' SARDAR MUHAMMAD ASLAM, J.---This judgment shall dispose of Criminal Appeal No.703 of 2000 filed by the appellants against their conviction and sentence and Murder Reference No.335 of 2000 submitted by the learned trial Court for confirmation of sentence of death awarded by it to the appellants.
2. Muhammad Tariq alias Tara and Muhammad Nawaz alias Kaka, convicts-appellants through Criminal Appeal No.703 of 2000 have challenged their conviction and sentence recorded by the learned Additional Sessions Judge, Lahore dated 8-5-2000, whereby he had convicted and sentenced both the appellants under section 302, P.P.C. To death with fine Rs.25,000 each. On recovery of fine the same was to be paid as compensation to the legal heirs of the deceased and in case of default, the accused convicts were to undergo further S.I for six months. They were also convicted and sentenced to seven years each under section 324, P.P.C. For committing murderous assault. Both were also convicted and sentenced for three years' R.I. And to payment of Daman of Rs.10,000 each for causing injuries on the person of Bashir Ahmad, P.W. In case of non-payment of fine they were to further undergo six months' S.I. Each in case F.I.R. No.406, dated 24-9-1995 registered under sections 302/324/34, P.P.C. With Police Station, Lower Mall, Lahore.
3. Shahid Mehmood, complainant narrated the incident in his statement recorded on 24-9-1995 at 5-30 p.m. In Emergency Ward, Mayo Hospital, Lahore disclosing that the appellants armed with Pumpaction gun and .30 bore pistol respectively emerged at the Shop of Zahid Mehmood, deceased and shouted a Lalkara to teach him a lesson for prosecution of case registered against them vide F.I.R. No.403 dated 21-9-1995. Both the appellants fired indiscriminately, which hit on various parts of the body of the deceased. P.W.2, Bashir Ahmad, injured eye-witness, when intervened was also targeted and fired upon as a result of which he received injuries on his person.
Zulfiqar Ahmad and Ishtiaq Ahmad witnessed the occurrence. Both the injured were removed to the hospital. Zahid Mehmood succumbed to the injuries in the hospital.
4. Motive as set up by the prosecution is that the Appellants came at the shop of Abdul Hameed on 21-9-1995 and fired indiscriminately. A case vide F.I.R. No.403 of 1995, dated 21-9-1995 was registered in Police Station, Lower Mall, Lahore against the appellants. The said Abdul Hamid was closely related to Zahid Mehmood deceased, who was pursuing the case on his behalf. Tariq alias Tara appellant had warned him to stay away or will have to suffer serious consequences.
5. On the receipt of intimation about the occurrence, Haseeb Anjum, S.-I. Reached the Mayo Hospital, Lahore. He recorded the statements of Shahid Mehmood, complainant, on the basis of which F.I.R. Was registered. Investigation was carried out. Weapons of offence were recovered at the pointation of the appellants. Challan was submitted and the appellants were tried.
6. Dr. Mian Azhar Ahmad, P.W.6 examined Bashir Ahmad, injured P.W. And found the following injuries on his person:--
(1) A lacerated wound 1 c.m. x 1 c.m. Into DNP on medial aspect of the upper half of right thigh with swelling 6 c.m. x 5 c.m. Around it.
(2) A lacerate wound 1 c.m. x 1 c.m. Into DNP on right half of scrotum in its superior half.
' He also examined Zahid Mehmood in an injured condition, and found the following injuries;--
(1) Lacerated wound 2, c.m. x 1 c.m. Into DNP on antero-medial aspect of the right thigh in its lower half.
(2) Lacerated wound 4 c.m. x 3 c.m. Into DNP in left supratemporal region 6 c.m. From left pinna.
(3) Lacerated wound 8 c.m. x 6 c.m. Into DNP involving left side of the forehead extending to top of vault with black eye left sided. Depressed area left side of the vault noted in this area of wound.
(4) Lacerated wound 1 c.m, x 1 c.m. Into DNP on right foot 3 c.m. Below right lateral malleolus.
(5) Lacerated wound 2 c.m. x 1 c.m. Into DNP on lateral posterior aspect of left forearm in superior half with swelling measuring 5 c.m. x 3 c.m. Around it.
7. On 25-9-1995, Dr. Muhammad Masood, P.W.8 conducted post-mortem examination on the dead body of Zahid Mehmood, deceased and found the following injuries:-- (1-B) A wound complex comprising of 3 wounds on left side of front of forehead.
(i) A lacerated wound 11 x 5 c.m. Irregular in the shape with averted margin. It was 9 c.m. Form tip of nose 9.5 c.m. From left ear, 4 c.m. Above left eyebrow.
(ii) A lacerated wound 0.8 c.m. x 1 c.m. On left forehead, 6 c.m. From midline, 4 c.m. From Injury No.1, just close to eyebrow.
(iii) A circular lacerated wound 1 x 1 c.m. With averted margin 6 c.m. From midline and 1 c.m. From Injury No.2 and 1.5 c.m. From right eyebrow.
(1-A) A wound complex 7 x 7 c.m. Going deep with averted margin just above left ear pinna, 10 c.m.
From midline, 5 c.m. From outer angle of left eye having three wounds.
(i) 4 x 2 c.m. Lacerated wound with averted margin, 4 c.m. From left eyebrow, 3 c.m. Above left ear.
(ii) A lacerated wound 3 x 3 c.m. x going deep on left temporal region just close to ear 4.5 c.m. From outer angle of left eye, 1 c.m. From Injuries Nos.1 and 2.
(iii) A lacerated wound 3 x 4 c.m. x going deep on left temporal region 2 c.m. Above left ear, 12 c.m.
From midline 1.5 c.m. From Injuries Nos.1 and 2.
(2-A) A circular lacerated wound 1.5 c.m. x 1.2 c.m. x deep going with averted margin and collar of abrasion on posterior aspect of left arm, 11 c.m. From elbow 17 c.m. From wrist joint (entry).
(2-B) A circular lacerated wound 1.5 x 1.5 c.m. With inverted margin on inner part of left forearm, 16.5 c.m. From wrist, 10 c.m. From elbow joint (Exit).
(3-A) A lacerated wound 1.5 x 1 c.m. x going deep with inverted margin on the back of right thigh 4 c.m. From knee joint, 30 c.m. Below the base of right buttock (entry).
(3-B) A lacerated wound 1.5 c.m. x 1 c.m. With inverted edges on front and medial side of right thigh, 11 c.m. From knee joint, 12 c.m. From inguinal region (exit).
(4) A gutter shape lacerated wound 1 x 1.5 c.m. On right foot, 3 c.m. Below right outer malleolus.
Injuries Nos.1 to 3, 4 correspond with those mentioned on MLC No.2939.
' On dissection, it was found that scalp was lacerated and bruised on left side and 100 cc of clotted blood present under the skull on left side. Multiple pellets like metallic pieces were recovered from the dead body of Zahid Mehmood. According to him, injuries afore-mentioned were sufficient to cause death in normal course of nature.
8. The prosecution examined 15 witnesses in all. Report of Chemical Examiner, Forensic Science Laboratory was tendered as Exh.PT, Exh.PU and Exh.PV respectively.
9. The appellants were examined under section 342, Cr.P.C. Incriminating material against the appellants was put to them. They denied point blank commission of crime and stated that some unknown persons committed dacoity in the shop, murdered the deceased and injured Bashir Ahmad P.W. But they had been falsely implicated in this case on account of enmity. The appellants did not lead any defence evidence in their favour nor did they make statements on oath under section 340(2), Cr.P.C.
10. Learned counsel for the appellants contends that the prosecution has badly failed to prove his case, the eye-witnesses were closely related inter se and were interested witnesses. Recoveries of arms effected from the appellants were fake and allegedly witnessed by persons who accompanied the police from the Police Station, and that the motive is a false one. He has further argued that in fact it was an incident of dacoity and appellants have been involved in this case on account of enmity.
11. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant, in opposition, has argued that the prosecution has fully proved its case. The motive has been established. The eye-witness account is natural and believable. Muhammad Bashir, P.W.2 is an injured eye-witness. His presence at the spot cannot be doubted in any manner. As to inter se relationship of the eye-witnesses, they have argued that their testimony, which is otherwise, reliable and unshaken, cannot be discarded on the ground of mere relationship. They argued that eye-witness account is fully corroborated by medical evidence and recoveries.
12. On 21-9-1995, the appellants made indiscriminate firing on the shop of Abdul Hameed, uncle of the deceased. A case was registered vide F.I.R. No.403 of 1995, dated 21-5-1995 against the appellants under sections 506/34, P.P.C. Zahid Mehmood deceased was pursuing the case. The present incident was outcome of the incident as the appellants had warned the deceased to stay away from prosecution of the case. No rebuttal is available to this evidence. The motive, therefore, stands established.
13. Shahid Mehmood, complainant was examined as P. W.12. He is real brother while Bashir Ahmed injured P.W. Is real uncle of the deceased. Shahid Mehmood, complainant/P.W.1 stated that he was present at the shop along with his father Rashid Ahmad, uncle Bashir Ahmad and brother Zahid Mehmood deceased when appellant Tariq armed with Pumpaction and Muhammad Nawaz alias Kaka appellant armed with pistol emerged there, shouted Lalkara to administer lesson to the deceased for prosecuting the case registered under sections 506/34, P.P.C. Against the appellants at the instance of Abdul Hameed. The appellants made indiscriminate firing with their respective weapons causing injuries on various parts of the body of the deceased. Bashir Ahmad, P.W.2, intervened but he too was injured by firearm. Ashfaq and Zulfiqar along with many other persons gathered on hearing the noise. Accused fled away with their respective weapons. Bashir Ahmad, P.W.2, was present at the shop of Zahid Mehmood. Within his sight, the appellants came at the shop and raised Lalkara to teach a lesson to the deceased for prosecuting the case against them.
Indiscriminate firing was made resulting in serious injuries on various parts of the body of Zahid Mehmood. He, too received injuries at the hands of the appellants.
14. Close -elationship of the P.Ws. Is no ground to discard their evidence. P.W.2 Bashir Ahmad received fire-arm injuries on his person. Bashir Ahmad P.W.2 stated that he was removed to the hospital but was not in his senses when medical examination was conducted. On an application dated 24-5-1995, by the Investigating Officer, the Medical Officer recorded his opinion that Bashir Ahmad P.W.2 was not able to make statement. The opinion of the Doctor appears on the application as Exh.P.P. Presence of Bashir Ahmad P.W.2 was natural at the spot. He must have been present at the shop. It was broad-daylight occurrence. There is no doubt in any manner about the identity of the appellants. The F.I.R. Was promptly lodged without any loss of time, which rules out any fabrication. Both eye-witnesses are consistent in their statements, and had remained unshaken during cross-examination. Their statements inspire confidence and, thus, implicit reliance can be placed thereon.
15. Appellant Tariq alias Tara got effected recovery of .12 bore gun. Ghulam Rasool P.W.3 and Azhar Mehmood, P.W.4, witnessed the recovery. P.W.3 stated that on 27-10-1995 in his presence appellant Tariq made disclosure to lead to the recovery of gun and led the police party to his house and got recovered .12 bore gun, which was taken into possession vide recovery memo. Exh.P.F. The report of Fire-arm Expert is positive. The crime empties matched with fire-arm recovered from the appellant Tariq alias Tara. Recovery of weapon thus furnishes corroboration to the prosecution case.
16. Recovery of pistol was also effected on the pointation of the accused Nawaz alias Kaka. Report of Fire-arm Expert is in negative. The recovery from the appellant Nawaz alias Kaka is inconsequential.
17. Medical evidence fully corroborates the prosecution case. The Medical Officer, who conducted the post-mortem examination, on dissection found multiple pellet like metallic pieces recovered from the person of the deceased. Injuries on the person of deceased appeared to have been caused by two fire-arm weapons, as is apparent from dimension of Injuries Nos.1 to 3 and Injuries Nos.4 to 5. Injuries Nos.4 to 5 appear to have been caused with pistol, while Injuries Nos. 1 to 3 with Pumpaction gun. Both the appellants had thus caused injuries on the person of the deceased and medical evidence is consistent with the ocular account.
18. The appellants pleaded that they were substituted for the real culprits. According to them, the occurrence was of a dacoity in which the deceased lost his life and P.W.2 received injuries. Plea of substitution is a rare phenomenon. There was no earthly reason for the real brother of the deceased and the injured P.W. To substitute the appellants for the real culprits. The occurrence took place in broad-daylight in a busy Bazar. No evidence in defence was led by the appellants to prove their plea of substitution. No witness was produced before the Investigating Officer in support of their plea. They also did not produce any witness in their defence in the Court. This plea was an afterthought and invented by the appellants for which no foundation had been laid. The same is therefore, rejected.
19. We are convinced that the prosecution has proved its case against the appellants beyond reasonable doubt. They have been rightly convicted and sentenced by the learned trial Court.
20. For what has been discussed above, we find no force in the appeal and order its dismissal.
21. Death sentence recorded by the learned trial Court is confirmed. Murder Reference is answered in the affirmative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.