1. ' The appellants, Mureed and Nazar Ali, have assailed the judgment, dated 30th December, 2002, passed by the learned Additional Sessions Judge, Kandhkot, in Sessions Case No,197 of 1992 (The State v. Mureed son of Rehman Bangwar and Nazar Ali son of Sattar Bangwar) under section 302/34, P.P.C. (Crime No,139 of 1992, P.S. "A" Section Kandhkot) and Sessions Case No,25 of 1993 (Hote son of Mir Hassan Bangwar v. Mureed and 3 others) whereby the appellants were convicted for offence under section 302/34, P.P.C. And sentenced them under section 302(c) read with section 34, P.P.C. To suffer R.I. For 25 years, each, and to pay compensation to the extent of Rs,1,75,000 to the L.Rs, of deceased Karam, half share each, and until the payment thereof they shall remain in jail as undergoing simple imprisonment on this score. The appellants have been given benefit of section 382-B, Cr.P.C.
2. ' The prosecution story as unfolded in the F.I.R. Is that on 26-9-1992, complainant Hote set the law into motion by lodging F.I.R. At Police Station Kandhkot, Jacobabad, stating therein that Karam and Gul Muhammad both sons of Chohar were his cousins who resided in village Sain Bux. About 4 years back his cousin Godho alias Khawand Bux son of Chohar was murdered by Mottan Bangwar and in that case Mithan Bangwar was challaned. The said case was pending trial in the Court having jurisdiction. The motive disclosed in the F.I.R., is to the extent that Sohrab Bangwar and others used to send "Nekmards" to the complainant party in order to bring an amicable settlement whereupon the complainant party used to tell them that since the case was pending trial in the Court of Sessions Judge, Jacobabad and whatever the Court decides the same shall be acceptable to them. It is further alleged in the F.I.R. That on the eventful day complainant, his brother Shahoo, cousin Karam and Gul Muhammad both sons of Chohar and cousin Muhammad Bux son of Mottan altogether proceeded from the village to Kandhkot in order to purchase household articles. At about 12-00 noon when they reached near "Ghanta Ghar" in Kandhkot Town, four persons namely Mureed son of Rehman, Nazar Ali son of Sattar, Rahamdil son of Ghouse Bux and Sohrab son of Raham Ali, all by caste Bangwar resident of Nabi Bux Bangwar, Taluka Kashmore, each of them having pistols in their hands, came in front of the complainant party and one of them namely Mureed asked them as to why they are not trying to bring an amicable settlement, hence they are going to be murdered leaving the Court to decide the matter among themselves. Saying so, accused Rahamdil aimed pistol at the complainant party while Mureed made straight pistol fire at Karam which hit him on his left shoulder as a result of which Karam fell down. Thereafter, accused Sohrab made straight pistol fire at cousin Gul Muhammad which hit him below his left armpit who also fell down whereas accused Nazar Ali made pistol fire on Karam, already fallen down, which instead of hitting him hit accused Mureed. Thereafter, all the four accused persons while boarding in a white Suzuki car, drove towards eastern side whereafter the complainant saw that Karam received fire on his left shoulder while Gul Muhammad received fire on the left side and they died. The complainant left his brothers Shahoo and cousin Muhammad Bux at the dead bodies and proceeded to police station where he lodged an F.I.R., as above. Police arrested all the four accused, named in the F.I.R. And recovered crime weapons i,e, pistol from accused/appellants Mureed and Nazar Ali and submitted Challan, placing the names of accused Rahamdil and Suhrab in column No,2 of the charge-sheet.
3. ' The complainant being aggrieved and dissatisfied, filed direct complaint in the Court of Civil Judge and F.C.M. Kandhkot against all the four accused named in the F.I.R. As Mureed, Nazar Ali and absconding accused Rahamdil and Suhrab. Since the offence under section 302, P.P.C. Was exclusively triable by the Court of Session and in order to ascertain the truth of allegations.
4. Preliminary enquiry was necessary under section 200, Cr.P.C. And thereafter the matter was referred to learned 1st Additional Sessions Judge, Kandhkot for recording statements of complainant under section 200, Cr.P.C. On 18-11-1992, which was done. The statements of two witnesses namely Muhammad Bux, Tailor Master, and Dr. Abdul Karim, Medical Officer, Taluka Hospital, Kandhkot, Jacobabad, in support of private complaint, were also recorded under section 202, Cr.P.C. In which both of them deposed the same facts as of complainant.
5. ' However, the trial Court took the cognizance and issued process but since both Rahamdil and Suhrab could not be arrested, proceedings under section 87-88, Cr.P.C. Were taken against them and charge Exh.3 was framed against the appellants to which they pleaded not guilty and claimed trial.
6. ' After framing of the said charge, the case proceeded and the prosecution in order to prove its case examined P.W.1 complainant Hote as Exh.l0, who produced F.I.R. As Exh.10-A, his direct complaint as Exh.10-B and statement under section 200, Cr.P.C. As Exh.10-C, P.W.2 Muhammad Bux as Exh.11, who produced his statement under section 202, Cr.P.C. As Exh.11-A, P.W.3 Dr. Abdul Karim as Exh.12, who produced post-mortem reports of deceased Gul Muhammad as Exhs.12-A and 12-B, respectively, M.L.C. Of accused Mureed as. Exhs.12-C and 12-D, provisional and final, respectively, statement under section 202, Cr.P.C. As Exh.12-E and S.H.O. Niaz Ali Chandio Exh.14 who produced Mashirnama of Vardat as Exh.14-A, inquest reports of deceased Gul Muhammad as Exh.14-B, and deceased Karam as Exh.14-C, respectively, memo. Of arrest of accused Mureed as Exh.14-D and that of injuries on his person as Exh.14-E, memo. Of arrest of accused Nazar Ali and Raham Dil as Exh.14-F and so also that of accused Suhrab as Exh.14-G, Mashirnama of recovery of pistol from accused Mureed as Exh.14-H and Mashirnama of recovery of pistol from accused Nazar Ali as Exh.14-I.
7. ' The appellants in their statements recorded under section 342, Cr.P.C. Denied commission of offence and pleaded innocence.
8. ' P.W.1, complainant Hote, reiterated the contents of the F.I.R. Direct complaint and statement, recorded under section 200, Cr.P.C. In his examination-in-chief. In his cross-examination he deposed that he is resident of the same village in which both the deceased and P.Ws. Reside. He further deposed that accused Mureed fired from a distance of 4 to 5 paces at deceased Karam once and accused Suhrab also fired once at deceased Gul Muhammad from a distance of 4 to 5 paces whereas accused Nazar Ali fired at Karam from a distance of 4 to 5 paces which instead of hitting Karam, caused shot to Mureed who did not fall and went to their car himself. He further deposed that'though there are some shops around the place of incident besides tangas and a Traffic Constable but nobody remained at the spot due to attack and firing but every body managed to escape due to scare. He denied suggestions that whether any of them was not present and witnessed this incident or received information about this incident at their village, came to Kandhkot and appeared as complainant. He also denied suggestions that accused Mureed was either present on the relevant date and time place of incident or sustained any fire- arm injury at the hands of accused Nazar Ali or he has implicated the accused persons due to murder of Khawand Bux.
9. ' P.W.2, Muhammad Bux, deposed in his examination-in-chief that on the eventful day while he along with Karam, Hote (complainant), Gul Muhammad, Shahoo, Mamlo was coming from their village to Kandhkot and when reached near the eastern side of Clock Tower at about 12-00 noon, accused Mureed, Suhrab, Nazar Ali, and Rahamdil, all of them having pistols emerged and accused Mureed while asking them (complainant party) not to give evidence in the case of murder of Khawand Bux, fired directly at Karam which hit him and he fell down whereas accused Suhrab fired at Gul Muhammad which hit him on his left side who also fell down. He further deposed that accused Nazar Ali though fired at Karam who was lying injured but the same surpassed and hit accused Mureed. Accused Rahamdil aimed his pistol and extended threat not to come near.
10. Saying so, all of them boarded in a car and went away. He further deposed that complainant leaving them over dead bodies of Karam and Gul Muhammad, went to police for report who after their arrival and examining the dead bodies recorded their statements. Thereafter, dead bodies were taken to hospital. He further deposed that police released accused Suhrab and Rahamdil while challaned Mureed and Nazar Ali. However, complainant Hote filed direct complaint against all the accused in Court where his statement was recorded which he produced as Exh.11-A. In his cross-examination, he besides reiterating the same facts with regard to parking of car at the distance of 20 paces away from them, firing by the accused persons at them from the distance of 4 to 5 paces as well as attracting by commotion and running away of the citizens denied the suggestions whether any of them was not present at the place of Wardat when such incident took place or that they reached Kandhkot after receiving information about the murders of Karam and Gul Muhammad.
11. ' P.W.3, Dr. Abdul Karim, in his examination-in-chief, deposed that on 26-9-1992 while he was posted as Medical Officer at Taluka Hospital Kandhkot, he received dead bodies of Gul Muhammad and Karam at 1-00 p.m. From Police Station Kandhkot through PC Allan, identified by Muhammad son of Mitahan and Hazoor Bux son of Laiq, both relatives of the deceased persons. He conducted post-mortem of both the deceased persons and found the following injuries:--
(1) Gul Muhammad
(i) External examination.
(a) One lacerated punctured measuring one c.m. In diameter x cavity deep with inverted and black margins on the below of right scapular region, communicated through and through with the wound of exit.
(b) One lacerated punctured wound measuring 1 c.m. In diameter x ' cavity deep with everted margins on the left side of chest at the level of 9th rib.
(ii) Internal Examination.
(a) Thorax wall perforated cavity of chest full of blood and fractured the corresponded ribs. Pleura perforated right lung perforated, left lung perforated pericardium and heart perforated blood vessels punctured and remaining organs were healthy.
(b) Stomach and its contains healthy and containing semi-digested food small intestine healthy and containing semi-digested food. Margins intestine, containing gas and faecal matter.
(2) Karam
(i) External examination.
(i) A lacerated punctured wound measuring 1 c.m. In diameter x fracturing the bone with the inverted margins and blackening on the left shoulder laterally (wound of entrance).
(ii) Internal examination Thorax walls healthy, left cavity of chest, full of blood, pleaura perforated, left lung perforated and full of blood. Blood vessels perforated, Stomach was healthy and was containing semi-digested food, small intestine containing semi-digested food, small intestine containing semi-digested food. All other organs were healthy.
12. ' According to his opinion cause of death of both the deceased persons was due to haemorrhage and shock resulting from injuries mentioned above. The injuries were anti-mortem in nature and caused by discharge from fire-arm such as pistol and were sufficient to cause the death in ordinary course of nature.
13. ' He further deposed that on the same day he received injured Mureed (appellant herein) for examination, treatment and certificate. He found the following injuries during examination:-- ' A lacerated punctured wound measuring 1 c.m. In diamter x deep inverted margins on the right elise region anterior lateral oval shape, communicated through and through with the wound of exit measuring 1 c.m. In diameter everted margins on the back towards left side at the level of third lumber vertebra.
14. ' According to his opinion, injuries were simple in nature and were caused due to discharge of fire- arm.
15. ' I have heard the learned counsel appearing for the appellants and learned counsel appearing on behalf of the State.
16. ' It has been contended by Mr. Abdul Mujeeb Pirzada, learned counsel for the appellants that the case against the appellants is false and they have been implicated with mala fide intention on the part of police at the instigation of complainant party. It has further been contended by the learned counsel for the appellants that the F.I.R. Though promptly lodged is not by itself sufficient to furnish corroboration from an independent source. It has also been argued that there is no independent witness and that all the witnesses are related to each other and thus, they are interested witnesses.
17. Accordingly, their evidence cannot be relied upon in toto for recording the conviction of the appellants. It has, further been contended by the learned counsel that the P. Ws. Shahoo and Muhammad Bux having been cited as witnesses in the murder case of Khawand Bux, would have also got at least some injuries at the hands of accused persons if they were present with the deceased persons and the complainant at the time of incident, as they could have been the target of the appellants for the simple reason that since the version of the prosecution is that the murder of Gui Muhammad and Karam was committed for the reasons that the complainant party was not coming forward in "Faisla" in the murder case of Khawand Bux. It has, also, been contended that though the incident occurred in the heart of the town during day time but no person from the town was cited or examined as witness and that complainant and presence of P.Ws., being resident of a village situated at a far away distance from Kandhkot, at the relevant time was doubtful and false implication of the appellants by the complainant in the murder of his another cousin cannot be ruled out for the reason that admittedly before this incident, Sessions Case No,9 of 1988 was pending before the learned 1st Additional Sessions Judge, Kandhkot against one Mithan Bangwar for the alleged murder of Godho alias Khawand Bux who is stated to be the cousin of complainant.
18. In this background, learned counsel lastly argued that the conviction of the appellants is based upon presumption and assumptions and no cogent reason is advanced by the learned trial Judge.
19. He has relied upon the cases of Muhammad Hanif v. The State PLD 1993 Lah. 434, Shah Muhammad and 3 others v. The State 2000 PCr.LJ 390, Bholu and another v. The State 2002 PCr.LJ 690 and Arshad Mehmood v. The State 2003 PCr.LJ 803 in support of his contentions.
20. ' Learned counsel appearing on behalf of the State has supported the impugned judgment on the grounds that besides the fact that the incident took place in daytime in the heart of city for which F.I.R. Was promptly lodged, but also the ocular version of the witnesses has been corroborated by the medical evidence and admittedly the appellants had motive for committing murder of the deceased persons.
21. ' I have considered the arguments of both the learned counsel, perused the record and have also gone through the case-laws, cited at the Bar.
22. ' The perusal of record reveals that the F.I.R. Was promptly lodged and has sought corroboration from an independent sources i,e, medical evidence, motive in the shape of admitted enmity, recovery of A unlicensed pistols from appellants Mureed and Nazar Ali and unshaken oral evidence of complainant as well as P.W. Muhammad Bux and Medical Officer Dr. Abdul Karim.
23. ' Complainant, Hole, has deposed in his evidence that on 26-9-1992 he along with his brother Shahoo, cousin Karam and Gul. Muhammad both sons of Chohar and cousin Muhammad Bux son of Mottan altogether proceeded from the village to Kandhkot in order to purchase household articles and when at about 12-00 noon they reached near Ghanta Ghar in Kandhkot Town, four persons namely Mureed son of Rehman, Nazar Ali son of Sattar, Rahamdil son of Ghous Bux and Sohrab son of Raham Ali, all by caste Bangwar residents of Nabi Bux Bangwar, Taluka Kashmore, each of them having pistols in their hands, came in front of the complainant party and one of them namely Mureed asked them as they are not trying to bring an amicable settlement, hence they are going to be murdered leaving the Court to decide the matter collectively. Saying so, accused Rahamdil aimed the pistol at the complainant party while Mureed made straight pistol fire at Karam which hit him on his left shoulder as a result of which Karam fell down. Thereafter, accused Sohrab made straight pistol fire at cousin Gul Muhammad which hit him below his left armpit who also fell, down whereas accused Nazar Ali made pistol fire on Karam, already fallen down, which instead of hitting him hit to accused Mureed. Thereafter, all the four accused persons while boarding in a white Suzuki car, drove away towards eastern side whereafter the complainant saw that Karam received fire on his left shoulder while Gul Muhammad received fire on the left side and they died. P.W. Dr. Abdul Karim, who conducted postmortem of both deceased and also examined accused Mureed and found on his person fire-arm injuries, hence his evidence on the factum of number, nature, duration of injuries and weapons used and seat of injuries of deceased and so also on the person of accused Mureed is in consonance with ocular version. Investigating Officer has given the details of investigation with regard to effecting recoveries of crime weapons from the appellants and their arrest. All the witnesses, including complainant, were cross-examined but their statements could not be shaken. So far the contentions of the learned counsel that the incident occurred in the heart of the Town during daytime but no person from the Town was cited or examined as witness and that complainant and presence of P.Ws., being resident of a village situated at a far-off distance from Kandhkot, at the relevant time was doubtful and false implication of the appellants by the complainant in the murder of his another cousin cannot be ruled out for the reason that admittedly before this incident, Sessions Case No,9 of 1988 was pending before the learned 1st Additional Sessions Judge, Kandhkot against one Mithan Bangwar for the alleged murder of Godho alias Khawand Bux who is stated to be the cousin of complainant are concerned, the trial Court has rightly observed that firstly, admitted position is that since complainant and P.Ws. Were not the residents of Kandhkot, hence they would not be knowing the people of Kandhkot Town then how they could have been cited as witnesses, secondly, it is not possible that the people of Kandhkot Town had been particular in watching and looking towards the parties when incident occurred, thirdly, they could not dare to come forward to become party in the disputes of others, fourthly, they avoid from the same for saving their time, expenses and also due to the fear of enmity of accused party who is well-known to complainant party. Moreover, it is also on record that appellant Nazar Ali was duly armed with pistol in company of appellant Mureed at relevant time and place and he fired from his pistol at deceased Karam within the sight of complainant and P.Ws. Which instead of hitting deceased Karam, hit appellant Mureed and such fact has been established and borne out from the injuries sustained by appellant Mureed, hence conduct of appellant reveals that he shared common intention with accused Mureed in commission of murder of deceased Karam and crime weapon viz. Pistol was also recovered from him.
24. ' In the case of Muhammad Hanif (supra) evidence of eyewitnesses, being not only closely related to the deceased but were interested witnesses having a motive to falsely involve the accused, was not appreciated by the Court. Furthermore, the ocular testimony was not corroborated by any independent evidence as the same was not in consonance with medical evidence and besides the fact that report of Forensic Science Laboratory was not positive, the recovery was also not proved on record.
25. ' In the case of Shah Muhammad and 3 others (supra), appeal was allowed holding that presence of eye-witnesses at the place of occurrence at the relevant time was highly doubtful and medical evidence was in conflict with ocular testimony which has to be clarified by the prosecution not the accused persons. Furthermore, statements of related and interested rather inimical eye-witnesses were not corroborated by any independent source regarding identity and complicity of each accused in the offence besides the fact that motive for the occurrence was not proved. It was further held that lodging of F.I.R. Promptly was of no use if the prosecution case was otherwise doubtful.
26. ' In the case of Arshad Mehmood (supra) evidence of eye-witnesses, residing at distance of 40/50 miles from the place of occurrence, was not appreciated because of their conduct being unnatural. The star-witness who was the cause of motive and had seen the occurrence had been withheld by the prosecution and not produced at the trial.
27. ' In the present case, not only the ocular testimony is corroborated by the medical evidence but besides recovery of pistols, there was also motive which stood proved in view of the admitted enmity between the parties with regard to murder of -Khawand Bux alias Godho. Furthermore, so far as the point of independent witnesses on account of which evidence of the cited witnesses has been challenged being relative with the complainant, is concerned, admitted position is that since complainant and P.Ws. Were not the residents of Kandhkot, hence they would not be knowing the people of Kandhkot Town then how they could have been cited as witnesses. It is also not possible that the people of Kandhkot Town had been particular in watching and looking towards the parties when incident occurred besides the fact that they could not dare to come forward to become party in the disputes of others and on account of their avoidance from the same for saving their time, expenses and also due to the fear of enmity of accused party who is well-known to complainant party. Moreover, it is also on record that appellant Nazar Ali was duly armed with pistol in company of appellant Mureed at relevant time and place and he fired from his pistol at deceased Karam within the sight of complainant and P.Ws. Which instead of hitting deceased Karam, hit appellant Mureed and such fact has been established and borne out from the injuries sustained by appellant Mureed, hence conduct of appellant reveals that he shared common intention with accused Mureed in commission of murder of deceased Karam and crime weapon viz. Pistol was also recovered from him.
28. ' Besides, it is a broad-daylight incident and question of mistaken identity is out question. The ocular testimony of the eye-witnesses rests on the evidence of complainant Hote and P.W.
29. Muhammad Bux, cousin of the complainant, which is corroborated by the medical evidence inasmuch as according to the F.I.R. The accused were stated to be armed with pistols and were alleged to have fired on the persons of two deceased, Gul Muhammad and Karam, which is in line with the medical evidence. Besides, the ocular evidence is also corroborated. By the promptly lodged F.I.R. Inasmuch as the incident is said to have taken place on 26-9-1992 at 12-00 noon whereas the F.I.R. Was lodged on the same day at 12-20 p.m. i,e, after twenty minutes which is without any loss of time because the distance between place of occurrence and police station is hardly one furlong. The ocular testimony is further corroborated by the evidence of motive as according to the record one Khawand Bux was murdered on which the accused party gave out that they should sit together and decide the issue involved but accused party disclosed that the matter be left open for the Court to decide. The ocular account is also seeking corroboration by the circumstantial evidence of recoveries such as pistols.
30. ' In these circumstances, I am of the considered view that prosecution has. Successfully, been able to make out its case beyond any shadow of doubt inasmuch as the appellants Mureed and Nazar in furtherance of their common intention committed Qatl-e-Amd of deceased Gul Muhammad and Karam making themselves liable for offence punishable under section 302(c), P.P.C. Read with section 34, P.P.C. And therefore, I find no merit in this appeal which, accordingly, is dismissed. The benefit of section 382-B, Cr.P.C., already extended to the appellants, shall remain intact.
31. ' With these observations, Cr. Appeal No,3 of 2003 stands disposed of.