' M.A. ZAFAR, J.---This judgment will dispose of Criminal Appeal No. 1843 of 2006, Criminal Appeal No.43 of 2007 and Criminal Revision No.48 of 2007. In Criminal Appeal No.1843 of 2006, the appellants, namely, Safdar Abbas, Muhammad Amjad, Khawar Hussain, Khalid Javed and Muhammad Asif appellants were convicted and sentenced by learned Additional Sessions Judge, Gujrat vide impugned judgment, dated 7-12-2006 as under:-- Appellants Nos. 1 and 2 Under Sections 302 (b)1149, Death to each and to pay ks.100,000 each under section 544-A, Cr.P.C. As compensation to the legal heirs of the deceased and in default thereof to further undergo six months' S.I. Each.
Under Section 148, P.P.C. Three years' S.I. Each.
Appellants Nos. 3 to 5 Under Sections 302 (b)/149, P.P.C.
Imprisonment for life each and to pay Rs.100,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default six months' S.I. Each.
Under Section 148, P.P.C. Three years' S.I. Each.
' However, both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
' Murder Reference No.102-2007 for confirmation of death sentence of Safdar Abbas and Muhammad Amjid appellants or otherwise shall also be replied through this single judgment.
3. Brief facts of the case as disclosed by Ghulam Rasool complainant (P.W.7) are that on 5-10-2003 he was cutting fodder from his Bajra Crop. His younger brother Iftikhar Ahmad was also coming for taking fodder from Bajra crop. At about 8-30 a.m. When his brother Iftikhar Ahmad reached near the field of Bajra crop from where the complainant was cutting fodder, then from nearby field of Bajra crop owned by Muhammad Inayat son of Hakim Khan, accused Muhammad Amjad armed with .44 bore rifle, Muhammad Afzal armed with .44 bore rifle, Mazhar Hussain armed with .8 mm rifle, Khalid Mahmood armed with .30 bore pistol, Saqib armed with .8 mm rifle, Safdar Hussain armed with .44 bore rifle, Bashir Ahmad armed with .30 bore pistol, Rasheed Ahmad armed with .30 bore pistol, Shahid Iqbal armed with .8 mm rifle, Khawar Hussain armed with .44 bore rifle along with four unknown persons armed with firearm emerged, who had already waylaid there. Accused Muhammad Amjid raised Lalkara that today Iftikhar Ahmad be taught a lesson for injuring him and then made fire from his rifle, which hit Iftikhar Ahmad on his right flank, who fell down on the ground, then, Muhammad Amjid, Muhammad Afzal, Mazhar Hussain, Khalid Mahmood, Saqib, Safdar, Bashir Ahmad, Rasheed Ahmad, Shahid Iqbal, Khawar Hussain and unknown persons made firing upon Iftikhar Ahmad with their respective weapons, which hit on different parts of his body, thereafter, accused persons also gave butt blows on the body of Iftikhar Ahmad with their respective weapons, which also hit on different parts of his body. Complainant did not come forward due to the fear of the accused persons and raised hue and cry. On hearing the firing and hue and cry of the complainant, Ijaz Ahmad alias Jilal his brother, Muhammad Yousaf, who were near to them, came at the spot and witnessed the occurrence. Accused persons fled away from the spot after raising lalkaras and making aerial filing. Iftikhar Ahmad succumbed to the injuries at the spot.
' Motive behind the occurrence was that about 1-1/2 month ago, Iftikhar Ahmad deceased injured Muhammad Amjid accused, for which, a case was registered at Police Station Kunjah and Iftikhar Ahmad was on bail in that case. Due to this grudge, Muhammad Amjid etc. Accused persons after due consultation has committed the murder of Iftikhar Ahmad deceased.
4. After receiving information about the occurrence, Ghulam Jaffar Chhena Inspector/S.H.O.
(P.W.13) reached at the spot, recorded the statement of complainant Exh. PE, inspected the dead- body of Iftikhar Ahmad deceased, prepared inquest report Exh.PD and injury statement, then, inspected the site and took into possession blood-stained earth from the spot vide recovery memo. Exh.PG, collected 10 crime empties of .8 mm rifle P.3., nineteen crime empties of .44 bore rifle P.4. Eight crime empties of .30 bore pistol P.5 vide recovery memo. Exh.PH, recorded the statements of the witnesses under section 161, Cr.P.C. On 22-10;2003 he arrested accused Muhammad Amjid, Khawar Hussain, Safdar Abbas and Khalid Javaid. During the course of investigation on 4-11-2003 accused Muhammad Amjid got recovered rifle .44 bore P.8, which was taken into possession vide recovery memo. Exh.P.M., then accused Khalid Javaid got recovered pistol .30-bore P.9, which was taken into possession vide memo. Exh.P.N., similarly accused Safdar Abbas got recovered rifle .44 bore P.10, which was taken into possession vide memo. Exh.PP. On the same day, Khawar Hussain accused also got recovered rifle .44-bore P.11, which was taken into possession vide recovery memo. Exh.PQ. On 5-11-2003 the said accused persons were sent to judicial lock-up. On 12-11-2003 accused Muhammad Asif alias Atti and Shabbir Ahmad were arrested by him and on the same day, Muhammad Asif alias Atti got recovered rifle .7 mm P.7, which was taken into possession vide recovery memo. Exh.PK. On the same day, accused Shabbir Ahmad also got recovered pistol .30 bore, which was taken into possession vide recovery memo. Exh.PJ. On 13-11-2003 both the accused were sent to judicial lock-up. After completion of remaining formal investigation, all the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.PU, report of Serologist Exh.P.S, report of F.S.L. Exh.PT, report under section 173, Cr.P.C. In case F.I.R. No.420, dated 13-8-2003 of Police Station Kunjah Exh.PV and closed the prosecution case, then, the statements of the accused/appellant under section 342, Cr.P.C. Was recorded in which they pleaded innocence. After conclusion of trial, all the five accused/appellants were convicted and sentenced as stated above by the learned trial Court.
6. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellants submits that F.I.R. Was recorded after due deliberation, consultation and the net was thrown wider inasmuch as whole family of the accused were implicated so that no person is left behind to pursue the case. Adds that four accused were implicated in the supplementary statements, which shows deliberation and consultation on the part of the complainant. Next submits that complainant P.W.7 and Ijaz P.W.8 were not present at the spot. Learned counsel has also pointed out some discrepancies in the statements of complainant and Ijaz P.W.B.
' It is argued that the prosecution has not been able to prove the motive as alleged in the complaint. It is maintained that there is conflict between ocular account and the medical evidence as the number of the Injuries on the person of the deceased do not coincide with number of accused nominated in the F.I.R. Adds that the eye-witnesses are closely related to the deceased and in such a situation, the evidence of the interested witnesses must have been corroborated by independent evidence, which fact is missing in this case.
' Learned counsel argues that the investigator during the course of investigation, found eight accused as innocent which fact sufficiently demonstrates that it is a case of false implication.
' So far as, the case of Safdar Abbas, appellant is concerned, it is argued that his case at par to that of his co-accused namely, Khawar and Khalid, convicts but Khalid and Khawar who have been sentenced to imprisonment for life while Safdar Abbas has been sentenced to death only due to the reason that as per statement of Investigating Officer P.W. 13 he reached to a conclusion that Safdar Abbas has also actively participated in the commission of offence.
' The nutshell of arguments of learned counsel for the appellant is that the prosecution has failed to prove its case against the appellant and they are entitled to acquittal.
' Learned Deputy Prosecutor General, assisted by learned counsel for the complainant, who has filed Criminal Appeal No.43 of 2007 as also Criminal Revision No.48 of 2007 submits that occurrence having taken place in broad-daylight and both the parties known to each other, there was no question of mistaken identity. Further submits that the occurrence has taken place at 8-30 a.m. On 5-10-2003, while the matter was reported to the police at 10-00 a.m. Though distance between the police station and place of occurrence is 1 mile, so according to the learned counsel it is a case of promptly lodged F.I.R. It is maintained that the trial Court by applying the principle of sifting grain from the chaff has acquitted some of the accused and their acquittal cannot adversely affect the prosecution story so far as the convicts are concerned. It is added that ocular account furnished by the uninterested witnesses is fully corroborated by medical evidence as also recovery of firearms on the pointation of the convicts/appellants.
' We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. The deceased in this case is Iftikhar Ahmad, real brother of Ghulam Rasool complainant. The ocular account was furnished by Ghulam Rasool complainant and Ijaz alias Jalal examined as P.W.7 and P.W.8 respectively. Dr. Farooq Ahmad P.W.10 at 3-50 p.m.
On 5-10-2003 conducted the postmortem examination on the dead-body of the deceased.
In the instant case, occurrence had taken place at 8-30 a.m. On 5-10-2003 while the matter was reported to the police at Bhagarianwala by Ghulam Rasool at 10-00 a.m. On the same day through written complaint Exh.PF and the formal F.I.R. Exh.PF/1 was recorded at 11-00 a.m. By Muhammad Riaz S.-I. So it is a case of promptly lodged F.I.R.
' According to the complainant on the day of occurrence, he was cutting fodder while Iftikhar Ahmad his brother was coming to him to take the fodder. It was alleged by him (complainant) that at about 8-30 a.m. When Iftikhar Ahmad reached near the crop where the complainant was cutting the fodder, Muhammad Amjad, Muhammad Afzal, Mazhar Hussain, Rashid Ahmad, Shahid Iqbal and Khawar Hussain all armed with fire arms along with four unknown persons emerged there. The complainant submitted that out of the aforesaid accused Muhammad Amjad raised Lalkara by saying that Iftikhar should be taught a lesson for injuring him and simultaneously fired a shot, which landed on the right flank of Iftikhar, who fell down. It was further alleged that when Iftikhar Ahmad was lying on the ground, Muhammad Amjad, Muhammad Afzal, Mazhar Hussain, Khalid Mehmood, Saqib, Safdar, Bashir Ahmad, Rashid Ahmad, Shahid Iqbal, Khawar Hussain and four unknown persons fired at the victim, which hit on different parts of his body. The victim was also alleged to have been given butt blows by the accused. The occurrence was alleged to have been witnessed by Ghulam Rasool complainant, Ejaz Ahmad alias Jalal and Muhammad Yousaf and according to the complainant Iftikhar Ahmad, succumbed to his injuries at the spot.
' The motive alleged was that 1-1/2 months prior to the occurrence Iftikhar Ahmad, now deceased had injured Muhammad Amjad for which a criminal case was registered and Iftikhar Ahmad was on bail in that case, therefore, the accused in order to take revenge committed the murder of the deceased.
' To prove the motive, apart from oral evidence furnished by P.Ws. 7 and 8, the prosecution produced Exh.PV (report under section 173, Cr.P.C.), which is at page. 233 of the paper book. A perusal of it shows that Muhammad Amjad (present appellant) was complainant of case F.I.R.
No.430, dated 13-8-2003 registered with Police Station Kunjah, district Gujrat and the role ascribed in the said case to Iftikhar Ahmad, deceased in this case was that he fired a shot, which landed on the head of Muhammad Amjad, the present appellant. The instant occurrence had taken place on 3-10-2003. From this IB document alone, the motive alleged by the prosecution stands proved.
Ghulam Rasool and Ejaz alias Jalal P.Ws. 7 and 8 in this case have furnished the ocular account respectively. Both these P.Ws. Have fully supported to the case of prosecution. They though are real brothers of the deceased but by no stretch of imagination can be termed as interested or inimical witnesses. Their mere relationship with the deceased is no criteria to discard their testimony, which is trustworthy and has come from an unimpeachable source. It does not appeal to reasons that the real brothers of the deceased could have left the actual culprits and implicate falsely the innocent persons. Despite lengthy cross-examination by the defence, the intrinsic value of evidence of both the eye-witnesses could not be shaken. We, therefore, believe the presence of eye-witnesses at the spot is quite natural.
' According to the eye-witnesses account Muhammad Amjad fired a shot with his rifle, which landed on the right flank of Iftikhar Ahmad deceased. Dr. Farooq Ahmad P.W.10, who conducted postmortem examination on the dead-body of the deceased found injury No.1, which is as follows on the dead-body of the deceased:-- "1.A fire-arm entry wound 1-1/2 x 1. c.m. Going inward on the outer aspect of left side of the chest in the interior axillary lines. Margins were inverted and no blackening was present around the edges of the wound. Exit wound 1/2 x 1/2 c.m. With everted margins on the right side of the chest on the outer and lateral part of the chest in the mid axillary line."
The postmortem examination on the dead-body of the deceased was conducted at 3-50 p.m. On 5-10-2003. The time between death and postmortem was given by the doctor to be 7 to 8 hours.
The occurrence had taken place at 8-30 a.m. So the duration given by the doctor between the death and postmortem as 7 to 8 hours coincides with the time of occurrence, alleged by the prosecution.
' According to opinion of the doctor P.W.10, death of the deceased had occurred due to shock hemorrhage as a result of injury No.1, attributed to Muhammad Amjad, appellant.
The negative report of Firearm Expert Exh.PT is of no avail to the defence for the reason that only the recovery of firearm weapon is a corroborative piece of evidence and the law of the land is that corroboration of expert report with occurrence is not a rule but a matter of prudence and is also applied in a case where the direct evidence is not of the standard which can be considered sufficient for conviction.
' Admittedly, the motive laid with Muhammad Amjad convict appellant, the ocular account is fully corroborated by medical evidence, so we are satisfied in our minds that the prosecution has been succeeded in proving its case against him beyond any reasonable doubt. There is no mitigating circumstance in his favour as he fired the fatal shot, which caused the death of Iftikhar Ahmad deceased. In these circumstances, the conviction and sentence recorded against Muhammad Amjad, convict by the trial Court is maintained in toto. His death sentence is CONFIRMED and Murder Reference to his extent is replied in the AFFIRMATIVE.
Now, we take up the case of Safdar Abbas, Khawar Hussain, Khalid Javed and Muhammad Asif, appellants. Except Safdar Abbas, the remaining accused, namely, Khawar Hussain, Khalid Javed and Muhammad Asif have been sentenced to Imprisonment for life by the learned trial Court.
' According to prosecution, all these appellants fired shots with their fire-arms on different parts of body of Iftikhar deceased when he was lying on the ground after receiving fire-arm shot at the hands of Muhammad Amjad, convict-appellant.
' Dr. Farooq Ahmad P.W.10, who conducted postmortem examination on the dead-body of the deceased found the following injuries on his person:-
1. A fire-arm entry wound 1-1/2 x 1 c.m. Going inward on the outer aspect of left side of the chest in the interior axillary lines. Margins were inverted and no blackening was present around the edges of the wound. Exit wound 1/2 x 1/2 c.m. With everted margins on the right side of the chest on the outer and lateral part of the chest in the mid axillary line.
2. A fire-arm entry wound 1/2 x 1/2 c.m. On the back and upper part of left buttock with everted margin, exit wound 1 x 1/2 c.m on the back of left buttock 4 e.m. From the entry wound, which was communicated with each other.
3. A fire-arm entry wound 1.5 x 1 c.m. On the outer and upper part of left arm 10 c.m. Below the left shoulder with everted margins. No blackening was present. Exit wound 2 c.m. x 1.5 c.m. On the back of left arm.
4. A fire-arms entry wound 2 x 1 c.m. On the front and upper part of right forearm 1 c.m. Below the elbow joint. Exit wound 3 c.m. x 2-1/2 c.m. On the back of upper arm just above the elbow joint with averted margins.
5. A fire-arm wound in circular shape lx1 c.m. On the front and lower part of right tibial region. Tibia and fibula were intact.
6. A contused area 9 x 2 c.m. On the lower abdomen.
7. A contused area 15 c.m. x 2 c.m. On the medial aspect of right thigh.
8. A contused area 11 c.m. x 2 c.m. On the medial aspect of upper part of left leg.
9. A contused mark 7 x 2 c.m. On the upper and front side of right thigh.
10. A contused area.5 x 3 c.m. On the right knee joint.
11. A contused mark 4 x 3 c.m. On the left knee joint.
' Injury No.1 on the person of the deceased was attributed to Muhammad Amjad, appellant. Rests of the injuries are ascribed to remaining accused named above. The injuries attributed to these appellants by the eye-witnesses are fully corroborated from the medical evidence.
' The duration given by the doctor, who conducted postmortem examination on the dead-body of the deceased, between the death and postmortem as 7 to 8 hours coincides with the time of occurrence, alleged by the prosecution. The role of Safdar Abbas, appellant in no way is different to his co-accused, namely, Khawar Hussain and Khalid Javed. Here we may reproduce few lines from paragraph 28 of the impugned judgment.
"The role attributed to rest of the accused persons, namely. Safdar Abbas, Khawar Hussain, Khalid Javed and Asif is that all of them started firing on the body of Iftikhar Ahmad, which hit on different parts of his body and they also gave butt blows six in number."
' From the above resume of the facts, we are of the considered opinion that Safdar Abbas, Khalid Javed and Khawar Hussain, actively participated in the occurrence and the prosecution has proved its case Against them beyond any reasonable doubt.
' Resultantly, though the maintain conviction and sentence of Safdar Abbas, appellant under section 302(b), P.P.C. But convert his sentence of death into imprisonment for life. The death sentence of Safdar Abbas appellant is Not confirmed and Murder Reference to his extent is replied in the Negative. However, the conviction and sentence recorded against him under section 148, P.P.C. By the learned trial Court is maintained in toto. Both the sentences one under section 302(b), P.P.C. And other under section 148, P.P.C. Shall run concurrently with the benefit of section 382-B, Cr.P.C.
' The conviction and sentences of two appellants namely, Khawar Hussain and Khalid Javed as ordered by the learned trial Court vide impugned judgment is maintained in toto.
As far as Muhammad Asif alias Atti appellant is concerned, he is not named in the F.I.R. But he along with two others was involved by the complainant by making supplementary statement on 19-10-2003. First Information Report is a document, which is entered on the complaint of the informant into a book, maintained at the police station under section 154,, Cr.P.C. First Information Report is signed/thumb marked by the informant while the supplementary statement is recorded under section 161, Cr.P.C. And is not signed. F.I.R. Brings the law into motion, the police under section 156, Cr.P.C. Starts investigation of the case, any statement or further statement of the first informant recorded during the investigation by police would neither be acquainted with First Information Report nor read as part of it. At the most it can be treated like a statement of a witness recorded under section 161, Cr.P.C. The supplementary statement was recorded after 15 days of the occurrence on account of delay, its veracity becomes doubtful. By extending benefit of doubt Muhammad Asif alias Atti, involved through supplementary statement, is acquitted of the charge.
Appeal to his extent is accepted. Muhammad Asif alias Atti, appellant is in Jail and he shall be released forthwith if not required to be detained in any other case.
Next is Criminal Appeal No.43 of 2007 filed by the complainant Ghulam Rasool against the acquittal of Mazhar Hussain, Rasheed Ahmad, Bashir Ahmad and Saqib respondents. The reasoning given by the learned trial Court for their acquittal that they were found innocent during the course of investigation and no weapon of offence was recovered from them are not open to any valid exception. There is no cavil with the proposition that finding of the police is not binding upon the Court but, it carried some weight when there is no other evidence also to connect the accused with the commission of offence. We may observe that superior Courts while dealing with an appeal against acquittal interfere only if the order of acquittal is based on misreading, non-appraisal of evidence or is speculative, artificial, arbitrary and foolish, which his to the position in the present case. The appeal being merit-less is dismissed.
Next is Criminal Revision No.48 of 2007 filed by complainant Ghulam Rasool seeking enhancement of sentence of Khawar Hussain, Khalid Javed and Muhammad Asif alias Atti respondents. The reasoning given by the learned trial Court that no specific role is attributed to them and role of general firing on the victim at the spot has been attributed to them cannot be said to be perverse or illegal and thus the revision being merit-less is also dismissed.