' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal. No,343 of 2002 filed by Ghulam Muhammad alias Gamma and Javed Iqbal appellants, who along with Aurangzeb and Abdul Sattar faced trial in case F.I.R. No,22 registered at Police Station Esa Khail, District Mianwali, on 28-2-2001, for offences under section 302/34, P.P.C. Before learned Additional Sessions Judge-I, Mianwali, who after conclusion of trial, vide his judgment, dated 27-2-2002, while acquitting Abdul Sattar and Aurangzeb convicted the appellants under section 302(b)134, P.P.C.
And sentenced them to Death with compensation of Rs,50,000 each.
2. Murder Reference No,197 of 2002 for confirmation or otherwise of death sentence of appellants shall also be disposed of through this single judgment.
3. Brief facts of the case as narrated by Altaf Hussain Shah in F.I.R. Exh.P.K. Are that his brother Fayyaz Hussain Shah was serving as Naib Qasid in middle School Kaluwanwala. On the same day the complainant had gone to Central Middle School, Kaluwanwala in connection with the annual examination of Class-V. After performing his duty, he along with his brother Fayyaz Hussain Shah boarded a coach from Kaluwanwala and went to Adda Kaloor Sharif where his brother Saleem Ullah and one Manzoor Hussain Shah were present. Altaf Hussain Shah complainant along with his brothers Fayyaz Hussain Shah and Saleem Ullah Shah and said Manzoor Hussain Shah started together from Adda Kaloor Sharif towards their houses situated in Sandanwala on foot. Fayyaz Hussain Shah was going some paces ahead of them. At about 2-15 p.m., when Fayyaz Hussain Shah reached near the tube-well of Abdul Rehman Khan, Javed Iqbal, Ghulam Muhammad alias Gamma Aurangzeb and Abdul Sattar, all armed with .12 bore pistols appeared in front of Fayyaz Hussain Shah. Javed Iqbal raised Lalkar that Fayyaz Hussain Shah shall be taught a lesson for not giving the vote in their favour and fired with his pistol at Fayyaz Hussain Shah, which hit on left side of his head. Ghulam Muhammad alias Gamma caused a tire, which hit Fayyaz Hussain Shah on his back, thereafter Fayyaz fell down. Aurangzeb and Abdul Sattar also fired at Fayyaz Hussain but the same missed. On hue and cry of the complainant party Javed Iqbal and Ghulam Muhammad boarded a motorcycle while Aurangzeb and Abdul Sattar on foot fled away from the spot. The P.Ws.
Shifted Fayyaz Hussain Shah to hospital, Esa Khail, where he succumbed to the injuries before any medical aid could be given to him.
4. The motive behind the occurrence was that Fayyaz Hussain had not given the vote in favour of the candidate related to Javed lqbal, which resulted into murder of Fayaz Hussain.
5. After registration of formal F.I.R., the investigation of the case was taken over by Habib Ullah, S.- I./P.W.11. He proceeded to THQ, Hospital, Esa Khail, where dead body of Fayyaz Hussain Shah was lying. He took over the dead body, prepared injury statement Exh.P.B. And inquest report Exh.P.C.
Thereafter he proceeded to the place of occurrence and secured the blood-stained earth from the spot vide memo. Exh.P.J. On 23-3-2001 he arrested Ghulam Muhammad alias Gamma. While in custody, on 1-4-2001, he led to the recovery of .12 bore pistol P.4 along with two live cartridges P.5/1- 2 from the courtyard of the house of Javed Iqbal, which were taken into possession vide memo.
Exh.P.F. On 3-5-2001, Muhammad Anwar Khan, S.-I./P.W.12 arrested Javed Iqbal, who, while in custody on 7-5-2001, led to the recovery of motorcycle Yamaha Registration No,4884/DNA from his house, which was taken into possession vide memo. Exh.P.G. On the next day i.e. 8-5-2001 Javed Iqbal also led to the recovery of .12 bore pistol P.6 along with two live cartridges P.7/1-2, which were taken into possession vide memo. Exh.P.H. After completion of investigation, the accused were sent up to face trial.
6. At the trial, the prosecution in order to prove its case produced 12 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.P.M. And that of serologist Exh.P.N.
Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C.
However, they produced Noor Muhammad and Muhammad Afzal as D.W.1 and D.W.2 in their defence. After conclusion of trial, the learned trial Court, while acquitting Aurangzeb and Abdul Sattar, convicted and sentenced the appellants as stated above.
7. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellants in support of this appeal has contended that both the eye-witnesses are not only related to the deceased but are also chance witnesses; that there was no occasion for Altaf Hussain Shah first to go to the school situated at a different place and then to be present at Adda to join the deceased and the other witnesses; that both the witnesses tried to implicate Aurangzeb and Abdul Sattar as well, who were acquitted by the learned trial Court; that credibility of the witnesses is shaken by the very fact that they implicated Aurangzeb, real brother of Javed Iqbal, as well as Abdul Sattar, who were -attributed firing from a very close range but according to the P.Ws.
Despite the fact of close range the deceased did not receive any injury at the hands of the accused; that the motive as set in the F.I.R. Could not be proved during trial; that medical evidence did not support the ocular account; that the recovery of motorcycle and pistol was not worthy of any credence; and that in fact both the witnesses were not present at the time of occurrence, the only witness of the occurrence as D.W.1 Noor Muhammad, who could not identify the assailants and the P.Ws. Were informed by the D.W. Muhammad Afzal about the occurrence.
8. The learned counsel appearing on behalf of the complainant submits that it was a daylight occurrence; that the matter was reported to the police promptly; that both the eye-witnesses though related to the deceased had no enmity to involve the appellants in a false case; their statements were supported by the medical evidence and corroborated by the recovery of motorcycle as well as pistol; that the motive stands duly proved; that as far as the D.Ws. Are concerned, their statements were not worthy of any credence, as they appeared before the Investigating Officer after a considerable delay; and that their statements were nothing but afterthought.
9. The learned Additional Prosecutor-General adopts the line of arguments advanced by the learned counsel for the complainant.
10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.
11. In order to prove its case the prosecution produced Altaf Hussain Shah and Saleem Ullah brothers of the deceased. The complainant was employed as teacher in Government Primary School, Qureshianwala, while Fayyaz Hussain deceased was employed as Naib Qasid in Government Middle School, Kaluwanwala. Saleem Ullah P.W. Was resident of Sindanwala. His house was situated at a distance of about 1 Km. From the spot. On the fateful day, Altaf Hussain Shah had gone to Government Middle School, Kaluwanwala for the purpose of examination of Class-V, as his school was attached with Kaluwanwala Centre. After examination the complainant and his deceased brother boarded a wagon and reached Bus-stand Kaloor Sharif, where Saleem Ullah P.W.
And one Manzoor Shah were present. The deceased and the II.Ws. Started towards their houses situated in Sindanwala. At about 2-15 p.m. Near the tube-well of one Abdul Rehman, Fayyaz Hussain, who was slightly ahead of the P.Ws., was surprised by Javed Iqbal and Ghulam Muhammad (appellants), Aurangzeb and Abdul Sattar (accused). All of them were armed with .12 bore pistols. After raising Lalkara that the deceased would be taught a lesson for not favourably voting, Javed Iqbal caused fired which hit on the left side of head of Fayyaz Hussain. Allegedly Ghulam Muhammad appellant was next to fire, which hit on the back of Fayyaz Hussain deceased.
Ineffective firing was attributed to Aurangzeb and Abdul Sattar (acquitted co accused).
12. The main attack of the learned counsel for the appellants was A that the witnesses were chance witnesses, who had no occasion to be present at the time of occurrence. The argument of the learned counsel is devoid of any force, as both the P.Ws. Have plausibly explained their presence at the time of occurrence. Altaf Hussain Shah was subjected to very lengthy cross- examination.During that cross-examination he explained that the students of Class-V were actually taken by their parents to the Centre of middle School, Kaluwanwala and the teacher accompanied them just for boosting their moral and also to insure their presence. He further explained that on the fateful day the students had not accompanied him rather they had gone to Kaluwanwala along with their parents. Similarly the students had not returned with him after examination. He also stated that the examination finished at 1-30 p.m. On the fateful day and so it was not an unusual circumstance for the deceased to join his brother for going back to their houses after completion of their jobs. The presence of Saleem Ullah at Bus-stand at the relevant time is also not an unusual circumstance, as his house was situated at a distance of 1 Km. And it was natural for a villager to go to the Bus-stand to purchase the articles of daily use.
13. The occurrence took place at 2-15 p.m. While the matter was reported to the police at police station situated at a distance of 9 Kms. At 3-00 p.m. Within 45 minutes of the occurrence. Not only that the F.I.R. Was lodged promptly but the post-mortem examination was also conducted on the same date by Dr. Latif-ur-Rehman/P.W.1 at 4-00 p.m. Within an hour of registration of case. The above noted facts support the presence of the P.Ws. At the time of occurrence. Both the eye- witnesses though related to the deceased had no personal enmity or It may be noted here that no or enmity was even suggested to Saleem Ullah P.W. Both these witnesses have corroborated each other on almost all the material points of the case. During lengthy cross-examination intrinsic value of the evidence of the P.Ws. Could not be shaken. Altaf Hussain Shah did not attempt to conceal the facts during his statement, as is evident from the fact that he admitted that D.W.1 and D.W.2 appeared before the Investigating Officer and had sworn affidavits in favour of the accused.
His presence is further borne out from the fact that he, Saleem Ullah and Manzoor Hussain (who was not produced during trial) after the occurrence took Fayyaz Hussain on a Datsun Pick-up to THQ Hospital, Esa Khail. The moment they reached hospital along with Fayyaz Hussain victim, he lost his life. After leaving Saleem Ullah and Manzoor Hussain with the dead body of Fayyaz Hussain, he on the same vehicle went to the Police Station Esa Khail and lodged F.I.R. The Investigating Officer endorsed the statement of the complainant by stating that he recorded the F.I.R. At police station and thereafter he went to hospital and examined the dead body of Fayyaz Hussain.
14. The statements of both the eye-witnesses are fully supported bylD the medical evidence to the extent of Javed Iqbal appellant.
15. As far as the motive is concerned, it was brought on record during cr,,ss-examination that Javed Iqbal appellant had also submitted his nomination papers for contesting election but his nomination papers were rejected, so story of election mentioned in the F.I.R. Was not without any substance.
16. As far as the recoveries of pistol and motorcycle are concerned, we are not inclined to use the same against Javed Iqbal appellant, as pistol was never sent to the Forensic Science Laboratory to ascertain whether it was in working order or not. As far as the motorcycle is concerned, no public witness was associated during recovery proceedings and there is no evidence on record as to who was the owner of the motorcycle.
17. Two D.Ws. Noor Muhammad and Muhammad Afzal were produced by the accused in order to prove that only witness of the occurrence was Noor Muhammad, who through Muhammad Afzal D.W.2 informed the complainant party about the occurrence, which was committed by unknown assailants. The statements of both the witnesses were brought on record on 2-4-2001 after more than a month of the occurrence and hence, the reliance could be placed on the statement of these witnesses. Their statements are also inconsistent with each other.
18. The upshot of the whole discussion is that we are of the considered opinion that the prosecution has successfully proved its case beyond doubt against Javed Iqbal appellant. Thus, this appeal to the extent of Javed Iqbal appellant is dismissed. Sentence of death is confirmed. Murder Reference is answered in the affirmative. Order passed by the learned trial Court under section 544-A" Cr.P.C.
Is modified to the extent that in default of payment thereof or realization the convict would suffer six months' S.I.
19. Now coming to the case of Ghulam Muhammad alias Gamma appellant, after attributing fatal fire to Javed Iqbal, it was alleged that Ghulam Muhammad also fired on the backside of the deceased. Dr. Latif-ur-Rehman/P.W.1 during cross-examination conceded that injury No,5, which was on the back was grazing wound and the injury was simple in nature and could not contribute to death of the victim. He further stated that injuries Nos.1 to 5 could be caused by one and the same fire in the sudden position. No motive was attributed to Ghulam Muhammad appellant. Two other accused, who were assigned the role of ineffective firing have been acquitted by the learned trial Court.
20. In the above noted circumstances, while following the principle of safe administration of justice we allow this appeal to the extent of Ghulam Muhammad alias Gamma appellant. The judgment passed by the learned trial Court to his extent is set aside. He is acquitted of all the charges. He would be released from jail forthwith, if not required in any other case. His sentence of death is not confirmed. Murder Reference is answered in the negative.