' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,125 of 2001 filed by Noor Muhammad, Haq Nawaz and Ahmad Hayat appellants who were convicted and sentenced vide judgment, dated 14-2-2001 by learned Additional Sessions Judge, Khushab as under:-- Noor Muhammad Death and to pay compensation to the tune of Rs,50,000 in default six months' S.I.
Under section 302(b), P.P.C.
Ahmad Hayat Imprisonment for life and to pay compensation to the tune of Rs,50,000 in default six months' S.I. Under section 302(b), P.P.C.
Haq Nawaz Imprisonment for life and to pay compensation to the tune of Rs,50,000 in default six months' S.I. Under section 302(b), P. P . C .
Murder Reference No,125 of 2001 for confirmation or otherwise of death sentence of Noor Muhammad convict shall also be answered through this single judgment.
2. Occurrence in this case had taken place on 11-6-1999 at 11-00 a.m. Within the Revenue Estate of Pindi Kaura Dakhli which is at a distance of 17 kilometers away from Police Station Jauharabad District Khushab while the matter was reported to the police on the same day at 12-30 p.m. By Sajjad Nawaz complainant and the formal F.I.R. Exh.P.G. Was recorded by Inspector/S.H.O.
Concerned.
3. According to F.I.R. Exh.P.G., the facts of the prosecution case are that on 11-6-1999 Sajjad Nawaz complainant along with his fathers Muhammad Nawaz was sitting at Pul Nehr (canal) Wasti Sher Wali for waiting a bus for going to Khaliqabad when in the meanwhile, Car No,RIL/4221 driven by Muhammad Ilyas came there. On asking of the complainant driver allowed them to ride on the car.
Muhammad Nawaz sat down on the front seat whereas complainant sat down on the pillion seat of the car. At 11-00 a.m. When the car reached near Pindi Kaura Canal Bridge, Haq Nawaz, Noor Muhammad armed with .12 bore guns, Ahmad Hayat armed with pistol .30 bore pistol confronted the car and waived the car to stop. Muhammad Ilyas driver stopped the car. Ahmad Hayat accused shouted at Muhammad Nawaz deceased to get down from the car as he had come to take revenge of murder of his father. Complainant and his father got down from'the car. Haq Nawaz accused fired from his gun, which hit windscreen of the car. Windscreen got broken up. In the meanwhile, Noor Muhammad accused fired, which hit deceased Muhammad Nawaz on left side of his head. Ahmad Hayat fired with his pistol, which hit on left side of chest of Muhammad Nawaz deceased. Alarm raised by complainant attracted Ghulam Muhammad and Haq Nawaz P.Ws. At the spot. The accused brandishing their arms fled away. Muhammad Nawaz succumbed to the injuries.
' Motive behind the occurrence was that Ahmad Nawaz father of Ahmad Hayat accused had been murdered and case of his murder was registered against Muhammad Nawaz father of the complainant and two others in which all the accused were acquitted.
4. Investigation of the case was taken over by Tanveer Ahmad Inspector/S.H.O. P.W.14. He after registration of the formal F.I.R., went to the spot, examined the dead body of the deceased, prepared injury statement Exh.P.E. And inquest report Exh.P.F., then inspected spot, collected blood- stained earth vide memo. Exh.P.H. He also secured two crime-empties of .12 bore gun and one crime-empty of pistol from the spot, which were taken into possession vide memo. Exh.P.J. The Investigating Officer also took into possession the Car No,4221/RIL along with broken pieces of glass through recovery memo. Exh.P.K., then recorded statements of the witnesses under section 161, Cr.P.C. On 24-6-1999 he arrested Haq Nawaz and Noor Muhammad accused on 28-6-1999 Haq Nawaz accused while in custody got recovered .12 bore gun P.1 along with two live cartridges, which were taken into possession vide memo. Exh.P.A. On 29-6-1999 Noor Muhammad accused during interrogation got recovered pistol P.3 along with four live bullets, which were taken into possession vide memo. Exh.P.B. After completions of remaining formal investigation, the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 14 witnesses in all, thereafter, the learned D.D.A. Tendered in evidence report of the Chemical Examiner (Exh.P.Q.), that of Serologist (Exh.P.R.) and closed the prosecution case, then, the statements of the accused were recorded under section 342, Cr.P.C. Ghulam Ali Inspector was examined in this case as C.W.1.
6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record submits that F.I.R. Was recorded after due deliberation and consultation, much later to the time given in the F.I.R. And that the F.I.R.
Was recorded at 12-30 noon but in Column No,3 of the inquest report, the time of death is given as 12-00 noon. Further submits that both the eye-witnesses are related, interested, so inimical towards the appellant, no independent witness has been produced, though the occurrence had taken place in the very thickly-populated area and around the place of occurrence, there were shops, according to learned counsel, in fact, the eye-witnesses were chance witnesses and they had no particular business to be present at the spot and there is no independent corroboration to their testimony. It is submitted that ocular account is in conflict by medical evidence, as the nature of injury No,2-A on the person of the deceased suggest that it was with pistol whereas according to prosecution Noor Muhammad to whom the above said injury was attributed was armed with a gun.
' Next submits that neither the taxi driver appearing before the learned trial Court rather he was given up nor the taxi was produced in Court and that even the pieces of windscreen broken at the time of occurrence was not produced before the learned trial Court.
' Learned counsel submits that the present appellant had no motive to commit the crime; as far as, Ahmad Hayat convict is concerned, the matter was compromised between the parties; it has come on record, that there were other enemies of the deceased, he had litigation with other persons and also political rivalry inasmuch as Dost Muhammad uncle of deceased Nawaz contested election against another Dost Muhammad cousin of Noor Muhammad convict and that the report of Fire-arm Expert Exh.D.E. Is also negative.
'Concluding his submissions, learned counsel submits that prosecution has miserably failed to prove its case against the appellants rather there are doubts and doubts and the appellants are entitled to acquittal.
7. On the other hand, learned counsel for the State in murder reference submits that it is a case of promptly lodged F.I.R., the appellants were named with specific roles, the presence of the complainant is natural as he was accompanying his father, enmity is a double-edged weapon, the people keep grudge even after the compromise and that the prosecution has proved its case against the appellants.
8. Learned counsel for the State in criminal appeal submits that recoveries have been effected from Noor Muhammad and Haq Nawaz appellants and that nobody had stated anything about the innocence of these two appellants.
9. We have heard learned counsel for the parties at a very great length and have also gone through the record with their able assistance. In the instant case, occurrence had taken place on 11-6-1999 at 11-00 a.m. Within the revenue estate of Pindi Kaura Dakhli which is at a distance of 17 kilometre away from Police Station Jauharabad, District Khushab while the matter was reported to the police on the same day at 12-30 p.m. By Sajjad Nawaz complainant and the formal F.I.R. Exh.P.G.
Was recorded by Inspector/S.H.O. Concerned, so it is a case of promptly lodged F.I.R. Carrying names of all the accused and the roles played by each of them.
' In all five accused were sent to face the trial, out of them, Nazar Muhammad and Rab Nawaz were acquitted by the learned trial Court while the remaining three, who are appellants, were convicted and sentenced as stated above. No appeal against the acquittal of Nazar Muhammad and Rab Nawaz was filed either by the State or by the complainant, Sajjad Nawaz complainant (P.W.8) is son of Rab Nawaz deceased. He and Haq Nawaz P.W.9 (brother of the deceased) furnished ocular account before the learned trial Court. Ghulam Muhammad uncle of the deceased and Iqbal taxi driver were given up.
' Dr. Umar Ali Shah, P.W.6 conducted post-mortem examination on the dead body of the deceased on 11-6-1999 at 5-00 p.m. The duration given by the doctor between injury and death was immediate while between death and post-mortem was 6 to 7 hours. This duration given by the doctor fits in with the time of occurrence given by the prosecution.
' The time of occurrence being 11-00 a.m., it was broad-daylight, both the parties were known to each other so there was no question of mistaken identity. We are not convinced that this murder, which had taken place in the broad-daylight, could have gone un-witnessed. Though both the eye-witnesses, (P.W.8 and P.W.9) are related to the deceased but they had no enmity whatsoever to falsely implicate the appellants. The murder of father of Ahmad Hayat took place in the year 1990, deceased Nawaz was acquitted in that case, again an attempt was made in 1994 on the life of Nawaz and a case under section 324, P.P.C. Was registered against some of the accused including Noor Muhammad and Haq Nawaz but Muhammad Nawaz deceased appeared before the trial Court and made a statement that though the accused has fired at him, yet he had pardoned them in the name of Almighty Allah. So from the side of the deceased there was no enmity but is now well-established that motive is always in the mind of the accused and he is the best judge to select as to when and where he has to react. Even otherwise, it is now well-settled that weakness of motive, its absence and where alleged but not proved is not even a extenuating circumstance when the ocular account furnished by the P.Ws. Has come from an unimpeachable source and rings true. Reliance is placed upon the cases of Waris Khan v. The State 2001 SCM R 387 and Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCM R 427. We may also observe that corroboration is not a rule but matter of prudence and in every case corroboration is not necessary and 'conviction can be recorded or maintained if the ocular account is confidence- inspiring.
' Noor Muhammad appellant had fired a shot on the head of the deceased, which proved fatal. Haq Nawaz appellant opened the attack and due to his firing the windscreen of the car in which the deceased was travelling was smashed. Noor Muhammad appellant at the time of occurrence was armed with a gun. The injury No,2-A on the person of the deceased was found to be gunshot by the doctor, who conducted postmortem examination on the dead body of the deceased. The wound was 3 x 3 c.m. Which measures more than one inch. The empties were sent to the Fire-arm Expert on 25-6-1999 though those were taken into possession on 11-6-1999; Haq Nawaz and Noor Muhammad accused were arrested on 24-6-1999, it seems to be dishonesty or negligence on the part of Investigating Officer that he did not send the crime-empty taken into possession from the spot before the arrest of the accused to the Fire-arm Expert, this is reason that the report of Fire- arm Expert is negative and that was not tendered in evidence by the Public Prosecutor but by the defence as Exh.D.E. Not a single question was put either to C.W.1 or the Investigating officer that along with Ahmad Hayat Nazar and Rab Nawaz since acquitted, Haq Nawaz and Noor Ahmad were innocent in this case. The complainant being real son of the deceased could not be expected to leave the actual killer of his father and falsely implicate the innocent persons.
' We are thus, fully satisfied in our mind, that the prosecution has proved its case against Noor Muhammad and Haq Nawaz appellant beyond any shadow of doubt, so the conviction and sentence recorded against them by the learned trial Court vide impugned judgment is maintained in toto. There is even no mitigating circumstance in favor of the appellant. Noor Muhammad appellant chose most vital part of body of the deceased and fired shot with formidable weapon.
The death sentence of Noor Muhammad appellant is confirmed and Murder Reference is replied in the affirmative.
' It is unfortunate that in this part of the continent, people always rope in the innocent persons along with the actual culprits but to meet with such an eventuality, the Courts have evolved the principle of sifting the grain from chaff.
' So far as, Ahmad Hayat appellant is concerned, he thought was son of the deceased in which Muhammad Nawaz deceased in the instant case has murdered his father but in that case the deceased was acquitted. In 1994 when attack was made on Muhammad Nawaz, Ahmad Hayat appellant was not accused in that case. The trend of cross-examination on the eye-witnesses, Investigating Officer and C. W.1 is that Nazar Muhammad, Rab Nawaz since acquitted by the learned trial Court and Ahmad Hayat convict was innocent in this case. He was neither arrested nor challaned by the police, the learned trial Court summoned him, no recovery was effected from him, so while applying the above said principle of sifting the grain from chaff we are of the considered view, that case against Ahmad Hayat appellant is of doubtful nature and while extending the benefit of doubt, we accept the appeal to his extent, set aside the conviction and sentence recorded against him by the learned trial Court and acquit him of the charge. He is in jail and he shall be released forthwith if not required to be detained in any other case.