' M. BILAL KHAN, J.---This Criminal Appeal No. 389 of 1999 is directed against the judgment, dated 20-4-1999 passed by the learned Addl. Sessions Judge Chunian, whereby he convicted Muhammad Sarwar, Muhammad Akhtar and Abdul Ghaffar accused/appellant under section 302(b)/34, P.P.C. And sentenced them to death and in addition Muhammad Sarwar accused was also convicted under sections 379/411, P.P.C. And sentenced to two years', R.I. Under section 379 and also to two years' R.I. Under section 411, P.P.C. Muhammad Akhtar and Abdul Ghaffar appellants were emancipated of the charge under sections 379/ 411, P.P.C. Murder Reference No.398 of 1999 has also been sent to this Court for the confirmation of death sentence awarded to above mentioned three accused/appellants. Both these matters i.e. Criminal Appeal and Murder Reference are being disposed of through this judgment.
2. Briefly stated the facts of the prosecution case as narrated in the F.I.R. Are that on 3-2-1993 the complainant Taj Din was going from his Dhari to his village Mehmood Khokhar in the area of Police Station Kanganpur along with his sons Abdul Qadir and Sharafat and daughter M`st. Kausar at about 6-00 p.m. Abdul Qadir who was carrying his licensed .12 bore double barrelled gun was 12/13 Karams ahead of them and when he crossed the Dhari of one Muhammad Tufail, all of a sudden Sarwar accused armed with .12 bore gun, Akthar armed with .7 MM rifle and Abdul Ghaffar armed with a .7 mm rifle who lay in ambush in the Dhari emerged at the scene. Sarwar accused fired with his gun hitting Abdul Qadir on his right shoulder and pierced through his right flank. Abdul Qadir ran away for his life but fell down in the Barseem crop of Tufail. Arkhtar accused also fired with his rifle hitting the deceased on his left thigh and the testicles. The complainant party raised hue and cry which attracted many people from the locality due to which the accused ran away with the gun of Abdul Qadir deceased. Abdul Qadir was brought to Civil Hospital Kanganpur where he breathed his last. Regarding this incident F.I.R. No. 80 of 1993, dated 3-2-1993 was recorded on the statement of the complainant Exh.PH under sections 302/148/149, P.P.C. Read with section 14 of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 at Police Station Kanganpur.
3. The motive behind this occurrence according to F.I.R. Was that about two years prior to the present occurrence Abdul Qadir deceased and Ghulam Mohyuddin sons of the complainant Taj Din had injured Ashraf a brother of Sarwar accused regarding which criminal proceedings were going on in the Court and due to this grudge the present incident took place.
4. On receiving information about the occurrence, Abdul Hameed A.S.-I. (P.W.10) went to Civil Hospital Kanganpur and recorded the statement of the complainant Exh.PH on the basis of which formal F.I.R. Was recorded. Abdul Hameed A.S.-I. Prepared injury statement Exh.PJ and inquest report Exh.PK, and also recorded the statements of the P.Ws. Under section 161, Cr.P.C. He also visited the spot and prepared site plan of the place of occurrence Exh.PL and after fulfilling rudimentary formalities he arrested the three accused persons on 24-2-1993. On 10-3-1993 Akhtar accused led to the recovery of .7 mm rifle P-7 from his residential house. On the same day Abdul Ghaffar accused got recovered .7 mm rifle P-8 from his cattle shed and Sarwar accused led to the recovery of .12 bore gun P-9 belonging to deceased Abdul Qadir from his residential house. He also prepared site plans of the places of recovery Exh.PD/1, Exh.PE/1 and Exh. PF/1. The complainant also identified the .12 bore gun of his deceased son. Abdul Hameed A.S.-I. Who,investigated the case also arrested Ghulam Ali, and Ali Muhammad accused persons in this case and submitted the challan.
5. Charge was framed initially against six accused persons which apart from the appellants included Ghulam Ali, Ali Muhammad and Abdul Ghaffar. However, during the course of trial it came to the notice of the learned trial Court that the case against Ghulam Ali, Ali Muhammad and Abdul Ghaffar had been quashed by the High Court even before the framing of the charge. Accordingly the said three accused persons were acquitted by the trial Court vide its order, dated 18-2-1997.
6. On 4-2-1993 Dr. Mahmood ul Hassan (P.W.12) conducted post mortem examination on the dead body of Abdul Qadir deceased and found the following injuries:--
(1) A lacerated entry wound with inverted margins on the back of left shoulder area size 1-1/4 c.m.
Into oval in shape near the tip of left scapula. On probing it was continuous with a lacerated wound 5 x 2 c.m. With everted margins on right side back of abdomen.
(2) A lacerated entry wound 1-1/4 c.m. Oval in shape on outer side of left thigh. It was continuous on probing with the frontal side of left thigh which was 2 x 2 c.m oval in shape with everted margins.
(3) A lacerated entry wound 1-1/4 x 1-1/4 c.m. With inverted margins on right thigh. It was with a continuous hole on probing on internal and front side of thigh.
(4) A lacerated wound of scrotal sack and testis which may be due to fire arm.
' In the opinion of doctor the above mentioned four injuries were ante mortem and sufficient to cause death in the ordinary course of nature. Fourth, fifth and sixth ribs were fractured and probable time between injuries and death was 10 to 35 minutes and between death and post mortem was about 17 hours.
7. To prove its case the prosecution examined thirteen witnesses. P.W.1 Muhammad Iqbal stated about the delivery of last worn clothes of the deceased to the I.O. P.W.2 Muhammad Tufail deposed about the bloodstained earth which was taken into possession from the place of occurrence. P.W.3 Muhammad Ashraf was a recovery witness of the memo. Of identification of gun. P.W.4 Muhammad Yasin also deposed about the recovery of weapons of offence from the accused persons. P.W.5 Muhammad Safdar Constable disclosed about the delivery of last worn clothes of the deceased and his other belongings after post-mortem examination. P.W.6 Abbas Raza Patwari appeared in the witness box and stated that he prepared site plans on the pointation of the P.Ws.
And under direction of the Police. P.W.7 Taj Din complainant reiterated his version made in the F.I.R.
And furnished eye-witness account. P.W.B. Sharafat Ali also gave eye-witness account of the occurrence in detail. P. W.9 Noor Muhammad stated about the recording of formal F.I.R. P.W.10 was the I.O. Of the case and P.W.11 Malik Jahangir was a recovery witness and stated about the production of licence of the gun belonging to the deceased and P.W.13 Nazim Ali Shah Constable deposed about the handing over to him of three sealed parcels containing .12 bore gun and two 7 mm rifles and transmission of the same to the office of Forensic Science Laboratory, Lahore.
Mukhtar Ahmad Constable was given up as unnecessary. Similarly Mst. Kausar, Mst. Hajan Rashidan, Muhammad Rafique, Zulifqar Ahmad, Saeed Khan and Raja Mushtaq were given up as being unnecessary.
8. After the close of prosecution case the accused were examined under section 342, Cr.P.C.
Muhammad Sarwar accused denied the occurrence, motive and recovery of .12 bore gun P-9 and stated that he was falsely involved in this case. The P.Ws. Were related inter se and they had falsely deposed against him. He was innocent and his left leg was broken so his participation in the occurrence was not possible. Similarly Muhammad Akhtar accused denied the occurrence, motive and recovery of gun on his pointation and attributed the case to enmity. He stated that the prosecution witnesses were related inter se, therefore, they falsely deposed against him. Abdul Ghaffar accused denied the occurrence, story of motive put forth by the prosecution and the recovery of rifle on his pointation. According to him the gun was planted against him. He attributed the case to enmity. According to him he was falsely involved in this case as the prosecution witnesses were interested and related inter se. The accused did not appear as their own witnesses under section 340(2), Cr.P.C., however, they produced Muhammad Shoib Cheema Inspector/S.H.O.
Kanganpur in their defence as D.W.1 and thereafter closed their defence on 6-5-1997.
9. The trial culminated in the conviction and sentence as mentioned above. Hence this appeal.
10. The learned counsel for the appellants has assailed the conviction and sentence of the appellants and submitted that in fact the actual assailants were three persons namely Ghulam Ali, Ali Muhammad and Abdul Ghaffar who had been arrested by the police but had been let off on the orders of the High Court, passed in Criminal Miscellaneous 279/B of 1994 while deciding the bail application of Muhammad Sarwar appellant. It was argued that the complainant Taj Din (P.W.7) and Sharafat Ali (P.W.8) who appeared as eye-witnesses were closely related to the deceased and even other P.Ws. Were also related to them, as such, there was no independent evidence in the case. He argued that the appellants had been falsely implicated in the case on account of mala fides. The learned counsel added the at that alleged time of occurrence. i.e. 6-00 p.m. The sun had already set and it was not possible for the P.Ws. To identify the accused and to give minute details of the injuries suffered by the deceased as given in the F.I.R. He contended that the prosecution had not been able to prove the motive and even otherwise the motive was quite far fetched and could not have prompted the appellants to act in such a callous manner. He argued that according to the site plan and the deposition of P.W.6 Abbas Raza Patwari the occurrence could not have been witnessed by the P.Ws. In the presence of a wall which was present at the Dhari. The learned counsel finally argued that medical evidence was not in consonance with the ocular account inasmuch as according to F.I.R. The assailants had used .12 bore gun and also .7 mm rifle whereas the dimensions of the injuries were quite similar and the possibility that only one weapon was used could not be ruled out.
11. On the other hand the learned counsel for the complainant as also the learned counsel for the State have argued that the prosecution has been able to prove its case to the hilt. They maintained that the eyewitnesses namely Taj Din complainant (P.W.7) and Sharafat Ali (P.W.8) have furnished a very convincing account of the transaction and that they resolutely withstood the test of cross- examination. According to the learned counsel the evidence of both the eye-witnesses was consistent, coherent and confidence inspiring and that the learned counsel for the appellants has not been able to point out any infirmity or weakness in the ocular account whereby the said evidence could be discarded. It was further argued that the ocular account was fully corroborated by the medical evidence and that Dr. Mehmood ul Hasan who appeared as (P.W.12) and who had conducted post mortem examination of the deceased clearly opined that the four injuries caused on the body of the deceased were caused by fire-arm and were grievous and dangerous in nature and were sufficient to cause death in the ordinary course of nature. The learned counsel also maintained that the recovery of .12 bore gun from Sarwar accused which belonged to the deceased further corroborated the prosecution story and that Sarwar accused was also rightly convicted under sections 379/411, P.P.C. As far as the motive was concerned the learned counsel pointed out that the motive part of the story had in fact been admitted by the defence itself while making a suggestion to P. W.7 Taj Din complainant. It was further argued that the presence of the eye-witnesses at the scene of occurrence was absolutely natural and that mere relationship between the said witnesses and the deceased was not sufficient enough to discard their testimony if there was no motive to falsely implicate the appellants. They maintained that according to the eye-witnesses the occurrence had taken place on the 3rd of February around 5-30 p.m. And that at the said date and time of the year the Court could take judicial notice of the fact that there was sufficient light ruling out any possibility of mistaken identity. They also argued that the deposition of the Patwari who prepared the site plan made it absolutely clear that witnesses would easily have seen the occurrence as stated and that the wall of the Dhari was only three feet in height.
12. We have heard the arguments of the learned counsel at length and have carefully gone through the record. We have noticed that F.I.R. Was promptly lodged in this case without un-necessary loss of time. The prosecution case was fully supported by the eye-witnesses namely Taj Din P.W.7 and Sharafat Ali P.W.B. These witnesses have given all the necessary details about the accused as also about the incident and have in unequivocal terms described the role of each one of the accused during the trial. These eye-witnesses had no previous enmity or malice against the accused to involve them in such a serious offence. The presence of the eye-witnesses at the spot was natural.
They remained consistent on all material particulars despite having been subjected to lengthy cross-examination. The accused were known to the prosecution witnesses and as such, there was no question of mistaken identity and they have provided even the minutest details of the occurrence and their mere relationship with the deceased was no grounil to discard their testimony. As already stated their presence had been sufficiently explained at the spot at the time of incident and in fact they were natural witnesses of the occurrence. The defence has not been able to tarnish their credibility and they remained consistent on all material particulars of the occurrence and the role attributed to the accused. Insofar as the contention of the learned counsel for the appellants that in fact it was a different set of accused who had committed the murder and that the present appellants were substituted also does not hold any substance inasmuch as it does not appeal to common sense that the complainant would let off the actual murderers of his son and implicate the present appellants falsely. Even otherwise it is crystal clear from the perusal of the order of the High Court (Exh.BD) whereby case against Ghulam Muhammad, Ali Muhammad and Abdul Ghaffar was quashed that there was no incriminating material even worth its name against the said persons. The eye-witness account was corroborated by the medical evidence, recovery from Sarwar accused of incriminating .12 bore gun belonging to the deceased which he was carrying at the time of the unfortunate incident B and motive also stands admitted by the defence itself inasmuch as a suggestion was made to Taj Din complainant (P.W.7) in reply to which he stated as under:-- "It is incorrect to suggest that we have falsely involved Sarwar, Akhtar, Abdul Ghaffar accused persons due to criminal case in which father of Sarwar etc. Were the complainant against us."
' The learned counsel for the appellants had argued that recovery of alleged weapon of offence i.e. Rifles P.7 from Akhtar appellant and rifle P.8 recovered from Abdul Ghaffar appellant had wrongly been relied upon by the trial Court as a corroborative piece of evidence is that no empty had been found from the spot and no matching with the rifle as such had been done. To this objection of the learned counsel for the appellant we would like to observe that each of the appellants was alleged to have fired one shot each, therefore, there was very remote possibility of the presence of any crime empty from the spot, however, the rifles recovered from Akhtar and Abdul Ghaffar were found to be in working order by the Examiner of fire arms. Even otherwise non-recovery of weapon of offence or defective recovery which could not be relied upon was of no consequence where the ocular evidence has been found to be overwhelming and confidence inspiring corroborated by the medical evidence. In the presence of these factors infirmity if any in the evidence of recovery of fire-arm would not be fatal for the prosecution case. The learned trial Court in our opinion had properly examined and analysed the evidence keeping in view the principles laid down by the Superior Courts for safe administration of criminal justice. The impugned judgment does not suffer from any misreading or non-reading of evidence or any other illegality. The prosecution has been able to prove its case against the accused beyonu reasonable doubt.
12A.However, we have noted an anamolous situation i.e. That Sarwar appellant has been convicted both under section 379 as well as section 411, P.P.C. And has been awarded separate sentences for both the said offences. Theft and retention of stolen goods from one and the same offence cannot be punished separately. Accordingly while maintaining his conviction and sentence under section 379, P.P.C. We set aside his conviction and sentence under section 411, P.P.C.
13. For the foregoing reasons Criminal Appeal No. 389-99 filed by Muhammad Sarwar, Muhammad Akhtar and Abdul Ghaffar appellants is dismissed with the modification that conviction and sentence recorded against Muhammad Sarwar appellant under section 411, P.P.C. Is set aside, however, his conviction as recorded by the learned trial Court on all other counts is upheld as also the conviction and sentence of both the other appellants and the sentence of death passed against them by the learned trial Court is maintained.
14. As the sentence of death passed against Muhammad Sarwar, Muhammad Akhtar and Abdul Ghaffar appellants has been upheld and maintained by this Court, therefore, Murder Reference No.398-99 is hereby answered in the affirmative.