Muhammad Arif appellant through this Criminal Appeal No. 811 of 2002 assails the judgment, dated 30-3-2002 passed by the learned Additional Sessions Judge, Mandi Bahauddin, in case F.I.R. No. 172 dated 16-7-1996 for offences under Sections 302/ 379/148/149, P.P.C. registered at Police Station Pahrianwali, whereby he convicted the appellant under Sections 302(B)/149 and 148; P.P.C. and sentenced him to life imprisonment in addition to Rs. 1,00,000 as compensation to be paid to the legal heirs of the deceased under Section 544-A, Cr.P.C. or in default thereof to further undergo three years' S.I. and two years' R.I. alongwith fine of Rs. 10,000 or in default thereof to further undergo three months' S.I. respectively, extending him the benefit of Section 382- B, Cr.P.C. The learned trial Court further ordered that both the sentences would run concurrently. Riasat Ali P.W.7 also challenged the impugned judgment by filing Criminal Appeal No. 678 of 2002 against acquittal of Muhammad Sharif and Ruqayya Begum co-accused and Criminal Revision No. 398 of 2002 praying for enhancement of the appellant's sentence. All, these matters are being disposed of together by this single judgment.
2. Briefly stated the facts of the case as gathered from the F.I.R. Exh.P.A. lodged by Muhammad Nazir complainant (P.W.1) are that on 16-7-1996 at 6-30 a.m. he alongwith Sana Ullah deceased. Riasat Ali (P.W.7) and Muhammad Ashraf (given up P.W.) was coming from his Dera towards his house, when they reached in the street near the residential house of Fazal Ahmad Hajjam. Mst. Ruqayya Begum accused raised a Lalkara that Muhammad Nazir etc. had reached, whereupon Ghulam Abbas armed with kalashnikov, Muhammad Afzal armed with rifle .222 bore and two unknown persons armed with fire-arms emerged from the house of Muhammad Hussain and came behind complainant party in the street while Muhammad Arif appellant armed with rifle .8 mm, Muhammad Sharif armed with .7 mm rifle, and Qamar armed with .7 mm rifle came in front of complainant party and all the accused started firing on the complainant party from both sides.
Complainant and P.Ws. in order to save their lives ran towards residential houses of Ghulam Rasool and Fazal Ahmad Hajjam and concealed themselves, whereas Sana Ullah deceased died at the spot due to firing of the accused persons, whereafter all the accused chased the complainant and the P.Ws. but due to closing of doors from both sides of the houses they could not succeed and went away raising Lalkaras.
3. The motive behind the occurrence as alleged was that prior to this occurrence, father of Ghulam Abbas accused was murdered regarding which a criminal case was registered against the complainant, the deceased and others wherein Sana Ullah deceased was acquitted and the complainant was convicted who filed an appeal against his conviction and was released on bail by this Court.
4. Initially, Ghulam Haider Inspector (who died before the commencement of the trial), scribed of the F.I.R. Exh.P.A., investigated the case, prepared injury statement, inquest report of the deceased, sent the dead body to the mortuary under the escort of Muhammad Iqbal for post-mortem examination, inspected the spot, prepared rough site-plan, recorded the statements of P.Ws. took into possession blood-stained earth and empties from the place of occurrence, made it into a sealed parcel, got prepared a scaled site-plan from Akhtar Natiash Draftsman, took into possession last-worn clothes of the deceased.
'P.W.14 Muhammad Nawaz, A.S.-I. attested and verified the investigation of Ghulam Haider, Inspector/Investigating Officer who died before the commencement of the trial. He deposed that complaint Exh.P.A. was written and signed by the said Inspector, the notes on Exhs. P.B. and P.B./1 were also in the hand of Ghulam Haider, Inspector who also signed the same also prepared the recovery memeos. Exh.P.C., Exh.P.E. and P.G. Injury statement Exh.P.G./3, inquest report Exh.P.G./4, application for post-mortem Exh.P.G./2 and the rough site-plan Exh.P.H. were also in the handwriting of Ghulam Haider Inspector and signed by him.
5. Thereafter, P.W.11 Muhammad Hanif Inspector, S.H.O. took over the investigation of this case who initiated proceedings under Section 87, Cr.P.C. against Mst Ruqayya Beg-um, Muhammad Afzal, Ghulam Abbas and Qamar Zaman and obtained proclamation Exhs. C.W.1/1, C.W.1/2 and Exh.P.W.11/1 and recorded the statement of C.W.I Ghulam Hussain Shah 409/C. On 17-8-1996 he arrested Muhammad Sharif and Muhammad Arif accused and remanded them to judicial custody. After completion of the investigation the police submitted report under Section 173, Cr.P.C./challan in the Court.
6. At the trial, prosecution in order to prove its case, produced as many as '14 witnesses whereas Muhammad Khan 398/C and Muhammad Akram 241/C were examined as C.Ws. P.W.1 Muhammad Nazir and Riasat Ali P.W.7 furnished ocular account. The medical evidence was furnished by Dr. Muhammad Akram Ikram P.W.13. P.W14 Muhammad Nawaz, A.S.-I. verified the investigation conducted by Ghulam Haider Inspector (since dead). P.W.11 Hanif Inspector also investigated the case and arrested Muhammad Sharif accused and Muhammad Arif appellant. The evidence of rest of the witnesses is of formal nature.
'The learned A.D.A. while closing the prosecution evidence tendered report of Chemical Examiner Exh.P.J., report of Serologist Exh.P.K.
7. After closure of prosecution evidence the trial Court recorded the statement of Muhammad Arif appellant and also that of acquitted co-accused under Section 342, Cr.P.C. The appellant did not opt to appear as witness in his defence under Section 340(2), Cr.P.C. In reply to the question "Why this case against you?" Muhammad Arif appellant stated as under: 'The complainant party and accused Abbas (P.O.) have cold-blood enmity. They involved me being relative of accused Abbas (P.O.) on the apprehension that I would pursue his case. All the witnesses are closely related to each other and deposed against me falsely."
8. The learned counsel for the appellant contended that the appellant had been falsely implicated in the case due to his relationship with Abbas P.O. who was a bitter enemy of the complainant party; that there were material discrepancies and glaring contradictions in the testimony of Muhammad Nazir P.W.1, the complainant of the case and Riasat Ali P.W.7 who had furnished the eye-witness account; that the medical evidence was in conflict with the ocular account given by the said P.Ws. that the prosecution witnesses made dishonest improvements at the trial; that eye- witnesses were interested witnesses who had a motive to falsely implicate the appellant for the sole reason that he was a close relative of the main accused Abbas as otherwise he would pursue the case; that Muhammad Nazir P.W.1 and the other eye-witnesses were not present at the place of occurrence because if they had been there, they would have been murdered at the hands of Ghulam Abbas and others due to blood feud enmity between them; that the prosecution had thrown a wide net so as to involve as many person as possible from the accused side as the complainant apprehended that in case of their non-involvement they would pursue the case; that the other accused namely Muhammad Sharif and Ruqayya Begum were declared innocent by the learned trial Court on the same set of evidence which was found to be credible qua the appellant and that the prosecution had failed to prove its case beyond any shadow of doubt against the appellant, therefore, he was entitled to be acquitted.
9. On the other hand, the learned counsel appearing on behalf of the State contended that the prosecution had succeeded to prove its case beyond any shadow of doubt against the accused persons by producing unimpeachable ocular account, duly corroborated by medical evidence and motive; that the eye-witnesses P.W.1 Muhammad Nazir and P.W.7 Riasat had proved their presence at the spot and identified the accused, including the appellant; that the statement of the said witnesses could not be discarded merely on the ground that the said witnesses were related to each other or were interested witnesses that despite lengthy cross-examination the defence had failed to create any dent in the prosecution evidence; that the occurrence was reported promptly to the police, therefore, there was no chance of fabrication or concoction in the prosecution story and that during the investigation the appellant was found guilty, hence, the order of the learned Judge convicting the appellant 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 ocular account in the instant case was furnished by P.W.1 Muhammad Nazir who is the complainant of the case and on whose statement F.I.R. Exh.P.A. was registered. According to the said P.W. he alongwith Riasat Ali P.W-7, Muhammad Ashraf given up P.W. and Sana Ullah deceased was coming from his Dera towards his house and when they reached near the house of Fazal Ahmad Hajjam, the appellant alongwith Ghulam Abbas P.O. and other co-accused while armed with fire-arm weapons started firing on them from two sides. P.Ws. took shelter in the residential house owned by Ghulam Rasool and Fazal Ahmad Hajjam with the exception of Sana Ullah who before he could take any shelter, had sustained injuries and had died at the spot. The accused thereafter chased the complainant party but on account of the accused having closed the doors of the house they could not succeed in their designs, whereafter the appellant and his co-accused while raising Lalkaras went away. P.W.7 Riasat Ali fully supported the statement of P.W.1 Muhammad Nazir in his examination-in-chief. The contention of the learned counsel for the appellant that the said P.Ws. were not present at the time of occurrence as otherwise they would also have been murdered by the accused is without substance. The prosecution witnesses have specifically stated in the F.I.R. as well as in their statements as P.W.1 and P.W.7 that as soon as they saw the accused persons they concealed themselves in the house of Afzal Ahmad Hajjam and Ghulam Rasool. This fact is further supported by the site-plan Exh.P.B. which shows that Muhammad Nazir P.W.1 was present at point "C" at the time of occurrence which was very close to the gate of the house of Fazal Ahmad Hajjam. It cannot be ruled out that as soon as he saw the accused persons he ran immediately into the house of Fazal Ahmad to save his life whereas Sana Ullah deceased was present at point 'K which is the middle of the street and before he could take shelter he had been targeted by the accused. Thus, the contention of the learned counsel for the appellant is without any basis. It is correct that there was a direct and bitter enmity between Ghulam Abbas and Muhammad Nazir P.W.1 complainant of the case, on account of a case which was registered at the instance of Ghulam Abbas against Muhammad Nazir for the abduction of his sister. Thereafter, Ghulam Abbas accused sustained injuries and a case was registered against Muhammad Nazir P.W.1 and others for attempt to commit murder. After the said occurrence Muhammad Shafi, the father of Ghulam Abbas P.O. was murdered and the case was registered against Muhammad Nazir P.W.1, Sana Ullah deceased and others. In the said case Sana Ullah deceased was acquitted whereas Muhammad Nazir P.W.1 was convicted and in appeal his sentence was suspended. Thus, it is obvious that Abbas P.O. had direct enmity with Muhammad Nazir P.W.1. However, it cannot be denied that Sana Ullah deceased was also an enemy of Ghulam Abbas P.O.
12. The argument of the learned counsel for the appellant that the appellant had been falsely implicated in the case due to close relationship with Abbas P.O. carries no weight as P.W.1 Muhammad Nazir and P.W.7 Riasat have specifically stated in their statements that the appellant Muhammad Arif was present at the spot at the time of occurrence and had resorted to firing at the complainant party. The appellant is the brother-in-law (Behnoi) Ghulam Abbas P.O. and on account of close proximity of the relationship between the two and their long standing enmity with the complainant side, his participation in the occurrence in support of Ghulam Abbas P.O. cannot be doubted.
13.Insofar as the motive is concerned P.W.1 Muhammad Nazir and P.W.7 Riasat have stated that the motive behind the occurrence was that the father of Ghulam Abbas accused was murdered in respect of which case was registered against the complainant, Sana Ullah deceased and others in which Sana Ullah deceased was acquitted, the complainant was convicted who in appeal was released on bail. The enmity between the parties started with the abduction of sister of Ghulam Abbas whereupon a case was registered against P.W.1 Muhammad Nazir and thereafter a case was registered against the complainant side for launching a murderous assault on Ghulam Abbas P.O. the father of Ghulam Abbas P.O. was murdered regarding which case was registered against P.W.1 Muhammad Nazir, Sana Ullah deceased, and others. Naseer Ahmad a member of the complainant party was admittedly murdered by the accused side in 'which Sana Ullah deceased was the complainant. The present occurrence is an outcome of the aforesaid C enmity which existed, between the parties since long. The motive as alleged by the prosecution was not denied by the defence and the enmity between the parties is an admitted fact.
14.The medical evidence in the case was furnished by Dr. Muhammad Akram Ikram P.W.13 who conducted the autopsy on the deceased on 16-7-1996 and found 26 fire-arm injuries on the dead body which were ante-mortem. According to the said witnesses the death of the deceased occurred due to Injuries 1, 6, 7 to 14, 16 and 26 which were sufficient to cause death in the ordinary course of nature. The time between death and post-mortem was stated to be 4 to 5 hours. The P.Ws. in their testimony categorically stated that the appellant and others fired at the deceased with fire-arm weapons which hit on his person. This aspect is fully supported by the medical evidence as the injuries mentioned on the body of the deceased tally with the ocular account to the extent of the number of accused, the weapons used and the manner in which the said injuries were sustained by the deceased.. There is no inconsistency between the ocular account and the medical evidence.
15.Another aspect which has to be considered is that a number of empties of different weapons were recovered from the spot by the police which included 15 crime-empties of Kalashnikov P.4/1- 15, two crime-empties of .222 bore rifle P.6/1-2, one crime-empty of .8 mm rifle P.7 and one crime- empty of .7 mm rifle P. 8 which were taken into possession vide recovery memo. Exh.P.E. The contention of the learned counsel for the appellant that all the injuries on the person of the deceased had been caused by Ghulam Abbas P.O. who was armed with kalashnikov has no force as apart from 15 crime-empties of kalashnikov, empties of other fire-arm weapons as detailed above were also recovered from the spot which further supports the ocular account furnished by the P.Ws. Although weapon of offence could not be recovered from the appellant, however, one crime-empty of .8 mm rifle was recovered from the spot by the police, which establishes his presence at the spot. Even otherwise 26 fire-arm injuries were sustained by the deceased in the said occurrence whereas only 15 crime-empties of kalashnikov were recovered from the scene.
Hence the contention of the learned counsel for the appellant that all the injuries had been caused by Ghulam Abbas P.O. is without any basis and carries no weight.
16. Form the above it is abundantly clear that the prosecution has proved the ocular account to the extent of the appellant which is duly corroborated by the motive, the medical evidence and the recovery of crime-empty of .8 mm rifle P.7. The statements of the eye-witnesses cannot be discarded merely on the ground that they are related inter se and were inimical towards the accused persons. The appellant and the other co-accused had a motive to launch an attack on the complainant party as a result of which Sana Ullah deceased was murdered.
17.For what has been discussed Criminal Appeal No. 811 of 2002 is dismissed and the conviction and sentence awarded to the appellant through the impugned judgment is maintained.
18.Consequently, Criminal Appeal No. 678 of 2002 against acquittal of the co-accused and Criminal Revision No. 398 of 2002 for enhancement of the sentence awarded to Muhammad Arif appellant are dismissed.