1. Kh. Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 345 of 2000 filed by Muhammad Azam, appellant and Criminal Appeal No, 346 of 2000 filed by Muhammad Zubair, Muhammad Yousaf and Muhammad Afzal. All the four appellants were convicted and sentenced vide judgment dated 14.3.2000 rendered by learned Additional Sessions Judge, Gujrat as under: Death as also to pay rupees one lac as compensation, in default six months SI each for committing the murder of Mst. Tanvir Begum, Death and to pay compensation of rupees one lac each, in default six months SI under Section 302(b) read with Section 34 PPC for the murder of Niamat Ullah, Death and to pay compensation of rupees one lac, in default six months SI each under Section 302(b) read with Section 34 PPC for the murder of Amanat Ullah, 10 years RI and to pay a fine of Rs, 25,000/- each, in default six months SI under Section 324/34 PPC and Two years RI and to pay a fine of Rs, 50,000/- each in default two months SI under Section 337-F (ii) read with Section 34 PPC.
2. Murder Reference No, 312 of 2000 for confirmation or otherwise of death sentences of all the four appellants shall also be answered through this single judgment.
3. 2.Occurrence in this case had taken place at 2 p.m. on 8.9.1999 at .a distance of 2 furlong from Police Station A division, Gujrat while the matter was reported to the Police through written complaint Ex. PA by Javed at 3.45 p.m. on the same day at Aziz Bhatti Hospital and the formal FIR Ex.
4. PA/1 was recorded by Aftab Baig, Head Constable at 4.10. p.m.
5. 3.Briefly stated the facts of the case are that on 8.4.1999 at 2 p.m. when Seth Javed, the complainant was sitting in the room of his house along with his wife Mst Tanvir Begum, Niamat Ullah and Amanat Ullah, brothers-in-law of the complainant were talking about the marriage of children when Abid son of the complainant went in the adjacent room and in the meanwhile, Muhammad Azam, Muhammad Zabair, both real brothers, Muhammad Yousaf and Muhammad Afzal, both brothers-in-law armed with .30 bore pistol, entered in the room. Sooner, the above said accused entered in the room, Zubair fired a shot which hit on the left flank of Amanat Ullah, the second shot fired by Muhammad Azam landed on the left shoulder of Niarnat Ullah and the third shot fired by Muhammad Yousaf hit into abdomen of Mst. Tanvir Begum while the fourth shot fired by Muhammad Afzal landed into abdomen of the complainant. All the injured fell down and the accused also made firing upon them which hit on different parts of their bodies. On hearing the report of firing, the PWs attracted to the place of occurrence and the accused while firing in the air, fled away. The injured Amanat Ullah, Niamat Ullah and Mst. Tanveer Begum while in their way to hospital, succumbed to their injuries.
6. The motive alleged was dispute of property and rendition of account.
7. 4.Muhammad Irshad Ullah SI (PW.16) after receipt of information, reached Aziz Bhatti hospital at 3.45 p.m. on 8.4.1999 where the complainant Seth Javed in an injured condition made statement Ex.
8. PA, prepared injury statement and inquest report, Ex. PV, Ex. PW, of Mst. Tanveer Begum, also prepared the injury statement and inquest report, Ex. PY, Ex. PZ, in respect of dead body of Niamat Ullah, then prepared injury statement and inquest report, Ex. PBB, Ex. PCC qua the dead body of Amanat Ullah, the injury statement of the complainant was Ex. PEE, the PW then went to the place of occurrence, prepared rough site-plan Ex. PGG, took into possession 14 crime empties of .30 bore pistol which were taken into possession vide memo Ex. PG, a sofa set was also secured vide memo Ex. PF, a led- p. 14 of .30 bore pistol was secured vide memo Ex. PG, blood-stained earth from three different places was taken into possession vide memos. Ex. PB to Ex. PE.
9. All the four accused were arrested on 17.4.1999. During the investigation, on 1.5.1999 Muhammad Azam got recovered pistol P. 15, which was taken into possession, vide memo Ex. PR. All the three remaining accused were found innocent and their names were placed in Column No, 2 of the report under Section 173 Cr.P.C.
10. At the trial, prosecution in order to prove its case produced 16 witnesses is all. The learned DDA tendered in evidence report of the Chemical Examiner Ex. PHH, report of the Serologist Ex. PJJ, report of the Fire-arms Expert Ex. PKK and closed the case of prosecution. The accused in their statements under Section 342 Cr.P.C. pleaded false implication and in their defence produced five DWs. After conclusion of the trial, all the four accused were convicted and sentenced as stated above.
11. Learned counsel for Muhammad Yousaf, Zubair and Afzal appellants after having read the prosecution evidence submitted that FIR, is anti time for the reason that according to the doctor the complainant Javed came into senses at 6 p.m. on the day of occurrence while the Investigating Officer PW. 16 had recorded statement of the injured complainant in the hospital at 3.45 p.m. so from the very inception, the story of the prosecution is a pack of lie.
12. As to motive part of case, learned counsel submitted that no motive whatsoever laid with the appellants and the motive if any that laid with the complainant who wanted to eliminate whole of the family in order to grab the property which he had purchased through the money sent by Muhammad Azam, convict appellant when he was working in Libya.
13. With regard to presence of Ali Abid PW. 2 at the place of occurrence, learned counsel submitted that he was not present at the spot and had he been present at the spot, he must have taken the injured to the hospital or had gone to Police. Post to report the Police irrespective of the fact that his conduct at the scene of occurrence was most unnatural. Further submitted that he was the main beneficiary from the whole property of the parties, having got the same transferred in his name.
14. Similarly, according to learned counsel, Javed Iqbal PW.1, the complainant was not a truthful witness inas much as he has denied the admitted and proved facts in cross-examination. Further submitted that his statement is also contradicted by medical evidence as accordingly to him he received a fire-arm injury on his person while according to the doctor, who medically examined him, found one entry and one exit wound. Added that version of complainant Javed was found to be false from the day one. With above back ground, learned counsel submitted that on the evidence of has accused cannot be hanged. Learned counsel submitted that Zubair appellant was found innocent during the course of investigation inasmuch as he was not even arrested. Added that place of occurrence is a crowded place but not a single witness of wajtakar produced by the prosecution who could have deposed that he had seen the accused while running away from the spot. As to plea of alibi, learned counsel argued that the appellants produced DWs in this regard and the said DWs had no enmity whatsoever against the complainant and also had no such relations with the appellants to falsely support them. Further argued that the accused has to create dent in story of the prosecution and has not to establish the same. Learned counsel has also drawn our attention to several pages of the paper book to supplement his arguments. Concluding his submissions, learned counsel for the appellants submitted that prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal. Sardar Khurram Latif Khan Khosa, Advocate for Muhammad Azam, appellant submitted that it settled proposition of law that an accused may take or may not take or may take a false plea but the prosecution has to stand on its own legs and not to rely upon the statement or defence of the accused. In this regard, he relied upon 1993 SCM R 417 and PLD 1994 SC 178. With regard to motive, he adopted the arguments advanced by Mian Aftab Farrukh, Senior Advocate, representing appellants in Criminal Appeal No, 345 of 2000. He added that mere injury on the person of the complainant couldn't stamp the falsehood of testimony of complainant PW.1. Also added that as to what happened before the occurrence is shrouded in mystery and in fact, it was not a case of premeditation. He relied upon PLD 1962 SC 502 to submit that when both the parties do not come to the Court with all truth, then the Court has to draw its own inferences and decide the matters. In nutshell, learned counsel submitted that it is not a case of capital punishment and there are extenuating circumstances warranting such circumstances.
15. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submitted no proof was placed on record that Muhammad Azam appellant had been sending money from Libya; the FIR was prompt one with specific roles of each of the accused; the Police was siding with the accused party, so no reliance can be placed on the testimony of partial witness; no suggestion was put to any of the PW that complainant was un-conscience when his statement under Section 154 Cr.P.C. was recorded; the doctor who wrote the time as 6 p.m. was not produced by the defence; it was against the human conduct that when four persons were lying in injured condition having fire-arm injuries on their person, struggling for life, the PWs instead of taking them to hospital, should go to the Police to make a report; the Court of law is not to find or dig as to why the crime has been committed and that motive alleged, not alleged, alleged and remained unproved are of no help to the accused and even cannot be considered to be a mitigating circumstance. Further submitted that both the eye-witnesses remained consistent in their statements before the trial Court and that there is no contradiction of the nature so as to create dent in the story of prosecution. Added that occurrence having taken place inside the house, the inmates of the house were the most natural witnesses. Further added that Muhammad Azam and Zubair, appellants are real brother of Javed complainant while Yousaf and Afzal are his phupizad, so there was no question of false implication of such close relations. He argued that Muhammad Afzal, Yousaf and Zubair, appellants not having taken the plea of alibi in their statements under Section 342 Cr.P.C., there was no question of producing DWs to prove the said plea of alibi. Next submitted that there were 25 wounds of fire-arms on the person of three deceased and one injured, so it is proved that it cannot be done by one person. He lastly submitted that prosecution had proved its case against the appellants so the conviction and sentence recorded by the trial Court through the impugned judgment may be maintained in toto.
16. We have heard learned counsel for the parties at length and have gone through the evidence on record. In the instant case, the occurrence had taken place at 2 p.m. on 8.9.1999 at a distance of 2 furlong from Police Station A division, Gujrat while the matter was reported to the Police through written complaint Ex. PA by Seth Javed, complainant at 3.45 p.m. on the same day at Aziz Bhatti Hospital and the formal FIR Ex. PA/1 was recorded by Aftab Baig, Head Constable at 4.10 p.m. In the FIR, five persons including Javed Iqbal complainant (PW.1) were shown to have witnessed the occurrence but only two witnesses namely Javed. Iqbal, complainant and his son All Abid were produced before the trial Court as PWs. 1 and 2 respectively. The remaining three eye-witnesses namely Safdar, Khalid Mahmood and Tufail were given up as being unnecessary. The presumption would be that had those independent witnesses been produced, they must have not supported the case of prosecution.
17. Now, we have before us the testimony of two eye-witnesses. Javaid Iqbal, complainant PW.1 is father of Ali Abid, PW.
2. Firstly of all, we would like to discuss whether the FIR was recorded at the time, which the prosecution wants this Court to believe or not, the answer is in the negative for the following reasons:-- (i)At page 163 of the paper book, there is Ex. PFF. It is an application submitted by the Investigating Officer to get opinion of the doctor as to whether Javed Iqbal, injured was fit to make a statement. On the said application, endorsement of the doctor is "Pt. Fit for making statement".
18. The time given under the signature is 6.00 p.m. on 8.4.1999. If this was the position, how the Investigating Officer PW. 16 could have recorded statement of the injured Javed Iqbal complainant at 3.45 p.m.
19. (ii)According to complaint Ex.PA, after the occurrence, Muhammad Safdar etc. took him and the other injured to the hospital while MLR of the complainant is Ex. PT and the column of "Name of relative or friend" it was one Muhammad Riaz FC/851 (PW.11) who took thr injured to the hospital.
20. Had Ali Abid son of the complainant or other three given up PWs namely Muhammad Safdar, Khalid Mahmood and Muhammad Tufail been present at the spot, they must have taken the injured to the hospital and name of one of ''hem have been in the respective column of the MLR.
21. (iii)Dr. Muhammad Tariq, PW. 9 had medically examined the -injured Javed Iqbal, complainant.
22. According to the doctor, the general condition of the patient was serious and he was profusely bleeding. This also proves that the complainant was not fit to make statement at 3.45 p.m. as alleged by the prosecution.
23. (iv)The distance between the place of occurrence and the Police Station was two furlongs. There was a telephone connection in the house of the complainant but neither Ali Abid son of the complainant nor any out of three given up PWs reported the matter to the Police.
24. Now, we take up the ocular account furnished by Javed Iqbal, the injured PW and Ali Abid P.W. 2 Both are father and son inter se. As mentioned above, five eye-witnesses were mentioned in Fard bayan. Out of them, except the two mentioned above, the remaining three were given up as being unnecessary. The testimony of Ali Abid PW. 2 who is son of Javed Iqbal complainant for the reasons stated in the preceding paragraph is ruled out of consideration. Now, we are left with the statement of Javed Iqbal complainant PW.1. There is no denying the fact that he was injured having a fire-arm injury on his abdomen and was medically examined on the day of occurrence but mere stamp of fire arm injury on his person per se would not tantamount to a stamp of credence on his testimony.
25. Reliance is placed on the case of Muhammad Hayat and another versus The State (1996 SCM R 1411).
26. The motive alleged in the instant case was dispute over property and rendition of accounts.. During the course of cross-examination of Javed Iqbal complainant, PW.1, it came on record that dispute over property or of rendition of accounts was in between him and Muhammad Azam. The names of remaining three appellants namely, Muhammad Yousaf, Zubair and Muhammad Afzal do not figure. The complainant Javed Iqbal and Muhammad Zubair appellant are real brothers. They were living in the same house having a common courtyard. No untoward incident took place between Zubair appellant and Javed Iqbal prior to the occurrence. Muhammad Yousaf and Muhammad Afzal, appellants are brothers-in-law of Muhammad Zubair, appellant as their sister was married with Zubair appellant. Muhammad Yousaf, Muhammad Afzal and Zubair had no dispute over property with Javed Iqbal, complainant, so there was no question of their joining hands with Muhammad Azam, appellant.
27. In three successive investigations, all the three appellants namely Zubair, Yousaf and Afzal were found innocent by the Police. Their names were placed in Column No, 2 of the report under Section 173 Cr.P.C. They exhausted 14 days physical remand with effect, from 18.4.1999 to 2.5.1999 but nothing incriminating was recovered from them. It was very much in the knowledge of the complainant that three appellants named above were found innocent in three successive investigation, but he neither moved any application to high ups of the Police nor filed any writ petition as also did not file the complaint before competent Court of law alleging dishonest and partiality on the part of the Police.
28. Zubair, Afzal and Yousaf, convict appellants had from the very first day, pleading the plea of alibi and produced PWs before the Police as also before the trial Court. The Investigating Officer. PW.16 also admitted the first version of these appellants, which they too took before the trial Court. Habib Ullah was examined as DW.1. He deposed that on 8.4.1999 Muhammad Afzal accused had gone alongwith him to Mirpur Azad Kashmir to participate in the marriage ceremony of Asam Shahzad.
29. The complainant Javed Iqbal, Zubair and Azam appellants are his phupizad. DW.2 Tasawar Aziz stated that on the day of occurrence, he was on guard duty in the street where the occurrence had taken place and had seen only Muhammad Azam accused while coming out from the house of the complainant. DW.3 was Mst. Azam Bibi aged about 100 years. She deposed that on the day of occurrence, she was present in the room of Zubair appellant and heard that Azam accused was demanding his money and gold and thereafter also heard the report of firing. Mirza Nisar-ul-Haq was examined as DW.4. He deposed that on 8.4.1999 at 1.45 p.m. he was present in the shop of Muhammad Zubair accused in connection with repair of some jewelry and Yousaf appellant was also there. DW. 5 was Riaz Ahmad Cheema DSP. He had verified the investigation of the earlier Investigating Officers and as a result of investigation conducted by him came to the conclusion that except Muhammad Azam, the remaining three accused namely Zubair, Yousaf and Muhammad Afzal were innocent. Except DW.1, the remaining DWs had neither any enmity against the complainant nor friendship with the appellants. There is thus no reason to disbelieve the testimony of DWs who were put to the test of lengthy cross-examination but nothing fruitful could be brought on record.
30. No doubt it is common now that alongwith the real accused, many innocent persons are also involved and net is thrown widen but all the same the superior Courts of the country had also laid down the principle of sifting grain from the chaff. Applying the said principle of law, we are of the considered opinion that the prosecution has miserably failed to prove its case against Muhammad Zubair, Muhammad Yousaf and Muhammad Afzal rather the defence has been able to create dents in the story set up by the prosecution. Resultantly, Criminal Appeal No, 346 of 2000 is accepted, conviction and sentence recorded against all these three appellants vide the impugned judgment is set aside and they are acquitted of the charge. The death sentence of all these three appellants is Not confirmed and Murder Reference to their extents is answered in the Negative.
31. They are in jail. They shall be released forthwith, if not required to be detained in any other case. Now, we take up the case of Muhammad Azam, appellant in Criminal Appeal No, 345 of 2000.
32. Before proceeding any further, we may advantageously reproduce here the reply to Question No, 7 given by Muhammad Azam appellant in his statement under Section 32 Cr.P.C.-- "The prosecution has given a wrong story of this case. I had returned from abroad and demanded my money and gold which have been sending by me to the complainant and which was in his possession. I also demanded the property, which was purchased by the complainant with my money sent by me from abroad. The complainant embezzled and misappropriated my entire property and money and gold and he refused to give back the same to me. I was deserted from the ancestral house, where I residing and I locked the said portion of my ancestral house.
33. Thereafter I started to reside with my in laws. My son and my sisters and other relatives admonished the complainant and insisted him to return the property of me. Upon persistent demand of Sarafan Association and other relatives, the complainant sent a message to me to go his house and settled the matter on the day of occurrence, which I went to Muhammad Azam. The complainant had also invited Amanat and Niamat deceased to attend the meeting. In the meeting the complainant being a desperate person started unnecessary quarrel with me and his wife Mst.
34. Tanvir Begum also started to misbehave and filthy abuses. The complainant was having a pistol at that time and in sequence of quarrel the complainant and his wife started to give the pushed to turn me out from the house. Niamat and Amanat deceased also gave the abuses and in the meanwhile, Amanat Ullah deceased with his pistol fired upon me. I gave a bent to my body and the fire hit on the abdomen of the complainant. The complainant fell down and the pistol was also dropped from his hand. I found myself in precarious condition and apprehended the danger of my life and pick up that pistol in order to save my life and fired with the same, which hit on the person of Amant and Niamat deceased who had also attempted to fire upon me. The said pistol was fully automatic and bursted one. None of the PWs were present at the time of occurrence. After the occurrence, I voluntarily appeared before the police and made my statement as mentioned above. The witnesses' are inter-see related and they have made the false statement in the Court."
35. From the above answer, it is clear that Muhammad Azam appellant had admitted that if there was any dispute that was between him and Javaid Iqbal, complainant and none-else. His version was that he had worked in Libya for 16/20 years, had been sending currency and gold to his brother Javaid Iqbal complainant, when he came to Pakistan, demanded the money as also the gold, Javed refused. So without commenting any further, we are ' of the view that motive alleged by the prosecution stood proved against Muhammad Azam appellant only He also admitted his presence at the spot as also the time and place of occurrence, but the reasons and explanation offered by him for the murder of three persons and causing injury to the complainant are not convincing one and are improbable. The appellant Muhammad Azam, had been trying to bring his case with the ambit of Section 302(c) PPC by creating some mitigating circumstances in his favour but we are or the view that he has failed to do so as under Article 121 of Qanun-e-Shahadat Order,. 1984 when an accused takes a specific plea, the onus lies upon him to prove the same but in the instant case,.
36. Muhammad Azam, appellant failed to discharge the said onus.
14. Crime empties of .30-bore pistol were recovered on the first inspection of the spot by Investigating Officer. Muhammad Azam, appellant while in Police custody got recovered a .30-bore pistol on 1.5.1999. The parcel of crime empties was received in the office of Fire-arms Expert on 21.4.1999 and that of 30-bore pistol on 11.5.1999. The report of the Expert is Ex. PKK. According to the said report, empties C-1 to C-6 matched with the pistol recovered on the pointation of Muhammad Azam whereas no opinion was formed about C-7 to C-14 as those were without percussion caps.
37. The ocular account 'is fully corroborated by medical evidence as far as Muhammad Azam, appellant is concerned. A .30-bore pistol was also recovered on his pointation. Six crime empties of .30-bore pistol recovered from the spot wedded with the pistol recovered on his pointation so the report of the Fire-arms Expert is positive. We are thus fully satisfied in out mind that it was Muhammad Azam appellant who committed the murder of Amanat Ullah, Niamat Ullah and Mst. ,Tanveer Beg-urn' and also caused injury on the person of Javaid Iqbal, complainant (PW.1). There is no mitigating circumstance in his favour. He used to reside in Gujranwala, he with premeditation while armed with a .30-bore pistol criminally trespassed into house of the complainant, killed wife and his two brothers-in-law of his brother Javed Iqbal in a brutal and callous manner. So he does not deserve any leniency. Even otherwise, otherwise insufficiency of motive or being shrouded in mystery, the accused having not repeated the shot as also the occurrence having taken place at the spur of the moment cannot be considered to be mitigating circumstances for awarding lesser punishment. Reliance is placed upon the case of Syed Hamid Mukhtar Shah versus Muhammad Azam and 2 others (2005 SCM R 427). For what has been stated above, Criminal Appeal No, 345 of 2000 filed by Muhammad Azam, appellant is dismissed. The conviction and sentence recorded against him by the trial Court vide the impugned judgment is maintained in toto. His death sentence on three counts is confirmed and Murder Reference is answered in the Affirmative.