' IJAZ AHMAD CHAUDHRYJ:- This judgment will dispose of Criminal Appeal No. 1923 of 2001 filed by Sultan Ahmad ajnd Muhammad Aslam appellants against their convictions and sentences and Criminal Revision No.888 of 2001 filed by Muhammad Ashraf complainant for the enhancement of sentence of Muhammad Aslam respondent/appellant along with Murder Reference No.834 of 2001 sent by the learned trial court under section 374 Cr.P.C. For confirmation of death sentence as all the matters have arisen from the same judgment dated 30-11-2001, passed by the learned Addl.
Sessions Judge, Khushab through which he had convicted Sultan Ahmad appellant under section 302(b)/34 P.P.C. And sentenced to death with compensation of Rs. 1,00,000 payable to the legal heirs of the deceased or in default of payment thereof to further undergo R.l for six months while Muhammad Aslam appellant was convicted under section 302(b)/34 P.P.C. And sentenced him to imprisonment for life. The benefit provided under section 382-B, Cr.P.C. Was also extended to Muhammad Aslam appellant. However, through the same judgment co-accused Noor Muhammad son of Qasim Ali, Ghulam Mustafa son of Qasim Ali, Muhammad Aslam son of Noor Muhammad, Bashir Ahmad. Manzoor Ahmad and Farooq Ahmad sons of Ghulam Mustafa were ac emitted.
2. The occurrence' in the present case had taken place at 10-30 a.m. On 31-12-2000, within the area of Mauza Khurh Dhok Batkala, 16 Kilometers away from Police Station Naushera District Khurshab and on the statement of Muhammad Ashraf (P.W.-l) cousin of Muhammad % Zafar deceased, F.I.R.
(Exh.PA) was recorded by Muhammad Hayat S.-I. (P.W.12) on the same day at 12-00 noon at the Police Station.
3. The brief facts as narrated in the F.I.R. (Exh.P.A.) by Muhammad Zafar are that on the fateful day (31-12-2000) at 10.30 a.m. He along with Muhammad Zafar son of Sher All, Nazir Ahmad son of Noor Muhammad and Ghulam Ahmad son of Mian Muhammad, residents of Dhok Batkala proceeded from Dhok Batkala for village Khoora. Muhammad Zafar deceased was ahead of them. When they reached near the house of Sultan Ahmad son of Ghulam Mustafa appellant, he armed with . 12 bore gun with another unknown person, 28/30 years old also armed with .12 bore gun came out of the house and raised a lalkara .That Muhammad Zafar would be taught'a lesson for refusing to give the Rishta. Sultan Ahmad appellant them fired which hit Muhammad Zafar deceased on his chest.
The second shot was fired by unknown person which hit Muhammad Zafar on his left arm.
Thereafter Sultan Ahmad appellant and the said unknown person fired one after the other which hit Muhammad Zafar deceased on different parts of the body, who fell down and succumbed to the injuries on the spot. Sultan Ahmad and others co-accused raised a lalkara that whoever came near would be also treated in the similar manner. Sultan Ahmad appellant and his co-accused while firing shots fled away towards northern side in the Jungle. Manzoor Ahmad, Bashri Ahmad, Farooq Ahmad sons of Ghulam Mustafa, Noor Muhammad son. Of Qasim Ali and Muhammad Aslam son Noor Muhammad were alleged to have abetted the offence and on their instigation the murder was committed. The said conspiracy was heard by Dost Muhammad and Ata Muhammad.
5. After the registration of the case Muhammad Hayat S.-I. (P.W.12) went to the place of occurrence and found that the deadbody of the deceased was lying on the ground. He prepared injury statement Exh.PF and inquest report Exh.PG. He handed over the deadbody to Muhammad Nazir Constable for escorting it to the Civil Hospital Naushera for post-mortem. He inspected the spot and took into possession blood-stained earth vide recovery memo Exh.PC and he made it into sealed parcel. Two empties of .12 bore were recovered from the place of occurrence where the appellant Sultan was stated to have fired at the deceased. He made parcel of the said empties and took into possession vide recovery memo Exh.PE. He prepared the rough site-plan Exh.PK and recorded the statement of the P.Ws. Under section 161 Cr.P.C. He searched for the accused which he could not find. After the post-mortem examination Muhammad Nazir Constable produced before him last-worn clothes of the deceased viz Shirt P. 1, Shalwar P.2, Salooka P,3, Woollen Jersi P.4 along with sealed phial containing pellets which he took into possession vide recovery memo Ex. PB, to be attested by Muhammad Nazir and Muhammad Ashraf P.Ws. He recorded the statements of the witnesses of identification of the deceased's deadbody. He on return from the place of occurrence handed over sealed parcels of blood-stained earth and pellets, empties etc. To the Moharrar for safe custody in the Malkhana.
On 5-1-2001, he called for Abdul Sattar Patwari to take rough notes from the place of occurrence.
He gave him the scaled site- plan Ex. PJ and Ex. PJ/1. On 6-1-2001, he recorded the statement of Abdur Rehman Moharrar/Constable and % Bhai Khan Constable. Then on 29-1-2001, complainant and eye witnesses stated before him that the unknown accused with Sultan appellant was Muhammad Aslam appellant. On 7-2-2001, he arrested appellants Sultan and Aslam on the secret information furnished to him of their presence in village Khoora at Adda Bus Stand. On 7-2-2001, appellant Aslam was directed by him to cover his face as he was to be identified by the P.Ws. In an identification parade. He moved an application (Ex. PG) to the District Magistrate on 8-2-2001, for holding identification parade. The District Magistrate deputed Sh. Muhammad Hanif MIC who on 19- 2-2001, in the Shahpur Jail premises arranged identification parade. He entered in the police diary the proceedings of the identification parade after getting copy of the proceedings from the Magistrate. On 12-2-2001, after the disclosure of appellant Sultan Ahmad got recovered .12 bore gun P.5 along with five cartridges Ex.P.6/1-5 from his house situated in village Dhok Batkala. The gun was sealed into, parcel and was taken into custody vide recovery memo Exh.PF. He prepared the recovery site-plan Ex.PF/1. He recorded the statements of recovery witnesses under section 161 Cr.P.C. He handed over the gun to the Moharrar for its safe custody in the Malkhana. He also got registered case under Arms Ordinance against Sultan appellant who could not produce a licence for the gun recovered from him. On 1-3-2001, at the instance of Muhammad Aslam appellant 12 bore double barrel gun P.10 along with five live cartridges Ex.P. 11/1-5 was recovered from Sangha Pahari Dhok Batkala. The gun was sealed into parcel and was taken into possession vide recovery .
Memo Exh.PD which was attested by P.Ws. Dost Muhammad and Nazir Ahmad. He prepared the sketch of recovery of gun Ex.PD/1. The parcel was handed over to Moharrar for safe custody in the Malkhana. He challaned Sultan and Aslam appellants and placed Noor Muhammad, Ghulam Mustafa, Aslam, Bashir Ahmad, Manzoor Ahmad and Farooq Ahmad in Column No.2 of the challan.
6. After the completion of the investigation report under section 173 Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C Cr.P.C., were supplied to the appellants, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as 13 witnesses. The ocular account had been provided by Muhammad Ashraf (P.W.l). And Nair Ahmad (P.W.2) while the medical evidence had been furnished by Dr. Muhammad Yaqoob (P.W.13) who had conducted the post-mortem examination of Muhammad Zafar. The investigation had been conducted by Muhammad Hayat S.- I. (P.W. 12). The remaining witnesses are of formal nature and need not to discuss here.
7. After the close of the prbsecution evidence the statements of the appellants along with their co- accused were recorded under section 342, Cr.P.C. In which they denied the allegations and professed their innocence. The appellants did not opt to make statement under section 340(2)
Cr.P.C. And also denied to produce any defence evidence.
8. The learned trial court after hearing arguments of both the parties had passed the impugned judgment of conviction and sentence- against the appellants which is being assailed through the instant appeal and revision.
9. Learned counsel for the appellants contends that both the eye witnesses namely Muhammad Ashraf (P.W.l) and Nazir Ahmad (P.W.2) were not present at the spot; that there is contradiction between the medical evidence and the ocular account as there was blackening according to the doctor on the injuries but the eye witnesses stated that the firing was made by accused from a distance of nine karmas which shows that they were not present at the spot; that the eye witnesses were chance witnesses, but they failed to explain sufficient reason for their presence at the spot; that the eye witnesses had involved all the relatives of the appellant Sultan Ahmad in the present case and they were declared innocent by the police during investigation; that the S.S.P. After the registration of the case stated that the F.I.R. Was not recorded properly and there was padding; that the recovery had not been proved; that the'case against Muhammad Aslam appellant was not proved as in the identification parade the witnesses had not ascribed any role to Muhammad Aslam appellant and even otherwise the identification parade had been conducted on 19-2-2001, after about 2-1/2 months of the occurrence; that the recovery effected from the appellant '
Muhammad Aslam was useless as no empty had matched with the said weapon; and that it was a doubtful case and the appellants may be acquitted.
10. Learned counsel for the complainant on the other hand opposes this appeal on the ground that both the eye witnesses had no enmity or grudge to falsely implicate the appellants in the present case; that Muhammad Aslam appellant had been correctly identified during the identification parade; that the recovery of weapon had been effected from the appellants and empties which were recovered from the spot had matched with the gun recovered from Sutlan Ahmad appellant; that the accused/appellants were also related to the witnesses and there was no question of substitution of the appellants if they had not participated in the incident; that the prosecution had been able to prove the case against the appellants beyond any shadow of doubt.
11. Learned Additional Prosecutor General also supports the arguments of the learned counsel for the complainant.
12. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution.
13. The incident in the present case according to the prosecution has taken place at 10:30 on 31-12- 2000, within the area of Mauza Khoora Dhok Batkala and the statement of Muhammad Ashraf (P.W.l) was recorded on the same day at 12:00 noon at Police Station Naushera District Khushab in which the name of Sultan Ahmad appellant was duly mentioned and specific injury had been attributed to him on the chest of the deceased and other parts of the body. The name of Muhammad Aslam was not mentioned but he had been shown as unknown person. It is noticed that the post-mortem had been conducted on the deadbody of the deceased by Dr. Muhammad Yaqoob (P.W.13) at 2.35 p.m. On the same day and according to him the duration between the death and post-mortem might be within five hours. All these facts support that the F.I.R. In the present case had been registered with promptitude and it can be used as a corroborative piece of evidence at least against Sultan Ahmad appellant, who was named in the F.I.R.
14. To prove the ocular version the prosecution produced Muhammad Ashraf complainant (P.W.l) was Chachazad of the deceased Muhammad Zafar while Nazir Ahmad (P.W.2) was cousin of the deceased. Both the eye-witnesses no doubt are related inter se and with the deceased closely but mere relationship of the eyewitnesses is not sufficient to discard their evidence or to term them as interested witnesses unless it is proved on the record that there was previous enmity between the parties. In the present case there was no previous enmity between the parties rather as per statement of Muhammad Ashraf P.W.l Sultan Ahmad appellant also related to him and Nazir Ahmad P.W.2. So in the present case both the eye-witnesses were independent witnesses and their presence at the spot had not been seriously challenged during the cross-examination. They were residents of the same vicinity and their presence at the spot was not doubtful, which is further supported by the factum of recording of F.I.R. With promptitude and conducting of the post- mortem examination both the eye-witnesses remained consistent on material points about the time, place of incident and the manner in which the incident had taken place. Both the eyewitnesses are also found consistent on minute details of the incident and the defence has failed to gain anything out of the cross-examination to shatter their confidence and create any doubt about their presence at the spot. The only point against the eye-witnesses was that they had also involved three brothers and father of Sultan Ahmad appellant along with two others with the allegation of hatching of conspiracy with the appellants but the said statements of these witnesses had been found incorrect during the investigation and both the eye-witnesses were disbelieved to the extent of the accused of conspiracy, who were declared innocent and also acquitted and the witnesses of conspiracy had also been disbelieved. We are of the view that the statements of these witnesses cannot be disbelieved qua the appellant Sultan Ahmad as there was no question of misidentity of him in a broad-daylight occurrence in the back ground of relationship between the parties and it has been specifically mentioned that Sultan Ahmad appellant while armed with gun had fired at the chest of the deceased on the front and then due to the firing the deceased also received the injuries on the other parts of the body. The unknown accused person was alleged to have fired on the left arm. Thus we find that the ocular account to the extent of Sultan Ahmad appellant is confidence-inspiring and the same is sufficient to connect him with the offence even without being corroborated by the other evidence.
15. We have perused the statement of the doctor and also the diagram of the postmortem report.
The injuries attributed to the appellant Sultan Ahmad are borne out from the medical evidence and the medical evidence fully supported the ocular version to the extent of involvement of Sultan appellant. The contention of the learned counsel for the appellant that there was contradiction in the statements of the eyewitnesses . And medical evidence as according to the complainant (P.W.l) the firing was made by the accused at the deceased from-a distance of nine Karmas, but there was blackening on all the entry wounds and the doctor (P.W.13) observed that these could be caused only from a distance of 3/4 feet. We have already observed that both the eye-witnesses are natural and independent witnesses, who had specifically attributed injuries to Sultan Ahmad appellant with gun and the said injuries have been found result of the gun on the same seat. The contradiction about the distance of the assailants from the deceased alone is not sufficient to discard their evidence as the witnesses cannot be expected to have measured the distances between the assailant and the victim when the firing was going on.
16. The motive of the incident was that Rishta of the daughter of the deceased was settled with Sultan appellant but it was . Broken and due to this reason Sultan Ahmad appellant committed the murder of the deceased. It is admitted by Muhammad Ashraf P.W.l that Sultan Ahmad appellant was also related to him and he was also residing near the house of the deceased in the same vicinity. Both the eye-witnesses made consistent statements regarding the motive. The factum of breaking of the Rishta with Sultan Ahmad appellant and marrying the said daughter of the deceased with Muhammad Zaman had not been seriously questioned by the defence. Thus we have no hesitation in relying upon the motive and even otherwise no other motive had been brpught on the record by the accused for the murder of the deceased. Only it has been stated that Muhammad Zafar deceased was accused in some murder case and he had other enemies which alone is not sufficient to discard the motive and the ocular version as none of the persons from the opposite party with whom deceased Muhammad Zafar had previous enmity of murder has been involved in the present case. So the motive is also proved on the record to the extent of Sultan appellant.
17. On the day of occurrence according to the prosecution three empties had been recovered from the spot which were taken into possession vide recovery memo Exh.PE. To prove the said recovery Ansar Hay at appeared as P.W.4 and his statement is supported by the statement of the Investigating Officer Muhammad Hayat SI (P.W.12). Then the said empties according to the prosecution were sent to the office of the Forensic Science Laboratory on 5-1-2001 through Bhai Khan Constable (P.W.7). The appellant Sultan Ahmad was arrested on 7-2-2001, and he led to the recovery of gun from his residential house on 12-2-2001, in the presence of Muhammad Iqbal P.W.9 and Muhammad Hayat SI (P.W.12). The said g\m was sent to the office of Forensic Science Laboratory on 14-2-2001, and the report of the Forensic Science Laboratory (Exh.PH) shows that out of the three empties recovered form the spot, two had been fired from the double barrel gun recovered from the appellant Sultan. It has been contended that the recovery of weapon was not effected and the place of recovery was also not exclusively owned by the appellant Sultan and Muhammad Iqbal P.W.9 was not resident of the same vicinity. We have perused the statement of Muhammad Iqbal P.W.9 who has fully supported the effecting of recovery from the appellant Sultan. No doubt he was resident of Jauharabad, 26 miles a away from the place of recovery but he stated that simultaneously he was residing in the village and he daily used to visit the village Khoora and he was relative of the complainant. So the possibility of his presence at the time of recovery cannot be ruled out. Even otherwise Muhammad Iqbal P.W had no enmity or grudge to falsely state about the effecting of recovery from the appellant and we have no hesitation to rely upon the statement of the witnesses of recovery namely Muhammad Iqbal P.W.9 and Muhammad Hayat S.-I. P.W.
12. So far as the contention that the complainant stated to have not seen the empties at the spot and the empties were also not mentioned in the inquest report is concerned, we have noticed that P.W.2 Nazir Ahmad categorically stated that empties had been seen at the spot while the complainant had gone to record the F.I.R. Immediately after the incident within 5/10 minutes and he might have not noticed the empties but the said empties were recovered in the presence of the witnesses by the Investigating Officer and the witnesses have appeared in the Court in support of the recovery of the empties. So this argument of the learned counsel for the appellants is repelled.
Non-mentioning of the empties in- the inquest report also is not sufficient to hold that the empties were not recovered as the I lapses on the part of the I.O. Cannot be used to contradict the prosecution story, when the same has been proved through the other evidence of unimpeachable character. As such to the extent Sultan Ahmad appellant the ocular account is fully corroborated by the recovery of gun from him.
18. As a result of the above discussion we find that , the prosecution has succeeded in proving the case against the appellant j Sultan Ahmad beyond any shadow of doubt and his conviction recorded by the learned trial court under section 302(b), P.P.C. Is maintained.
19. As far as appellant Muhammad Aslam is concerned he is not named in the F.I.R. And according to Muhammad Hayat SI (P.W. 12) supplementary statements were made by the witnesses on 29-1- 2001, disclosing that unknown person, mentioned in their statements under sections A54 and 161, Cr.P.C., was Muhammad Aslam appellant who then was arrested on 7- 2-2001, and was sent to the judicial lock up on 8-2-2001. The identification parade was conducted on 19-2-2001, at jail which was supervised by Sh. Muhammad Hanif, Special Judicial Magistrate P..W.10. When the appellant Muhammad Aslam had already been nominated by the witnesses in their statements after receiving some information, the identification of said Muhammad Aslam subsequently through the identification parade was useless. Even otherwise the identification parade had been conducted after about 2-1/2 months of the occurrence. The description of the accused was not mentioned in their statements before the police. In such circumstances the involvement of Muhammad Aslam appellant in the present case has not been fully proved. Even otherwise the recovery of gun from him was also doubtful and the recovery had been effected in violation of section 103, Cr.P.C. Having been witnessed by the police officials, but no person from the locality was joined in the said recovery though the house of the appellant Muhammad Aslam was surrounded by different houses and number of persons were allegedly present during the proceedings of recover, who were not joined in the investigation by the Investigating Officer. Moreover, the empties recovered from the spot were not sent along with the weapon allegedly recovered from the appellant Muhammad Aslam. The report of the Forensic Science Laboratory is only to the effect that the weapon which was allegedly recovered from Muhammad Aslam appellant was in working condition. So the recovery of weapon from the appellant was not believable due to the above reason. Even otherwise it is not established from the report of the Forensic Science Laboratory that the said weapon had been Used during the incident. So the prosecution had not beep able to prove the case against Muhammad Aslam appellant beyond any shadow of doubt. Hence Crl.
Appeal No. 1923 of 2001 to his extent is partly accepted, Muhammad Aslam appellant is acquitted of the charge by extending him the benefit of doubt, who shall be released form the jail forthwith if he is not required in any other case.
20. As far as the contention of the learned counsel for the appellant Sultan Ahmad that there was no previous enmity between Sultan appellant and the deceased and the sentence of him may be reduced is concerned, we have already observed that the prosecution had fully proved the case against Sultan Ahmad appellant. He while armed with fire-arm had made repeated fires at the deceased hitting on different parts of his body. The motive was proved. We see no mitigating circumstances in the present case calling for lesser sentence to" Sultan Ahmad appellant and the learned trial Court was quite justified in awarding death penalty to him, which is maintained. The compensation is also maintained, but in default of payment thereof he will undergo six months' SI and not RI as directed by the learned trial court. Hence Crl. Appeal No. 1923 of 2001 to the extent of Sultan Ahmad appellant is partly dismissed being devoid of any merit. ' .
21. Murder Reference No.834 of 2001 is replied in the affirmative and the death sentence awarded to the appellant Sultan Ahmad by the learned trial court is confirmed.
22. So far as Crl. Revision No.888 of 2001 seeking enhancement of sentence awarded to Muhammad Aslam appellant is concerned, he has been acquitted by us from the charge and no question arises for L enhancement of sentence. Hence this Criminal Revision is dismissed.