' TARIQ SHAMIM, J.---Ghulam Hussain Shah, Muhammad Amin, Muhammad Wazir and Zafar Abbas appellants through this Criminal Appeal No,1744 of 2003 assail the judgment, dated 25-9-2003 passed by the learned Addl. Sessions Judge, Bhalwal, in case F.I.R. No,19, dated 26-1-1993 for offences under sections 302/324/148/149, P.P.C. Registered at Police Station Bhalwal, whereby he convicted the appellants under sections 302(b)/149, P.P.C. And sentenced them to imprisonment for life each with compensation of Rs,50,000 each to be paid to the legal heirs of the deceased as contemplated by section 544-A, Cr.P.C. In default whereof to further undergo six months R.I. (ought to have been S.-I.) each. The appellants were further convicted under section 148, P.P.C. And sentenced to undergo 2 years R.I. Each along with a fine of Rs,5,000 each, in default whereof they were directed to further suffer three months R.I. Each. However, the appellants were acquitted from the charge under section 324, P.P.C. Availing the benefit of section 382-B, Cr.P.C. Three co-accused of the appellants namely Muhammad Ilyas, Raja Muhammad Afzal and Hasnain Haider were acquitted of the charges by extending them benefit of doubt, whereas Munir Hussain complainant has filed Criminal Appeal No, 1960 of 2003 against acquittal of Muhammad Ilyas, Raja Muhammad Afzal and Hasnain Haider. He has also prayed for enhancement of the appellants' sentence by filing Criminal Revision No,1086 of 2003. All these matters are being dealt with by this single judgment.
2. Briefly stated the facts of the case as gathered from the F.I.R. Exh.PL lodged by Munir Hussain complainant (P. W.10) are that on 26-1-1993 at 1-30 p.m. He along with his brother Haji Ahmad deceased, Fateh Muhammad, Muhammad Akram and Muhammad Afzal, was present at Alfateh Flying Coach Wagon stand established by Haji Ahmad deceased, when all of a sudden accused Muhammad Ilyas armed with gun .12 bore, Ghulam Abbas armed with rifle, Muhammad Sibtain armed with rifle, Muhammad Hasnain armed with gun .12 bore, Zafar Abbas armed with rifle, Nasir Mehmood armed with rifle, Said Muhammad armed with gun .12 bore, Raja Muhammad Saqlain armed with rifle, Raja Muhammad Afzal armed with pistol .30 bore, Muhammad Wazir armed with rifle and Muhammad Amin armed with rifle, came there. Muhammad Ilyas and Muhammad . Afzal accused persons raised Lalkara that Haji Ahmad deceased be taught a lesson for running wagon stand in competition with Ghulam Abbas accused, whereafter Ghulam Abbas accused made fire shot hitting the deceased at his head who fell down followed by indiscriminate firing by all the accused persons due to which four passerby persons were also injured and damage occurred to the vehicles parked there. The complainant along with his companions took shelter and made 2/3 aerial shots in defence. Thereafter the accused persons fled away. Haji Ahmad succumbed to the injuries at the spot. After the occurrence the complainant, the same day at 1-45 p.m. Reached the Police Station Bhalwal and lodged F.I.R. Which was recoded by Muti Ullah S.-I./S.H.O. (P.W.13).
3. The motive for the occurrence as alleged was that Ghulam Abbas Gujjar, was running wagon stand at Bhera-BhalwalChowk and that Haji Ahmad deceased had also set up a wagon stand there by the name "Alfatah Flying Coach". Ghulam Abbas accused had a grudge about this act of the deceased and prior to this occurrence the accused persons had also caused damage to the vehicles of Alfatah Group and maltreated the drivers for which criminal cases were got registered at P.S. Jhall Chakian and Bhera. The accused persons nourished :grudge for the competition and after having conspired with each other and with common object had launched an attack in which the deceased lost his life.
4. Muti Ullah S.-I./S.H.O. After recording the complaint proceeded to the place of occurrence and found the dead-body of the deceased Haji Ahmad. He prepared inquest report Exh.PJ and injury statement Exh.PX and dispatched the same to the -mortuary under the escort of Sikandar Hayat Constable. The Investigating Officer inspected the place of occurrence, collected blood-stained earth and secured the same vide memo. Exh.P.M., he further collected 20 crime empties of 12 bore cartridges P8/1-20, 10 empties of 222 bore P.9/1-10 and 13 empties of 7 mm P.10/1-13 from the place of occurrence. In all forty-three crime empties were taken into possession and sealed into a parcel vide memo. Exh.PN. He also took into possession Truck No, GT/1473 having marks of gun/rifle shots vide memo. Exh.PP. All these recovery memos were signed by Fateh Muhammad and Muhammad Akram P.Ws. He recorded statements of Fateh Muhammad, Muhammad Akram and Muhammad Afzal P.Ws. Under section 161, Cr.P.C., prepared rough site plans of the place of occurrence Exh.PY. He also prepared injury statements of four injured persons namely Muhammad Riaz, Yousaf, Mushtaq Ahmad and Jamil Hussain Exh.PZ, Exh. PA A , Exh. PBB and Exh.PCC respectively and sent them to hospital for medical examination. Sikandar Hayat Constable after postmortem examination produced before the I.O. Last-worn clothes of the deceased i.e, Jarsi P1, shirt P2, Banyan P3, Shalwar P4 which were taken into possession vide recovery memo. Exh.PB attested by the said Constable.
On 30-1-1993 the I.O. Arrested Hasnain Haider accused and on 1-2-1993 he arrested Muhammad Ilyas, Hasnain Shah, Nasir Mehmood, Muhammad Afzal, Muhammad Amin, Muhammad Wazir and Zafar Abbas.
5. On 5-2-1992 Muhammad Wazir appellant led to the recovery of 7mm rifle P11 along with its licence which was secured into a scaled parcel vide memo. Exh.PQ, Muhammad Amin appellant got recovered 7 mm rifle P12 along with licence the same day, which were taken into possession and sealed vide recovery memo. Exh.P.R. On 12-2-1993 Nasir Mehmood accused got recovered rifle .222, P14 along with four live cartridges P15/1-4 which were sealed into a parcel vide recovery memo Exh.PT. On the same day Zafar Abbas appellant got recovered rifle 7mm P13 which was taken into possession vide memo. Exh.P.Q. On 16-2-1993 Sibtain Shah accused (since dead) got recovered .12 bore gun P17 which was sealed and taken into possession vide memo. Exh. PV attested by Fateh Muhammad and Ahmad Khan P.Ws. The I.O. Also prepared rough site plans regarding recoveries Exh. PT/1, Exh. PU/1, Exh.PF/1, Exh. PV/1 and Exh. PR/1.
' Thereafter on 18-2-1993 Mulazim Hussain A.S.-I. Police Sargodha P.W.16 took over the investigation of this case who on 2-7-1993 arrested Said Muhammad accused and got recovered from him gun P5, bag P6 along with four cartridges P7/1-4 which were taken into possession vide memo. Exh.PK.
' Lastly the investigation of this case was entrusted to Talah Muhammad Khan Inspector Range Crime Police, by the S.P. Range Crime who after completion of the investigation submitted the challan in the Court.
6. At the trial, prosecution in order to prove its case produced as many as 18 witnesses including P.W.8 Dr. Naveed Sattar Medical Officer who conducted medical examination of the injured P.Ws.
And the autopsy on the dead-body of Haji Ahmad. Deceased, Munir Hussain complainant P.W.10 and Fateh Muhammad P.W.11 gave ocular account, Muti Ullah S.-I./S.H.O., Mulazam Hussain S.-I.
P.W.16, Talah Muhammad Khan D.S.P. P.W.18 are the police officers who investigated the case. The evidence of rest of the witnesses is of formal nature. The prosecution tendered in evidence reports of Chemical Examiner Exh.PDD, that of the Serologist Exh.PEE and of Forensic Science Laboratory Exh.PFF, Exh.PGG and Exh.PGG/1 and closed the case.
7. After closure of prosecution evidence the trial Court recorded the statements of the appellants as well as that of the acquitted accused under section 342, Cr.P.C. Who did not opt to appear as witnesses in their defence under section 340(2), Cr.P.C. In reply to the question "Why this case against you?" appellants stated that they opposed Pir Amin-ul-Hussain Shah of Bhera in elections and he got them falsely involved in this case and that P.Ws. Have made false statement at his instance.
8. The learned counsel for the appellant contended that the deceased was hit by fire shot of Ghulam Abbas (P.O.); that the passersby who were allegedly injured by the appellants did not appear before the learned trial Court; that the best evidence was withheld by the prosecution; that no empty was recovered from the spot; that recovery of weapon of offence from the appellant was of no consequence as the prosecution failed to prove the recovery at the trial; that the F.I.R. Was recorded after deliberation and consultation; that P.W.10 Munir and P.W.11 Fateh Muhammad were not natural witnesses as they were both residents of Deowal which was at a distance of six miles from the place of occurrence; that all the recovery memos. Were signed by P.W.11 Fateh Muhammad who was the husband of cousin of the deceased hence, not an independent witness and that the site-plan did not show the place from where the empties were recovered, hence, the prosecution had failed to prove its case against the appellants who deserved to be acquitted.
9. Mr. Altaf Hussain Qureshi Hashmi, the learned counsel for the complainant and Mr. M. Saleem Shad, the learned State counsel contended that it was a proved daylight occurrence which eliminated any ambiguity about the involvement of the appellants; that the F.I.R. Had been promptly lodged; that Ghulam Abbas and Muhammad Ilyas acquitted co-accused were the owners of Gujjar Bus Stand who being annoyed with the owner of the proprietor of Al-Fateh Wagon Stand had the motive to commit the murder of the deceased who was employed by the owner to manage the Bus Stand and the appellants being employees of the said Ghulam Abbas had the motive to participate in the said occurrence and that the prosecution had proved its case against the appellants through unimpeachable eye-witness account, motive, recovery of empties from the spot which matched with the weapons of offence recovered from the appellants and the medical evidence which corroborated the eye-witness account, hence, the conviction and sentence awarded to the appellants by the learned trial Court did not call for interference.
10. I have heard the learned counsel for the parties and perused the record with their able assistance.
11. The motive which led to the murder of the deceased is business rivalry between Ghulam Abbas (P.O.) who was operating Gujjar Bus Stand for the last several years and Ahmed Junaid Shah who had recently established Al-Fateh Wagon Stand near Gujjar Travels. On account of business rivalry there was strong resentment between the parties which is supported by the fact that on a number of occasions, prior to the instant occurrence, the accused party had damaged the vehicles and maltreated the employees of the AlFateh Wagon Stand. One of the accused Muhammad Ilyas who is the brother of Ghulam Abbas admitted that he had been involved in the cases on account of business rivalry which existed between the parties, thus admitting the motive behind the murder of the deceased. P.W.10 Munir Hussain and P.W.11 Fateh Muhammad in their testimony before the learned trial Court narrated the motive for the occurrence which is supported by the admission made by the said Ilyas co-accused of the appellants. The appellants were all either employees of Ghulam Abbas (P.O.) or belonged to his party. The motive urged by the prosecution which led to the murder of Haji Ahmad deceased thus stands fully established.
12. The eye-witness account in the instant case was furnished by P.W.10 Munir Hussain, the complainant of F.I.R. Exh.PL as well as P.W.11 Fateh Muhammad. The complainant (P.W.10) is the real brother of the deceased Haji Ahmad whereas P.W.11 Fateh Muhammad is the husband of a paternal cousin of the deceased and the said Munir Hussain. These witnesses are inter-related as emphasized by the learned counsel for the appellants. The mere fact that the said P.Ws. Are inter- related is no ground to discard the evidence furnished by them as there is nothing on the record to suggest that these two persons were not present at the place of occurrence at the relevant time.
Both the witnesses have given plausible explanation and reasons for their presence at the place of occurrence which stands fully established from the evidence. The F.I.R. In the case was lodged with extreme promptitude i.e, within 35 minutes of the occurrence which goes to show that the complainant had no time for consultation. This excludes any chance of false involvement of the appellants at the instance of the prosecution. Further, not only the appellants are duly nominated but their specific roll, the weapons they armed with and the manner in which the said occurrence took place is detailed in the F.I.R. At the trial the said two witnesses unanimously deposed that the accused persons (including the appellants) launched an assault on the complainant party in furtherance of their common object committed the murder of Haji Ahmad deceased. The appellants and the others resorted to indiscriminate firing with their respective weapons which resulted in the murder of Haji Ahmad, injuries to four passerby persons and damage to vehicles.
The stand taken by the P.Ws. Is fully established by the recovery of 43 empties and trunk from the spot taken into possession vide recovery memos. Exh.PM and Exh.PP. Further, the witnesses were subjected to a lengthy cross-examination but the defence could not succeed in creating any significant dent in their testimony and the minor discrepancies referred to by the learned counsel for the appellants are insignificant. It is worth noting that the occurrence was a broad daylight occurrence which had been promptly reported and since the parties were known to each other, there was no possibility of substitution which even otherwise is a rare phenomenon. The prosecution case, therefore, is fully supported by credible and unimpeachable evidence of the eye-witnesses of the occurrence.
13. The recovery of 43 empties from the place of occurrence and the weapons of offence recovered from the appellants stands proved by the testimony of P.W.11 Fateh Muhammad, P.W.12 Ansar Hayat and Mati-Ullah the Investigating Officer. The weapons recovered from the appellants matched with crime empties collected by C the Investigating Officer at the time of his inspection of the place of occurrence. The appellants Muhammad Wazir, Muhammad Amin and Zafar Abbas were armed with 7MM rifle whereas Ghulam Hussain was carrying a .12 bore gun. From the spot 13 empties of .7MM rifle as well as 10 empties of .12 bore gun were recovered which as per the reports submitted by the Forensic Science Laboratory Exh. PEE, Exh. PFF and Exh.PFF/l matched with the weapon used by the appellants in the occurrence. The witnesses relying to the recovery of weapons have stood the test of cross-examination. The factum of recovery of weapons of offence from the appellants, therefore, stands fully proved which further establishes their presence at the spot.
14. The medical evidence in the case was furnished by Dr. Naveed Sattar P.W.8 who medically examined the injured namely Riaz, Muhammad Yousaf (since dead), Jamil Hussain and Mustaq Ahmad, who according to the prosecution, were injured as a result of indiscriminate firing by the appellants and others. The injury statements of the said persons were recorded by the Investigating Officer who were examined with promptitude by P.W.8 within one hour and 15 minutes of the occurrence. The time and the weapon used in inflicting the injuries to the said persons stands established by the testimony of P.W.8 Dr. Naveed through their medico-legal reports Exh.PD, Exh.PH, Exh.PF and Exh.PG. P.W.8 also conducted the autopsy on the dead-body of the deceased Haji Ahmad according to which the deceased had suffered a fire-arm injury on the right side of his forehead with an exit would on the back side of the head. The postmortem report is in conformity with the eye-witness account vis-a-vis the locale, the duration and the weapon used. Therefore, the medical evidence also corroborates the ocular account, furnished by P.W.10 and P.W.11.
15. The arguments of the learned counsel for the appellants that the best evidence was withheld by the prosecution as the injured persons did not appear before trial Court is without force for the reason that the said injured were merely passersby who did not want to get involved in a feud between two parties. Even otherwise, there is reluctance on the part of the public to get involved in cases of such nature. The other reason could be the influence and pressure exerted by the appellants and their co-accused.
16. Be that as it may, the presence of the said persons at the place of occurrence and of having received fire-arm injuries at the hands of the appellants is fully proved by the medical evidence which F reveals that the said persons were examined by P.W.8 Dr. Naveed soon after the occurrence and the Investigating Officer who had prepared their injury statements.
17. In so far, as the place of recoveries having not been mentioned in the site-plan is concerned, suffice it to say that site-plan is not a substantive piece of evidence. The statement of the Investigating Officer as well as that of P.W.11 is sufficient to prove the recovery of the empties from the place of occurrence which were sealed into a parcel at the spot and dispatched to the Forensic Science Laboratory with reasonable promptitude.
18. Although, the fatal shot is attributed to Ghulam Abbas co-accused of the appellants, however, the prosecution has successfully established the guilt of the appellants through ocular testimony which is credible and confidence inspiring, the motive which is not disputed, the recovery of empties from the spot which matched with the weapons recovered from the appellants at their pointation and the medical evidence. Since the appellants did not cause any injury to the deceased and had only inflicted injuries to the injured P.Ws. Who having been won over by the accused were not produced at the trial, as such, the learned trial Court was legally justified in not imposing the capital sentence. However, the appellants are vicariously liable for the act of their co- accused Ghulam Abbas as they were members of an unlawful assembly and in the prosecution of their common object committed the offence of murder in a daylight occurrence.
19. For what has been discussed above Crl. Appeal No,1744 filed by Ghulam Hussain Shah and 3 others appellants against their conviction is dismissed and their convictions and sentences are maintained.
20. Resultantly, Criminal Appeal No, 1960 of 2003 and Criminal Revision No,1086 of 2003 filed by the complainant against acquittal of Muhammad Ilyas, Raja Muhammad Afzal and Hasnain Haider co- accused and for enhancement of sentence of Ghulam Hussain Shah etc. Appellants in the first mentioned Appeal, respectively, are also dismissed.