' M.A. ZAFAR, J.---This judgment will dispose of Criminal Appeal No,1972 of 2002 filed by Shaukat Ali and Muhammad Saleem appellants, who were convicted and sentenced by learned Addl. Sessions Judge, Kasur vide impugned judgment, dated 3010-2002 as under:--- Under section 302(b), P.P.C.
' Death as Tazir to each for committing Qatal-i-Amd of Mst. Sharifan Bibi and Bashir and to pay Rs, 50,000 each under section 544-A, Cr.P.C. As compensation to the legal heir of the deceased and in default thereof to further undergo six months' S.I.
2. Murder Reference No,785 of 2002 for confirmation of death sentence or otherwise of both the appellants shall also be replied through this single judgment.
3. Brief facts of the case as disclosed by Muhammad Arshad complainant in his statement Exh.P.D.
Are that his elder sister, namely, Mukhtaran Bibi was married with Muhammad Saleem (appellant) four years ago, who used to beat his sister, so his sister came back to his house seven months ago and she had instituted a suit for dissolution of marriage. After that, Muhammad Saleem came to their house for several times and went away after quarreling. On 24-5-1999 at 9-45 a.m.
' Muhammad Saleem accused came to their house and went away after quarreling and after that at 10-15 a.m. His father Muhammad Bashir and mother Mst. Sharifan Bibi were present outside the house in the street, where Muhammad Saleem, armed with .222 bore rifle and Shaukat Ali armed with a rifle .222 bore came there. Muhammad Saleem accused raised a "Lalkara" that they be taught a lesson for quarrelling anti Muhammad Saleem accused fired with his rifle upon complainant's mother, which hit on her cheek below the left eye. Shaukat Ali accused fired with his rifle upon his father Muhammad Bashir, which hit on the upper part of his abdomen, both fell down in an injured condition and his mother succumbed to the injuries at the spot. After that both the accused made firing and entered in their house and injured his sisters, namely Mst. Mukhtaran Bibi and Mst. Robina Bibi with the "Butt" of their rifles, Muhammad Saleem accused took away his daughter namely, Khudeja aged 3 years and both the accused fled away by firing in the air.
4. After receiving information about the occurrence, Mujahid Raza, Inspector/S.H.O. P.W.11 reached at the spot, recorded the statement of complainant Exh.P.D., inspected the dead body of Mst.
Sharifan Bibi deceased, prepared inquest report Exh. P. K. And injury 'Statement Exh.P.L., then, inspected the site, collected two empties cartridges of .222 bore P.10/1-2 and one missed bullet of .222 bore P.11, which were secured vide memo. Exh.P.N., recorded the statements of P.W. Under section 161, Cr.P.C., then, proceeded to hospital, inspected the dead body of Muhammad Bashir and prepared inquest report Exh.P. S. And injury statement Exh.P.T. On 10-6-1999 he arrested accused Muhammad Saleem and at the time of his arrest he was having a rifle .222 bore P.9 along with licence P.10, he took the rifle and licence into his possession vide memo. Exh.P.B. And on 2-7-1999 the investigation was transferred to Faqir Hussain S.-I. P.W.12, who on 17-4-2000 arrested Shaukat Ali accused and on 18-4-2000 he produced the accused before learned Sessions Judge, got his physical remand, interrogated him but no recovery was effected from him so he was sent to judicial lock-up. After completion of remaining formalities, both the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all, thereafter, learned A.D.A. Tendered in evidence report of F.S.L. Exh.P.V., judgment and decree, dated 4-3-2000 Exh.P.W.
And closed the prosecution case, then, the statements of the appellants under section 342, Cr.P.C.
Were recorded in which they pleaded innocence. After conclusion of trial, both the accused/ appellants were convicted and sentenced by the learned trial Court as stated above.
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. In this case was recorded after due deliberation and consultation.
Further submits that the motive as alleged by the prosecution remained unproved and the so- called witnesses of the motive are closely related to the deceased. According to the learned counsel the ocular account is in clear conflict with medical evidence, inasmuch as the Lady Doctor Nasreen Dogar while appearing as P.W.7 admitted in cross-examination that there was cutting of time in the column of time of death of the postmortem report. It is maintained that the said Lady Doctor P.W.7 even did not mention the probable time between injury and death in her report Exh.P.J.
According to learned counsel, the medical evidence does not support the case of prosecution rather is in conflict with the ocular account.
' So far as, recoveries are concerned, it is argued that those were planted upon the appellants and the report of Forensic Science Laboratory Exh.P.V. Supports this submission of the convict/appellant.
' By summing up his arguments, the learned counsel submits that the prosecution has miserably failed to prove its case against the appellants so they are entitled to acquittal.
7. On the other hand, learned Deputy Prosecutor-General submits that it is a case of promptly lodged F.I.R.; the occurrence having taken place in broad day-light; there was no question of mistaken identity; the ocular account furnished by the eyewitnesses is fully supported by the medical evidence as also by the recovery of firearms on the pointation of the appellants. Further submits that the motive as alleged by the prosecution was also proved and despite lengthy cross- examination by the defence, no dent could be created in the story set up by the prosecution. The learned counsel fully supports the judgment of the learned trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. It is a double murder case. The two deceased in this case are Muhammad Bashir and other Mst. Sharifan Bibi. Both the deceased are husband and wife respectively. The complainant Muhammad Arshad is real son of both the deceased Mst. Rubina Kausar injured and Mst. Mukhtaran Bibi, real sister of the complainant (P.Ws.8 and 9 respectively) furnished the ocular account in this case. Dr. Saleem-ur-Rehman, P.W.6 conducted the post- mortem examination on 24-5-1999 on the dead body of Muhammad Bashir deceased while Lady Doctor Nasreen Dogar P.W.7 conducted post-mortem examination on the dead body of Mst.
Sharifan Bibi on the same day. He also medically examined Mst. Jeejan Bibi, a child Nadeem and Mst. Rubina Kausar P.W.8 and issued Medico legal Reports Exh.P. F. , Exh.P. G. And Exh. P.H.
' In the instant case, the occurrence had taken place at 10-15 a.m. On 24-5-1999 while the matter was reported to the police by Muhammad Arshad at 11-00 a.m. The same day at the place of occurrence througii written complaint Exh.P.D. And the formal F.I.R. Exh.P.D./1 was recorded by the Head Constable at 11-20 a.m. Though the distance between the place of occurrence and the police station is 1-1/2 Km. so it is a case of promptly lodged F.I.R. With the names of the accused, the weapons they were carrying and the roles played by them.
' Here we may state that the relationship between the deceased, the accused as also the eye- witnesses, inasmuch as Mst. Mukhtaran Bibi P.W.9, daughter of both the deceased was married with Muhammad Saleem convict and the other convict namely, Shaukat Ali is real brother of Muhammad Saleem appellant. Mst. Mukhtaran Bibi was married with Muhammad Saleem convict and because of strained relations with Muhammad Saleem, she was living in the house of her parents and has also filed suit for dissolution of marriage, which was pending on the day of occurrence. Both the eye-witnesses being daughters of both the deceased and inmates of the house, their presence at the spot cannot be doubted and they were the most natural witnesses of the occurrence. Here, we may also state that Mst. Rubina Bibi P.W.8 (eye-witness) was also examined by Dr. Saleem-ur-Rehman on the day of occurrence and the doctor observed swelling 13 x 6 c.m. Around the lower part of her right forearm and wrist, which fact lends support to case of the prosecution that Mst. Rubina was also injured by the accused with butt blows. Mst. Rubina was medically examined by doctor Saleed-urRehman (P.W.7) on the day of occurrence. She did not go to the hospital at her own but was got medically examined by the police itself. This fact also proves the presence of Mst. Rubina Bibi P.W.8 at the time and place of occurrence. Both these P.Ws. Have corroborated each other on material points. We, therefore, believe the presence of both the eye- witnesses at the c spot. Admittedly, both the eye-witnesses are real daughters of the deceased but their mere relationship with the deceased would not render them as interested or partisan witness and could not be a criteria to discard their evidence, which is otherwise trustworthy and confidence-inspiring.
' Next is the medical evidence. According to the case of prosecution Muhammad Saleem, convict/appellant fired a shot with his .222 rifle, which landed on the left cheek of Mst. Sharifan Bibi deceased. The deceased Sharifan Bibi was medically examined by Lady Doctor Nasreen Dogar P.W.7 at 10-15 a.m. On 24-5-1999 and the doctor found the following injury on her person:- "(1) A lacerated wound measuring 3 x 0.4 c.m. Deep going below the miateal camthus of eye (left side). Injury was caused by fire-arm".
' Similarly Dr. Saleem-ur-Rehman, P.W.6 conducted post-mortem examination on the dead body of Muhammad Bashir deceased on the day of occurrence and the said doctor found the following injuries on his persons:- "(1) A circular wound of entrance of fire-arm 1 x 1 c.m. In size with inverted margins on the lower part of left side of abdomen 8 c.m. From umbilicus.
(2) An abrasion 2 x 1 c.m. On the left big toe.
(3) An abrasion each size 2x1 c.m. And lxl c.m. On the front of left leg."
' According to eye-witnesses account, the shot fired by Shaukat Ali q appellant landed on the abdomen of Muhammad Bashir, deceased. Injury No,l with fire-arm is very much in existence on the lower part of the left side of abdomen of Muhammad Bashir deceased. The duration between death and post-mortem as given by the doctor P.W.6 was 6 to 8 hours. The occurrence having taken place, at 10-15 a.m. On 24-5-1999 and the postmortem examination having been conducted on the same day at 3-00 p.m., the duration given between the death and post-mortem as 6 to 8 hours coincides with the time of occurrence given by the prosecution. Leaving the column of date and hour of examination of Mst. Sharifan Bibi blank by the lady doctor Nasreen Dogar P.W.7 is mere an irregularity and could not damage the case of the prosecution..
' The background of the motive set up by the prosecution in the F.I.R. Was that Mst. Mukhtaran Bibi was married with Muhammad Saleem four years prior to the occurrence, Muhammad Saleem used to maltreat Mst. Mukhtaran for which reasons she had come to the house of her parents and had filed a suit for dissolution of marriage. Muhammad Saleem appellant in his statement under section 342, Cr.P.C. Admitted that he was married with Mst. Mukhtaran Bibi four years prior to the occurrence and was involved in the case because of strained relations with Mst. Mukhtaran Bibi P.W.. To prove the motive, the prosecution produced judgment and decree of the Judge Family Court, Kasur, dated 4-3-2000 (Exh.P.W.). Through the judgment and decree, the suit filed by Mst.
Mukhtaran Bibi P.W. For dissolution of marriage was decreed. On the face of this judgment and decree of the Judge Family Court, we need not dilate upon the motive any further and we believe the same.
' The ocular account furnished by most natural witnesses of the occurrence and having come from an unimpeachable source is fully corroborated by medical evidence and the prosecution story also gets support from the motive part of the case.
' So far as, report of Forensic Science Laboratory with regard to wedding of crime empties from the spot with the rifle recovered on the pointation of Muhammad Saleem appellant is concerned, the same was found without firing pin, and thus no opinion for or against the prosecution was given.
We may observe that recovery is always a corroborative piece of evidence and law of the land is that corroboration is not an absolute and mandatory rule but it is a rule of prudence, which is applied in the cases in which the direct evidence is not of the standard, which can be considered sufficient for conviction.
' Here we may also discuss the story coined up by Muhammad Saleem, convict/ appellant, who stated in his statement recorded under section 342, Cr.P.C. As under:- ' "In fact, Bashir Ahmad father of the complainant was an addicted person, who was also inhabit of Dera Parchi. And Mst. Sharifan Bibi mother of the complainant and his brothers forbade Bashir Ahmad (deceased) from addiction and Parchi'. On the day of alleged occurrence, a dispute arose between Mst. Sharifan and Bashir Ahmad (deceased) regarding the addiction and Parchi. Due to the bad habits, Bashir Ahmad did not give maintenance allowance to Mst. Sharifan Bibi (deceased) and on the day of alleged occurrence, Sharifan Bibi demanded maintenance allowance from Bashir Ahmad, upon this an altercation had taken place between Bashir Ahmad and Mst. Sharifan Bibi. And Bashir Ahmad had fired at Sharifan Bibi who died at the spot and Rasheed Ahmad brother of the complainant (now-a-days whose whereabouts are not known) picked up the same gun and fired at Bashir Ahmad (deceased) and ran away from the spot. I have been falsely implicated in this case at the instance of Haji Ghulam Shabbir, Exh.M.P.A."
' From the bare perusal of the above statement, it is clear that the story introduced by Muhammad Saleem convict is unnatural rather absurd one. The appellant had taken a specific plea and when a specific plea is taken by an accused the burden to prove the same lies upon him. To substantiate his defence the appellant Muhammad Saleem did not produce any evidence rather oral or documentary so the defence put by him is neither here nor there.
' After having analyzed the entire prosecution case and the defence put by Muhammad Saleem appellant, we are of the considered opinion that the prosecution has been successful in proving its case against both the appellants to its hilt. However, there are some mitigating circumstances in favour of Shaukat Ali appellant and those are (1) that no motive whatsoever laid with Shaukat Ali convict-appellant to kill the deceased, secondly, he is real younger brother of Muhammad Saleem appellant and thirdly, that no recovery was effected from him, so taking these three factors as mitigating circumstances, we though maintain conviction of Shaukat Ali convict- appellant under section 302(b), 'P.P.C. But convert his sentence of death into imprisonment for life.
' Resultantly, the death sentence of Muhammad Saleem convict-appellant is confirmed while that of Shaukat Ali, appellant is not confirmed. Similarly, murder reference to the extent of Muhammad Saleem appellant is replied in the affirmative while in the case of Shaukat Ali appellant, it is replied in the negative.
Death sentence of Muhammad Saleem appellant is confirmed while Shaukat Ali appellant is not confirmed.