' MUHAMMAD FARRUKH MAHMUD, J.---The appellants Muhammad Sarfraz, Nadeem Iqbal, Abdullah alias Zafar Iqbal (since dead) and Umar Hayat were tried by the learned Additional Sessions Judge, Lodhran, in case F.I.R. No,558 registered at P.S. City Lodhran on 2-9-1998 for offences under section 302/34 read with section 109, P.P.C. For having committed the double murder of Bashir Ahmad- driver and Muhammad BashirXEN. Vide judgment dated 22-1-2000 the learned trial Court convicted the aforesaid accused/appellants as under:---
(I) Nadeem Iqbal for offence under section 301, P.P.C. To death for the murder of Bashir Ahmad driver;
(II) Muhammad Sarfraz for offence under section 301, P.P.C. To death for the murder of Bashir Ahmad driver;
(III) Nadeem lqbal and Muhammad Sarfraz for offences under section 302(b)/34, P.P.C. To death for the murder of Muhammad Bashir-XEN; and
(IV) Umar Hayat and Abdullah alias Zafar Iqbal for offences under sections 302(b)/109, P.P.C. To imprisonment for, life each for having abetted their aforesaid co-accused/convicts and conspired for the murder of Muhammad Bashir-XEN.
' All the convicts were directed to pay rupees four lacs in equal shares to the legal heirs of each of the deceased. Umar Hayat and Abdullah, convicts, were granted the benefit of section 382-B, Cr.P.C.
2. The convicts/ appellants Muhammad Sarfraz and Nadeem Iqbal challenged their convictions and sentences by filing Criminal Appeal No,68 of 2000, while Umar Hayat and Abdullah, convicts/appellants, brought Criminal Appeal No,58 of 2000. Abdullah convict/appellant in Criminal Appeal No,58/00 has died. So the appeal to his extent stands abated. Murder Reference No,166 of 2000 seeking confirmation or otherwise of death sentence inflicted upon Muhammad Sarfraz and Nadeem Iqbal, convicts/appellants, has also been placed before us. We propose to decide all these matters through this consolidated judgment.
3. Briefly stated the facts of the prosecution case per complaint Exh.P.J. Recorded by Muhammad Akram, S.-I./ P.W.8, at the instance of Khalid Mahmood, complainant (since dead), are that the complainant along with Muhammad Sarwar/P.W.1 and Muhammad Zulfiqar/ P.W.3 had gone to the house of Muhammad Bashir-XEN, the husband of complainant's sister, at Bahawalpur. On 2-9-1998 in the morning Muhammad Bashir was proceeding from his residence at Bahawalpur towards his office at Lodhran by official jeep bearing Registration No,5657/BNA, being driven by Bashir Ahmad- driver. Muhammad Bashir was sitting on the front seat, while Zulfiqar was sitting on the rear seat of the Jeep. The complainant and Muhammad Sarwar were following them in another car, When at about 7230 a.m. The jeep reached within the area of Chak No,100/M, which was situated at a distance of five Kilo-meters from Lodhran city, Muhammad Sarfraz armed with .30 bore pistol and Nadeem Iqbal armed with .12 bore carbine, who were proclaimed offenders (POs) in other cases of Police Station Sadar Gojra, and were chasing the jeep of Muhammad Bashir, came there on a motor cycle bearing Registration No,8212/FDT which was being driven by Muhammad Sarfraz and Nadeem Iqbal was sitting on its rear seat. When the jeep reached near the jump on the right side of the road, Nadeem Iqbal raised Lalkara and asked to stop the jeep otherwise he would shot a fire. As Bashir Ahmad driver did not stop the jeep, Nadeem Iqbal fired at Bashir Ahmad hitting him on the backside of his right ear. The jeep was uncontrolled and diverted towards the left side of the metalled road and went in the cotton crop. The complainant and Muhammad Sarwar stopped their car and got down. The jeep stopped near the tree of date palm. Sarfraz and Nadeem Iqbal, accused/appellants, left their motor-cycle and rushed towards the jeep. Nadeem broke the window pane of the jeep from the side of Muhammad Bashir-XEN by giving blow with ,the Butt of his carbine. Sarfraz fired a shot hitting Muhammad Bashir on his forehead. Muhammad Bashir-XEN and Bashir Ahmad-driver succumbed to the injuries at the spot.
' The motive behind the occurrence was that Muhammad Sarfraz, who was an accused and declared PO in case F.I.R. No,121 dated 26-4-1998 registered at P.S. Sadar Gojra for offences under sections 364/148/149, P.P.C. , was putting pressure for effecting compromise in the case on Muhammad Bashir-XEN who did not accede to it. Due to this grudge, Sarfraz and Nadeem Iqbal, accused/appellants, on the abetment and instigation of Umar Hayat and Abdullah alias Zafar Iqbal, accused/ appellants, had committed, the murder of the deceased.
4. On 2-9-1998, on receipt of wireless message about the murder of two persons, Muhammad Akram, S.-I./P.W.8, who, along with other police officials, was on patrol duty, went to the spot where Khalid Mahmood/complainant got recorded his statement Exh.PJ which was sent to the police station where formal F.I.R. Exh.PJ/1 was recorded . He prepared the inquest reports Exh.P.K and PL in respect of the deceased Muha mmad Bashir and Bashir Ahmad respectiv ely and dispatched the, dead bodies to the mortuary for post-mortem examination. Meanwhile, on receipt of information that Sarfraz and Nadeem, accused, had been encircled by the inhabitants of the area, he along with other police officials rushed towards that place which was at a distance of two furlongs from the place of occurrence. The I.O. Arrested both Sarfraz with .30 bore pistol/P.1 and Nadeem Iqbal with .12 bore carbine/P.2. P.1 and P.2 were taken into possession through memo. Exhs.PA and PB respectively. The I.O. Prepared the site plans Exhs.PO and PQ of the places of recoveries of the weapons of offence. He also prepared rough site plan Exh. PR of the place of occurrence. The empties P.4 and P.5 of .30 bore pistol were collected from the spot and taken into possession' through memo. Exh.PD. An empty cartridge P.3 was .Taken out from the carbine P.2 and taken into possession vide memo. Exh.PC Blood was collected from driver seat of the jeep and taken into possession through memo. Exh.PD/1.. Similarly, blood was taken into possession from the front seat where Muhammad Bashir was sitting through memo. Exh.PE. The broken pieces of window glass from the left side of the jeep were taken into possession vide memo. Exh.PF. The motor-cycle/P.7 used by the appellants was taken into possession through memo. Exh.PH. The jeep/case property (P.6) was taken into possession through memo. Exh.PG. The blood stained covers of driver seat and front seat were taken into possession vide memo. Exh.PS. The site plans Exhs.PV, PV/1 and PV/2 were got prepared from Muhammad Akram Patwari. Abdullah alias Zafar Iqbal, accused/appellant (since dead), was arrested on 6-9-1998. Umar Hayat, accused/ appellant, was arrested on 27-6- 1999 by Muhammad Nawaz. A.S-I./P.W.9. After completion of investigation, all the appellants were sent up to face trial.
5. To substantiate its version at the trial, the prosecution produced thirteen witnesses. Ocular account was furnished by Muhammad Sarfraz Sarwar/P.W.1 and Muhammad Zulfiqar/P.W.2. In addition to that, they also stated about the motive. Muhammad Zulfiqar also stated about the recovery of weapons from the appellants. Shabbir Ahmad/P.W.3 and Muhammad Ishaq/P.W.4 stated about the conspiracy, abetment and instigation of Umar Hayat and Abdullah, appellants, for the commission of murder of Muhammad Bashir by Sarfraz and Nadeem Iqbal, appellants. On 2-9- 1998 at about 8-00 a.m. Dr. Hafiz Atta Muhammad/P.W.11 conducted post-mortem examination on the dead body of Muhammad Bashir. He, while observing three Injuries: one fire-arm entry wound on the forehead; the other lacerated wound of exit on the back left side of the head on occipital area and a lacerated wound on the inner side of the right forearm just below the right elbow joint, opined that cause of death was haemorrhage and shock due to injuries of the brain and fracture of skull. Injuries Nos.1 and 2, which were caused by fire-arm weapon, were sufficient to cause death in the ordinary course of nature. The duration between injuries and death was immediate, while the time which elapsed between death and post-mortem examination was about 1 to 2 hours. On the same day, P. W.11 conducted post-mortem examination on the dead body of Bashir Ahmad. He, while observing one entry wound on the mastoid process on the back of the right ear, with inverted margin and black on the person the deceased, opined that the cause of death was haemorrhage and shock of injury No,1, which was caused by a fire-arm weapon and was sufficient to cause death in the ordinary course of nature. The duration between injury and death was immediate, while the time which elapsed between death and postmortem examination was 1 to 3 hours.
Muhammad Akram, S.-I./P.W.8, stated about the drafting of complaint Exh.PJ, its dispatch to the police station for registration of formal F.I.R. And the investigation thereafter. Muhammad Nawaz, A.S-I./P.W.9, stated about the arrest of Umar Hayat, appellant. The rest of the evidence, being formal in nature, need not be discussed.
6. In their statements recorded under section 342, Cr .P. C . , the accused/appellants pleaded their innocence and false implication. Muhammad Sarfraz and Nadeem Iqbal, appellants, made somewhat similar statements to the effect that they were innocent; that Muhammad Bashir-XEN purchased some land in their village and there was a dispute between him and the other residents of the village on Warabandi of irrigation water; and that Muhammad Bashir was influencing the authorities to favour him against the inhabitants/land owners of the village. They further stated that there was some family dispute of Muhammad Bashir with his wife who was the real sister of Khalid Mahmood-complainant. Both these appellants neither appeared as their own witnesses under section 340(2), Cr.P.C. Nor did they produce any witness in their defence. According to Umar Hayat, appellant, he was not present at the scene of occurrence and has been implicated. He has placed on record copies of. F.I.Rs, as Exhs.DA, DB and DC to show that he was on litigation with Sarfraz and Nadeem Iqbal, principal accused. He has denied that he had abetted the aforesaid accused for the murder of the deceased. He also did not appear as his own witness nor did he produce any witness in his defence.
7. Learned counsel for the appellants submits that the F.I.R. Was recorded at the spot after due deliberations; that there were contradictions between the statements of Muhammad Akram, S.- I./P.W.8, and Shamir Ali Constable/P.W.10, as, according to Shamir Ali, he received information inside the Thana, while according to. Muhammad Akram, he received information while he was on patrol duty; that according to Muhammad Akram, he received information at 7-30 a.m., while according to the P.Ws. , the occurrence took place at 7-30 a.m. The learned counsel has referred to the statement of P.W.10 wherein he stated that the information about the occurrence was received at about 9-00/9-30 a.m.; that the details given in the F.I.R. Indicate that the same was recorded after due deliberations subsequently; that the prosecution failed to prove the motive and in fact, it was on account of the motive that the appellants were falsely implicated in the case; that both the eye-witnesses produced before the learned trial Court were chance witnesses who resided in Gojra and could not plausibly explain their presence at the spot at the time of occurrence; that Zulfiqar who claimed to be sitting in the jeep where the deceased was sitting did not receive any injury and this fact indicates that he was not present along with the deceased; that according to prosecution case, Muhammad Bashir-XEN received one fire-arm injurY, while according to medical evidence, there were two fire-arm injuries on his person; that in fact, the appellants were not arrested on the date of occurrence, as their arrest has not been mentioned in {{URDU TEXT}} in the F.I.R.; that the place of arrest of the accused has also not been mentioned in the site plan; that the circumstances of arrest of the appellants on the date of occurrence was not put to the appellants while recording their statements under section 342, Cr.P.C., so the same could not be used against them; that both the witnesses, who stated about the abetment were highly inimical towards Umar Hayat and Abdullah, appellants; and that Abdullah and Umar Hayat, appellants, were, in fact, inimical towards Muhammad Sarfraz appellants; hence, the story of abetment was totally concocted which would reflect on the whole case; that the appellants were not allowed to engage a counsel of their choice and the learned counsel, who was provided by the learned trial Court at State expense, was not a competent and senior one, who could not even consult the accused, as they were in the Bakhshi Khana. The learned counsel has placed reliance upon the cases of Moslemuddin Sikdar v. The Chief Secretary Government of East Pakistan and others PLD . 1957 Dacca 101 and Khadim v. The Crown PLD 1954 Lah.
69. Lastly, the learned counsel submits that in any case, it was not a case of capital punishment.
8. Conversely, Mr. Munir Ahmad Bhatti, the learned counsel for the complainant, submits that the learned trial Court had appointed a counsel for appellants Muhammad Sarfraz and Nadeem Iqbal at State expense; that they were not deliberately engaging a counsel and wanted to destroy the evidence; that Khalid Mahmood, complainant of the case, had already been murdered inside the Court; that no such objection was taken by Sahibzada Farooq Ali, Advocate, who had filed the appeal on behalf of the appellants; that during trial both the appellants never moved an application stating therein that they wanted to engage a particular counsel, as they were unsatisfied by the performance of Khawaja Muhammad Farooq, Advocate; that the learned counsel engaged at State expense had ample opportunity to consult with the appellants, which is evident from the orders of the learned trial Court; that both the witnesses have plausibly proved their presence at the time of occurrence; that their statements were fully supported by the medical evidence and corroborated by the circumstances of the case like the arrest of the appellants on the same date, registration of case without any delay, the recoveries and the motive; that it was a day-light occurrence and the P. Ws, had no reason to substitute the real offenders. The learned counsel has referred to questions Nos.3 and 8 put to the appellants in their statements recorded under section 342, Cr.P.C. That on 2-9-1998 motorcycle which was used by them was recovered from the spot and that the weapons of offence were recovered from their possession; that they simply stated that it was incorrect and that the recoveries were planted upon them. According to the learned counsel, it was not stated by them at all that they were not arrested on the same date; that weapons of offence recovered from the possession of the appellants wedded with the crime empties, which provided corroboration to the ocular account that both Muhammad Sarfraz and Nadeem Iqbal with common intention had taken the lives of two innocent persons; that the occurrence was initiated by Nadeem Iqbal who fired at Bashir Ahmad driver; that it was the fire caused by Nadeem Iqbal which led to the death of two innocent persons. Malik Muhammad Saleem, Advocate, learned counsel for the complainant does not contest as far as the case of Umar Hayat appellant is concerned. The learned counsel appearing on behalf of the State, while adopting the line of arguments, of the learned counsel for the complainant, have supported the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties and have also gone through the entire record of the case.
10. Firstly, we would like to take up Criminal Misc. No,1 of 2005 preferred in Criminal Appeal No,68 of 2000 by Sardar Muhammad Latif Khan Khosa, Advocate, learned counsel for Muhammad Sarfraz and Nadeem Iqbal, appellants, which was allowed subject to just exceptions, vide order dated 18-1- 2006 and the certificate of Khawaja Muhammad Farooq, Advocate, who represented the appellants before the trial Court at State expense was allowed to be placed on the record of the case. The said certificate was issued on 21-3-2005. Khawaja Muhammad Farooq, Advocate, was appointed counsel for the appellants at State expense and he also cross-examined the P.Ws. On behalf of the accused. However, according to the certificate, he could not satisfactorily cross- examine the P.Ws., as at the time of recording of evidence, the accused were kept at Bakhshi- Khana. It was also mentioned in the certificate that at the time of his appointment as defence counsel, his tenure as a practising lawyer was about 2-1/2 years. On the basis of this certificate, the learned counsel for the appellants has submitted that the appellants deserve retrial, as they were not allowed to engage a learned counsel of their choice and provisions of Article 10 of the Constitution of Islamic Republic of Pakistan, 1973, were violated; that the statements of the P.Ws.
Were recorded while the accused/appellants were not present in Court; and that it was the duty of the Court to engage a senior counsel' to represent the appellants at State expense. On the contrary, a raw hand was appointed to represent them. Conversely, the learned counsel for the complainant and the State have argued that the appellants were given ample opportunity to engage a learned counsel but they deliberately avoided to engage a counsel, as they wanted to destroy the evidence and had already committed the murder of the complainant of this case. The learned counsel have further argued that this appeal was filed by Sahibzada Farooq Ali Khan, Advocate, who never raised this objection; that no objection was raised during trial by Khawaja Muhammad Farooq, Advocate, who was representing Muhammad Sarfraz and Nadeem Iqbal, appellants, that the evidence was being recorded in the absence of the accused; that the statements of the accused were recorded under section 342, Cr. P .0 contained their thumb impressions, which shows that they were present in Court; and that the Court proceedings had the presumption of truth.
11. The relevant facts are that initially, the accused were sent up to face dial before the Anti- Terrorism Court. Muhammad Sarfraz and Nadeem Iqbal, appellants, filed Writ Petition No,11161 of 1998 at Multan Bench of this Court, challenging the jurisdiction of the Anti-Terrorism Court. The writ petition was filed by Sahibzada Farooq Ali Khan, Advocate. On 1-12-1998 the aforesaid writ petition came up for hearing and proceedings before the Anti-Terrorism Court were stayed. Vide judgment dated 10-2-1999 the said writ petition was allowed and the case was transferred to the Court of ordinary jurisdiction. Pursuant to the above noted judgment, the learned Judge, Anti-Terrorism Court, sent the case to the Court of Sessions Judge, Lodhran, who received the same on 13-5-1999.
On 13-5-1999 Sarfraz and Nadeem Iqbal asked for time to engage a learned counsel. On 26-7-1999 the trial Court again directed the appellants to engage a counsel by the next date of hearing, f.e. 5- 8-1999. On the said date Mian Masood Hussain, Advocate, appeared on behalf of Umar Hayat, accused/appellant, while Sarfraz -and Nadeem, appellants, again prayed for some time to engage a counsel. The learned trial Court, while granting time to the accused, informed them that if the counsel was not engaged by the next date of hearing, then counsel would be appointed to represent them at State expense. On 7-9-1999 the accused again prayed for adjournment to engage a counsel. They were given last opportunity by the learned trial Court to engage a counsel till 20-9-1999. On 4-10-1999 Sarfraz and Nadeem, both, prayed for, another adjournment to engage a counsel. They were granted time till 16-10-1999. On that date, the accused again prayed for adjournment to engage a learned counsel by 30-10-1999. On 30-10-1999 the accused informed the Court that they had engaged Mr. Altaf Ibrahim, Advocate, who would appear on the next date of hearing. Finally, the learned trial Court, vide order dated 4-12-1999 appointed Syed Zaigham Ali Tirmzi, Advocate, to represent the accused at State expense. On 14-12-1999 Syed Zaigham Ali Tirmzi, Advocate, due to his engagement in Bar Elections, was released from his duties and Khawaja Muhammad Farooq, Advocate, was appointed to represent the accused and Syed Zaigham Ali Tirmzi, Advocate, was asked to hand over the copies of the statements recorded under section 161, Cr.P.C. Received by him to Khawaja Muhammad Farooq, Advocate, and thereafter the case was adjourned to 21-12-1999 for framing of charge and recording of evidence. In the light of above noted facts, it cannot be said that the accused were not allowed to engage a counsel of their choice. It appears that the accused were deliberately trying to cause delay in the commencement of trial and for that reason they did not engage a private counsel. The conduct of the accused is also apparent from the fact that they challenged the jurisdiction of the Anti-Terrorism Court through a very senior learned counsel but after getting a favourable order, they did not produce their counsel before the learned trial Court. It may be noted here that after announcement of the judgment, Muhammad Sarfraz and Nadeem Iqbal filed appeal through Sahibzada Farooq Ali Khan, Advocate, while Abdullah (since dead) and Umar Hayat filed their appeals through Mr. Altaf Ibrahim Qureshi and Mr. Iftikhar Ibrahim Tahir, Advocates. In both the appeals, it was not mentioned that the evidence was recorded in the absence of the accused. The appeals were filed on 26-1- 2000 while Khawaja Muhammad Farooq, Advocate, issued certificate on 21-3-2005. By then the appellants had changed their counsel and engaged Sardar Muhammad Latif Khan Khosa, Advocate as their counsel, who, on 15-1-2004 filed Criminal Miscellaneous No,59-M/2004 seeking transfer of the instant appeal as well as connected murder reference and the appeal from Multan Bench to the Principal Seat. The aforesaid application was allowed on 19-1-2004 and the same is available on the record of the case. The case came up for hearing on 22-2-2005 and in the presence of Sardar Muhammad Latif Khan Khosa, Advocate, the case was directed to be fixed in March, 2005. It was on 6-10-2005 that the learned counsel moved Criminal Miscellaneous No,1 of 2005 for placing on record the certificate of Khawaja Muhammad Farooq, Advocate, dated 21-3- 2005. In these circumstances, we do not find any merits in the argument that the statements of the P.Ws. Were recorded in the absence of the accused. It may be added here that Sardar Muhammad Arshad Khan, Advocate, appeared on behalf of Umar Hayat and Abdullah alias Zafar Iqbal and moved an application seeking re-examination. It was not mentioned in the application that the evidence was being recorded in the absence of the accused. The application was dismissed on 18- 1-2000 and no revision was filed against that order. It is also available on record that the statements of the accused under section 342, Cr.P.C. Were recorded in the presence of Khawaja Muhammad Farooq, Advocate, who was appointed at State expense, and Sardar Muhammad Arshad Khan, private counsel for Umar Hayat and Abdullah.
12. The second part of the argument of the learned counsel was that the Court should have appointed a senior counsel is also without any substance, as the appellants remained satisfied with the performance of Khawaja Muhammad Farooq, Advocate, and did not challenge his appointment before any higher forum.
13. The upshot of the whole discussion is that we do not find it fit to remand the case for re-trial. As regards the case law relied upon by the learned counsel for the appellants, the same does not apply to the facts and circumstances of the case.
14. In order to prove its case, the prosecution produced Muhammad Sarwar/P.W.1 and Zulfiqar/P.W.2 as eyewitnesses. Khalid Mahmood complainant of the case could not be produced before the trial Court as he was murdered before his statement could be recorded. The main thrust of arguments of the learned counsel was that both the witnesses belonged to Gojra and had no business to be present at the spot at the time of occurrence; and that the reason for their going to the house of Muhammad Bashir-XEN prior to the occurrence was not mentioned in the F.I.R. The argument is fallacious. Both the witnesses explained before the learned trial Court that they had gone to the house of Muhammad Bashir deceased in order to warn him about the existence of danger to his life. It is not necessary to give each and every detail in the F.I.R. It is available on record that Muhammad Sarfraz and Nadeem Iqbal were proclaimed offenders in more than one cases, including case F.I.R. No,121 registered at P.S. Sadar Gojra on 26-4-1998 for offences under sections 364/ 148/149, P.P.C. The documents Exh.P.W. And Exh.P.X. In this respect are available at pages 124 and 125 of the paper book. It was mentioned in the F.I.R. That Sarfrazaccused was pressurizing Muhammad Bashir deceased for compromise in case F.I.R. No, 121/98 dated 26-4-1998 registered with P.S. Sadar Gojra for offences under sections 364/148/149, P.P.C. So it was not unusual for the P.Ws. To go to the house of the deceased. Similarly, the P.Ws., who had travelled quite a distance to go to the house of Muhammad Bashir, would like to be with him and spend some time with him, so the accompanying of Zulfiqar P.W. With the deceased while the latter was going to his office was not unusual circumstance. Similarly, the complainant and Muhammad Sarwar were also gong to the office of Muhammad Bashir. Their presence at the time of occurrence is borne out from the fact that the occurrence took place at 7-30 a.m., while the statement of the complainant was recorded at the spot at 8-05 a.m. Within thirty five minutes and the case was registered at the police station, which was at a distance of 12 Kilometers, at 8-20 a.m. Within fifty minutes of the occurrence. It is more than obvious that the witnesses could not be summoned from Gojra to the place of occurrence in such a shot time. The factum that the F.I.R. Was lodged promptly leads to the conclusion that the witnesses were present. Both the P.Ws.. Have given consistent, coherent, natural and trustworthy account of the occurrence. They have 'corroborated each other on all the material points. The intrinsic value of their evidence could not be shaken during their cross-examination.
The ocular account is fully supported by the medical evidence. The argument of the learned counsel that according to medical evidence, Muhammad Bashir-XEN received two fire-arm injuries as against the statements of the P.Ws. That Muhammad Bashir received only one fire arm injury is not valid. Perusal of the statement of P.W.11 Dr. Hafiz Atta Muhammad reveals that injury No,2 was an exit wound, while injury No,3 was not described as a fire-arm injury and could be caused while the deceased fell on the ground.
15. Both the appellants were arrested soon after the occurrence and weapons B were recovered from them. The learned counsel has argued that the factum of the. Arrest of the appellants Muhammad Sarfraz and Nadeem Iqbal was not mentioned in the relevant of {{URDU TEXT}} in the F.I.R. And in the inquest report, which would mean that they were not arrested on 2-9-1998 and were shown to have been arrested on 2-9-1998 to strengthen the case is also without force.
Muhammad Akram, S.-I./ P.W.8, who was posted as S.H.O. On the fateful day, reached the scene of occurrence along with police officials after receipt of wireless message. After reaching the scene of occurrence, he recorded the statement of Khalid Mahmood/complainant Exh.PJ and sent the same to the police station for recording of formal F.I.R. Through Muhammad Saleem Constable. Then he examined the dead bodies and prepared inquest reports Exhs.PK and PL. The dead bodies were sent to the mortuary through Shamir Constable. Meanwhile, he received information that Sarfraz and Nadeem Iqbal, who were being chased by the public, had been encircled by the inhabitants of the area, so along other police officials rushed to the place and arrested both the accused. In these circumstances, non-mention of arrest of Muhammad Sarfraz and Nadeem Iqbal in the column of {{URDU TEXT}} in the F.I.R. And in the inquest reports would be of no consequence. Not only both the accused were arrested soon after the occurrence but weapons were also recovered from their possession and recovery memos. Were prepared. The motorcycle used by the offenders was also recovered from the spot on the same date, i.e, 2-9-1998. The report of the Forensic Science Laboratory is also positive. The argument of the learned counsel that no reliance could be placed on the report of Forensic Science Laboratory, as the empties and the weapons were sent together is also devoid of any force because the weapons were also recovered on the same date and not on a different date. Muhammad Sarfraz and Nadeem Iqbal appellants were specifically asked question No,3 that on 2-9-1998 the respective weapons were recovered from their possession. Both the appellants stated that.It was not correct and the recoveries were planted upon them but none of them stated that they were not arrested on 2-9-1998. Two persons including a high-ranking D officer were murdered in a broad day-light. The accused were on heals leaving their motorcycle behind. Hence; chase by the inhabitants of the locality was very natural and was substantiated by the factum of the arrest of the appellants on the same date.
16. The prosecution has also successfully proved the motive, as the statements of the P.Ws. Were not seriously challenged on the point of motive and it is borne out from the record that both the appellants Nadeem Iqbal and Muhammad Saarfraz were involved in the above noted F.I.R. 121/98 and were proclaimed offenders.
17. The upshot of the whole discussion is that the prosecution has successfully proved its case against Muhammad Sarfraz and Nadeem Iqbal appellants through ocular account, which was supported by the medical evidence and was fully corroborated by the circumstantial evidence like arrest of the accused on the same date, lodging of F.I.R. With promptitude, prompt post-mortem examination on the dead bodies, recoveries of weapons and their tallying with the empties. Having come to this conclusion, we have given our considerate thought to the quantum of F sentence.
Both the appellants committed the murder of two innocent persons in broad daylight. Muhammad Bashir-XEN lost his life due to the fire caused by Muhammad Sarfraz appellant, while Nadeem Iqbal had accompanied him while armed with firearm. Nadeem Iqbal was the first to fire at Bashir Ahmad driver who lost his life. Thereafter he broke the window pan of the jeep with the Butt of his pistol and Muhammad Bashir-XEN was done to death by his co-accused Muhammad Sarfraz. No mitigating circumstances exist in favour of the appellants Muhammad Sarfraz and Nadeem Iqbal.
The legal heirs of Bashir Ahmad driver deceased entered into compromise with Muhammad Sarfraz and Nadeem Iqbal appellants and the compromise was accepted vide order of this Court dated 3-7-2002. Hence, both of them G are acquitted of the charge of murder of Bashir Ahmad son of Karim Bakhsh. Their death sentence is not confirmed for the murder of Bashir Ahmad driver and the miller reference is answered in the negative to this extent. However, their conviction and sentence for causing the murder of Muhammad Bashir-XEN is maintained. The order passed by the learned trial Court under section 544-A, Cr.P.C. Is modified to the extent of Muhammad Sarfraz and Nadeem Iqbal who are directed to pay Rs,50,000 each as compensation to the legal heirs of Muhammad Bashir-XEN deceased. The amount of compensation would be recovered as arrears of land revenue. However, in case of non-realisation or default in payment thereof, each of the appellants Muhammad Sarfraz and Nadeem Iqbal would suffer S.I. For six months. The death sentence is confirmed. The murder reference is answered in the affirmative.
18. Now coming to the case of Umar Hayat. It was alleged that Shabbir Ahmad and Muhammad Ishaq, P.Ws.3 and 4, overheard the conspiracy which was being hatched up in the Baithhak of Umar Hayat. The names of both the Witnesses are not mentioned in the F.I.R., despite the claim of the P.Ws. That they had mentioned the factum of conspiracy to the complainant. The enmity of the P.W.
With Umar Hayat appellant is established. Hence, false implication of Umar Hayat in the case H cannot be ruled out. Further more, the story put-forward by the P.Ws; is not plausible and is against common sense, Muhammad Sarfraz and Nadeem lqbal, appellants, who were proclaimed offenders, would not enter the Baithhak of Umar Hayat in broad daylight at the risk of their immediate arrest. Hence, the appeal filed by Umar Hayat appellant is allowed and the judgment passed by the learned trial Court to his extent is set aside. He is acquitted of all the charges. He is on bail. His bail bonds are cancelled and the sureties are discharged.