' MUHAMMAD AHSAN BHOON, J.--- Criminal Appeal No,1955 of 2002 is directed against the judgment, dated 15-11-2002 passed by the learned Additional Sessions Judge, Gujranwala whereby Muhammad Azam alias Papa son of Muhammad Siddique was convicted under section 302(b), P.P.C. For causing the murder of Attique Arshad deceased and sentenced to death along with compensation of Rs,1,00,000 to be paid to the legal heirs of the deceased and in default whereof to undergo six months' S.I. He was also convicted under section 394, P.P.C. And sentenced to seven years' R.I.
' Apart from the above said appeal, learned trial Court has submitted Murder Reference No,886 of 2002 for confirmation of death of Muhammad Azam alias Papa or otherwise as required under section 374, Cr.P.C. We propose to dispose of both the matters through this single judgment.
2. Precisely, allegation against the accused-convict is that on 1-11-2000 at about 3-15 a.m. The complainant along with his family members, younger brother Arif Pervez (P.W.10) and nephew Abdul Manan Dar were sleeping in his house when one unknown person armed with pistol aged 22/23 years awoke him on the pistol point and demanded from him precious belongings. His son Atique Arshad Dar (deceased) after "Tahjad" prayer saw that one person had stood him up on the gun point. The complainant's son gave a Sota blow on the head of accused. The accused fired a shot with his pistol at his son Atique Arshad Dar (deceased) which landed on left side of front of his chest. On hearing the noise of firing Arif Pervez (P.W.10) and Abdul Manan woke up who tried to apprehend the accused. The accused also fired three shots at them but luckily they were escaped.
The accused ran away by jumping through the window from the place of occurrence. The injured was removed to the Civil Hospital where he succumbed to the injury.
3. After due investigation report under section 173, Cr.P.C. Was submitted in the learned trial Court.
Charge was framed against the appellant who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced as many as 14 witnesses, along with documentary evidence. The appellant was examined under section 342, Cr.P.C. In answer to question "why this case against you and why the P.Ws. Deposed against you" he replied as under:-- "I have been falsely implicated in this case on 29-10-2000. The local police of Police Station Sabzi Mandi detained me illegally. On 9-11-2000 I was formally arrested by the local police in a Criminal Case No,768, dated 10-10-2000 under sections 457/380, P.P.C. Sabzi Mandi, Gujranwala on the very much day i.e. 10-11-2000 police produced me before the Judicial Magistrate and obtained my physical remand for one day then I was produced before the said Magistrate on 11-11-2000 the learned Magistrate granted my physical remand to the police for 4 days, then I was again produced before the Court on 15-11-2000 and my physical remand was given to the police till 18-11- 2000 then I was produced before the Court and my 3 days physical remand was granted. I was arrested in the said case under the provisions of section 54. I was discharged by the Court in the above said case but the local police did not release me and detained me in the police lock-up as the S.H.O. Of said police station was suspended because the police could not trace the actual culprits of this case so the subordinate of police officials injured me on head and arrested in this case. They tried to save their services and falsely involved me in this case. The complainant party is influential.
' Aslam Lone Ex.M.N.A. Is from their brotherhood who got suspended the S.H.O. Of Police Station Sabzi Mandi for not tracing the original culprits of this case. I was made scapegoat and was involved in this case.. The murder of this case was blind. I am resident of Mohallah Bakhteywala which is Mohallah of complainant party. They are previously known to me. I was shown to P.Ws. In police station lock-up. The P.Ws. Have deposed against me on the suspicion and on asking of Zafar Iqbal A.S.-I., the P.Ws. Are closely related to the deceased and inter se. I am innocent."
' He did not opt to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C. But he produced Muhammad Younas (D.W.1) in his defence and also placed on record Exh.D.A./1, Exh.D.A./2 and Exh.D.A./3. The learned trial Court after hearing the learned counsel for the parties passed the above said convictions and sentences.
4. Learned defence counsel has contended that the occurrence in this present case took place in the dark hours of the night and there was no source of light as per story of F.I.R. The presence of any electric bulb was not shown in the site plan Exh.P.A., so in such a situation the accused/culprits could, not be identified by the eye-witnesses. Muhammad Arshad Dar complainant (P.W.9) was father of the deceased whereas Arif Pervez (P. W.10) was his real paternal-uncle and brother of the complainant, hence both being close relatives of the deceased were interested and inimical witnesses so their testimony could not be relied upon unless there is independent, strong corroboration, available. The statements of witnesses are contradictory, to their stand, that accused made three fire shots but there was no mark of bullet at any wall. He contended that it is available in evidence of Muhammad Younas H.C. (D.W.1) that the appellant was arrested under section 54, Cr.P.C. On 9-11-2000 in case F.I.R. No,786 of 2000 dated 19-10-2000 offence under sections 457/380, P.P.C. Registered with Police Station Sabi Mandi, Gujranwala but he was discharged in that case on 21-11-2000 and on the basis of suspicion he was roped in the present case as according to Zafar Iqbal A.S.-I. (P.W.11) name of the appellant was disclosed by the complainant. He further argued that recovery of pistol as per statement of Muhammad Saeed (P.W.5) was effected from a residential room, whereas according to statement of Zafar Iqbal A.S.-I.
(P.W.11) the same was effected from the premises of factory of one Muhammad Ashfaque. He contended that Naveed Abbas (P. W'.7) who allegedly deposited the parcel of empties had not deposed before the. Court about the same, so the tampering of empties along with pistol could not be ruled out and in such a situation report of Forensic Science Laboratory is of no avail. The "Danda" was not produced before the police during the investigation whereby the deceased caused injuries to the appellant/accused. He argued that identification parade conducted by Hafiz Muhammad Ahmad ' (P.W.14) Magistrate 1st Class was defective and prayed for the acquittal of the appellant.
5. On the other hand, learned D.P.-G. Assisted by the learned counsel for the complainant has argued that this is a case of single accused with a promptly lodged F.I.R. Just after three hours of the occurrence. Both the eye-witnesses although were close relatives of the deceased yet they had no motive for false implication of the appellant. They were natural witnesses being the residents of the house where the occurrence took place. Injuries on the person of appellant/accused further corroborated the ocular account. The recovery of weapon of offence pistol .30 bore was effected at the behest of the appellant and same was found wedded with the empties collected from the spot which is strong piece of corroborative evidence. The appellant was arrested in this case on 26-11- 2000 and if previously he was arrested in any other case that does not affect the case of the prosecution because the occurrence took place on 1-11-2000 whereas the claimed arrest of the appellant in some other case on 9-11-2000 does not help him and they prayed for the dismissal of the appeal.
6. After hearing the learned counsel for the parties we have gone through the whole evidence available on record.
7. No doubt the occurrence took place in the dark hours of the night and the appellant was not named in the F.I.R. But at the same time it is an admitted fact that the occurrence took place in the house of the A deceased as well as the complainant and other eye-witnesses. So presence of both the eye-witnesses at the time of occurrence in their house was quite natural. Muhammad Arshad Dar complainant (P.W.9) while appearing before the learned trial Court reiterated the story of F.I.R.
And he categorically stated in his cross-examination that he as well as his brother Arif Pervez (P.W.10) was residing jointly in his house and wife and children of said P.W.10 were also residing in the same house. The complainant was not even suggested that his brother (P.W.10) was not living with him in the same house at the time of occurrence. Similarly presence of complainant (P.W.9) was also not disputed by the defence. He also deposed in a very natural way that he and his deceased son were sleeping in one room and his son Atique Arshad had woken up to say "Tahajad" prayer. Meanwhile accused came armed with pistol and on pistol point asked him to hand over all precious articles and then his son (deceased) came there and he gave a Sota blow on the head of accused Muhammad Azam and on seeing him accused fired a shot with his pistol on his son Atique Arshad which landed on left front side of his chest. The injury suffered by the deceased was found available on the dead body of the deceased and seat of injury and weapon of offence used was quite in accordance with the ocular account. Similarly the injury suffered by the appellant at the hand of the deceased, was also found on his head, which was duly mentioned in promptly lodged F.I.R., this fact would show that occurrence was seen by P.W.9 and P.W.10. It would be important to mention over here that no doubt both the eye-witnesses were close relatives of the deceased but at the same time they had no illwill or enmity with the accused/appellant nor they had any motive to falsely implicate him, so they cannot be termed as interested or inimical witnesses.
8. As far as the contention of the learned defence counsel that occurrence took place in "Waranda" and how the deceased and accused came out of the room is concerned, it is borne out from the site plan Exh.P.A. That presence of complainant (P.W.9) was found at point "B" almost near the door of room wherein he was sleeping and the distance between the appellant at point "D" to "B" was about 5 feet whereas the distance between the deceased and the accused from point "A" to "B" was just 2-1/2 feet which fact would show that it was quite natural that a human in such a situation may move 1 or 2 feet in any direction and it was also natural when the deceased gave a "Danda" blow to accused then he definitely had moved from his previous place of presence. Keeping in view the distance between the deceased and the accused, the blackening found on wound furnishes further corroboration to the case of prosecution.
9. The medical evidence in this case was furnished by Dr. Mubasher Yaqoob (P.W.2) and Dr. Muhammad Ashraf (P.W.6) examined Atique Arshad (deceased) when he was shifted to hospital in an injured condition and he found on his body two injuries, out of which injury No,1 was entry wound whereas injury No,2 was an exit wound and he found blackening around injury No,
1. Dr. Mubasher Yaqoob (P.W.2) conducted post-mortem examination of deceased. Atique Arshad and he found the following injuries on his body:---
(1) A fire-arm lacerated wound of entry 1-1/2 c.m. x 1 c.m. Inverted margin going deed with blackening and burning around front of left chest in the mid-clavicles line 6 c.m. Below the left calvicle.
(2) A lacerated fire-arm wound of exit 1 c.m. x 3/4 c.m. With inverted margin going deep back of left chest middle part 7 c.m. From the midline and 16 c.m. Below the top of shoulder.
The above said injuries would show that same are quite in line IC with the ocular account furnished by both the eye-witnesses.
' Similarly, Dr. Mubasher Yaqoob (P.W.2) also examined accused/appellant on 27-11-2000 at about 10-35 a.m. Just after one day after his arrest and he found the following injuries on his person:--
(1) Healed scar mark 3 c.m. x 1/3 c.m. Right side of back of head margin was irregular.
(2) Healed scar mark 4 c.m. x 1/3 c.m. Irregular margin right side of top of head 8 c.m. From right ear.
(3) Complaining of pain with restricted movement and local tenderness on inner side of left elbow.
' The above said injuries on the person of appellant would show that if the eye-witnesses had not seen the occurrence they would have not mentioned about the receipt of injuries by the accused/appellant at the time of occurrence.
10. Another important aspect of the case is that as per prosecution version the accused fled from the spot while jumping from the widow and the height of above window was about 16 feet as mentioned in Exh.P.A. At point "E" and it was quite natural that when the accused jumped from a 16 feet height he further suffered some injury and that is the reason that three injuries were found on the person of the accused/ appellant.
11. As far as the identification parade is concerned, Hafiz Muhammad Ahmad (P.W.14) Magistrate 1st Class conducted the same and during the proceedings both the eye-witnesses duly identified the accused/appellant being a culprit of the crime. As this was a case of single accused and single fire shot, so then there was no further necessity to point out any role played by the appellant. Both the eye-witnesses were specifically questioned about the fact that the appellant was previously known to them and was residing at a 5 minute' distance from their residence but both categorically denied about heir previous acquaintance with the accused/appellant or his residence near the place of occurrence, so we do not find any flaw in the identification parade particularly when the accused in this case was arrested on 26-11-2000 and on the very next day he was sent to jail and thereafter the identification parade was conducted on 4-12-2000.
12. As far as recovery of blood-stained cotton is concerned, the same was secured from the place of occurrence whereas three empties of .30. Bore pistol were recovered from the spot and same were received in the office of Forensic Science Laboratory through Abdul Ghaffar constable (P.W.3) but said P.W.3 while appearing before the learned trial Court did not utter any word for onward transmission of the empties to the office of Forensic Science Laboratory and he only deposed about the deposit of pistol. Although the empties were found wedded with the pistol P.2 recovered at the behest of appellant, the link of transmission to Forensic Science Laboratory is missing yet the recovery of empties of .30 bore pistol can be taken into consideration as supportive evidence qua the weapon of offence used at the time of occurrence. The recovery of pistol P.2 was proved by Muhammad Saeed (P.W.2) and Zafar Iqbal A.S.-I. (P.W.11) and they were consistent on the point that the same was affected from a room in the premises of factory of one Ashfaque a cousin of the appellant, so mere mention of room would not show that the same was effected from a residential room.
13. The investigation in this case was conducted by Zafar Iqbal A.S.-I. (P.W.11) and Muhammad Riaz S.-I. (P.W.12). During their investigation the appellant was found guilty being a culprit of the crime and it was deposed by P.W.11 that the appellant was arrested in the present case on 26-11-2000 and thereafter the identification parade took place and during physical remand recoveries were effected. The evidence of Muhammad Younas H.C. (D.W.1) does not furnish any help to the appellant that he was roped in the case when he was discharged from case F.I.R. No,768 of 2000 dated 19-10-2000 under sections 457/380, P.P.C. Registered at Police Station Sabzi Mandi, Gujranwala, because the occurrence in this case took place on 1-11-2000, meaning thereby that in the other case the appellant was arrested after about eight days, so arrest in that case does not exonerate him from the present crime. There is nothing in evidence that one Ex.M.N.A. Namely Aslam Lone had any enmity with the appellant or any relationship with the complainant party, so mere any suggestion of false implication was of no help to the appellant.
13-A. In view of what has been discussed above, we are of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt through the evidence of ocular account, medical, recoveries and identification parade. As the appellant committed brutal murder of a young lad of 21 years without any rhyme or reason, so we also do not see any mitigating circumstance in his favour. Hence this appeal having no merits is dismissed. Murder Reference is answered in affirmative.