' IJAZ AHMAD CHAUDHRY, J.- Ibrar Hussain appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 25-10-2000 handed down by the learned Additional Sessions Judge, Toba Tek Singh and was sentenced to death for committing 'Qatl-i-Amd' of Muhammad Akram deceased with direction to pay a sum of Rs,20,000 ,to the heirs of Muhammad Akram deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo S.I. For six months. Ibrar Hussain appellant was further convicted under section 324/34, P.P.C. For launching murderous assault at Muhammad Anwar injured (P.W,10) and was sentenced to 7 years' R.I. With direction for payment of Rs,20,000 as fine or in default of payment thereof to further undergo one year R.I. He was further directed to pay a sum of Rs,10,000 to Muhammad Anwar injured (P.W.10) by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo three months' S.I. Ibrar Hussain appellant was further convicted- under section 337-D/34, P.P.C. And was sentenced to 7 years' R.I. With direction to pay Rs,84,000 as Arsh to Muhammad Anwar injured (P.W.10). Ibrar Hussain appellant has challenged his conviction and sentence before this Court through Criminal Appeal No, 1250 of 1999 while Criminal Revision No,24 of 2000 has been filed by Sattar Ahmad complainant (P.W.9) against Ibrar Hussain accused- appellant for enhancement of sentences in lieu of section 324/34, P.P.C. And section 337- D, P.P.C. As well as for enhancement of compensation amounts, which have been heard by us along with Murder Reference No,25 of 2000 sent by the learned trial Court under section 374, Cr.P.C.
Seeking confirmation of the sentence of death passed, by the learned trial Court against Ibrar Hussain appellant. We propose to decide all these matters jointly through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. (Exh.P.G./l) got lodged by Sattar Ahmad complainant (P.W.9) was that on 2-3-1997, at night time, Sattar Ahmad complainant (P.W.9) was present in the house of his maternal nephews namely Muhammad Anwar injured (P.W.10), Muhammad. Akram deceased and Imran, situated in Street No,2 of Siddique Park Toba Tek Singh. Meanwhile, Muhammad Akram deceased and Muhammad Anwar injured (P-.W.10) after getting relieved from their duties came to their house. At about 9-40 p.m. Ibrar Hussain appellant armed with .12 bore shotgun and Sarfraz alias Jagga absconder accused armed with pistol while abusing came there.
Ibrar Hussain appellant raised a Lalkara that complainant party should come out who would be taught a lesson for restraining them from standing in the street. Muhammad Akram deceased and Muhammad Anwar injured (P.W.10) came outside the house whereupon Ibrar Hussain appellant fired a shot with his shotgun which hit Muhammad Akram deceased in his chest while Sarfraz alias Jugga absconder accused fired shots with his pistol out of which one hit Muhammad Anwar injured (P.W.10) at the lower part of his abdomen whereupon both of them fell on the ground. On raising hue and cry. Ch. Muhammad Boota, Muhammad Iqbal, Mst. Surriya Bibi, Mst. Ghafooran Bibi and Jamil Ahmad Haider and many other persons while witnessing the occurrence came there.
Due to the life fear, they could not apprehend the accused persons who while brandishing their arms in the air succeeded in fleeing away.
3. The motive behind the Occurrence was alleged to be the Muhammad Akram deceased and Muhammad Anwar injured (P.W.10) had restrained both the accused who were vagabonds from standing in the street. Due to that reason, both the accused in furtherance of each other while armed with fire-arms had seriously injured the deceased and the injured. The complainant and the other P.Ws. Were taking Muhammad Akram deceased and Muhammad Anwar injured (P.W.10) in injured condition to D.H.Q., Hospital, Toba but in the way Muhammad Akram deceased nephew of the complainant succumbed to the injuries. Muhammad Anwar injured (P.W.10.) was brought in D.H.Q., Hospital, Toba Tek Singh who then due to his serious, condition was referred to Allied Hospital, Faisalabad by the doctor and was got admitted there. Leaving behind the dead body of Muhammad Akram deceased under the guard of Imran and Muhammad Azhar in the Hospital, Sattar Ahmad complainant (P.W.9) was proceeding to the Police Station to report the matter, but in the way at Lorry Adda at about 2-20 p.m. On 2-3-1997, he met with Abdul Razzaq, S.I. (P.W.Ll) and made statement (Exh.P.G.) to him, on the basis of which formal F.I.R. (Exh.P.G./I) was subsequently drafted by Muhammad Ashraf, H.C. (P.W.4) on the same night at 2-35 p.m.
4. The investigation of this case was conducted by Abdul Razzaq, S.I. (P.W.Ll) and during the investigation the place of occurrence was inspected, blood-stained earth was secured, a rough site-plan of the place of occurrence was prepared, the dead body was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, the appellant was arrested on 21-3-1999, recovery of .12 bore shotgun (P_l) from the appellant's possession was effected and after completion of the investigation a challan was submitted.
5. At the commencement of the trial the learned trial Court framed a charge under sections 302/324/34, P.P.C. Against the appellant to which he pleaded not guilty and claimed a trial.
6. During the trial the prosecution produced as many as eleven witnesses in support of its case. The ocular account of the incident in question was furnished by Sattar Ahmad complainant (P.W.9) and Muhammad Anwar (P.W.10) who also deposed about the motive. P.W.8 Nazir Ahmad stated about the recovery of .12 bore shotgun from the appellant's possession during the investigation of this case.. The medical evidence was provided by Dr. Ghulam Dastgir (P.W.l) and Dr. Muhammad Mansha (P.W.2) while Abdul Razzaq, S.I. (P.W.Ll) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature.
7. In his statement recorded under section 342, Cr.P.C., the appellant had denied and controverted all the allegations of fact levelled against him by the prosecution and also professed his innocence. However, to a question that "Why this case against you and why the P.Ws. Have deposed against you"? Ibrar Hussain accused-appellant replied in the following terms:- ' "It is a false case. P.Ws. Have made false statements against me and my brother Sarfraz alias Jagga due to their close relationship with the deceased and enmity with me, Sattar Ahmad P.W.
Was not in fact present at the time of occurrence at the place of occurrence. The occurrence took place in the darkness of the night and the assailants were not known to the complainant party who after making deliberation concocted a false story and got registered this false case against me and my brother Sarfraz alias Jagga. Postmortem examination was conducted with inordinate delay because the assailants were not known. "
' However, neither he opted to make statement on oath under section 340(2), Cr.P.C. Nor he,produced any witness in his defence.
8. Upon conclusion of the trial the learned trial Court after finding the prosecution's case against Ibrar Hussain appellant to have been proved beyond reasonable doubt, he was convicted and - sentenced by it as mentioned and detailed above. Hence, the present appeal, revision and the connected Murder Reference before this Court.
9. The learned counsel for the appellant contends that there was delay of four hours in lodging the F.I.R.; that the medical evidence is in contradiction with the ocular account as the doctor opined that the time between the death and injury was four to six hours but according to the eyewitnesses the deceased died within 20 minutes; that Muhammad Anwar. Injured (P.W. 10) had stated as per his statement before the police (Exh.D.C.) that he was sitting in his house, but while appearing in the Court he stated that he was sitting in the house, of Muhammad Akram deceased and they had come out; that Sattar Ahmad complainant (P.W.9) was not resident of the same place and he was a chance witness who had failed to explain his presence at the spot at the time or occurrence; that the F.I.R. Was registered with such delay in spite of that the Police Station was only 1 k.m. Away from the place of occurrence; that three eye-witnesses namely Ch. Muhammad Boota, Muhammad Iqbal and Jamil Ahmad Haider remained present in the village but they did not approach the, police and the complainant also did not ask them to go to the police for recording the F.I.R.; that there was no motive with the appellant to commit the murder of the deceased; that motive also could not be proved; that the recovery of weapon from the appellant was inconsequential; that the prosecution had not succeeded in proving the case against the appellant beyond any shadow of doubt and that no independent person had been produced in support of the prosecution, which being not reliable the appellant is entitled to acquittal. In alternate it is contended that there was no previous enmity between the parties, but the incident appears to have taken place at the spur of moment without premediation and the origin of the occurrence was not disclosed; that the appellant had not repeated the shot and that it was not a case of capital punishment. Relies upon PLD 1995 SC 684.
10. On the contrary, learned counsel for the complainant/petitioner and the State have maintained in unison that the prosecution had produced sufficient evidence to connect the appellant with the commission, of the crime and, thus, succeeded in establishing the appellant's guilt to the hilt through the statements of Sattar Ahmad complainant (P.W.9) and Muhammad Anwar injured (P.W.10), who had no previous enmity, ill-will or grudge to falsely implicate the appellant in the present case; that both the eye-witnesses remained consistent on material points; that statements of the eye-witnesses are fully supported by the medical evidence; that the appellant had comfnitted a heinous offence by firing straight the chest of the deceased while the fire made by the co-accused of the appellant had hit in the abdomen of Muhammad Anwar injured (P.W.10), which that how they were cruel in assaulting upon- the complainant party, therefore, the conviction and sentence of the appellant recorded by the learned trial Court do not warrant any interference by this Court.
11. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
12. The occurrence in the present case had taken place on 1-3-1997 at 9-40 p.m. Within the area of Mohallah Siddique Park, situate 1. k.m. Towards East from Police Station City Toba Tek Singh and the matter was reported to the police by Sattar Ahmad complainant (P.W.9) who was maternal uncle of Muhammad Akram deceased on 2-3-1997 at 2-20 a.m. At Lorry Adda while making his statement (Exh.P.G.) to Abdul" Razzaq, S'.I. (P.W.Ll), on the basis of which formal F.I.R. (Exh.P.G. 1) was drafted by Muhammad Ashraf, H.C. (P.W.4) the same night at 2-35 p.m. It has been stated in the F.I.R. By the complainant that after the incident he had taken both the injured persons namely Muhammad Akram deceased and Muhammad Anwar (P.W.10) in injured condition to D.H.Q., Hospital, Toba Tek Singh but Muhammad Akram deceased died in the way while Muhammad Anwar injured (PW.10) was admitted in the D.H.Q., Hospital but due to his serious condition he was referred to Allied Hospital, Faisalabad. The complainant took Muhammad Anwar injured (P.W.10) to Allied Hospital, Faisalabad and then on return to Toba Tek Singh he reported the matter to the police. The delay has been properly explained by the complainant as naturally the first preference of the complainant was to save the life of the injured and to take them to the hospital for medical treatment. It is proved that Muhammad Anwar injured (P.W.10) was in serious condition as he had received fire-arm injury in the abdomen and in order to save his life the complainant had taken him to Allied Hospital, Faisalabad being elder one. In the meanwhile, . If the other witnesses had not approached the police for registration of the case, it cannot be said that the time was consumed in concocting the story to falsely rope the appellant and his absconding brother in the present case.
We find that the delay in lodging the F.I.R. Was properly explained, which was natural.
13. To prove the ocular account the prosecution had produced Sattar Ahmad complainant (P.W.9)
Muhammad Anwar injured (P.W.10). P.W.9 Sattar Ahamd is maternal uncle of Muhammad Akram deceased and P.W.10 Muhammad Anwar injured, who both were real brothers. The complainant was resident of 3/4 acres away from the place of incident. It has been contended on behalf of the appellant that the complainant was not present at the spot at the time of incident. We have noticed that it was the case of the defence itself that both the deceased and the accused were residing in the same vicinity and the house of Ibrar Hussain appellant was facing the house of Muhammad Akram deceased with a street intervening. There was no previous enmity between the parties and the occurrence was alleged to have taken place on restraining the accused by the deceased from standing in front of their house. It was also the case of the defence that on the day of occurrence at the relevant time womenfolk from both the parties had exchanged abuses and altercation. The complainant also denied the suggestion that Mst, Ghafooran Bibi and Mst. Surriya^ Bibi had brick batted at the outer door of the house of the accused. However, it was explained by the complainant during the cross-examination that the occurrence had taken place due to the standing of the accused outside the house of the deceased 2/4 days prior to the incident and on the day of occurrence as well. So there was some tension between both the parties. In such circumstances, the complainant who was real brother of the mother of the deceased and injured Muhammad Anwar (P.W. 10) might have gone to their house to inquire about the dispute being resident of the same vicinity. The presence of the complainant is 'further fortified that in the MLR (Exh.P.A.) which was conducted at 10-30 p.m. The doctor noted down that the injured Muhammad Anwar was brought by his maternal uncle Sattar. As such the presence of the complainant at the spot cannot be doubted.
14. P.W. 10 Muhammad Anwar injured was real brother of Muhammad Akram deceased and was resident of the same vicinity as according to the, statements of the complainant and Muhammad Anwar injured (P.W. 10), he was residing adjacent to the house of Muhammad Akram deceased and the house of the accused was in front of their house. The site plan (Exh.P.F.) also proves this fact. As such he was quite natural witness and his presence at the spot was further stamped by the receiving of fire-arm injury in the abdomen in the same occurrence. He was also medically examined at 10-30 a.m. And the doctor had declared the injury as fresh and the said injury could not be self-suffered. However, the statement Of Muhammad Anwar injured (P.W. 10) under section 154, Cr.P.C. Was recorded by Abdul Razzaq, S.-I. (P.W. 11) on 6-7-1997 when the doctor had declared him fit to make statement. Hence, it is proved beyond any shadow of doubt that the witnesses were present at the spot and had witnessed the incident.
15. No doubt both the eye-witnesses were related inter se and with the deceased closely but the close relationship itself is not sufficient to term them as interested witnesses. Both of them had no previous enmity to falsely involve the appellant and his co-accused in the present case by letting off the real culprit. According to the complainant both the parties had been residing at the place- of occurrence in front of each other for the last 20 years but no untoward incident had ever taken place between them except the incidents of forbidding the accused from standing in the street by the deceased on the day of occurrence and 3/4 days earlier. So there was no previous enmity between the parties for falsely implicating the appellant and his absconding brother, if they had not participated in the incident by letting off the real culprits. Both the eye-witnesses remained consistent on material points regarding the time, place of occurrence and the manner in which the occurrence had taken place. They were subjected to lengthy cross-examination but nothing could be gained by the defence to create doubt in the prosecution version. After the perusal of the statements of these two eye-witnesses we are satisfied that the ocular account is trustworthy and is sufficient to connect the appellant with the commission of the crime even without any independent corroboration.
16. The medical evidence fully supported the ocular account. The doctor duly noted down the fire- arm injuries on the persons of the deceased and the injured P.W. On the same locale. Mere opinion of the doctor that the probable time between the injuries and the death of the deceased was four to six hours is not sufficient to discard the prosecution version. We have already observed that it was not an unwitnessed occurrence. Within an hour of the occurrence, Muhammad Anwar (P.W.
10), who was injured in the same occurrence was got medically examined from the doctor, who noted down that the injuries were fresh. The complainant in the F.I.R. Which was recorded at 2:35 p.m. Duly got recorded that Muhammad Akram died in the way to the hospital. If he was still alive as per opinion of the doctor, he would also have been got medically examined along with Muhammad Anwar injured (P.W. 10) at 9-30 p.m. In such circumstances no importance can be given to the opinion of the police and the ocular account has to prevail that the death of Muhammad Akram had occurred just within 20 minutes of the occurrence, which also finds support from the other circumstances of the case. The claim of the complainant that he had taken the deceased to the hospital is fortified from the statement of the Investigating Officer (P.W. 11) that he had inspected the dead body in the D.H.Q., Hospital, Toba Tek Singh and then he prepared the injury statement and the inquest report.
17. It has been contended by the learned counsel for the appellant that in the g statement (Exh.D.C.) recorded under section 161, Cr.P.C. Muhammad Anwar injured (P.W. 10) stated that he was present in his house when on hearing the noise he came outside and the incident took place while Muhammad Akram deceased had also come out from his separate house but at the trial he stated that he was sitting in the house of Muhammad Akram deceased F and they came out together.
This contradiction is not sufficient to discard the evidence as the incident in the present case had taken place on 1-3-1997 while the statements of the witnesses were recorded after about 3 years on 7-11-1999. Even otherwise, houses of Muhammad Anwar injured (P.W. 10) and Muhammad Akram deceased were adjacent to each other and the occurrence had taken place just outside their houses. We have already believed the presence of the P.Ws. At the spot during the occurrence.
Hence, this minor discrepancy which had occurred due to the elapse of time is not sufficient to discard the statement of Muhammad - Anwar injured (P.W. 10).
18. The recovery of gun from the appellant's on 24-3-1997 was legally inconsequential as no empty had been recovered from the spot and there is no report of Forensic Science Laboratory, hence, it cannot be said that the weapon allegedly recovered from the appellant was used in the incident.
However, this alone is not sufficient to exonerate the appellant from the commission of theta alleged crime.
19. So far as the motive of the incident is concerned, the incident in the present was alleged to have taken place due to the reason that the deceased had restrained the appellant and the co- accused from standing in the street in front of his house. There is 1 nothing on the record to disbelieve the motive, which even otherwise was admitted by the defence during the cross- examination on the complainant (P.W.9). The relevant portion is reproduced as under:- ' "It is correct that there was no previous enmity between the parties before this occurrence and the occurrence took place only on the restraining of deceased to the accused from standing in front of their house. After performing daily duties Muhammad Akram deceased and Muhammad Anwar P.W. Used to return their houses every day. Muhammad Akram deceased had forbidden the accused from standing outside their house two or four days prior to the occurrence as well as on the day of occurrence. "
' From the perusal of the above, the motive set up by the prosecution stood proved.
20. As a result of the above discussion, we find that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and the learned trial Court has rightly convicted the appellant under sections 302(b), P.P.C. And 324/337-D/34, P.P.C., which is maintained.
21. So far as the quantum of sentence is concerned, the learned counsel for the appellant has contended that the incident had taken place at the spur of the moment without pre-meditation and the appellant had only fired a single shot, who deserves leniency in the- quantum of sentence which may be converted to imprisonment for life in the peculiar circumstances of the present case.
We find that during the cross- examination P.W.9 Sattar Ahmad conceded that there was no previous enmity between the parties before the present inbident and the occurrence took place only on the restraining of the deceased to the accused for standing in front of the house. So the dispute between the parties regarding standing of the appellant in front of the house of the deceased was going on for the last 2/4 days and a quarrel according to the complainant also took place on the same day of the occurrence. In such circumstances it was the appellant who used to stand in front of the house of the deceased and he being restrained from doing so by the deceased, it cannot be said that the deceased had provoked the appellant and contributed in his death. The appellant had acted in a cruel manner while firing in the chest of the deceased and done him to death on a petty matter whereas his brother Sarfraz alias Jagga (since P.O.) was alleged to have made fire in the belly of Muhammad Anwar (P.W. 10), who became seriously injured. The intention of the accused can be gathered from the act committed by them. The medical evidence shows that there were small holes at the point of entry wound and the said injury had damaged heart and thus contributed into the death of the deceased immediately after the incident. In such circumstances, we find that the appellant does not deserve any leniency and the learned trial Court was quite justified in awarding death penalty to him. The case-law cited by the learned counsel for the appellant reported in PLD 1995 SC 684, is not applicable to the facts and circumstances of the present case as the august Supreme Court of Pakistan in 2005 SCM R 427 has held that mere making of single shot, non-availability of motive and taking place of the occurrence at the spur of moment are not mitigating circumstances for the award of lesser sentence. Thus the death sentence awarded to the appellant along with the sentences awarded under sections 324 and 337-D/34, P.P.C. Are maintained. However, both the sentences of imprisonment shall run concurrently.
22. For the forgoing reasons, we do not find any merit in Criminal Appeal No, 1250 of 1999, which is dismissed and the impugned judgment of conviction and sentence is maintained with the slight modification that the sentences of imprisonment awarded under section 324 and 337-D, P.P.C.
Shall run concurrently.
23. Murder Reference No,25 of 2000 is answered in the affirmative and the sentence of death passed by the learned trial Court against Ibrar Hussain appellant is hereby confirmed.
24. In view of the above discussion we do not find any merit in Criminal Revision No, 24 of 2000 as the convict has already been directed to pay compensation of Rs,20,000 to the heirs of the deceased. No evidence has been brought on the record by the prosecution about the financial status of the parties. Thus it cannot be said that the compensation amount was not adequately awarded. As far as the other prayer seeking enhancement in the quantum of sentence awarded to the appellant under sections 324 and 337-D/34, P.P.C. Is concerned, suffice it to say that the appellant was only convicted and sentenced after the said offences for sharing the common intention and the fire-arm injury on the person of Muhammad Anwar (P.W.10) was specifically attributed to Sarfraz alias Jagga co-accused (P.O.) and there is no justification for enhancement of the said sentences, which even otherwise have been directed by us to run concurrently. This criminal revision is dismissed.