' SARDAR MUHAMMAD ASLAM, J.---Naseem Shah alias Sheema Shah and Kaleem Shah appellants both real brothers were tried for the murder of Haji Muhammad Saleem in a complaint case filed under section 302/34, P.P.C. By the learned Additional Sessions Judge, Khanewal and were convicted under section 302(b), 34, P.P.C. And sentenced to death and to pay compensation of Rs,50,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default whereof to undergo six months S.I. Each.
2. The criminal appeal calls in question the impugned judgment while the learned trial Court filed murder reference seeking confirmation of death sentence. Therefore, through this consolidated judgment, we intend to dispose of both matters.
3. On 14-10-1996 Ghulam Yasin complainant lodged F.I.R. At Police Station Kacha Khuh disclosing that his son namely Haji Muhammad Saleem aged 30 years was sitting on the grocery shop of complainant at Kacha Khuh alongwith a servant namely Muhammad Boota P.W.4. Both appellants riding on a motorcycle being driven by Kaleem Shah appellant reached in front of the shop.
Naseem Shah was armed with .12 bore gun. The complainant, Muhammad Sadiq and Haji Amir Muhammad P.Ws were sitting in front of the said shop. On reaching the shop Kaleem Shah raised a Lalkara and required his co-accused to give the deceased lesson of murdering their maternal uncle Hasnain alias Hassu Shah and, thereafter, within the view of the P.Ws. Afore mentioned Naseem Shah fired a shot, which landed on the ankle of left leg of Haji Muhammad Saleem deceased. He fell down on receipt of injuries. Kaleem Shah raised Lalkara and required his brother Naseem Shah that deceased had survived, therefore, he be murdered with a second fire. Naseem Shah re-loaded his gun and fired a second shot, which hit deceased on his head. The complainant Muhammad Sadiq and Haji Amir Muhammad P.Ws. Tried to apprehend the accused persons but the appellants warned them of dire consequences, if they came near them. The accused fled away from the spot. Deceased was taken to Civil Hospital Kacha Khuh but he succumbed to the injuries in the way.
4. Motive of the occurrence described in the F.I.R. Is that complainant and his brothers had murdered Hasnain Shah alias Hassu Shah in the year, 1969 and were acquitted of the charge in the year, 1971. In order to take the revenge of the said murder, the appellants with their common intention caused injuries on the person of Haji Muhammad Saleem, resulting into his death.
5. After the registration of the case police completed the formalities, got conducted post mortem examination, collected blood-stained earth, took into possession last-worn clothes of the deceased.
6. The complainant filed a private complaint apprehending influence of the appellants and mentioned in the complaint that the Investigating Officer is investigating the matter in an unfair and unjust manner and there is every likelihood of his spoiling the case. The appellants were summoned in the private complaint. They were formally charged-sheeted. The complainant produced five witnesses in all. Malik Muhammad Sadiq, Haji Amir Muhammad and Malik Muhammad Ashraf P.Ws. Were given up being unnecessary. Report of Chemical Examiner and report of Serologist Exhs.PF and PG respectively were tendered in evidence. Prosecution witnesses mentioned in the challan case were examined as C.Ws. It is necessary to mention here that the challan was submitted against Kaleem Shah placing appellant Naseem Shah in Column No,2 of the challan.
7. The deceased was medically examined by Dr. Khalid Rafique P.W.2, who found the following injuries on his person:--
(1) A fire-arm oval shape wound 1.5 c.m. x 1 c.m. At the right side of head, with inverted margins, 4 c.m. Above from right ear. Clotted blood was present around the wound.
(2) A fire-arm wound 2.5 c.m. x 1 c.m. 2 c.m., above from right eye brow. Clotted blood was present.
(3) A fire-arm wound 1.5 c.m. x 1 c.m. Oval shape with inverted margin at the upper part of front of left knee joint, 2.5 c.m. Above from knee joint. Clotted blood was present.
(4) A fire-arm wound oval shape with inverted margins at the front of left knee joint. Clotted blood was present.
(5) A fire-arm wound 1.5 c.m. x 1 c.m. Oval shape with inverted margins, just below left knee joint.
Clotted blood was p resent.
(6) A fire-arm wound 1.5 c.m. x 1 c.m. Oval shape with inverted margins 1.5 c.m. Away to right from injury No,5.
(7) A fire-arm wound 3 c.m. x 1.5 c.m. With inverted margins, exit wound at the back of left thigh, 9 c.m. Above from the back of left knee joint.
(8) A fire-arm wound with inverted margins 2 x 1 c.m. At the front of - right knee joint.
8. In his opinion the cause of death was on account of Injury No,
1. Time between injuries and death was about 5-10 minutes and between death and post mortem was 12 to 16 hours.
9. Learned counsel for the appellants contends that the motive is far-fetched; no independent witness was examined though the incident took place in bazar in broad-daylight; the plea of alibi was raised and the same was accepted by the Investigating Officer to the extent of Naseem Shah alias Sheema Shah appellant. No recovery of crime weapon was effected and that the appellant Kaleem Shah has not caused any injury on the person of the deceased.
9. Conversely, learned counsel for the complainant assisted by the learned State Counsel in opposition argued that the appellants were rightly convicted by the learned Trial Court. It was submitted that F.I.R. Was lodged promptly ruling out false implication; the occurrence was eye- witnessed by complainant P.W.3 and Boota P.W.4 whose presence was natural; the ocular account so furnished finds full corroboration from the medical evidence and that the motive stood fully proved.
10. We have considered the contentions the learned counsel for the parties, perused the record and the impugned judgment.
11. As to the motive part of the prosecution story, the complainant appeared as P.W.3. He stated that the appellants topk revenge of the murder of their maternal uncle alleged to have been committed by him and his brothers namely Ghulam Rasool, Muhammad Siddiq and others. They were acquitted of the charge. Both the appellants in order to take revenge committed this heinous offence. P.W.4 Muhammad Boota corroborates the motive part of the prosecution story by stating that the appellant Kaleem Shah, while raising Lalkara exhorted his co-accused to take the revenge of murder of Hasnain Shah alias Hassu Shah. Contention of the learned counsel for the appellants that the murder of Hasnain Shah alias Hassu Shah took place in the year, 1969, the complainant and his brothers were acquitted in the year, 1971, the appellants were not born by that time, therefore, it is far-fetched. Learned counsel for the appellants has argued that the appellants have no occasion to take revenge of Hasnain Shah alias Hassu Shah in presence of their own close relations. We do not agree with the contention of the learned counsel for the appellants. The appellants brought on record evidence to the effect that Hasnain Shah was survived by a brother and brother's son. It appears that he was either unmarried or issueless. There is no evidence on record to the effect that he had a real brother. Learned counsel for the complainant vehemently argued that the brother mentioned in the evidence was only step-brother of the deceased. He stated that the mother of the appellants was the real sister of deceased Hasnain Shah alias Hassu Shah. She had been nursing the grudge and poisoning the mind of the appellants to take revenge of their maternal uncle. The appellants were the only close relation of the deceased. Argument, of motive being far-fetched, holds no ground. It depends on tribes, families and vary from person to person. Some people may simply ignore to take revenge while the other perform it as a duty to regain the honour lost.
12. The ocular account has been furnished by Ghulam Yasin father of the deceased and Muhammad Boota servant of the complainant at the grocery shop. Both stated that in their view appellant Naseem A Shah fired at deceased which hit him on ankle and on declaration of Kaleem Shah co-accused that he is alive fired a second fatal shot. Their evidence is confidence inspiring.
Some enmity of the complainant exists with person in locality, but it is beyond reason that father will substitute appellants for the real assailants. The father/camplainant committed the murder of Hassu Shah though available was spared. Learned counsel for the appellants submits that he should have been the first target is not acceptable as a universal principle. The accused have their own way of working. To kill complainant an aged person would have been simply to push him to the other world. But to take life of a only son, to bring and end to the progeny and allow the complainant to live remaining period of his life by dying every day by inches is more painful and a worst kind of revenge.
13. Presence of persons at the relevant time of occurrence and not citing them as witnesses does not affect prosecution case. Though incident is taking place in a small bazar with two shots fired in span of seconds may not have been seen by any body else in bazar except hearing report of fire shots and fleeing away of the accused. At the same time moral values have gone to its lowest ebb.
No one will like to be a witness to earn permanent enmity for himself and his tribe. Even on having seen the occurrence, the witnesses turn a deaf ear. This apathy and deplorable situation of the society does not affect the ocular account of the witnesses. The deceased was present on his grocery shop with his servant. Presence of his old father with other persons of his age gossiping, while sitting in front of the shop is not unusual. The presence of eyewitnesses at place of occurrence was natural and their account of the incident is trust-worthy.
14. The medical evidence furnished by P.W.2 is in line with the ocular account in regard to nature of injuries, its duration, the weapon used, time between injury and death and between death and post mortem. It corroborates the ocular account on all fours.
15. We now advert to the investigation conducted by police officials accepting the plea of alibi of Naseem Shah appellant. Fazal Karim Inspector/S.H.O. Appeared as C.W.9. He conducted initial investigation. He collected blood-stained earth from the grocery shop. He arrested the appellants on 4-11-1996. On the pointation of Kaleem Shah appellants's, motorcycle Exh. P-5 was recovered from his residential room. He was still investigating the case when the file was requisitioned by D.I.G.
On 6-11-1996. He was told that investigation is being withdrawan from him and entrusted to DSP Kabirwala. However, this C.W. In complete disregard to the order of D.I.G. Proceeded to Pindi Bhattian to verify the plea of alibi raised by appellant Naeem Shah.
16. Mahmood Bakhsh Anjum D.S.P. Was examined as C.W.8. Investigation was entrusted to him on 11-11-1996 under the order of the D.I.G.. He conducted the investigation from 11-11-1996 to 15-11-1996.
Whereafter Mansib Dad Khan, D.S.P., S.D.P.O. Mian Channu, associated him till 24-11-1996. The police officials aforementioned, not only interrogated the appellants and inquired the complainant side but also interrogated Fazal Karim Inspector, Investigating Officer. It is also in evidence that Abdul Hamid Constable and Khadim Hussain, A.S.-I. Were deputed to collect secret information about the occurrence. The presence of Naseem Shah at Pindi Bhattian on the day of occurrence was proved by Intisar Hussain Bhatti Ex - M.P.A., Ansar Abbas Ex.-Chairman Market Committee, Fazal Abbas Ex- D Chariman, Town Committee, Liaqat Ali Khokhara landlord and Abid Hussain of Pindi Bhattian, who appeared before D.S.Ps. In their joint investigation at Police Station Kacha Khuh. It was concluded by the Investigating Officer that one on abbas was accompanying kaleem shah accused at the time of occurrence.
17. Habib Ahmed Ghuman, D.S.P. Appeared as C.W.7. He was posted as S.D. P.O., Saddar Sub- Division, Khanewal on 14-10-1996. He visited the spot on 15-9-1996. He recorded statement of the complainant and the P.Ws. Who supported version of the complainant. He directed S.H.O. To arrest the accused persons and complete investigation. In his investigation, conducted in presence of both the parties he found the appellants guilty of the offence by accepting the version of the complainant as correct.
18. Opinion of the police is not binding on the Court. What was the material available with C.W.9 and C.W.8 to justify their conclusion. Oral statements of the E witnesses were made basis of to give clean chit to the appellant Naseem Shah. The appellants did not examine anyone of them. Only Fazal Karim C.W.9 visited Pindi Bhattian and that too in violation of the orders of D.I.G. Which speaks volumes against him. It appears that he intended to favour the accused by all manners at a stage when the investigation stood withdrawn from him. Mahmood Bakhsh Anjum, D.S.P. C.W.8 did not visit Pindi Bhattian to record the statement of the witnesses in support of alibi. Statements recorded by Fazal Karim, first Investigating Officer was relied upon. Habib Ahmed Ghuman D.S.P. Found the accused guilty in his investigation.
19. Presence of Intisar Hussain Bhatti at Pindi Bhattian from 4-00 p.m. To 7-00 p.m. On 14-10-1996 is not believable. Election of Senate was being held on that day. Polling was to commence at 8-00 a.m. And to last till 4-00 p.m. He had cast his vote at Lahore. How can he state appellant's presence at Pindi Bhattian. The plea of alibi of Naseem Shah has no legs to stand. It is concocted one.
20. Kaleem Shah also claimed his absence from the place of occurrence. He stated that he was on duty in M.E.S. Khanewal located at 15 miles away from the place of occurrence. His duty hours were 7-30 a.m. To 2.30 p.m. He too led no defence evidence. No D.W. Appeared to vouchsafe his innocence and corroborate his presence in office. The office as per Kaleem Shah's own statement was to close at 2-30 p.m. The distance from the place of occurrence was only 15 miles. All the Investigating Officers found his presence at the spot.
21. The appellants have badly failed to prove the plea of alibi taken by them. Section 119 of Qanun- e-Shahadat Order, 1984 provides that onus is placed on the person who takes a special plea. None of the witnesses entered the witness box to face cross-examination which is the only way to ascertain the truthfulness of a plea. Inference is to be drawn against them. The learned trial Court has rightly concluded on available material, that the plea of alibi raised by appellant Naseem Shah as well as Kaleem Shah is afterthought and ruled out the same from consideration.
22. Recovery of crime weapon was not effected. The appellants remained at large. They were arrested on 4-11-1996. They avoided their arrest for a sufficient period of time. The recovery was not effected firstly for the reason that sufficient time elapsed and secondly Investigating Officer was conducting the investigation only to strengthen the defence version and negate the prosecution case. Aon Abbas was adjudged as the real culprit, who committed the murder of deceased along with Kaleem Shah on the fateful day. He was not arrested nor associated in the investigation. In reply to question the Investigating Officer answered that he did not arrest Aon Abbas as the complainant was opposing tooth and nail his arrest. Opposition by the complainant would not have stopped the Investigating Officer to arrest Aon Abbas and sent him for trial, if he had been the real accused. Thus in our view the investigation was not made in fair and impartial manner.
23. Next comes to the question of sentence awarded to the appellants. The appellant Naseem Shah fired two shots in quick succession resulting into the death of Muhammad Saleem deceased.
Kaleem Shah shared the common intention and facilitated the commission of murder by providing a ride to Naseem Shah. The prosecution has proved its case against the appellants beyond reasonable doubt. We have no hesitation in dismissing the appeal of Naseem Shah and affirming his death sentence. However, since Kaleem Shah appellant has not caused any injury to the deceased, we deem it appropriate to convert his death sentence to life imprisonment. His appeal is also dismissed with the above modification in sentence.
24. Murder Reference is answered accordingly. accordingly.