' MUHAMMAD AHSAN BHOON, J.---This judgment shall dispose of Criminal Appeal No. 1018/2004 (Akmal Pervaiz v. The State) filed against conviction, Criminal Appeal No.1116 of 2004 (Faisal Majeed v. The State) filed against conviction and Criminal Appeal No.1077 of 2004 (Mohsin Tanveer v. The State) filed against conviction and Criminal Revision No.649 of 2004 (Irshad Ahmad v. Muhammad Tanveer) for enhancement of sentences awarded to the-appellants, as these arise out of the same judgment, dated 16-6-2004 passed by the learned ASJ, Daska, whereby, after having been tried, the appellants, were convicted under section 302(b)/34, P.P.C. And sentenced to imprisonment for life each with a further direction to pay an amount of Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to further undergo 6 months S.I.
Each and they were also convicted under section 460/34, P.P.C. And sentenced to undergo 7 years R.I. The sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was extended to the appellants.
2. Brief facts of the case, as given by Irshad Ahmad complainant in the F.I.R. (Exh.PG/2) are that on 28-7-2001 at 7-45 p.m. He was conversing with his brother Haji Abdul Ghafoor in his house situated near Masjid Afzal Bhopalwala. All of a sudden, three persons of adolescent age, while armed with firearm weapons entered the house. One of them was of tall height while two others were of medium height. The person having tall height asked, who was Abdul Ghafoor amongst them?
Abdul Ghafoor stood up and disclosed his name. The person having average height aimed his riffle at the brother of the complainant Haji Abdul Ghafoor who grappled with the accused. Then the person having tall height started firing at Abdul Ghafoor. The third accused also fired at him with his pistol. The victim Haji Abdul Ghafoor received fire-arm injuries on the different parts of his body and fell down on the ground. One of the accused was also injured with the firing of co-accused.
After hearing the noise of firing, Muhammad Javed and Muhammad Riaz attracted to the place of occurrence and witnessed the incident. Thereafter the accused fled away, while making firing and took the injured accused along with them. Then the victim Haji Abdul Ghafoor was shifted to Civil Hospital Daska where he succumbed to the injuries.
3. After registration of case, Muhammad Sarwar, P.W.14 conducted investigation before whom complainant appeared and made supplementary statement wherein he nominated Akmal Pervaiz, Mohsan Tanveer, Faisal Majeed, Imran and Almas as accused persons.
4. After usual investigation, the challan was submitted to the trial Court against all the accused persons except Almas who was a P.O. To prove its case, the prosecution produced 16 witnesses in all.
5. When examined under section 342, Cr.P.C. All the accused claimed innocence and stated that they, had been falsely involved in this case. They did not opt to appear under section 340(2), Cr.P.C.
In disproof of the prosecution allegation nor did they opt to produce evidence in defence except two accused Faisal Majeed and Imran who lastly on 20-4-2004 closed their defence evidence after tendering copy of order, dated 11-7-2003 as Exh.DD, dated 27-10-2003 along with copy of affidavit of Muhammad Aslam Exh.DE, another order, dated 27-10-2003 with affidavit of Muhammad Iqbal Exh.DF and order, dated 28-8-2003 Exh.DG, by Imran accused.
6. At the conclusion of trial, the learned trial Court convicted and sentenced the appellants as mentioned above.
7. Brief resume of the prosecution evidence is that Firstly, I take up the case of the accused Akmal Pervaiz alias Peeji and Faisal Majeed. Muhammad Sarwar, first Investigating Officer appeared as P.W.14. He visited the spot; collected blood-stained earth and secured the same through recovery memo. Exh.PB. He also collected last worn clothes of the deceased i.e. Shirt P.1, vest P-2 and Lacha P-3, which were taken into possession vide recovery memo. Exh.P.A. He collected three empties of .30 bore pistol, 6 empties of Kalashnikov from the house of the deceased, which were taken into possession vide recovery memo. Exh.PC attested by P.W.2 Shabbir Hussain and P.W.14 Muhammad Maqsood. S.-I. And Muhammad Asif P.W. (not produced). During the investigation of this case the complainant got recorded his statement wherein he named all the four appellants and their co- accused Almas alias Masso. The appellant-accused Mohsan Tanveer and Faisal Majeed were arrested on 3-8-2001 by Ghulam Sarwar, S.-I. (P.W.15), whereas the appellant Imran alias Mani and Akmal Pervaiz were arrested on 14-8-2001 by the same Police Officer. After the arrest recovery of Klashnikov P.5 was got effected at the behest of Mohsan Tanveer along with 55 live bullets and secured the same through Exh.PJ. Thereafter, on the same day Gun .12 bore P-6 allegedly got recovered from Faisal Majeed along with 8 bullets, which were taken into possession vide recovery memo. Exh.PK and both the above said recoveries were attested by Muhammad Nazir, P.W.12, Ghulam Sarwar P.W.15 and Rashid P.W. (not examined). Imran alias Mani accused got recovered .7 MM rifle with 8 live bullets which were taken into possession by the Investigating Officer vide recovery Memo. Exh.PD, attested by Muhammad Aslam P.W.3 and Ghulam Sarwar S.-I./P.W.15.
Report of Forensic Science Laboratory tendered in evidence was found positive. After the arrest of accused Mohsan Tanveer he was medically examined by the Doctor Capt. Muhammad Iqbal (P.W.16) and he found the following injuries on his person:--
(i) A firearm lacerated wound 1 x 1 c.m. Into DNP on back of left forearm in lower most part. The margins of wound were inverted and slight blackening of edges was seen.
(ii) A firearm lacerated wound 2 x 1.5 c.m. Into DN on medial aspect of proximal part of left hand.
The margins of wound were everted.
8. After hearing the learned counsel for the parties and going through the record, I first take up the case of Akmal Pervaiz. And Faisal Majeed, appellants. Admittedly, both the appellants Akmal Pervaiz alias Peeji and Faisal Majeed were not nominated in the F.I.R. And their names surfaced in the case for the first time through supplementary statement made by the complainant (P.W.5), Muhammad Irshad, brother of the deceased. Admittedly, it was the case of prosecution that both the appellants did not enter the house of the deceased and similarly they did not cause any injury to the deceased or to P.W. Accused Akmal Pervaiz was empty handed whereas Faisal Majeed was armed with .12 bore gun but as per version of F.I.R. Lodged by the complainant Muhammad Irshad (P.W.5) and P.W.4 Muhammad Riaz nephew of the deceased, there were only three accused, who entered the house of the deceased and their description was given by P.W.5 in the F.I.R. So it was not mentioned anywhere in F.I.R. That these two other accused were seen by' eye-witnesses at the time of alleged occurrence. Later on prosecution introduced Muhammad Shabbir P.W.2 as witness of wajtakkar against aforenamed two appellants. If these two appellants had been seen by any of eye-witnesses then their description must had been given in the F.I.R. Even recovery of two empties of .12 bore gun from the street and later on matching of the same with the gun recovered at the behest of Faisal Majeed appellant does not advance prosecution case as the same were sent to the Forensic Science Laboratory after the arrest of Faisal Majeed on 3-8-2001. Another important aspect of the case is that although the P.W.5, complainant and the P.W.4 Muhammad Riaz, another eye- A witness tried to improve their case about the presence of both the appellants that they were seen by them, yet the site plan Exh.PH would show that it was not possible for the P.Ws./eye- witnesses to see them outside the house, from the place of their presence. So this is a case of sifting grain from chaff. So I disbelieve prosecution evidence as far as Akmal Pervaiz alias Peeji and Faisal Majeed appellants are concerned and benefit of doubt is extended to them. Resultantly, Criminal Appeal No. 1116 of 2004 is allowed to the extent of Faisal Majeed and Criminal Appeal No.1018 of 2004 filed by Akmal Pervaiz alias Peeji is allowed. They are acquitted of the charge. Both the appellants are on bail, their sureties stand discharged.
9. Now I take up case of two appellants Faisal Tanveer and Imran alias Mani. It is very much mentioned in the promptly lodged F.I.R. That three accused persons entered the house of the deceased where P.W.5 Muhammad Irshad, complainant and Muhammad Riaz, P.W.4 were already present along with deceased and another eye-witness Muhammad Asif P.W. (not produced). Out of the above-mentioned three accused, two were later on identified as appellants Mohsan Tanveer and Imran Mani whereas 3rd one was Almas (P.0). It is the case of prosecution, that firstly one of the accused Imran alias Mani grappled with the deceased and thereafter fired at the deceased and caused firearm injury on his chest and in the same occurrence appellant Mohsan Tanveer was injured. He was arrested on 3-8-2001 and on very next day, he was examined by Dr. Muhammad Iqbal (P. W.16) which would show that the appellant Mohsan Tanveer was found present at the time of alleged occurrence and this fact not only proves the involvement of both the accused in the crime in question but also corroborates the ocular account furnished by Muhammad Irshad, P. W.5 complainant and Muhammad Riaz (P.W.4) the presence of both eye-witnesses in the house of the deceased is also established at the relevant time, as they explained the accused which he Suffered during this occurrence. The description of both the appellants was duly given in the promptly lodged F.I.R. And eye-witness also identified them during the trial.
10. As far as alleging of motive is concerned, it was explained by the prosecution in the evidence that the accused were asking for Jaga from the deceased. The complainant and other witnesses had no motive to falsely implicate both the appellants, as the complainant being real brother of the deceased would not let off the real culprits. Substitution in such like cases is rare phenomenon, when admittedly there is no other enmity of the deceased or the complainant with accused or anybody else.
11. Recovery of weapon of offence although would not be relevant in presence of credible ocular account yet recovery of Klashnikov from Mohsin Tanveer, which was found, wedded with empties, was effected. Similarly, recovery of .7 M.M. Rifle was also effected at the behest of accused Imran alias Mani. Both the appellants Mohsan Tanveer and Imran alias Mani were saddled with the responsibility of occurrence in question and the same stood proved through prosecution evidence beyond reasonable shadow of doubt establishing their guilt. Resultantly, Criminal Appeal No. 1116 of 2004 is dismissed to the extent of accused-appellant Imran alias Mani. Similarly, Criminal Appeal No.1077 of 2004 filed by accused-appellant Mohsan Tanveer is also dismissed being devoid of merits.
12. For what has been discussed above, I do not find any merit in Criminal Revision No.649 of 2004 filed by Irshad Ahmad petitioner, which is hereby dismissed.