ASIF SAEED KHAN KHOSA, J.- Tasaddaq Hussain, Iqrar Hussain and Imdad Hussain son of Bhai Khan appellants were convicted for an offence under section 302, PPC read with section 34, PPC vide judgment dated 15.1.2000 handed down by the learned Judge, Special Court (Suppression of Terrorist Activities), Khushab and Tasaddaq Hussain and Iqrar Hussain appellants were sentenced to death as Qisas whereas Imdad Hussain appellant was sentenced to imprisonment for life as Tazir for life,. All the said three appellants were also directed to pay a sum of Rs. 50,000/- each to the heirs of Zafar Abbas deceased by way of compensation under section 544-A, Cr.P.C, or in default of payment thereof to undergo rigorous imprisonment for one year each. All the three appellants were further convicted for an offence under section 324, PPC read with section 34, PPC for launching a murderous assault upon Asad Abbas complainant PW-11 and were sentenced to rigorous imprisonment for ten years each and a fine of Rs. 5,000/- each or in default of payment thereof to undergo rigorous imprisonment for six months each. All the said appellants were also convicted for an offence under section 324, PPC read with section 34, PPC for launching a murderous assault upon Muhammad Ashraf PW-12 and were sentenced to rigorous imprisonment for ten years each and fine of Rs.5,000/- each or in default of payment thereof to undergo rigorous imprisonment for six months each. All the sentences of imprisonment passed against the appellants were ordered to run concurrently and it was ordered by the leamed Trial Court that the appellants sentenced to death would be extended the benefit of section 382-B, Cr.P.C, in case their sentences of death were not upheld by this Court. Through the same judgment the learned Trial Court had acquitted the above-mentioned appellant's co-accused namely Muhammad Akram, Shamshad Nawaz, Imdad Hussain and Iqrar Hussain convicts-appellants have challenged their convictions and sentences before this Court through Criminal Appeal No. 62-J of 2000 whereas Imdad Hussain convict-appellants has preferred Criminal Appeal No. 94 of 2000 in that regard.
Asad Abbas complainant has filed Criminal Appeal No. 97 of 2000 against the acquittal of the above-mentioned accused persons and in that appeal notice had been issued by this Court only to Akhtar Nawaz respondent No. 4. Asad Abbas complainant has also preferred Criminal Revision No. 69 of 2000 seeking enhancement of the sentences passed by the learned Trial Court against the above-mentioned three convicts appellants. We have heard all these matters together and we propose to decide the same together through the present consolidated judgment.
2. The prosecution's case unfolded in the FIR was that about 6.30 p.m. On 22.6.1997 Asad Abbas complainant (PW-11), his brother namely Zafar Abbas deceased, Muhammad Ashraf (PW-12) and Nisar Hussain (PW-13) were proceeding from their house to the Baithak of Muhammad Ashraf (PW- 12) in village Dhak situated within the area of Police Station Katha Saghral, District Khushab and when they reached near the house of one Muhammad Khan suddenly Tasaddaq Hussain appellant and Imdad Hussain appellant armed with guns, Shamshad Hussain accused armed with a pistol, Iqrar Hussain appellant armed with a gun, Muhammad Akram accused armed with a rifle, Akhtar Nawaz accused armed with a rifle and Imdad Hussain accused armed with a gun emerged from the house of Iqrar Hussain appellant while raising Lalkaras. Iqrar Hussain appellant then fired from his gun hitting Zafar Abbas deceased on the front of his neck. The second shot was fired by Tasaddaq Hussain appellant hitting Zafar Abbas deceased under his left armpit. The third shot was fired by Akhtar Nawaz accused hitting Zafar Abbas deceased on the left side of his pelvis. Upon receipt of those inquiries Zafar Abbas deceased fell down. Imdad Hussain accused then fired at shot hitting Muhammad Ashraf (PW-12) on his left arm. Imdad Hussain appellant then fired a shot from his gun hitting Asad Abbas complainant (PW-11) on the front of his neck. Thereafter Asad Abbas complainant (PW-11). Muhammad Ashraf (PW-12) and Nisar Hussain (PW-13) %n towards the Baithak of Muhammad Ashraf (PW-12) in orderto- save their lives bu> Muhammad Akram accused and Shamshad Hussain accused fired at them from their back which fires missed the complainant and others. The said occurrence had been witnessed by the complainant and the above mentioned witnesses besides Muhammad Akram PW who was available nearby. The hue and cry raised by the said witnesses attracted a number of men and women to thespot whereupon the appellants and their co-accused decamped from the place of occurrence.
Muhammad Akram PW arranged for transpiring the injured victims to Civil Hospital, Khushab and Zafar Abbas deceased succumbed to his injuries on his way to the hospital. The motive set up in the FIR was that about 1-3/4 years ago one Muhammad Hayat a paternal uncle of Asad Abbas complainant and Zafar Abbas deceased, had been murdered by Iqrar Hussain appellants and others and in that case the father of Muhammad Ashraf PW-12 was a witness and the complainant's father was pursuing that case. According to the FIR it was on the basis of that grievance that the appellants and their co-accused had launched a concerted murderous assault upon the complainant party as a result of which Zafar Abbas deceased had lost his life and Asad Abbas complainant (PW-11) and Muhammad Ashraf (PW12) had received firearm injuries. Upon receipt of information regarding the said occurrence the local police reached Civil Hospital, Khushab whereat a statement of Asad Abbas complainant was recorded by it at 7.50 p.m. On 22.6.1997 and subsequently on the basis of the said statement made by Asad Abbas complainant formal FIR No.84 was registered at Police Station Katha Saghral, District Khushab at 8.30 p.m. On 22.6.1997 for offences under sections 302/324/148/149, PPC.
3. The investigation of this case was conducted by Sultan Ahmad, SI/SHO (PW-23), Mahr Muhammad Baqir, DSP (PW-24) and Zawar Hussain, SI DW-1 during which the dead-body of Zafar Abbas deceased was got subjected to post- mortem examination, the injured witnesses were got medically examined, proclamations were obtained forgetting the appellants and their co-accused declared as ProclaimedOffenders, the appellants and their co-accused were subsequently arrested and weapons of offence were recovered from their possession. Upon completion of the investigation a challan was submitted before the learned Trial Court.
4. At the commencement of the trial the learned Trial Court framed a charge with three heads under sections 148/149, 302/149 and 324/149, PPC against the appellants and th$ir co-accused, to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as twenty seven witnesses in support of its case against the appellants and their co-accused. Asad Abbas complainant (PW-11), Muhammad Ashraf (PW-12) and Nisar Hussain PW-13 furnished the ocular account of the incident in question.
Asad Abbas complainant (PW-11) and Muhammad Ashraf (PW-12) also deposed about the motive.
The medical evidence was provided by Dr. Aziz-ur-Rehman Malik (PW-5) and Dr. Irfan Elahi (PW- 27). The prosecution witnesses had deposed about the recoveries allegedly affected from the possession of the accused party. Sultan Ahmad, SI/SHO (PW-23) and Mahr Muhammad Baqir, DSP (PW-24) stated about the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. Ln their statements recorded under section 342, Cr.P.C, the appellants and their co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They maintained in those statements that the alleged offences had been committed by some unknown persons and the appellants and their co-accused had been falsely implicated in this case. The appellants and their co-accused had opted to make statements on oath under section 340 (2), Cr.P.C, but they produced Zawar Hussain, SI DW-1 and Wazir Hussain Nike DW-2 in their defence.
7. At the conclusion of the trial the learned Trial Court acquitted the appellants' co-accused but, after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, they were convicted and sentenced by it as mentioned and detailed above.
Hence, the present appeals and the connected revision petition before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance, lt has been argued by the learned counsel for the convicts- appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, therefore, the convicts- appellants are entitled to be acquitted, by extending the benefit of doubt to them. They have gone on to maintain that even otherwise the circumstances of this case were such that Tasaddaq Hussain and Iqrar Hussain appellants did not deserve the sentence of death which, according to them, may be reduced by this Court to imprisonment for life. As against that the learnfed counsel for the State as well the learned counsel for the complainant have maintained in unison that the prosecution had succeeded in establishing the convicts- appeliant's guilt to the hilt and, therefore, their convictions recorded by the learned Trial Court do not warrant any interference by this Court. The learned counsel for the complainant have gone on to submit that in the peculiar circumstances of this case various sentences passed by the learned Trial Court against the convicts-appellants ought to be suitably enhanced. They have further argued that the prosecution had also succeeded in establishing the guilt of Akhtar Nawaz accused beyond reasonable doubt and, therefore, the learned Trial Court was not justified in acquitting the said accused persons. They have, therefore, maintained that the acquittal of Akhtar Nawaz accused may be set aside by this Court and he may also be convicted and sentenced appropriately.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been observed by us that the occurrence in this case had taken place during daylight and the FIR in respect of the said incident had been lodged with sufficient promptitude containing all the necessary details of the relevant incident including the names of the convicts- appellants, the weapons used by them and the locale of the injuries caused by them to the deceased and two injured witnesses. The place of occurrence was such that it was well nigh impossible for the culprits to have gone unnoticed or unidentified. The ocular account in this case was furnished by Asad Abbas complainant (PW-11), Muhammad Ashraf (PW-12) and Nisar Hussain (PW-13) out of whom the first two had themselves sustained firearm injuries during the same incident and, thus, they had the stamp of injuries on their persons so a sota vouchsafe their presence at the scene of the crime at the relevant time, lt is pertinent to mention here that the appellants had themselves produced Zawar Hussain, S.I. In their defence as DW-1 and according to the statement by the said witness before the learned Trial Court'the first version advanced by the convicts-appellants before him admitted the appellant's presence and participation in the relevant incident and also accepted the presence of the above-mentioned three eye-witnesses at the spot at the relevant time, lt may be added here that although in their suggestions to the said eye-witnesses before the learned Trial Court as well as in their statements recorded under section 342, Cr.P.C, the appellants had denied their presence and participation in the said incident yet the above- mentioned DW-1 was produced by the defence itself and it was through his month that the appellants had brought on the record of this case the factum of their first version before the police admitting their presence and participation in the main occurrence. Such recourse by the appellants had surely lessened the prosecution's burden of establishing the presence and participation of the appellants in the occurrence and also establishing the presence of the above- mentioned eye-witnesses at the spot at the relevant time. All the above-mentioned eye-witnesses had made straightforward statements before the learned Trial Court and they had not been seriously cross-examined regarding their claimed presence at the spot. The statements made by these eye-witnesses had not only inspired confidence of the learned Trial Court but have also impressed us with their consistency and forthrightness, lt may be true that all said eye-witnesses were closely related to Zafar Abbas deceased but their relationship with the deceased in this case could not detract the confidence their statements inspired vis-a-vis the convicts-appellants.
10. Although the motive set up by the prosecution had not been admitted by the appellants in their statements recorded under section 342, Cr.P.C, in so many words yet a background of'animosity between the appellants and the complainant party was writ large on the record of this case and the details of the same had not been denied by the defence during the cross-examination of Asad Abbas complainant (PW-11) and Muhammad Ashraf (PW-12). According to the FIR a paternal uncle of Zafar Abbas deceased and Asad Abbas complainant (PW-11) had been murdered by Iqrar Hussain appellant, Imdad Hussain appellant and others and the father of Muhammad Ashraf (PW- 12) was a prosecution witness in that case and the father of Asad Abbas complainant (PW-11) was perusing that case. These aspects of the matter had been confirmed by the documents brought on the record as Exh.P-Z and Exh.PZ/1 and, thus, the same was difficult for the defence to refute, lt has vehemently been argued before us by the learned counsel for the convicts-appellants that the appellants had no motive to kill Zafar Abbas deceased who was a young lad of eighteen years of age and a student of class ten as he was not personally connected with the above- mentioned criminal case trend as the motive. As against that the learned counsel for the complainant have maintained that in the above- mentioned case of motive it was the father of Muhammad Ashraf (PW-12) who had appeared as a prosecution witness and it was the father of Asad Abbas complainant (PW-11) and Zafar Abbas deceased who used to pursue that case and, therefore, by killing Zafar Abbas deceased and injuring Muhammad Ashraf (PW-12) the accused party of this case wanted to send a strong message to the complainant party not to pursue the said case of motive. We have found this submission of the learned counsel for the complainant to be having a lot of merit, ln these circumstances the ocular / account furnished by the prosecution had received ample corroboration from the motive.
11. The medical evidence had provided a wholehearted support to the ocular account furnished in this case in as much as the date and time of occurrence, the weapons used and the locale of the injuries stated by the eye-witnesses had all been fully confirmed by the medical evidence.
12. The recoveries of weapons of offence affected from the possession of the convicts-appellants and their co- accused during the investigation of this case were legally inconsequential as no crime-empty had been recovered from the place of occurrence so as to connect the recovered weapons with the alleged offences. We have, therefore, found that the learned Trial Court was quite justified in discarding the prosecution's evidence regarding the said recoveries.
13. The absconsion of the convicts-appellants for a long period of time after registration of the present criminal case is a fact which has not disputed before us as it was the appellants own stand before the learned Trial Court that they had made themselves scarce after the present incident a they feared for their lives at the hands of the complainant party.And the local police. Even otherwise issuance of proclamations against the convicts-appellants for the purposes of declaring them as Proclaimed Offenders had been proved before the learned Trial Court through Arshad Mehmood, FC PW-7 and the relevant documentary evidence. The prolonged absconsion of the appellants in this case had provided further corroboration to the prosecution's case against them.
14. Although through their first version advanced before Zawar Hussain, S.I. DW-1 the convicts- appellants had maintained that they had acted in exercise of their right of private defence yet during the trial they had taken no such plea and had remained contended with a bare denial. Even otherwise not an iota of evidence is available on the recorded of this case supporting the plea advanced by the convicts-appellants through their first version before DVV-1.
15. For what has been discussed above a collusion is inescapable that the prosecution had succeeded in proving its case against Tasaddaq Hussain, Iqrar Hussain and Imdad Hussain convicts-appellants beyond reasonable doubt. The appellants had acted in furtherance of their common intention and had not only killed a young lad but had also caused firearm injuries to two others in broad daylight in pursuance of a private Vendetta and, thus, in the peculiar circumstances of this case. Tasaddaq Hussain and Iqrar Hussain appellants did not deserve any sympathy concession in the matter of sentence. Criminal Appeal No. 62-J of 2000 filed by Tasaddaq Hussain and Iqrar Hussain appellants and Criminal Appeal No. 94 of 2000 preferred by Imdad Hussain appellant are, therefore, dismissed and the convictions and sentences of the said appellants recorded by the learned trial Court are upheld and maintained by us with the modifications that the sentences of death passed against Tasaddaq Hussain and Iqrar Hussain appellants under section 302 (b) PPC read with section 34, PPC as Tazir, in default of payment of compensation all the three above mentioned convicts-appellants shall undergo simple imprisonment for six months each and not rigorous imprisonment for one year each as ordered by the learned Trial Court, the benefit under section 382-B, Cr.P.C, shall be available to all the convicts- appellants in respect of their sentences of imprisonment passed on all the relevant counts of the charge and all of their sentences of imprisonment shall run concurrently each other.
16. AS regards Criminal Appeal No. 97 of 2000 filed by asad Abbas complainant against the acquittal of Akhtar Nawaz accused we have noticed that the learned Trial Court had recorded detailed reasons for acquitting the said accused person and had left morally convinced that participation of the said accused person in the relevant occurrence was doubtful. The occurrence in this case had taken place in the year 1997 and the said accused person had been acquitted by the learned Trial Court in the year 2000. About four and a half years have already gone by during the interregnum. The first version advanced by the convicts-appellants before Zawar Hussain, S.I.
DW-1 did not show this accused person's presence and participation in the occurrence. The injury allegedly caused by this accused person to Zafar Abbas deceased was on a non-vital part of the deceased's body and the said inquiry had not contributed towards the deceased's death, ln view of these peculiarities relevant to the case of Akhtar Nawaz accused we have not felt persuaded to interfere with his acquittal at such a late stage. Criminal Appeal Nov 97 of 2000 is, therefore, dismissed.
17. Keeping in view the circumstances of this case the sentences passed by the learned Trial Court against the convicts-appellants for various offences committed by them have been found by us to be adequate and, therefore, no occasion has been found by us for enhancing the sentences of the said convicts-appellants at such a stage or for interference with the discretion exercised in that regard by the learned Trial Court. Criminal Revision No. 69 of 2000 is, thus, dismissed.
18. Criminal Appeal No. 62-J of 2000, Criminal Appeal No. 94 of 2000, Criminal Appeal No.97 of 2000 and Criminal Revision No. 69 of 2000 are disposed of in the terms mentioned above.