Ijaz Ahmad Chaudhry, J.--Muhammad Khalid appellant in Criminal Appeal No. 72-J of 2002, Muhammad Safdar and Muhammad Anees appellants in Criminal Appeal No. 544 of 2002 were convicted for an offence under Section 302(b)/34 PPC vide judgment dated 28.2.2002, handed down by the learned Additional Sessions Judge, Faisalabad, for committing `qatli-amd' of Ishfaq Ahmad deceased and Muhammad Khalid appellant in Criminal Appeal No. 72-J of 2002 was sentenced to death while Muhammad Safdar and Muhammad Anees appellants in Criminal Appeal No. 544 of 2002 were sentenced to imprisonment for life with direction to pay a sum of Rs.
50,000/- each to the heirs of the above said deceased by way of compensation under Section 544-A, Cr.P.C. All the three appellants, were further directed to pay Rs. 50,000/- each as fine, or in default of payment thereof to undergo S.I. for six months each. Benefit of Section 382-B, Cr.P.C. was also extended to them. Through the same judgment, co-accused namely Nazar Muhammad was however, acquitted of the charge by the learned trial Court while extending benefit of doubt to him.
Muhammad Khalid, Muhammad Safdar and Muhammad Anees appellants have challenged their convictions and sentences before this Court through Criminal Appeal No. 72-J of 2002 and Criminal Appeal No. 544 of 2002, respectively while Criminal Revision No. 475 of 2002 has been filed by Shaukat Ali complainant seeking enhancement of sentences of life imprisonment awarded to Muhammad Safdar and Muhammad Anees convicts-appellants in Criminal Appeal No. 544 of 2002, which have been heard by us alongwith Murder Reference No. 167 of 2002 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 Muhammad Khalid appellant. We proper to decide all these matters jointly through the present consolidated judgment.
2. Concisely the fats of the prosecution case set up in the FIR (Ex. PH/1) got lodged by Shaukat Ali complainant (PW-7) are that on 22.10.1999 at about 7.30 am. he alongwith his brothers Muhammad Ishfaq deceased, Sharafat Ali and Muhammad Saleem (PW-9) and Feroz Din was present outside his shop. Suddenly, Khalid appellant armed with carbine .12 bore, Muhammad Safdar and Muhammad Anees appellants armed with .30 bore pistols came there while a raising lalkaras that they would finish Muhammad Ishfaq deceased. Muhammad Ishfaq deceased brother of the complainant tried to enter into the house of Rayasat All while running but all the three accused/appellants namely, Muhammad Khalid, Muhammad Safdar and Muhammad Anees started straight firing, In the meanwhile, Muhammad Khalid and Muhammad Safdar appellants alongwith their fire-arms while running came to the adjacent house of Muhammad Ramzan machi and after climbing over the chicken Khudda alongwith the common wall, made firing upon Muhammad Ishfaq deceased who was present near the Northern door of the house of Rayasat Ali.
The fire of Khalid appellant hit on the different parts of the body of Muhammad Ishfaq, who after falling on the ground, succumbed to the injuries. On their hue and cry, people of the vicinity gathered there. They all jointly tried to catch the appellants, upon this accused-appellants made firing at them also but they luckily saved and the accused-appellants fled away. The murder had been committed by Khalid, Safdar and Muhammad Anees, accused-appellants on the abetment of Nazar Muhammad (acquitted accused). Besides the complainant the occurrence had been witnessed by Sharafat Ali brother of the complainant (not produced) and Muhammad Saleem (PW-9).
3. The motive behind the occurrence was alleged to be that Muhammad Khalid appellant used to sit in front of the house of complainant. Muhammad Ishfaq deceased forbade him due to which the accused had committed the murder of Muhammad Ishfaq deceased. Leaving behind the dead body of Muhammad Ishfaq deceased under the guard of Abad Ali (not produced) and Muhammad Yasin (PW-6), the complainant was proceeding to report the matter to the police, when in the way at Adda Chak No. 465/GB, he met with Bahadar Ali, S.I. (PW11) on 22.10.1999 at 9.00 a.m. and made statement (Ex. PH) to him, on the basis of which formal FIR No. 508 (Ex. PH/1) was subsequently drafted by Asghar Ali, H.C. (PW-8) at the Police Station the same day at 9.30 a.m. under Sections 302/109/34 PPC.
4. The investigation of this case was conducted by Bahadar Ali, S.I. (PW-11) and Ahmad Khan, S.I.
(PW-12), and during the investigation, dead body of Muhammad Ishfaq deceased was inspected, injury statement and inquest reports were prepared, statements of the witnesses under Sections 161 Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased 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, Muhammad Khalid appellant was arrested on 26.4.2000, who on 27.4.2000 while in police custody led to the recovery of carbihe .12 bore (P. 6) alongwith five live cartridges (P. 7/1-5), Muhammad Safdar and Muhammad Anees appellants were arrested on 12.11.1999 and on 25.11.1999, Muhammad Safdar appellant while in police custody led to the recovery of pistil .30 bore (P. 4) from his residential house lying in a room in an iron box, Muhammad Anees on the same day while on physical remand led to the recovery of pistol .30 bore (P. 5) from the Southern Corner of a Chapper lying in the house of Muhammad Safdar appellant and after completion of the investigation report under Section 173 Cr.P.C. was submitted in the Court.
5. At the commencement of the trial, the learned trial Court after supplying copies of the documents required under Section 265-C, Cr.P.C. to the appellants and the acquitted accused framed the charge under Sections 302/109/34 PPC, against them, on 22.6.2001, to which they pleaded not guilty and claimed to be tried.
6. During the trial the prosecution produced as many as twelve witnesses in support of its case.
PW-1 Aurangzeb, Draftsman on the pointing out of the witnesses and on the instructions of the police prepared scaled site-plan while Dildar Khan, Countable (PW-4) had escorted the dead body of the deceased to mortuary for autopsy. The ocular accounts of the incident in question was furnished by Shaukat All complainant (PW-7) and Muhammad Saleem (PW-9), who also deposed about the motive while Muhammad Yasin (PW-6) had identified the dead body of Muhammad Ishfaq deceased at the time of post-mortem examination at Tehsil Head Quarter Hospital, Samundari. The medical evidence was provided by Dr. Akhtar Alam (PW-1), who on 22.10.1999 at 2.00 p.m. had conducted the post-mortem examination on the dead body of Muhammad Ishfaq deceased. Bahadar Ali, S.I. (PW-11) and Ahmad Khan, S.I. (PW-12) had stated about the various steps taken by them during the investigation of this case. The other witnesses are of formal nature.
7. In their statements recorded under Section 342 Cr.P.C. the appellants and the acquitted accused had denied and controverted all the allegation of facts levelled against them by the prosecution and professed their innocence. However, to a question that 'why this case and why the PWs have deposed against you; Muhammad Khalid appellant replied in the following terms:- "My agricultural land is situated at a shot distance from the place of occurrence. If I have to go from my house to my said land, I have to pass through the common Bazar which runs from in front of the house of the complainant, those of the PWs and also of one Riasat Ali in whose house the occurrence is alleged to have been taken place. Ishfaq deceased was a vagabond and was having illicit relations with Mst. Sajida d/o Riasat Ali, Afore mentioned. As I used to go to my land daily from the said bazar, Ishfaq deceased started suspecting that I was also trying to develop illicit relations with said Sajida. On the day of occurrence, I was, going towards my land through said common bazar early in the morning but Ishfaq deceased challenged me and said that why I was passingfrom there. When I replied that there was no alternative passage towards my land upon which Ishfaq deceased after altercation with me took out his Carbine and threatened to fire at me.
In order to save myself I ran into the nearby house of Ramzan Machi. In the meantime, Ishfaq deceased fired at me but it did not hit me. I immediately jumped over the wall into the house of Riasat, Ali, and rushed out of his house from the Northern door. I was followed by Ishfaq deceased and as a result of scuffle and re-loading of the Carbine outside the house of Riasat Ali, the said Carbine fell from the, hand of Ishfaq deceased. We both tried to pick up said Carbine and I succeeded in picking it up and fired with the same at Ishfaq deceased in my self-defence. None of the PWs was present at the time of occurrence and they have deposed against me falsely due to their close relation ships inter se as well as the deceased.
In reply to the aforesaid question, Muhammad Safdar appellant answered as infra: `I have been falsely involved in this case. About 6/7 months prior to the occurrence a quarrel took place between Shaukat, Yaseen and Saleem PWs with Sultan etc. and cross cases were registered against both the parties. My father Nazar Muhammad co-accused was a witness in the said case against Shaukat Ali etc. On the day of occurrence I was present at the shop of Sher Muhammad Barber in the village for the purpose of my shave, when I heard the reports of fire shots in the bazar.
I was not present at the spot. The PWs are related inter se as well as with Ishfaq deceased. They have deposed against me due to their said relationships as well as due to above said enmity and my relationship with Khalid co-accused.'
Similarly, Muhammad Anees appellant, in response to the aforesaid question, stated as under: `I am innocent. I am resident of Arifwala, District Pakpattan. Muhammad Safdar and his father Nazar Muhammad and Khalid co-accused are my relatives. On the alleged date and time of occurrence, I was present at Arifwala and came to know about the occurrence when I was arrested by the police in this case on 12.11.1999. The PWs are related inter se as well as with the deceased and they have falsely deposed against me due to my relationship and their enmity with the co- accused.'
Nazar Muhammad (acquitted accused) in reply to the above-said questions also professed his innocence. However, neither they had opted to make statements under Sections 340(2), Cr.P.C. on oath, nor they produced any witnesses in their defence. However, Muhammad Khalid, appellant tendered copy of FIR as (Ex. DB) in his defence.
8. Upon conclusion of the trial the learned trial Court, after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, they were convicted and sentenced by it as mentioned and detailed above. Hence, all these matters before this Court.
9. The learned counsel for the appellants contends that the eyewitnesses were not present at the spot; that statements of the eye-witnesses are in contradiction with the medical evidence as according to the site-plan which was prepared on the pointing out of the eye-witnesses the assailants were at a distance of 12 feet from the deceased and in such circumstances burning or blackening could not occur on the injuries caused from such a long distance; that the eye- witnesses were not present at the spot and they had not witnesses the occurrence; that the FIR had been recorded at the spot after preliminary investigation and due deliberation; that the eye- witnesses were not only related inter se and with the deceased closely but their statements are full of contradictions and confrontations who cannot be relied upon; that the recovery of the weapons of offence in the present case was legally inconsequential, as no empty had been recovered from the spot and it was also not proved that the recovery had been effected from the places which were exclusively in their possession; that the prosecution witnesses were inimical and the prosecution had failed to provide its case against the appellants beyond any shadow of doubt.
10.On the contrary, the learned Additional Prosecutor General appearing on behalf of the State and the learned counsel for the complainant have maintained in unison that the eye-witnesses were not inimical towards the accused and there was no previous enmity between the parties before the incident and they had no motive to falsely implicate the accused in the present case if they not actually participated in the incident; that it is not expected from the simple villagers who were illiterate that they would give exact distance between the assailants and the victim; that on the other hand, the medical evidence supported the prosecution case that the deceased had received fire-arm injuries; that the prosecution had stood on its own legs successfully and as such the convictions and sentences of the appellants may be maintained with dismissal of the appeals filed by them.
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 according to the prosecution had taken place at 7.30 a.m. on 22.10.1999 in the house of Rayasat Ali (not produced) situated within the area of Chak No. 465/GB, 5 miles away towards East from Police Station Sadar Summanduri District Faisalabad whereas the matter was claimed to be reported by Shaukat Ali complainant (PW-7) through statement (Ex. PH) recorded by Bahadar Ali, S.I. (PW-11) at Adda Chak No. 565/GB, the same day at 9.00 a.m., on the basis of which formal FIR (Ex. PH/1) was subsequently drafted by Asghar Ali, H.C.
(PW-8) under Sections 302/109/34 PPC the same day at 9.30 a.m. During the cross-examination, Bahadar Ali, S.I. (PW-11), explained that after the occurrence, dead body was examined by him and injury statement as well as inquest reports were prepared, blood stained earth was taken into possession and then statement of Shaukat Ali complainant (PW-7) as well as statements of the other witnesses were recorded. So possibility of registration of the FIR after preliminary investigation and due deliberation as per statement of Bahadar Ali, S.I. (PW-11) cannot be ruled out and it cannot be said that the FIR had been recorded with promptitude in the manner narrated by the prosecution. Hence, the FIR cannot be used as a corroborative piece of evidence to the ocular account and the prosecution evidence has to be seen with utmost care and caution.
13.To prove the ocular account the prosecution produced Shaukat Ali complainant (PW-7) and Muhammad Saleem (PW-9). PW-7 Shaukat Ali complainant was real brother of Muhammad Ishfaq deceased while Muhammad Salem (PW-9) was `chachazad' of Yaseen PW. Liaqat Ali and Muhammad Saleem (PW-9) was Hamzulf of brother of the deceased. Even otherwise, they were closely related to each other. So both the eye-witnesses were related inter se and with the deceased closely. No doubt mere close relationship inter se and with the deceased is not sufficient to discard their statements and to declare them as interested witnesses unless it is proved that the witnesses were inimical towards the appellants. Although no previous enmity existed between the parties, but at the same time the. PWs are bound to establish that they had seen the occurrence and they had spoken the truth. According to the site-plan and the statements of the eye-witnesses the incident had taken place in the house of Rayasat Ali and the firing was made from the house of Muhammad Ramzan Macchi which was adjacent to the house of Rayasat Ali on the Western side and on the Eastern side of the house of Rayasat Ali where the incident had taken place was the house of Muhammad Saleem (PW-9). Moreover, on the Eastern side of the house of Muhammad Saleem (PW-9) there was house of Shaukat Ali etc. So the eye-witnesses were residents of the same vicinity where the incident had taken place and being neighbourers of the place of occurrence there was possibility of witnessing the occurrence by them in the early hours of the morning while standing in front of the ship of the complainant party. As such they can be termed as natural witnesses. There is no force in the contention of the learned counsel for the appellants that no shop of the complainant party existed as it has not been shown in the site-plan and thus claim of the witnesses being present there has been falsified because during the cross- examination on the complainant (PW-7) it was never suggested to him no such shop existed whereas in reply to the question of defence counsel he had explained that their shop was small and its door opened towards bazar. Further explained that there was no other shop situated near their shop in the said bazar. It is settled law that the site-plan cannot be used as a substantive piece of evidence. So we have no hesitation in declaring that both the eye-witnesses were natural and independent witnesses, who remained consistent on material points regarding the time, place and the manner in which the occurrence had taken place. It was stated by both of them in their statements before the police and also before the learned trial Court while appearing as PW-7 and PW-9 that the deceased on hearing the lalkara of the accused had entered the house of Rayasat Ali, who was chased by the three accused and then fired by Muhammad Khalid appellant while standing on a chicken Khudda hitting the deceased on the different parts of his body in the courtyard of the house of Rayasat Ali near the Northern door which fact is fully supported from the medical evidence that the deceased had received six fire-arm injuries on the different parts of his body of the deceased and these injuries could be caused to the deceased from the direction mentioned in the site-plan.
14. The only discrepancy in the medical evidence and the ocular account is that as per the post- mortem report all the injuries on the person of the deceased had burning and the doctor explained that these could be caused from a distance of three feet whereas the PWs had given the different distance. We have noticed that it was daylight occurrence and Muhammad Khalid appellant was residing in the village whose land was adjacent to the land of Shaukat Ali complainant (PW-7). In such circumstances there was no question of misidentity and false implication of the appellant Muhammad Khalid as a single accused who had caused these injuries to the deceased. Had the witnesses any intention to falsely implicate the other persons for causing the injuries on the person of the deceased. They could easily do so while distributing the number of injuries on the body of the deceased to the other accused as well who. according to them had participated in the incident alongwith Muhammad Khalid appellant. The bona fide of the eye-witnesses is crystal clear that all the injuries on the person of the deceased had been attributed only to Muhammad Khalid appellant. Even otherwise, Muhammad Khalid appellant has not denied his presence at the spot and causing of fire-arm injuries to Muhammad Ishfaq deceased, but in a different manner.
Moreover, the prosecution version was that Muhammad Ishfaq deceased had been shot dead after chasing and the appellant also admitted in his statement under Section 342 Cr.P.C. that the occurrence had not taken place at one place. In such a situation the PWs cannot be expected to have given the exact distance between the assailants and the victim when the fire had hit the victim and this discrepancy alone is not sufficient to discard the prosecution version as a whole and exonerate Muhammad Khalid appellant. The ocular account to the extent of Muhammad Khalid appellant is fully supported by the medical evidence and the circumstances of the case.
15. The motive of the incident setup by the prosecution was based on the oral statement of both the eye-witnesses. PW-7 Shaukat Ali and PW-9 Muhammad Saleem were not inimical towards the accused as there was no previous enmity or grudge between Muhammad Khalid appellant and the eye-witnesses. The occurrence also had taken place near the house of the complainant. The appellant in his statement under Section 342 Cr.P.C. explained that his agricultural land was at a shot distance from the place of occurrence and to go there had to pass through the bazar in front of the house of the complainant. The appellant has also admitted, but in a different manner that there was a tussle between him and the deceased from his passing outside the house of the deceased. So that oral statements of the witnesses can be relied upon to prove the motive. Even otherwise, motive is always considered to be a matter between the accused and the victim, which might be not in the knowledge of the witnesses. Moreover, mere non-existence of motive or non- proving of the same is not sufficient to affect the prosecution case if the eye-witnesses otherwise are proved to be reliable regarding the involvement of the accused.
16.The recovery of weapons from the appellants was legally inconsequential as no empty had been recovered from the spot and it cannot be said that the weapons allegedly recovered from the appellants were used by them during the incident.
17.Muhammad Khalid appellant was resident of the same locality where the incident had taken place and he also admitted in his statement under Section 342 Cr.P.C. that he had participated in the incident but in a different manner. So he was aware of the registration of the case against him but in spite of that he instead of appearing before the police become fugitive from justice. The warrants of arrest and proclamation under Section 87 Cr.P.0 were also issued against him which has been proved through the statement of PW-3 Athar-ul-Hassan, Constable. It is not denied that the appellant had been arrested on 26.2.2000 after about six months of the incident. Muhammad Khalid appellant failed to give any explanation for his failure to appear before the police immediately after registration of the case, when he has admitted his participation in the occurrence although in a different manner. In Haroon Rasheed and 6 others vs. State (PLJ 2006 SC 137), the absconsion of the accused for 8 days had been considered as corroboration piece of evidence to the ocular account. So the ocular account to the extent of Muhammad Khalid appellant finds corroboration from the factum of remaining fugitive from justice for a period of 6 months.
18. As far as the defence plea raised by Muhammad Khalid appellant in his statement under Section 342, Cr.P.C. reproduced in para-7 ante is concerned, the appellant has not produced any witness in support of his plea from the locality where the occurrence had taken place to prove that in fact Muhammad Ishfaq deceased was the aggressor and even he did not opt to make such statement on oath while appearing in his defence under Section 340(2) Cr.P.C. and put him to the test of cross-examination by the other party to check the veracity of his defence plea. It was the duty of Muhammad Khalid appellant to prove the plea raised by him under Section 121 of Qanun-e- Shahadat Order but he failed to discharge his burden. Even the defence taken by Muhammad Khalid appellant cannot be considered his first hand version as after the occurrence he remained fugitive from justice for about six months. If Muhammad Khalid appellant was right in his version, he could have appeared before the police immediately after the occurrence and produced residents of the locality in support of his plea during the investigation. We are not inclined to accept the defence plea that in fact that deceased was aggressor, who had initiated attack upon Muhammad Khalid appellant while armed with carbine and with the same Muhammad Khalid appellant had caused injuries to him in his self-defence as admittedly Muhammad Khalid appellant during the occurrence had received no injury. As such the defence plea is discarded and the same cannot be used to convert the conviction of the said appellant to Section 302(c) PPC. On the other hand, in Sultan Khan v. Sher Khan (PLD 1991 SC 520) it has been held that if the defence plea is disbelieved and the other evidence is available on the record to connect the accused with the commission of the crime, the exculpatory part of the statement of the accused in his statement under Section 342 Cr.P.C. can be taken out of consideration. As such the defence plea taken by Muhammad Khalid appellant itself provides corroboration to the ocular account.
19.As a result of the above discussion, the prosecution has been able to prove its case for committing `qatl-i-amd' of Muhammad Ishfaq deceased against Muhammad Khalid appellant beyond any shadow of doubt and his conviction and sentence under Section 302(b) PPC recorded by the learned trial Court is maintained.
20.As far as the quantum of sentence awarded to Muhammad Khalid appellant is concerned, We find that the house of Muhammad Khalid appellant was nowhere mentioned near the place of incident and he had come at the spot while armed with carbine and fired at the deceased after chasing him in the house of Muhammad Ramzan Macchi hitting on the vital parts of the body of the deceased. There was no doubt about the intention of Muhammad Khalid appellant to commit the murder of Muhammad Ishfaq deceased, who had not only brought the fire-arm weapon with him, but also made firing at the deceased resulting in his death. As such Muhammad Khalid appellant does not deserve for any leniency in the quantum of sentence and the learned trial Court was quite justified in awarding death penalty to him, which is maintained alongwith the compensation payable to the heirs of the deceased under Section 544-A, Cr.P.C. but in default of payment thereof he will undergo S.I. for six months. However, the sentence of fine is set aside as the same has not been provided by Legislature in the Statute for the offence under Section 302 PPC.
21.Resultantly, the impugned conviction and sentence recorded by the learned trial Court against Muhammad Khalid appellant is maintained and Criminal Appeal No. 72-J of 2002 filed by him is dismissed having no merits.
22.Murder Reference No. 167 of 2002 seeking confirmation of death sentence awarded to Muhammad Khalid appellant is replied in the affirmative and the death sentence awarded to him by the learned trial Court is confirmed.
23.As far as case of Muhammad Safdar and Muhammad Anees appellants is concerned, although the eye-witnesses alleged that they alongwith Muhammad Khalid co-convict had fired when the witnesses and the deceased were present in front of the shop in their house and the deceased was chased by them and firing was made on two different places, but it is the case of the prosecution itself that from the firing of Muhammad Safdar and Muhammad Anees appellants, the deceased had not received any injury and even no empty had been recovered from any of the places from which all the accused had allegedly fired at the deceased. Muhammad Safdar and Muhammad Anees appellants are closely related to Muhammad Khalid appellant and chances of their false implication by widening the net cannot be ruled out as the tendency has been developed in the society that the relatives/friends of the main accused are also involved in the occurrence by attributing them role of general allegation. To the extent of involvement of both these appellants we do not find any support to the ocular account from the other evidence and the circumstances of the case. They were not attributed any injury to the deceased or the PWs, no empty was recovered from the spot, which could show that large number of fires had been made by the assailants and admittedly they had no motive to chase the deceased and to commit his murder, which was attributed to Muhammad Khalid appellant alone. As such their case is distinguishable from the case of Muhammad Khalid appellant, who even otherwise had admitted his participation in the occurrence with the exclusion of both these appellants. So as an abundant caution and fair play, the benefit of doubt has to go to Muhammad Safdar and Muhammad Anees appellants. The prosecution has failed to justify their participation in the occurrence and sharing common intention with Muhammad Khalid appellant for committing `qatl-i-amd' of Muhammad Ishfaq deceased. Hence, Criminal Appeal No. 544 of 2002 is accepted, the conviction and sentence of Muhammad Safdar and Muhammad Anees appellants is set aside and they are acquitted by extending them the benefit of doubt. There are on bail and shall be discharged from the liability of the surety bonds.
24.Criminal Revision No. 475 of 2002 as a result of above discussion is also dismissed being devoid of any merit.