' MUHAMMAD FARRUKH MAHMUD, J.---Manzoor Ahmad, Munir Ahmad, Saeed Ahmad, Muhammad Saleem, Muhammad Ijaz and Rafiq Ahmad were sent up to face trial in case F.I.R. No,21 registered at Police Station City Ahmadpur East, on 22-1-2000, for offences under sections 302/324/148/149, P.P.C:, for causing death of Muhammad Tariq and injuries to P.Ws.
2. Vide judgment dated 30-3-2002 Manzoor Ahmad and Munir Ahmad were convicted as follows:--
(i) Manzoor Ahmad was convicted for offence under section 302(b), P.P.C. For causing death of Muhammad Tariq and was sentenced to death. He was also directed to pay Rs, 1,50,000 as compensation to the legal heirs of the deceased, in default of payment thereof he was to suffer one year's imprisonment. He was also convicted for offence under section 324, P.P.C. For causing injuries to Muhammad Azhar P.W.2 and sentenced to ten years' R. I.
(ii) Munir Ahmad was convicted for offence under section 324, P.P.C. For causing injury to Muhammad Tariq-deceased and sentenced to ten years' R.I. He was also directed to pay fine amounting to Rs,25,000, which was to be paid to the legal heirs of the deceased, in default of payment thereof he was to suffer imprisonment for six months.
' Through the same judgment Saeed Ahmad, Muhammad Saleem and Muhammad Rafiq were acquitted.
3. Manzoor Ahmad-appellant through Criminal Appeal No,101 of 2002 and Munir Ahmad-appellant through Criminal Appeal No,102 of 2002 have challenged their conviction and sentence. Through Criminal Appeal No,119 of 2002 Muhammad Hanif-complainant has challenged acquittal of. Saeed Ahmad, Muhammad Saleem and Rafiq Ahmadrespondents. Muhammad Hanif also filed Criminal Revision No,55 of 2002 against Munir Ahmad-appellant seeking enhancement of sentence. We propose to decide the above noted matters along with Murder Reference seeking confirmation of death sentence of Manzoor Ahmad or otherwise, through this consolidated judgment.
4. Muhammad Ijaz co-accused, who was juvenile, was acquitted through a separate judgment of even date by the learned trial Court.
' Muhammad Hanifcomplainant filed Criminal Appeal No,118 of 2002 against acquittal of Muhammad Ijaz. However, the same, being not pressed, stands dismissed accordingly.
5. Muhammad Ikram, S.-I./S.H.O. (P.W.13) after receipt of information through telephone reached Civil Hospital, Ahmadpur Sharqia at 12-00 noon on 22-1-2000 and recorded statement (Exh.PA) of Muhammad Hanif (P.W.1). On the basis of Exh.PA formal F.I.R. Exh.PA/1 Sr. No,21 was registered at 12-15 p.m. For offences under sections 302/324/148/149, P. P. C . By Muhammad Iqbal, A. S. -I. / P.W.2.
6. According to prosecution case, Muhammad Hanif (P.W.1), who was a Tailor lived in Basti Darkhana Mouza Sheikh Roshan. On the fateful day at 8-00 a.m. His brother Muhammad Abid went to leave children at school situated in Satellite Town Ahmadpur East. Muhammad Hanif came to know that Manzoor Ahmad, Munir Ahmad, Saeed Ahmad, and Rafiq Ahmad sons of Ghulam Muhammad along with Pervez and Ijaz Ahmad had assembled in order to launch criminal assault.
Muhammad Hanif along with his brothers Tariq, Shahid, Sadiq and one friend Azhar came out of the house and started waiting for their brother Muhammad Abid. They saw Manzoor Ahmad armed with .12 bore gun, Saeed and Munn., armed with sticks standing outside their houses. After about 1- 1/2 hours Muhammad Abid returned. Thereafter the accused while armed ran towards the complainant party. Haji Ghulam Muhammad father of Muhammad Hanif, Muhammad Iqbal and Muhammad Shahid son of Hazoor Bakhsh also reached the spot. Munir Ahmad raised Lalkara that he would teach lesson for quarrelling with the children and gave a Lathi blow on the head of Muhammad Tariq-deceased, brother of Muhammad Hanif, Manzoor Ahmad fired with his .12 bore gun which hit on the left bottock of Muhammad Azhar P.W.2, who fell on the ground. Manzoor Ahmad again fired which hit Muhammad Tariq on the abdomen, who fill down. Saeed Ahmad and Ijaz accused caused injuries to Muhammad Abid P.W.3, while Pervez and Rafiq accused caused injuries to Shahid brother of Muhammad Hanif. While inhabitants of the area were approaching e scene of occurrence, the accused fled way. While Muhammad Azhar, Tariq, Shahid and Abid, who had received injuries, were being taken to the Hospital Muhammad Tariq lost his life.
7. The motive behind the occurrence was that 5/6 years prior to the occurrence a quarrel had occurred between the children, which caused grievance to the accused and for that reason they launched murderous assault.
8. After registration of case, Muhammad Ikram, S.-I./S.H.O./P.W.13 went to the spot and collected blood-stained earth relating to Muhammad Tariq-deceased through Exh.PD prepared by him and attested by Muhammad Shahid P.W.4 and Muhammad Iqbal, who was not produced during trial.
He also collected blood-stained earth relating to injured Muhammad Azhar P.W.2 through Exh.PC,.
Which was attested by the witnesses mentioned above. Two empties P-7/1-2 were also collected by him from the spot and secured the same vide memo. Exh.PE prepared by him and attested by the above noted P.Ws.
9. All the accused except Muhammad Ijaz were arrested on 23-1-2000. While in custody on 2-2- 2000 Manzoor Ahmadappellant led to the recovery of a double barrel .12 bore gun P-8 from his house and the same was taken into possession vide memo. Exh.PE prepared by Muhammad Ikram, S.-I./P.W.13 and attested by Muhammad Akhtar P.W.6 and one Haji Allah Bakhsh, who was not produced during trial. On the same date Munir Ahmad-appellant led to the recovery of Soti P.10 from his residential room. The same was secured through memo. Exh.PG prepared by P.W.13 and attested by the witnesses mentioned above. Through memos. Exh.PF and Exh.PH Soties were recovered at the instance of Saeed Ahmad and Muhammad Saleem (acquitted co-accused). No recovery was effected from Rafiq Ahmad and Muhammad Ijaz (acquitted co-accused).
10. During trial the prosecution produced 13 witnesses in support of its case. Muhammad Hanif P.W.1, Muhammad Abid P.W.3 (both borthers of the deceased), Muhammad Shahid son of Hazoor Bakhsh P.W.4 (maternal nephew of the deceased) and Muhammad Azhar Mehmood P.W.2 furnished the ocular account. The statement of P.Ws. 1, 3 and 4 are in accordance with the story given in the F.I.R.
They have also stated about the motive. In addition to that Muhammad Shahid also stated about the recoveries effected from the spot. Muhammad Azhaf P.W.2, who is an independent witness and had also received serious injury during, occurrence, after narrating the prosecution story stated that he did not know the names of the accused at the time of occurrence as he was not resident of the locality. However, he pointed towards Manzoor Ahmad-appellant and stated that he was the person who was armed with .12 bore gun and had fired at him. He also identified Munir Ahmad as accused, who had given Soti blow on the back of head of Muhammad Tariq-deceased. According to him he was first who received gun fire-shot and while he was being taken to the Hospital he heard another gun fire-shot. Dr. Farhat Abbas Mohsin P.W.7 stated that on 22-1-2000 (date of occurrence) he conducted post-mortem examination on the dead body of Muhammad Tariq aged 24 years at 1-00 p.m. He observed the following injuries:--
(i) One lacerated oval shape wound on left flank having inverted margins and size was 3.5 x 3.00 c.m. Intestines were protruding out of wound. It was the entry wound of a bullet.
(ii) One lacerated wound near right inguinal area near right anterior superior iliac crest size was 1 x 0.5 c.m. It was an exit wound of a bullet.
(iii) One lacerated wound on top of scalp size 5 x 1 c.m. x bone deep.
' According to him, the time elapsed between death and post-mortem was in between 4/6 hours.
11. On the same date he examined Muhammad Shahid P.W.4, who had received three injuries. Injury No,1 was one contusion with slight swelling on right side of scalp, while Injury No,2 was swelling and tenderness on mid of posterior side of right forearm and Injury No,3 was swelling size 6'x 4 c.m. On posterior side of lower 1/3 of left arm. After receipt of X-Rays report injuries were declared Damia Ghair Jafia, which were caused by blunt weapon within 2/4 hours of examination.
12. On the same date he also examined Muhammad Abid P.W.3 and observed Injury No,1 as swelling with abrasion on left side of forehead size 2 x 1 c.m., Injury No,2 abrasion near lateral angle of left eye size 1 x 1/2 c.m., Injury No,3 one abrasion on right eye lid and Injury No,4 one contusion on right shoulder. According to his opinion all the injuries were caused by blunt weapon within 2/6 hours.
Injuries Nos.1 to 3 were declared simple while injury No,4 was declared damia Ghair Jafia.
13. He also examined Muhammad Azhar Mehmood P.W.2 on the same date at 10-45 a.m. According to Medico-lega report Exh.PQ Muhammad Azhar had received four founded wounds and one oval shape wound size 4 x 1.5 c.m. On left buttock area. The wound was bleeding profusely. The injury was caused by a firearm and resulted into Itlaf-e-Salahyat-e-Udv.
14. During cross-examination the doctor denied the suggestion that the injuries caused to Shahid and Abid could be self-inflicted. While he was being cross-examined relating to injuries caused on the person of deceased, he opined that the direction of gun of the accused was upper to down. It may be noted here that in his post-mortem report Exh.PJ he had used the word 'bullet'.
15. Muhammad Akhtar P.W.6 stated about the recoveries effected at the instance of the accused.
Though he was subjected to very lengthy cross-examination yet no dent could be caused in the veracity of his statement. It is also pertinent to note that he had no previous enmity with the appellants whatsoever. Muhammad Iqbal, A.S.-I./ P.W.12 stated about the formal registration of case. Statement of Muhammad Ashraf, A.S.-I. Was recorded as C.W.1. According to him, he handed over .12 bore gun and five live cartridges to Muhammad Faiz, Constable/974 for onward transmission to the Forensic Science Laboratory. Muhammad Faiz, Constable/974 appeared as P.W.11 and stated that Muhammad Ashraf, H.C./C.W.1 handed over him sealed parcel of .12 bore gun and five live cartridges on 17-2-2000 and he deposited the same with the Forensic Science Laboratory on 18-2-2000. Ghulam Jaffar, Constable/P.W.8 stated that on 3-2-2000 he was handed over a sealed box containing blood-stained earth and two cartridges by the Muharrar for onward transmission to the Chemical Examiner and the Forensic Science Laboratory. He deposited the above-noted articles with the concerned offices on 4-2-2000. Muhammad Ikram S.-I./P.W.13 stated about drafting of complaint and investigation of the case. Rest of the witnesses are formal in nature and need not be discussed.
16. After closure of the prosecution case, statements of the accused were recorded under section 342, Cr.P.C. Manzoor Ahmad-appellant in his statement claimed to be innocent and explained that he and the other accused were falsely involved in the case due to party faction. He further stated that Ghulam Sarwar father of deceased Muhammad Tariq had grudge against him and other accused because they had resolved the dispute of abduction of Atta Muhammad's daughter without any consideration while Ghulam Sarwar wanted to resolve the said controversy with consideration of Rs,1,00,000 and one Kanal plot. He further stated that Ghulam Sarwar father of deceased Muhammad Tariq had good relations with the police, therefore, his sons made terrorism in the area and that the people of the area were annoyed from them, so he did not know as to who murdered Muhammad Tariq-deceased. He also stated that Tariq-deceased and Azharinjured have illicit relations with some girls of the area, therefore, they had enmity with the people of the locality; and that the P.Ws. Were closely related to complainant, thus, they deposed falsely.
17. Statement of Munir Ahmadappellant is identical to the statement made by Manzoor Ahmad- appellant. The appellants did not appear as witnesses in their defence as envisaged by section 340(2), r.P.C. And closed their case after producing Muhammad Akhtar and Yasir Abbas in their defence as D.W.1 and D . W .
2. Muhammad Akhtar D.W.1 provided the evidence of alibi qua Rafiq Ahmad (acquitted co- accused). Yasir Abbas D.W.2 stated that the fires were effected upon the deceased and Muhammad Azhar P.W.2 from the boundary wall of a house. He further stated that Abid, Shahid, Ghulam Sarwar and Hanif (P.Ws.) were not present at the time of occurrence. During cross- examination he admitted that he did not know on whose boundary wall the person who effected fires was standing. He also admitted that he did not consider it necessary to know the name of owner of the house from whose boundary wall the fires were effected.
18. The learned counsel for the appellants after making brief arguments for acquittal has prayed that he would press only for reduction of the sentence in the circumstances of the case. On that regard he argued that the appellants had no intention to kill Muhammad Tariq as no previous enmity existed between Muhammad Tariq and the accused; that according to F.I.R., the accused wanted to murder Abid, who was available yet none of the accused fired at him; that the motive was based on hearsay, as P.Ws.1 and 4 conceded that they were not present when the quarrel took place; that P.W.2 did not say a word about the motive; and that Muhammad Abid P.W.3 was the only witness of the motive, who stated that some days prior to the incident a dispute took place among the children of his brother Muhammad Hanif and those of Manzooraccused. The learned counsel further argued that P.W.3 made dishonest improvements by stating that Manzoor accused was beating the children when he reached there and on his inquiry Manzoor accused abused him; and that P.Ws. Gave inconsistent statement about the genesis of the fight. The learned counsel in the first part of his arguments argued that the medical evidence did not support the ocular version as according to doctor the deceased had received injury by a bullet while according to prosecution case Manzoorappellant was armed with a gun; that all the witnesses except Muhammad Azhar were related to the deceased; that Muhammad Azhar did not know the accused previously; and that fire-arm injury to Tariq was not inflicted in his presence.
19. The learned counsel for the complainant and the learned counsel appearing on behalf of the State have argued that Manzoor-appellant deserved no leniency, as he repeatedly fired. One fire hit Muhammad Azhar, whose life was saved, while the other fire hit Muhammad Tariq-deceased, who lost his life; that insufficiency of motive or weakness or inadequacy of motive would not be enough to constitute mitigating circumstances in favour of the appellant. Reliance is placed on the case of Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCM R 427). The learned counsel further argued that presence of the P.Ws. Could not be doubted as they had received injuries during occurrence; and that the ocular account was supported and corroborated by the circumstances of the case as well as medical evidence.
20. Mr. Mumtaz Hussain, learned counsel for the petitioner in criminal revision filed by Muhammad Hanif against Munir Ahmad seeking enhancement of sentence, frankly conceded that the revision had no merit as maximum punishment has already been inflicted upon Munir Ahmad for offence under section 324, P.P.C. And no appeal was filed against his acquittal for offence under section 302, P.P.C. The learned counsel has further submitted that he would not press the appeals filed by Muhammad Hanif against acquittal of Saeed Ahmad, Muhammad Saleem, Rafiq Ahmad and Ijaz- respondents, as they had not caused any injury to the deceased and the allegations against them were general in nature.
21. We have heard the learned counsel for the parties at great length and scanned the entire record minutely.
22. It is a daylight occurrence, P.Ws.2, 3 and 4 received injuries during occurrence and were examined soon after the incident, thus, their presence cannot be denied. The star witness of the case is Muhammad Azhar Mehmood P.W.2, who is not related to the complainant party and had no enmity with the appellants/accused. He is wholly trustworthy witness and there is nothing in his cross-examination-to show that he had any motive to implicate the appellants falsely. He truthfully' stated that at the time of occurrence he did not know the names of the accused, who were six in number and one of them was armed with.12 bore gun, while rest were armed with Soties.
He went on to say that firstly a stick blow was given on the head of Tariqdeceased then the accused launched assault on Shahid and Abid P.Ws. Thereafter the person who was carrying .12 bore gun fired, which hit on his left side of hip and he fell down. He further stated that while he was being taken to Hospital he had heard noise of another fire-shot. The witness singled out Manzoor Ahamd as one, who was holding a gun and had fired at him. He also identified Munir Ahmad as accused, who had caused Soti blow on the head of Tariq-deceased. His truthful statement is fully supported by the statement of P.W.3 Muhammad Abid and P.W.4 Muhammad Shahid, who had received injuries during occurrence. Both these witnesses knew the accused previously and had specifically named them in their statements. Thus, it cannot be said that the names of the accused were not known to the P.Ws. All the P.Ws. Have given consistent account of the occurrence and minor discrepancies pointed out by the learned counsel for the appellants are of no consequence.
The witnesses were subjected to lengthy cross-examination. This fact further diminishes the effect of the minor contradictions, which otherwise naturally crop up when the evidence is recorded months after the occurrence. It is true that Muhammad Abid and Muhammad Shahid P.Ws. Are related to the deceased but it is also true that they had received injuries at the time of occurrence which, according to the doctor, were not self-inflicted, thus, their presence cannot be denied, especially when they had no background on any serious enmity with the accused.
23. The ocular account is supported by the medical evidence, as according to doctor, the deceased and P.W. Muhammad Azhar Mehmood had received fire-arm injuries and the deceased had received injury on his head which was caused by blunt weapon. The doctor has also ruled out the possibility that the injuries on the persons of Muhammad Abid and Muhammad Shahid could be self-inflicted.
24. The learned counsel has laid much emphasis on the statement of doctor relating to fire-arm injury caused on the person of the deceased. According to him, the medical evidence did not support the prosecution case as the doctor had stated that Tariq had received injury caused by bullet. We have carefully examined the point raised by the learned counsel for the appellants. In our opinion, the doctor committed a patent error by describing that the injury was caused by a bullet for the reason that entry wound was of the size of 3.5 x 3.0 c.m., while the exit wound was of the size of 1 x 0.5 c.m. Undeniably the injury was not caused from a close distance. In such circumstances the size of the entry wound should have been of slightly smaller diameter than the calibre of the weapon and in any case the exit wound would be larger in size than the entry wound if the injury is caused by a bullet or single projectile. On this point we would like to reproduce the relevant para. Published at page 246 of Taylor's Principles and Practice of Medical Jurisprudence, 13th Edition edited by. A.Keith Mant:-- "Single projectiles: ... In other than a close contact entry would the, exit wound is larger than the entry wound. Although the exit wound may be circular it is more commonly elliptical, split or occasionally stellate. With a high velocity missile it may be very many times larger than the entry wound owing to the explosive release of kinetic energy during its passage through the body."
' Similar view was expressed by Dr. C.K. Parikh in his Text Book of Medical Jurisprudence and Toxicology, 5th Edition 1990 reproduced in 1995 at page 295:-- "Relationship between entry and exit wounds. ---In a distant shot, the entry wound may be slightly smaller than or of the same size as the exit wound."
25. All the P. Ws. Have unequivocally stated that Manzoor had a gun. Thus, we are constrained to hold that the doctor tried to give some undue concession to the culprit by mentioning bullet in his report. The direct evidence in the instant case is definite and trustworthy. The erroneous opinion of the doctor cannot outweigh the same. We are fortified in our view by placing reliance on the cases of Muhammad Hanif v. The State (PLD 1993 SC 895) and Amrood Khan v. The State (2002 SCM R 1568).
26. The ocular account is corroborated by the evidence of recovery of .12 bore double barrel gun at the instance of Manzoor Ahmad-appellant from his residential room. P.W.6 Muhammad Akhtar and P.W.13 Muhammad Ikram, S.-I., have appeared as recovery witnesses. P.W.6 had no previous enmity with the appellants, so as to depose falsely against them. Furthermore, according to the report Exh.PU the empties recovered from the spot were fired by a double barrel gun recovered at the instance of Manzoor Ahmad-appellant. It is also significant to note that the empties recovered from the spot and the recovered gun were sent to the Forensic Science Laboratory on different dates, which rules out the possibility of fabrication.
27. The arguments of the learned counsel for the appellant that the prosecution failed to prove motive against the appellants; and that the accused had no intention to cause murder of Muhammad Tariq, are of no consequence and do not provide any mitigating circumstance.
Manzoor Ahamd-appellant was present at the spot with double barrel gun. He repeatedly fired with it. One fire caused very serious injury to Muhammad Azhar Mehmood P.W. While the other fire caused death of an innocent person aged 24 years. It clearly established that he had gone to the spot fully prepared. It was observed by the apex Court in the case of Hameed Khan alias Hameedai v. Ashraf Shah and another (2002 SCM R 1155) that "Absence of motive or failure to prove the motive would not adversely affect the prosecution case if it has been proved by reliable evidence." In the case of Jawed Malik v. The State (2005 SCM R 49) it was observed that "This Court time and again has held that when a case for Qatl-e-Amd is proved against accused, normal sentence of death should be awarded." We would like to reproduce the observations made by the apex Court in the case of Syed Hamid Mukhtar Shah (supra) as under:-- "Insufficiency of motive or motive being shrouded in mystery could not be considered as circumstances justifying non-awarding of the normal penalty of death to a murderer or to reduce the sentence of death to a lesser punishment.
' Even 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.
' Inadequacy of weakness of the alleged motive or where motive had not been proved, an assailant if found guilty of causing the murder of another, did not deserve any leniency and the only punishment awardable in such-like circumstances would be the sentence of death."
28. The defence plea taken by the accused is revolting to the common sense and is unsupported by any reliable evidence or circumstances of the case.
29. The upshot of the whole discussion is that we are of the considerd opinion that the prosecution has successfully proved its case beyond doubt against Manzoor Ahmad and Munir Ahmadappellants. Thus, their appeals are dismissed and the judgment passed by the learned trial Court qua them is upheld. Death sentence awarded to Manzoor Ahmad-appellant by the learned trial Court is confirmed. Murder reference is answered in the affirmative. However, in default of payment of compensation Manzoor Ahmad-appellant would suffer imprisonment for six months instead of one year.