' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Appellants Muhammad Yousaf and Muhammad Younis along with 4 other accused namely Nabi Ahmad, Riaz Ahmad, Ghulam Haider and Hadayatullah were tried for the murders of Muhammad Idrees and Umar Hayat deceased in case F.I.R. No.267 of 1997 dated 20-8-1997 registered under sections 148/302/149, P.P.C. At Police Station Saddar Gojra by the Additional Sessions Judge, Gojra, who vide judgment, dated 16-2-2000, while acquitting the co-accused, convicted both the appellants under section 302(b)/34, P.P.C. And sentenced each of them to death as well as to pay compensation amounting to Rs.50,000 each to the legal heirs of the deceased as required under section 544-A, Cr.P.C.
2. Challenging their conviction and sentence both the appellants filed Criminal Appeal No.219 of 2000 while the complainant has filed Criminal Appeal No.222 seeking acquittal of respondents. Trial Court has also made a reference (Murder Reference No.91 of 2000) seeking confirmation of death sentence awarded to the appellants. All these matters are being disposed of together by this judgment.
3. Succinctly the prosecution case as narrated in F.I.R. Exh.P.A. Is that on 20-8-1997 at about 6-30 a.m. When Muhammad Shafqat complainant, Muhammad Latif and Muhammad Hanif P.Ws. Were going through the Bazar of the village, Muhammad Younis, Muhammad Yousaf, Nabi Ahmad, Riaz, Ghulam Haider and Hadayatullah tried to forcibly take over the possession of Ihata measuring 8 Marlas which was owned by Muhammad Iraz, real brother of the deceased. They prevented the accused from doing so. The accused exchanged abuses with Muhammad Idrees and Umar Hayat deceased. Thereafter Umar Hayat deceased tried to create passage towards above mentioned Ihata by demolishing the wall, all of a sudden appellant Muhammad Younis armed with spear, Nabi Ahmad, Riaz, Ghulam Haider and Muhammad Yousaf accused armed with .12 bore guns and Hadayatullah armed with Sota, emerged there. Allegedly, Hadyatullah raised Lalkara that Muhammad Idrees and Umar Hayat would be caught and murdered. Younis appellant inflicted Barchi blow on the head of Umar Hayat deceased who fell down. When Muhammad Idrees stepped forward to rescue Umar Hayat deceased, Muhammad Yousaf appellants fired with .12 bore gun at him which hit on his flank. Nabi Ahmad, Riaz, Ghulam Haider and Hadayatullah accused hurled bricks at Umar Hayat deceased which hit on his left eye, back of the head and backside.
When the complainant, Muhammad Latif and Muhammad Hanif P.Ws. Raised Lalkara, the accused while resorting to aerial firing decamped towards their houses. Muhammad Idrees succumbed to the injuries at the spot. After the occurrence, his brother Muhammad Arshad P.W. Also came at the spot. Umar Hayat in an injured condition was removed to General Hospital, Gojra from where he was referred to Allied Hospital, Faisalabad where he succumbed to the injuries.
' The motive behind the occurrence was that on 19-8-1997 Muhammad Younis and Muhammad Yousaf appellant had filled earth in the above mentioned 8 Marlas Ihata and had fixed their pegs for the cattle. Allegedly, all the accused in furtherance of their common intention, caused injuries to Muhammad Idrees who succumbed to the injuries at the spot while Umar Hayat succumbed to the injuries in the hospital.
4. After complying with legal formalities the Investigating Officer submitted the challan before the trial Court where prosecution produced sixteen witnesses including Muhammad Shafqat P.W.9 and Muhammad Hanif P.W.10, the eye-witnesses of the occurrence, to prove the charge against the appellants and their co-accused.
5. Trial Court also examined the appellants and their co-accused under section 342, Cr.P.C. While answering to the question, why this case against you and why the P.Ws. Have deposed against you, both the appellants replied as under:- "The case is false, Muhammad Shafqat complainant concocted a false story and in connivance with the police fabricated a false case against me and my co-accused. I and my alleged co- accused have been falsely implicated in this case. Muhammad Shafqat and Muhammad Hanif P.W.9 and P.W. 10 respectively and Muhammad Latif given up P.W. Had not witnessed the occurrence and were not present at the alleged occurrence. The P.Ws. Have made false statement being related to Muhammad Idrees and Umar Hayat both the deceased and being inimical to me and my co-accused. I was not present at the said occurrence and I did not take part in the said occurrence in any manner whatsoever. Nabi Ahmad my co-accused has made a detailed statement regarding the actual facts of the case. My answer with regard to the actual facts same." ' answer to the same question given by Nabi Ahmad accused reads as under:-- "The case is false, Muhammad Shafqat P.W.9 concocted a false story and in connivance with the police fabricated a false case. Myself and my alleged co-accused have been falsely implicated in this case. Muhammad Shafqat P.W.9 and Muhammad Hanif P.W.10 and Muhammad Latif given up P.W. Were not present at the time of alleged occurrence and they did not witness the said occurrence. The P.Ws. Have made false statement being related to Muhammad Idrees and Umar Hayat deceased and being inimical to me and my co-accused.
' The actual facts are that myself, my co-accused, Hadayatullah and Riaz were, in possession of the Ihata measuring 8 Marlas which was in front of our house and on the western side of the house of Muhammad Idrees and Umar Hayat prior to the said occurrence since 1982 and they were also in possession of the day of occurrence. Imtiaz and Aftab my brothers and brothers of Riaz accused were levelling up the "Thara" already situated in front of our house and that of Hadayatullah accused. Imtiaz and Aftab wanted to extend the said Thara upto northern boundary of the/ said Ihata. Imtiaz Ahmad and Aftab were doing the needful with Subble and Kassi respectively and were digging and putting some earth on the Thara in order to raise the level of the same. In the meantime, Umar Hayat and Muhammad Idrees deceased while both were armed with Sotas, Nazir alias. Pehlwan and Arshad P.Ws. While armed with gun came there and tried to stop Imtiaz and Aftab from doing their needful on the plea that Imtiaz and Aftab were encroaching the said Thara, while levelling the same into the above said Ihata. An altercation took place between Imtiaz and Aftab on one side and Umar Hayat, Muhammad Idrees, Nazir and Arshad mentioned above on the other side. Nazir Ahmad and Arshad P. Ws. Started firing at Imtiaz and Aftab while Umar Hayat tried to give a Sota blow to Imtiaz who saved himself by lowering himself and Imtiaz gave a Subble blow to Umar Hayat in the right of his self-defence. Nazir and Arshad P.Ws. Continued firing at Imtiaz and Aftab upon which Riaz accused, who were near that place in his house came out of his house with his licensed gun and fired in the air to scare away Umar Hayat, Idrees, Nazir and Arshad and that Idrees received a fire-arm injury from a stray fire from the firing made by Nazir Ahmad and Arshad P.Ws. Thereafter Umar Hayat, Idrees, Nazir and Arshad went into the house of Umar Hayat and Idrees and thereafter went to the Hospital. The entire prosecution evidence produced by the prosecution in this case is false and fabricated. Umar Hayat, Muhammad Idrees, Nazir and Arshad mentioned above were the aggressors. The complainant party being influential prevailed upon the police and falsely implicated me and my co..Accused. Imtiaz and Aftab were levelling the Thara on the said date at about 5 a.m. When Umar Hayat and others mentioned above aggressed upon Imtiaz and Aftab."
' The appellants and their co-accused did not make any statement under section 340(2), Cr.P.C.
However, they produced D.W.1 in their defence to show that weapon of crime recovered at the instance of Muhammad Yousaf was purchased by him after the occurrence.
6. Trial Court after appraisal of evidence available on record vide judgment, dated 16-2-2000 convicted and sentenced the appellants as narrated earlier.
7. Learned counsel for the appellants, in support of this appeal, submits that the F.I.R. In this case was not registered at the police station; complainant of this case met Javaid Ali, Inspector P.W.16, per chance and made statement on the basis of which formal F.I.R. Was registered and in the circumstances possibility that F.I.R. Was registered after deliberation and consultation could not be ruled, out. With regard to motive, it is submitted that the prosecution had failed to prove this part of the case; no evidence was produced before the trial Court to show that the land in dispute was in the physical possession of the complainant party and the trial Court had rightly disbelieved the motive part of the prosecution case. Submits that in the absence of any motive, the question how the occurrence took place is shroude,d in mystery; submits that in fact the land in dispute was in possession of the appellants party and it was the complainant party which launched attack to dispossess the appellants' party and made indiscriminate firing and in order to deter the complainant party co-accused Riaz made aerial firing and during this commotion both the deceased received injuries at the hands of their own party-men. It is submitted that both the eye- witnesses who had deposed before the trial Court were not present at the spot, both of them being real brothers of the deceased were brought into picture during the investigation. With regard to recovery evidence, learned counsel submits that blood on Barchi which was recovered after 25 days of the occurrence was not possible because the accused had ample time to wash the blood- stain. With regard to recovery of gun at the instance of Muhammad Yousaf appellant, it is submitted that the crime-empties which were collected from the spot were sent to the Forensic Science Laboratory after the arrest of the appellant, the said gun as established from the statement of D. W.1 was purchased by Muhammad Yousaf appellant many days after the occurrence and thus in the circumstances the possibility that after manufacturing the empties, the articles were sent to the office of Forensic Science Laboratory for report could not be ruled out and thus, the report obtained from the Forensic Science Laboratory is of no legal value. In the alternative learned counsel submits that since it is a case of sudden fight over the dispute of possession of land and award of capital sentence in the circumstances is not justifiable. On the contrary, learned counsel for the State as well as the complainant while supporting the impugned judgment, submit that it is a case of promptly lodged F.I.R. And no time was wasted in manufacturing the evidence. Both the witnesses who had deposed before the trial Court were natural and their presence at the spot stands established. The ocular account also finds corroboration from the medical evidence; that the land in dispute was in physical possession of the complainant party and it was the appellants and their co-accused who had aggressed to dispossess the complainant party and had committed the murder of two innocent persons; it is a case of daylight occurrence and there is no question of mistaken identity. The defence plea as apparent from the cross-examination of witnesses and the statements made by appellants under section 342, Cr.P.C. Is nothing but an afterthought.
8. With the able assistance of the learned counsel for the parties we have minutely gone through the record of this case. Two brothers namely Muhammad Idrees and Umar Hayat were done to death on 20-8-1997 at 6-30 a.m. In the area of Police Station Saddar Gojra, over the dispute of possession of eight Marlas of land which was contiguous to the residential houses of the complainant party as established from the record whereas the house of the appellants was just across the road opposite to the said land. According to the prosecution case the land in dispute was in their physical possession but contrary to that, stand of the, appellants was that they were the owner in possession of the land in dispute. Before the trial Court none of the parties produced any documentary evidence or an official from the Revenue Department in support of this claim over the land in dispute. The matter was reported to the police at 8-55 p.m. Near Gojra Hospital by the complainant after admitting. The injured at the hospital for medical treatment and thereafter formal F.I.R. Was registered at 9-05 a.m. In this view of the matter we are of the view that the F.I.R.
Was lodged without wasting any unnecessary time and argument of the learned counsel that the same was registered after consultation and deliberation has no force.
This occurrence took place few feet away from the house of the complainant party. Both the deceased who were the real brothers along' with their other brothers Shafqat P.W.9 and Hanif P.W.10 were residing in.The said house. The presence of both the said eye-witnesses being inmates of the house at the relevant time was very natural. While appearing before the trial Court both of them had not only supported the prosecution case but also had given all the minute details of the occurrence under which both the deceased were done to death by the appellants and their co- accused. The presence of both the eye-witnesses stands established from the evidence available on record and the circumstances of this case. During the cross-examination the defence had not only failed to shatter the credibility of these witnesses but also failed to bring on record an iota of evidence to show any direct enmity of the witnesses with the appellants to establish the possibility of their false involvement in this case. The ocular account also finds support from the medical evidence and this fact further establish the presence of the witnesses at the spot. Both the witnesses have deposed in a very natural manner. The statements of these witnesses inspire- confidence, ring true and in the circumstances we feel that the evidence of these witnesses does not call for any corroboration through any independent piece of evidence.
9. The ocular account also finds support from the recovery of incriminating articles recovered from the spot as well as from the appellant. Barchhi was recovered from Muhammad Younis appellant whereas gun was recovered from Muhammad Yousaf and the empties recovered from the spot had matched with the said gun. The report from the Forensic Science Laboratory Exh.P.Z. Is very much clear in this regard. Learned counsel for the appellant while challenging the legality of this piece of evidence heavily relied upon the statement of Ghulam Murtaza D.W.1, (Arms Dealer) who had deposed that the crime weapon was purchased from him by the appellant Muhammad Yousaf many days after the occurrence, it was argued that after manufacturing the empties, the articles were sent to the Forensic Science Laboratory. We are afraid, this contention of the learned counsel has no force. The said Arms Dealer never made any statement before the police or produced document prepared by him for the sale and purchase of the weapon. Similarly the said report from the Forensic Science Laboratory reveals that both the articles i.e. Crime-empties and gun were received on two different dates. Thus, there is no question to doubt the credibility of this piece of evidence.
10. No doubt the prosecution has failed to prove the motive part of this case and the immediate cause of occurrence is shrouded in mystery yet the circumstances available on record are sufficient to award capital sentence to the appellants. In a recent judgment of the apex Court passed in case titled Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCM R 427, it has been held by their Lordships that insufficiency of motive or motive being shrouded in mystery as well as where the occurrence resulting in a murder had taken place at the spur of the moment and even where only one shot had been fired and same had not been repeated, the only penalty deserved by the killer was the normal punishment of death prescribed for the said offence. In this view of the matter finding no force in the instant appeal the same stands dismissed.
11. Death sentence of both the appellants is confirmed and the murder reference is answered in the affirmative.
12. For the reasons discussed above Criminal Appeal No.222 of 2000 filed by the complainant against the acquittal of respondents stands dismissed.