' ASIF SAEED KHAN KHOSA, J.--Farman Ali and Muhammad Pervaiz appellants were convicted for an offence under section 302(b), P.P.C. Read with section 34, P.P.C. Vide judgment dated 30-10-2001 handed down by the learned Additional Sessions Judge, Faisalabad and were sentenced to death each and to pay a sum of Rs,25,000 each to the heirs of Shaukat Ali deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. Through the same judgment Ashiq Hussain appellant had also been convicted by the learned trial court for an offence under section 302(b), P.P.C. Read with section 109, P.P.C. And was sentenced to imprisonment for life and to pay a sum of Rs, 10,000 to the heirs of Shaukat Ali deceased by way of compensation under section 544-A, Cr,C. Or in default of payment thereof to undergo simple imprisonment for six months. The learned trial court-had, however, acquitted two co-accused of the appellants namely Muhammad Hussain and Muhammad Iqbal. Farman Ali appellant has challenged his conviction and sentence before this Court through Criminal Appeal No, 1675 of 2001, Muhammad Pervaiz appellant has assailed his conviction and sentence before this Court through Criminal Appeal No, 1676 of 2001 and Ashiq Hussain appellant has preferred Criminal Appeal No, 1677 of 2001 vis-a-vis his conviction and sentence recorded by the learned trial court. We have heard all these appeals along with Murder Reference No, 16 of 2002 seeking confirmation of the sentences of death passed by the learned trial court against Farman Ali and Muhammad Pervaiz appellants and we propose to decide all these matters together through the present consolidated judgment.
2. According to the facts of this case unfolded in the F.I.R. Nazar Hussain complainant was a resident of Chak No, 107/RB Sharqi situated within the area of Police Station Khurrianwala, District Faisalabad and his son namely Shaukat Ali was employed in Makuana Flour Mills. On 13-10-1999 the complainant and his son namely Shaukat Ali were proceeding separately on their respective bicycles on a Pacca road in Chak No, 107/RB Sharqi going towards by-pass Chak No, 229/RB Makuana and at the relevant time the complainant's son namely Shaukat Ali was going a few karams ahead of the complainant. At about 12-30 P.M. When they reached at the middle point of Killa Nos. 4 and 5 of Square No, 46 on that Pacca road within the boundary of Chak No,107/RB Sharqi suddenly Muhammad Pervaiz appellant armed with a double barrel gun .12 bore and Farman Ali appellant armed with a single barrel gun .12 bore, who were sitting in ambush, emerged on the road and straightaway Muhammad Pervaiz appellant fired a shot from his gun at Shaukat Ali hitting him on his upper lip below his nose. Upon receipt of that injury Shaukat Ali fell down from his bicycle and in that fallen condition Muhammad Pervaiz appellant and Farman Ali appellant fired two shots each at him which hit Shaukat Ali on the front of his left ear, right cheek, head, right arm, left buttock and left upper arm. The complainant could not go near his son at that time due to fear and on his hue and cry Abdur Rashid and Haji Muhammad Sadiq, who were also proceeding towards Makuana on their bicycles, reached the spot and also saw the occurrence themselves whereafter Muhammad Pervaiz and Farman Ali appellants decamped from the spot while raising lalkaras. The injured Shaukat Ali was handled by the complainant and others but he had already succumbed to his injuries and had died at the spot. The motive set up in the F.I.R. Was that two months prior to the present occurrence Ashiq Hussain appellant was standing at a Chowk of the complainant's village and he was reprimanded by Shaukat Ali deceased who had also slapped him on that occasion and it was on the basis of that grievance that Muhammad Pervaiz and Farman Ali appellants had murdered Shaukat Ali with the abetment of Ashiq Hussain appellant and the acquitted accused persons namely Muhammad Hussain and Muhammad Iqbal. It was mentioned in the F.I.R. That at about 8-00 p.m: on 12-10-1999 Muhammad Shahzad and Liaqat Ali P.Ws. Had seen and heard Ashiq Hussain appellant and the acquitted co-accused namely Muhammad Hussain and Muhammad Iqbal asking Muhammad Pervaiz and Farman Ali appellants to murder Shaukat Ali and that they would take care of the matter subsequently. Leaving the dead body of his son namely Shaukat Ali at the place of occurrence in the care of another son of the complainant namely Muhammad Afzal the complainant proceeded to report the matter to the police but on his way he met a police officer at Adda Chak No, 103/RB Jaranwala at 02-30 p.m. On 13-10-1999 before whom he made a statement in respect of the above mentioned incident. On the basis of the said statement made by the complainant formal F.I.R. No,604 was subsequently registered at Police Station Khurrianwala, District Faisalabad at 03-00 p.m. In respect of an offence under section 302, P.P.C. Read with sections 34 and 109, P .P. C .
3. The investigation of this case had been conducted mainly by Sher Muhammad, S.-I. (P.W.13) and partly by Muhammad Anwar, S.-I. (P.W.14) and during the investigation, apart from the other usual and necessary steps taken by them, the appellants and their co-accused were arrested. And a gun each had been recovered from the possession of Farman Ali and Muhammad Pervaiz appellants. 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 two heads under sections 302 and 302/109, P.P.C.- against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced fourteen witnesses in support of its case against the appellants and their co-accused. Nazar Hussain complainant (P.W.5) and Abdur Rashid (P.W.6) furnished the ocular account of the incident in question and they also deposed about the motive.
Muhammad Shehzad (P.W.10) stated about seeing and overhearing of a conspiracy being hatched between the appellants and their co-accused. Nazeer Hussain (P.W.7) and Nazar Hussain complainant (P.W.5) proved the recovery of weapons effected from the possession of Farman Ali and Muhammad Pervaiz appellants during the investigation of this case. The ascension of Muhammad Pervaiz appellant was proved by Mehmood Ali Shah, HC (P.W.4). The medical evidence was provided by Dr. Tahir Mehmood (P.W.3). Sher Muhammad, S.-I. (P.W.13) and Muhammad Anwar, S.-I. (P.W.14) 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 formal in nature.
6. In 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, however, opted not to make statements on oath under section 340(2), Cr.P.C. Muhammad Hussain, one of the acquitted accused persons, produced Muhammad Younis before the learned trial court as D.W.1 in support of his plea of alibi. The appellants and the other acquitted co-accused person did not produce any witness in their defence.
7. Upon conclusion of the trial the learned trial court acquitted the appellants' co-accused namely Muhammad Hussain and Muhammad Iqbal but after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt it convicted and sentenced them as mentioned and detailed above. Hence, the present appeals and the connected Murder Reference 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. The learned counsel for the appellants have argued that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, they are entitled to be acquitted by this Court. It has been maintained by them that the eye- witnesses produced by the prosecution were related and chance witnesses; the F.I.R. Had in fact been recorded at the spot; the motive set up by the prosecution had remained far from being proved; the recoveries allegedly effected in this case did not inspire confidence; the allegation levelled by the prosecution against Ashiq Hussain appellant in respect of the alleged abetment provided by him to the other appellants and their co-accused was nothing but an exaggeration; the alleged absconscion of Muhammad Pervaiz appellant had remained unproved; and the medical evidence had not provided support to the ocular. Account. In the alternative it has been argued by them that the circumstances of this case did not warrant passing of a capital sentence against Farman Ali and Muhammad Pervaiz appellants. As against that the learned Deputy Prosecutor-General appearing for the State and the learned counsel for the complainant have maintained in unison that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt and, thus, their convictions and sentences recorded by the learned trial court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have observed that the occurrence in this case had taken place in broad- daylight and an F.I.R. In respect of the same had been lodged with reasonable promptitude wherein Farman Ali and Muhammad Pervaiz appellants had specifically been named as the perpetrators of the alleged murder and an active participation in the occurrence had been attributed to both of them. The place of occurrence was a Pacca road which was a thoroughfare frequented by the inhabitants of Chak No, 107/RB Sharqi and the same was situated within the area of the said Chak. Fire-arms had repeatedly been used in the occurrence in issue and, thus, it is well nigh impossible to believe that the incident in issue had remained unnoticed or unwitnessed and the culprits involved in the same had remained unknown and unidentified. The prosecution had produced two eye-witnesses before the learned trial court, . i,e, Nazar Hussain complainant (P.W.5) and Abdur Rashid (P.W.6). Nazar Hussain complainant (P.W.5) was the real father of Shaukat Ali deceased and he had absolutely no reason to falsely implicate Farman Ali and Muhammad Pervaiz appellants in the brutal murder of his son. He had made a consistent statement before the learned trial court regarding the main occurrence and had categorically pointed his accusing finger in that regard towards Farman Ali and Muhammad Pervaiz appellants. Any inconsistency in his statement regarding the place where the F.I.R. Had been lodged by him did not detract from the overall veracity of his statement regarding the main incident. Abdur Rashid (P.W.6) was an independent witness and he was not related to the deceased or the complainant and no plausible reason had become available on the record of this case to show as to why he had falsely incriminated Farman Ali and Muhammad Pervaiz appellants in the murder in issue. He too had made a consistent statement before the learned trial court. The consistency and forthrightness of the statements made by both of the above mentioned eye-witnesses had not only inspired the confidence of the learned trial court but the same have also impressed us. It is admitted at all hands, and the same is also evident from the F.I.R. As well as from the documents available on the record as Exhibit-PE, Exhibit-PF and Exhibit-PG that the place of occurrence was situated in Chak No,107/RI3 Sharqi which was the Chak wherein all the parties to this case resided and the site-plan of the place of occurrence (Exhibit-PK) as well as the above mentioned documents also confirm that the murder in issue had been committed on a Pacca road situated in Chak No, 107/RB Sharqi which road was frequented by the inhabitants of the said Chak. It had been held by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ahmad and another v. The State and others (1997 SCM R 89) that a passerby on a thoroughfare cannot ipso facto be branded and brushed aside in a criminal case as a chance witness.
10. The ocular account furnished in this case by the prosecution had received full support from the medical evidence provided by Dr. Tahir Mehmood (P.W.3) as well as from the site-plan of the place of occurrence (Exhibit-PK) prepared by Busaray Khan, Patwari (P.W.12) inasmuch as the date and time of occurrence, the distance between the assailants and the victim, the weapons used and the locale of the injuries stated by the eye-witnesses had all been confirmed by the medical evidence as well as by the site-plan of the place of occurrence. We have pertinently noticed that the post- mortem examination of the dead body of Shaukat Ali deceased had been conducted within five and a half hours of the occurrence and within three and a half hours of lodging of the F.I.R. Which was possible only when the F.I.R. Had already been registered and the necessary police papers were ready prior to conducting the postmortem examination. All this goes a long way in confirming prompt lodging of the F.I.R. And availability of the eye-witnesses at the relevant time. Close range of the fires at the deceased had also been alluded to in the F.I.R. Which had subsequently been confirmed by the Post-mortem Examination Report and this further affirms that the complainant and the other eye-witness relied upon by the prosecution had indeed witnessed the incident in issue. The number of fire-arm injuries received by the deceased and the locale of those injuries clearly highlight that the assailants firing at the deceased were more than one in number and that the deceased had received many shots fired at him from different angles. In these circumstances fullest support to the ocular account had been provided by the medical evidence produced by the prosecution vis-a-vis both Farman Ali and Muhammad Pervaiz appellants.
11. During the investigation of this case a gun .12 bore each had been recovered from the possession of Farman Ali and Muhammad Pervaiz appellants and prior to the said recoveries four crime-empties recovered from the place of occurrence had already been dispatched to the Forensic Science Laboratory. Although no report of the Forensic Science Laboratory is available on the record vis-a-vis matching of any crime-empty with the gun recovered from the possession of Muhammad Pervaiz appellant yet a report of the Forensic Science Laboratory (Exhibit-PN) is very much a part of the record clearly establishing that three crime-empties recovered from the place of occurrence had matched with the gun recovered from the possession of Farman Ali appellant.
Thus, the undisputed matching of three crime-empties with the gun recovered from the possession of Farman' Ali appellant had provided strong corroboration to the ocular account qua Farman Ali appellant.
12. The statement made before the learned trial court by Mehmood All Shah, H.C. (P.W.4) as well as the documents brought on the record by the prosecution as Exhibit-PC to Exhibit-PC/7 had established the fact that Muhammad Pervaiz appellant had remained a Proclaimed Offender in connection with the present criminal case for a period of about a year and five months. A perusal of the statement made by the said witness and the documents mentioned above manifests that all the necessary steps had been duly taken by the police in connection with getting the said appellant declared a Proclaimed Offender and nothing had been brought out by the defence through the cross-examination of the said witness in order to controvert the regularity and correctness of the procedure followed in that regard. Such protracted and unexplained absconscion of Muhammad Pervaiz appellant in connection with this case had provided corroboration to the ocular account to his extent and had unmistakably hinted at his culpability qua the offence in issue.
13. The motive set up by the prosecution in the F.I.R. And deposed about by the above mentioned eye-witnesses through their statements made before, the learned trial court has been found by us to have remained unsubstantiated and unproved. The prosecution's case in that respect was quite vague and unspecific and admittedly no independent proof regarding the same had been produced by the complainant party either before the Investigating. Officer or before the learned trial court. Having observed that we may, however, hasten to add that failure on the part of the prosecution to prove the motive set up by it does not adversely affect the overall strength of the prosecution's case against Farman Ali and Muhammad Pervaiz appellants which has been found by us to have been fully proved and established through the consistent ocular account supported by the medical evidence and corroborated by the above mentioned recovery from Farman Ali appellant and absconscion of Muhammad Pervaiz appellant.
14. For what has been discussed above we have arrived at a confident conclusion that the prosecution had succeeded in establishing the guilt of Farman Ali and Muhammad Pervaiz appellants to the hilt vis-a-vis the murder in issue. As regards the question of the capital sentence passed against them by the learned trial court it has been argued by the learned counsel for the said appellants that it was not clear as to which of *the said appellants had caused the fatal fire- arm injury to the deceased and, thus, it would be unsafe to uphold and maintain their capital sentences. We have, however, remained unable to subscribe to the said submission of the learned counsel for the said appellants inasmuch as the said appellants had ambushed and waylaid the deceased and had fired multiple shots from their fire-arms at different parts of the deceased's body which clearly established that both of them shared a common intention to commit his murder. Any question regarding it having remained unproved as to which of the culprits had caused the fatal injury to the deceased has been found by us to be irrelevant because by virtue of the provisions of section 34, P.P.C. We are to presume that each of the said appellants had caused each one of the injuries sustained by the deceased. In this view of the matter it is of no significance that it could not be established as to whose shot had proved to be fatal to the deceased. Shaukat Ali deceased was a young man who had been brutally gunned down by Farman Ali and Muhammad Pervaiz appellants through multiple shots fired by them at him on different parts of his body. Such brutality perpetrated by these appellants upon the deceased calls for no sympathy in the matter of their sentences. The normal wages of a crime of murder is death and in the peculiar circumstances of this case Farman B Ali and Muhammad Pervaiz appellants deserve no less.
Criminal Appeal No, 1675 of 2001 filed before this Court by Farman Ali and Criminal Appeal No, 1676 of 2001 preferred by Muhammad Pervaiz appellant are, therefore, dismissed and their convictions and sentences recorded by the learned trial court are upheld and maintained.
15. Murder Reference No, 16 of 2002 is answered in the affirmative and the sentences of death passed by the learned trial court against Farman Ali and Muhammad Pervaiz appellants are confirmed.
16. As regards Ashiq Hussain appellant and his Criminal Appeal No, 1677 of 2001 we have observed that admittedly the said appellant was not present at the scene of the crime at the relevant time and the allegation levelled against him by the prosecution was in respect of providing behind-the- scene abetment to Farman Ali and Muhammad Pervaiz appellants. We have pertinently noticed in this context that a similar allegation had also been levelled by the prosecution against Muhammad Hussain and Muhammad Iqbal co-accused who had been acquitted by the learned trial court. The allegation qua abetment levelled against this appellant had stemmed from the motive set up by the prosecution and if the said motive had remained unproved then the allegation regarding abetment had no legs to stand upon and the same had collapsed like a house of cards. Apart from that Muhammad Shehzad (P.W.10) deposing about the alleged abetment had failed to attribute any particular utterance to Ashiq Hussain appellant during the alleged meeting between the said appellant and his co-accused. The said witness had claimed to have peeped through a window pane of the Baithak of Ashiq Hussain appellant and had thereby seen and heard the said appellant and his co-accused hatching a conspiracy to murder Shaukat Ali deceased. According to the Hon'ble Supreme Court of Pakistan a conspiracy to commit a murder is generally not hatched at open places or within the view or hearing of outsiders and statements made by peeping toms or eaves droppers in support of such an allegation are to be looked at with suspicion and caution. A reference in this respect may be made to the case of Fakku Mia alias Motahar v: The State (1969 SCM R 620). For the reasons mentioned above we have felt sanguine that the prosecution had failed to prove its case against Ashiq Hussain appellant beyond reasonable doubt. Criminal Appeal No, 1677 of 2001 is, therefore, allowed, the conviction and sentence of Ashiq Hussain appellant recorded by the learned trial court are set aside and he is acquitted of the charge by extending the benefit of doubt to him. The said appellant has already been released on bail by this Court by suspending his sentence during the pendency of his appeal.
His, bail bond and sureties shall stand discharged.