' MUHAMMAD AHSAN BHOON, J.---This judgment shall dispose of Criminal Appeal No,1162 of 2002 filed by Allah Ditta, appellant and Criminal Appeal No,1462 of 2002 by Muhammad Nawaz, as both arise out of same judgment dat 19-6-2002.
2. Apart from the above appeals, the learned trial Court has submitted Murder Reference No,559 of 2002 for confirmation of death of Allah Ditta, appellant-accused, as required under section 374, Cr.P.C.
3. The appellant Allah Ditta and Muhammad Nawaz through their separate appeal have challenged the judgment passed by the learned Additional Sessions Judge, Jhang whereby he convicted the appellant Allah Ditta under section 302(b), P.P.C. And sentenced him to death as Ta'zir along with section compensation of Rs,1,00,000. And in case of default to undergo R.I. For six months while convicted appellant Muhammad Nawaz under section 302(b), P.P.C. And sentenced him to undergo imprisonment for life along with compensation of Rs,50,000 and in case of default to Undergo S.I. For two months. The learned trial Court vide the same judgment convicted the appellants Allah Ditta and Muhammad Nawaz under section 460, P.P.C. And sentenced them to undergo R.I. For ten years each, while acquitted their co-accused Zahoor Ahmad and Manor Khan by giving them benefit of doubt in case F.I.R. No,18ted 14-1-2001, offence under sections 302/324/460/34, P.P.C. At Police Station 18 Hazari, Tehsil and District, Jhang.
4. The prosecution story in brief is that an F.I.R. (Exh.P.K.1) was lodged on the statement of Muhammad Khalid, complainant (P.W.11), wherein he has stated that on 13-1-2001 at 10-30 a.m. He along with his brother Muhammad Arshad (deceased)., Mubashar injured P.W.10, Muhammad Amjad (P.W. Given up) and his father Muhammad Nawaz, P.W.5 was sitting in the room of their house and watching T.V. While the door of the room was opened and electric bulbs were on in the Veranda and courtyard. Suddenly three pawns whose names and addresses were not known entered into the courtyard by scaling over the wall of the house of complainant. At this Muhammad Arshad deceased and Mubashar injured P. W.10 rushed out of the room by seeing those persons and inquired from them as to who they were. One of the accused made two fires from his .30 bore pistol at Muhammad Arshad deceased who received the same at the front of left side of his chest and on the front of his head who fell down. The other accused fired with his .30 bore pistol and the fire hit Mubashar P. W.10 on the upper side of his umbilicus, who also fell down on the ground. The accused raised a Lalkara that they would fire at one who came near to them. Due to fear of the accused, nobody came near to them but they raised alaram and the accused ran away by scaling over the wall of the Haveli. The complainant and the P. Ws. Witnessed the occurrence and they could identify the accused if they came before them. Muhammad Arshad succumbed to the injuries while Mubashar injured P.W.10 was removed to D.H.Q., Hospital, Jhang for his treatment.
Muhammad Khalid P.W.11, leaving Muhammad Nawaz P.W.5 and Muhammad Amjad (given up P.W.) to guard the dead body, was going to police station when P.W.14 Abdul Rehman Inspector/S.H.O. Met him at Adda Wasoo. The complainant further stated hat they had no enmity with anyone and the unknown persons had committed transgression, therefore, he prayed for proceeding against the accused.
' On the same day the complainant made supplementary statement while nominating Muhammad Nawaz, Zahoor Ahmed, Allah Ditta, and Manzoor Khan.
5. After due investigation report under section 173, Cr.P.C. Was submitted in the learned trial Court.
Charge was framed against the appellants and their co-accused who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellants were examined under section 342, Cr.P.C. They did not opt to appear as their own witnesses in disproof of the allegation levelled against them as required under section 340(2), Cr.P.C. But they asked to adduce defence evidence. However, no defence was adduced by any of them. The learned trial Court after hearing the learned counsel for the parties, passed the above said conviction and sentence, which is being assailed through these criminal appeals.
6. The learned counsel for the appellants contends that it was an unwitnessed and blind murder and that was the reason that none of the accused persons was named in the F.I.R. By Muhammad Khalid P.W.11, who is brother of the deceased particularly when it was admitted by the eye- witnesses that accused appellant Muhammad Nawaz belong to the same vicinity where the occurrence took place. He further contends P.W.11 was a chance witness according to his own statement as he claimed that he was residing athang; that the complainant made improvements to nominate the accused in supplementary statement; that Muhammad Nawaz, P.W.5 who is father of the deceased as well as other two eye-witnesses P.W.10 and P.W.11 were not present at the spot; that it was a dark and foggy night therefore, it was not possible for the witnesses to identify or recognize the actual culprits; that the motive in the present occurrence was an afterthought and was mere concoction as the complainant in his statement Exh.P.K. Which was made basis for the F.I.R. Exh.P.K./1 stated that the deceased as Well as his family has no enmity with anyone, so thereafter, there was no reason with the appellant to murder the deceased Arshad; that recoveries were disbelieved by the learned trial Court as the Investigating Officer admitted that he had not mentioned in any case diary about the recovery of empties from the spot and similarly there was no mention in Column No,23 of inquest report; that even the empties were sent to the Forensic Science Laboratory after the arrest of the accused i.e. 16-1-2001; that P.W.7 Dr. Abdul Hafiz, admitted this fact that injured (P.W.10 Mubashar) was able to talk his recording of statement after 17 days was based on improvements and lastly contended that the prosecution has failed to establish its case against the appellants beyond any reasonable shadow of doubt and the appellants are liable to be acquitted.
7. Conversely, the learned D.P.G. Assisted by learned counsel for the complainant have defended the impugned judgment by arguing that the occurrence took place in the house of the deceased and the eyewitnesses, and they are quite natural and truthful witnesses; that the ocular account furnished by eye-witnesses is in line with the medical evidence; that there is no discrepancy in the statements of the eyewitnesses; that recoveries were effected at the behest of the appellants- accused and they were found guilty during the investigation and that the prosecution has discharged its onus and prayed for dismissal of the appeals.
8. We have heard the learned counsel for the parties and have gone through the whole evidence carefully with their able assistance.
9. The ocular account in this case was furnished by Muhammad Nawaz (P.W.5), father of the deceased, Mubashar injured P.W.10 (brother of the deceased) and Muhammad Khalid complainant (P.W.11), another brother of the deceased. F.I.R. Exh.P.K./1 was recorded on the basis of complainant Exh.P.K. Made by Muhammad Khalid (P.W.11) complainant. He reiterated-the story of F.I.R. And supplementary statement made by him on the same day i.e. 14-1-2001 while appearing before the trial Court. He also identified both the appellants and categorically stated that Allah Ditta accused made two fire shots, which hit Muhammad Arshad deceased on the chest, at left side and on his head. He also deposed that Muhammad Nawaz appellant made fire which hit Mubashar near his umbilicus. Although the accused were not. Nominated in the F.I.R., yet the description of injuries was given by him was absolutely the same which was given in the F.I.R. He admitted this fact in the F.I.R.
That his family had no enmity with any one but later on he nominated the present appellants and their acquitted accused on asking of his father, who was another eye-witness and appeared before the trial Court as P.W.5. He explained in his evidence that after his initial education he was living at Jhang and only visited his house occasionally or on week end to see his other family members and this fact was also explained by him in his supplementary statement which was produced by the defence as Exh.D.F., which was refused into writing on the night of occurrence/day of lodging of F.I.R. i.e., 14-1-2001 and all this borne out from the document produced by the defence Exh.D.F., wherein he categorically stated that after initial education he settled at Jhang and thereafter he joined services, initially at Gojra and thereafter was employed as teacher in Government M.B. High School, Jhang for the last 12/13 years and was also residing there but on the day of occurrence he had come to see his parents and other family members. So non nomination of the accused at the time of lodging of F.I.R. Was not due to the reason that they were not seen by any eye-witness rather that was only due to the reason that their names were not known to the complainant Muhammad Khalid (P.W.11). P.W.5 who is father of the deceased as well as the other two eye-witnesses is admittedly resident of the same house where occurrence took place. So his presence at the spot cannot be doubted at any stretch of imagination because in the night it was quite natural that he was available with other family members in the house and has also explained the details of occurrence i.e., seat of injuries suffered by the deceased at the hands of the appellants' by the P. Ws. At the time of occurrence. He being the head of the family and owner of the house has also categorically stated that there was an electric bulb in the Veranda and this fact was also duly mentioned in the F.I.R., by the complainant at the time of lodging the same that electric bulbs were on in the Veranda and courtyard. P.W.5 admitted this fact that it was wintry night but there was no fog. The most important eye-witness of the occurrence was Mubashar P.W.10, who also suffered fire-arm injury on the most vital part of his body i.e., abdomen near the umbilicus and he categorically deposed in his statement dated 31-1-2001 under section 161, Cr.P.C.
(Exh.D.E.) that after receipt of injury, he became unconscious and while appearing before the Court as P.W.10 he deposed this fact in his examination-in-chief that when Muhammad Nawaz accused made fire shot with his pistol which hit him at his umbilicus and he also fell on the ground and became unconscious. His statement under section 161, Cr.P.C. Could not be recorded promptly because he was seriously injured and same was recorded, when he regained senses. He on the 3rd line of cross-examination deposed that he regained senses after 3/4 days of the occurrence as the injury received by him was on the vital part of his body. He remained admitted so many days in the hospital. It is evident from the record that his statement was recorded before he was discharged from the hospital. He being known to the accused/appellants nominated them in his statement with specific role of causing two fire shots by appellant Allah Ditta to the deceased Arshad and one fire-arm injury to him by Nawaz appellant-accused. All the above three eye-witnesses were quite natural being residents of the same place, where the occurrence took place and they have no animus to falsely implicate the appellants/accused. So we see no hesitation to rely upon their evidence.
10. Medical evidence furnished by Dr. Allah Bakhsh Chaudhry (P.W.6) who conducted the post- mortem examination of the deceased Arshad showed that there were two fire-arms injuries on the body of the deceased, which were duly explained by the complainant in F.I.R., regarding commission of offence as well as seat of injuries and similarly by the other eye-witnesses i.e., P.W.10 and P.W.11. So the medical evidence furnishes further corroboration to the ocular account. The 3rd injury on the person of the deceased was an abrasion on left cheek, which might be the result of fall on the ground at the time of occurrence. So we do not see any contradiction in the same.
Similarly, Dr. Abdul Aziz, (P.W.7), who conducted the medical examination of injured Mubashar proved his medico-legal report Exh.P.J. The same is in line with the ocular account. P.W.7 in his cross-examination deposed that the injured was able to talk but this is of no avail to the defence/appellants because there is nothing mentioned about the same in the history ticket of patient. So in our view the medical evidence fully corroborates ocular version given by the eye- witnesses. I
11. Recoveries in this case were disbelieved by the trial Court and similarly the Investigating Officer admitted in his cross-examination that he did not mention about the recovery of crime-empty from the spot nor the same fact was mentioned in Column No,23 of inquest report and above parcels containing empties and blood-stained earth which were transmitted to the Office of Chemical Examiner and Forensic Science Laboratory on 12-2-2001 and same were deposited on 13- 2-2001, as reflected from the evidence of Muhammad Zafar Constable/P.W.1. Similarly pistol P.7 recovered at the instance of Allah Ditta was taken into possession vide recovery memo. Exh.P.N.
And pistol P.5 recovered at the behest of Muhammad Nawaz appellant and taken into possession vide memo. Exh.P.L. The parcels were received in the office of Forensic Science Laboratory on 10-2- 2001 meaning thereby both parcels were sent after arrest of the appellants i.e. 26-1-2001 and the same are doubtful. As far as report of blood-stained earth of both deceased and injured P.W. Taken into possession vide memo. Exh.P.C. And Exh.P.D. Respectively determined the date and place of occurrence as house of the deceased and place of occurrence was not even. Disputed by the appellants.
12. As far as the motive part of the prosecution story is concerned, no doubt the motive was not mentioned in the F.I.R., but it was stated by the complainant that their family had no enmity with anybody else. He explained that the occurrence of quarrel between the deceased and appellant Allah Ditta was told by another family member who was living in the village and he was not aware as he was not regularly living in the village where occurrence took place. P.W.5 and P.W.10 also deposed about motive part of the prosecution story. Although there was no direct evidence of motive of occurrence yet it is settled proposition of law that motive is always state of mind of an accused, which cannot be proved through ocular account and it is always a guess of the prosecution. So insufficiently or weakness of motive would not be a ground to discard the other reliable evidence.
13. As far as plea of appellants is concerned that they were involved at the behest of Azam Cheela who was relative of the complainant party is, of no avail to the defence because the defence was unable to bring on record any enmity of complainant party with the appellants or any relationship of the complainant party with the said person (namely Azam Cheela). Defence has relied upon mere suggestion rather documentary evidence produced by defence goes against the plea of appellants.
14. For what has been discussed above, we can safely hold that all the three eye-witnesses who were inmates of the house where occurrence took place and they gave the most credible and trustworthy ocular account of the occurrence of murder of Muhammad Arshad and caused injury to Mubashar P.W.10 and we have not found any discrepancy in the statements of the witnesses qua the seat of injuries, kind of weapon C of offence used in the occurrence, date and time of occurrence and further corroboration furnishes through medical evidence that these both appellants were the assailants/culprits who entered the house of the deceased with their common object and common intention and committed the occurrence, murdered one innocent person and injured his real brother who suffered injury on the most vital part of his body. We further observe that the complainant and other eye-witnesses had no motive against the appellants to falsely implicate them in the present occurrence and mere disbelieving the recovery cannot taken away probative force of ocular account furnished by most truthful and trustworthy witnesses. Resultantly, these appeals having no force are dismissed.
' Murder Reference is answered in affirmative.