurrence. He also drew up injury statement (Ex. PJ), inquest report (Exh. PH) and despatched the dead body to the mortuary for postmortem examination under the escort of Niamat Ali (PW.3) and Umer Hayat.
He collected blood-stained soil, made the same into a sealed parcel and prepared seizure memo (Ex. PE). He also secured into prosecution three empties of 7 MM. rifle through memo (Ex. PF). After postmortem examination Niamat Ali constable produced before him last worn clothes of the deceased i.e. Chadar P.I, Shirt P.2, Sweater P.3, Bunyan P.4, Safa P.5 which were taken into possession by him vide memo (Ex. PA) On 7.2.1995 Basharat accused was arrested. On 11.2.1995 he led to the recovery of rifle (P.6) alongwith licence, which was taken into possession by him through seizure memo (Ex. PB), duly attested by Din Muhammad (PW.4) and Haq (not produced). On 18.2.1995 Khubaib and Zulfigar accused were arrested. He then sent for Muhammad Imran Patwari (P.W.5) and imparted him necessary instructions for preparation of site-plan of the venue of occurrence. Accordingly, he prepared site-plans in duplicate (Exhs. PC & PC/1) on pointation of the prosecution witnesses. Statements of all the relevant witnesses were recorded. After completion of investigation, report under Section 173 Cr.P.C. was prepared.
6. Challan was submitted before the Court. The learned trial Judge took cognizance of the case on receipt thereof. After observing all the legal formalities, charge against the accused was framed and put to hem. They emphatically denied correctness of the allegations and claimed to be tried.
Prosecution was forthwith directed to produce evidence of its choice to bring him guilt to the accused. Prosecution ventured to produce as many as twelve, witnesses in all.
Dr. Mian Muhammad Rauf P.W. 11 conducted autopsy on the dead body of Muhammad Siddique and fond two injuries on his person, According to him, death occurred due to haemorrhage, shock and injury to vital organ that is lungs which were sufficient to cause death in the ordinary course of nature. Abdul Majeed (PW.5) and Muhammad Azeem (PW.7) are eyewitnesses of the occurrence.
They in a nutshell reiterated story of the FIR. They fully supported the prosecution version. Din Muhammad (PW.4) testified to the factum of recovery of rifle (P. 6).
7. No more'evidence was required to be adduced by the prosecution, so learned prosecutor after tendering in evidence report of Chemical Examiner (Exhs. PM), report of Serologist (Exhs. PN) and report of the Forensic Science Laboratory (Exh. PO) declared the prosecution case close.
8. Trial had now shifted to the next crucial stage, which pertains to examination of accused under Section 342 Cr.P.C. All the incriminating evidence was brought to their notice to enable them to understand it and to offer handsome explanation with regard to the crime imputed to them. They professed their profound innocence in the matter and alleged their false involvement in this false case due to enmity with the complainant party. They opted not to produce evidence in defence and also declined to make statements on oath in disproof of accusations brought against them as envisaged by the relevant provisions of Section 340(2) Cr.P.C.
9. Learned counsel for both the sides addressed their arguments, which were duly considered by the learned trial Judge. He delivered verdict of guilt against the appellants and punished them as aforementioned.
10. Learned counsel for Khubaib and Zulfigar appellants submits that contents of FIR are absolutely silent over motive part of the occurrence. The appellants had no motive to commit the crime in question, that Abdul Majeed (PW.6) and Muhammad Azeem (PW.7) have appeared in the case to substantiate FIR version.. They Pare brothers inter-se. Siddique deceased is brother of both these eyewitnesses. Muhammad Hayat son of Abdul Majeed (PW.6) and Manna were dropped by the prosecution. They were neither present at the spot nor had seen the occurrence. The occurrence had taken place out side the village where deceased was over taken by some unknown assailants.
Complainant built up the story in the present form by entering into deliberations with others, that Khubaib was not found guilty by senior police officials. No recovery was effected from him. No corroboration from an independent and unimpeacable source is forthcoming, that nothing was recovered from Zulfiqar appellant. He has been falsely implicated in the case and that evidence has not been appreciated in its true perspective..
11. Learned counsel for Basharat appellant argues that Basharat was betrothed with daughter of the complainant. The engagement came to an end some 15/16 days prior to the occurrence, which caused annoyance to the complainant side and in order to avenge their insult, they pushed him as an accused in this case. It was also argued that recovery of rifle at the instance of Basharat is a patent fabrication. No such recovery was effected. Likewise report of the Forensics Science Laboratory is a procured piece of evidence and the same may be kept out of consideration. It was further argued that the occurrence took place on 18.1.1995 and the judgment was pronounced on 24.1.1996. Seven years have elapsed. No reason for the outbreak of incident was brought forward by the complainant in the F.I.R. the complainant also failed to attribute any motive to Khubaib for causing death of Muhammad Siddique deceased. Over and above this, the police gave him clean slate and in these circumstances extreme penalty of death is not called for and revision be dismissed.
12. Learned counsel for Zulfiqar appellant submits that he has been roped falsely in this case being friend of his co-accused. No recovery has been made at his instance. There was also no motive available at his end to join hands with his co-accused to kill Muhammad Siddique deceased. He also submits that he is not alleged to have caused any injury on any one.
13. On the contrary, learned counsel for the State assisted by learned counsel for the complainant submits that the appellants names figure in the first information report, which was lodged with the police within a reasonable span of time; that Khubaib appellant was attributed fatal shot at the deceased; that opinion of the police is not binding on this Court, rather in admissible in evidence, that rifle (P6) was recovered at the instance of Basharat appellant on 11.2.1995 and empty recovered from the spot has wedded with his rifle, which affords necessary corroboration to the allegation brought against him, and that Zulfiqar appellant was found guilty and was available at the spot, who had also made firing at the complainant side. Further submits that since fatal shot is assigned to Khubaib appellant and he has got away light sentence. The reason advanced by the learned trial Judge that it could not be known as to whose shot proved fatal, is not deep seated in evidence. This shot is clearly attributed to Khubaib appellant, so the normal penalty of death should be imposed upon him.
14. We have courteously heard and soberly considered respective arguments of both the sides and perused the record with their able assistance. Before entering into reappraisal of evidence we would like to furnish backdrop of the prosecution story which is the following.
15. On the day of occurrence, Muhammad Siddique, younger brother of Abdul Majeed complainant was on his way to fetch fodder for his cattle from out side the village. Complainant alongwith his son Muhammad Hayat, Muhammad Azeem his brother and one Manna son of Khushi Muhammad were following him at some distance. They had to catch a bus bound for Kasur. Muhammad Siddique reached opposite to the house of Basharat son of Mubarak on the metalled road.
Basharat, his friend Zulfiqar and Khubaib all armed with .7 M.M. rifles were concealing their presence near a culvert on the back of acacia arabica trees. They resorted to firing at Muhammad Siddique who in order to save his life got down from the metalled road. Khubaib fired at Muhammad Siddique. The bullets struck right side of his neck and produced a through and through injury. Companions of Khubaib continued firing at Muhammad Siddique. The witnesses raised commotion, which attracted co-villagers. The accused decamped from the spots while still firing.
Complainant and others approached near Muhammad Siddique who had died by that time. He was besmeared with blood. General Public gathered at the spot.
16.This version of the prosecution was inquired into by the police. Abdul Haq SI (PW.12) found Khubaib and Zulfiqar innocent. Raja Zafar-ul- Haq was also of the same view but he was neither produced by the prosecution nor by the defence. His evidence for that reason cannot lie brought under discussion. Abdul Haq SI (PW12) simply opined that Khubaib and Zulfiqar were not present at the spot. He also stated that his investigation was verified by SHO and DSP Raja Zafar-ul-Haq. The names of Khubaib and Zulfiqar were placed in Column No. 2 of the challan sheet. Recoveries were not made from both of them. His evidence depicts that certain people were examined by him during investigation and as per their statements, these accused were exonerated. Abdul Haq SI (PW.12) stated that about sixty persons stated before him that Khubaib and Zulfiqar were innocent and they had also offered to depose about their innocence on oath. We have to examine whether it is a legally admissible evidence and can validly be relied upon. In our view opinion of the police officials is not admissible in evidence. We may add here that none of those persons ever claimed to be eye witnesses of the occurrence. None of them was ever produced before the trial Court by the defence. This statement of the I.O. is immaterial to prove innocence of the above named appellants. This evidence is not worth anything. The statement of Abdul Haq SI that Khubaib and Zulfiqar were innocent is not admissible in evidence. The trial Court should not have recorded his statement in this manner.
17.Now we advert to the statements of Abdul Majeed (PW.6) and Muhammad Azeem (PW.7). They are not doubt brothers of the deceased. We have analyzed their statements. We find that they fully supported FIR version. Complainant had not mentioned motive behind the occurrence in the FIR but during trial he stated that Seraj Din, grand father of Basharat appellant had got land on mortgage basis and the complainant side had purchased that land. On the expiry of period of mortgage, Seraj Din refused to deliver possession of the land and land was got redeemed forcibly.
Bashir, the brother of Zulfiqar, appellant received fire arm injury and the complainant side was challaned in that case and earned acquittal after conclusion of the trial. This motive find mentioned at page 26 of the paper book. While describing motive part of the occurrence, Abdul Majeed (PW. 6) also furnished inter-se relationship of the appellants. According to him, Zulfiqar and Khubaib were cousins inter-se whereas Basharat was their friend FIR may not contain the whole relevant information about the incident. It is simply meant to put the police machinery into motion.
The mere fact that the above mentioned facts were not mentioned in the FIR would not mean that those were not in existence. We have drilled the whole evidence and have failed to find a little bit animosity on the part of the witnesses to depose falsely against the appellants. Both these witnesses were cross-examined at length but their testimony remained unshaken. The event had happened on 18.1.1995 at 9.00 a.m. whereas it was reported by the complainant to the police on the same day at 10.00 a.m. at Police Post Shaikam with great promptitude. There is nothing to suggest that witnesses ever deliberated with each other to invent a false story to involve them wrongly in this case. We take this story as genuine. Presence of witnesses through their conduct and narration of facts is amply proved. Both these witnesses agree in their testimony and the mere fact that they are related inter se would not constitute a sufficient ground for en-block rejection of their voucher.
In our estimate they are wholly reliable witnesses. Fatal injury is attributed to Khubaib. Rifle (P.6) was recovered from Basharat appellant on 11.2.1995. Empties recovered from the spot during spot inspection were despatched to the office of Forensic Science Laboratory on 1.2.1995 whereas rifle was despatched on 13.2.1995 for comparison purposes. Empty C-1 has matched with the rifle recovered from possession of Basharat appellant. This affords sufficient corroboration to his presence at the spot and having used arm and ammunition regarding which report of Forensic Science Laboratory is in the positive.
18. We find that no recovery could be effected from Khubaib and Zulfiqar. It is a day time occurrence. Identity of the accused is in no way in doubt. Appellants were fully known to the witnesses. Witnesses made no mistake with regard to identity or roles played by them in the occurrence.
The mere fact that no recoveries could be effected from Khubaib and Zulfiqar would not constitute a valid ground for their acquittal. We find that there is not a small speck of doubt with regard to their participation in the occurrence. Recovery of weapon of offence is not always sine qua non of conviction if sufficient evidence is available on the file. We find that both the witnesses have corroborated each other in all material particulars of the case. We have X-rayed statements of accused persons which are not supported by an atom's weight of evidence. They failed to make statements on oath under Section 340(2) Cr.P.C. as well. We discard their versions being patently false.
19. For all these reasons we dismiss their appeals while maintaining heir convictions and sentences awarded to them by the learned trial Court. Since occurrence took place on 18.1.1995, trial was concluded on 24.1.1996, appeal is being heard after about seven years and further that no motive is alleged against Khubaib, so we refrain from passing extreme penalty of death upon Khubaib appellant. Crl. Revision No. 57/1996 is also dismissed.