' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,302 of 2003 directed against the judgment, dated 30-5-2003 passed by the learned Addl; Sessions Judge, Gujranwala, whereby he convicted the appellants under sections 364/148, P.P.C. And sentenced them to undergo life imprisonment each with fine of Rs,1,00,000 (one lac) each or in default thereof six months' S.I. The appellants were also convicted under section 148, P.P.C. And were sentenced three years' R.I. Each. All the appellants were further convicted under sections 171/149, P.P.C. And were sentenced three months' R.I. All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. The brief facts of the case as narrated by the complainant in the F.I.R. Are that on 15-6-1997 at 2 a.m. At night time accused Arshad alias Moodi proclaimed offender armed with Kalashnikov.
Shahid armed with rifle, Nazar Muhammad and Muhammad Manshya armed with .12 bore guns, Zia Ullah and Muhammad Nawaz alias Maju armed with rifles, .7 mm, Imtiaz, armed with Klashnikov, Manzoor alias Murtaza armed with .12 bore gun, Akhtar alias Jagga armed with .222 bore, Tariq armed with '.7 mm rifle Maqbool armed with pistol, Akhtar son of Faqir Muhammad armed with 122 bore rifle, Muhammad Rafique armed with carbine, Riaz son of Meer Hassan armed with .7 mm rifle, Javaid armed with .7 mm, Maqsood armed with .12 bore gun scaled over the wall of the residential house of complainant and entered into the house and abducted Khurshid, the real brother of the complainant while wearing fake police uniforms for committing his murder who was sleeping on the roof of- the house. Muhammad Siddique and Sarfraz saw the accused when they were taking Khurshid along with them after his abduction. Motive behind the occurrence as stated by the complainant was that previously an application was moved against Arshad Mehmood and Imtiaz in the police station that they had set on fire the house in which wheat and chaff was lying and accused had a grudge of said application.
3. After getting information about the occurrence the local police completed all the necessary formalities and thereafter Shahid Zafar Inspector along with his subordinates proceeded to the spot and prepared the site plan Exh.P.V. And then recorded the statements of Sarfraz Ahmad and Siddique . Under section 161, Cr.P.C. And added section 452, P.P.C. On 25-7-1997 in presence of both the partiers he investigated the case and declared innocent Mansha Nazar, Akhtar Ali, Tariq, Maqbool Ahmad, Ghulam Murtaza, Maqsood Ahmad and Javaid Iqbal accused. Ultimately he prepared incomplete challan. Thereafter investigation of the case was entrusted to Muhammad Mansha S.I. Before whom Imtiaz accused who was already in police custody in case F.I.R. No,133/99, disclosed that he along with co-accused after committing the murder of Khurshid deceased by firing on him and threw the dead body in the canal. He also pointed out the place where he had thrown the dead body in the canal. He also joined Muhammad Nawaz and Muhammad Riaz and found them guilty of murder of Khurshid deceased. Ultimately he submitted the supplementary challan of the above said accused. After completion of investigation challan was submitted to the Court for trial.
4. The prosecution in order to prove its case has produced as many as six witnesses including Investigating Officers and other formal and relevant witnesses. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. Learned trial Court after taking into consideration every aspect of the case and hearing the arguments advanced by the learned counsel for the parties, convicted and sentenced the appellants as mentioned above. Hence, this appeal.
5. Learned counsel for the appellants in support of this appeal submits that the charge under section 302, P.P.C. Could not be proved by the prosecution and so the appellants were acquitted of the said charge, that as far as statement of Muhammad Shafi P.W.1 regarding extra judicial confession about- the dead body of the deceased is concerned, till today no dead body has been recovered, that under Article 40 of Qanun-e-Shahadat Order, 1984 statement of the P.W. Regarding throwing the dead body of the deceased in the canal is inadmissible because it did not lead to any incriminating evidence, that Muhammad Siddique P.W.3 had been disbelieved regarding the acquitted co accused but has been believed regarding the present appellants, that on the statement of Khalil Ahmad, complainant P.W.2 Maqbool, Manzoor, Nazar Ahmad and Mansha had been acquitted by the learned trial Cdurt, that enmity is admitted between the parties, that P.Ws.1, 2 and 3 are related inter se, that Sarfraz another eye-witness was not produced by the prosecution before the learned trial Court. There is no independent corroboration to the statement of the complainant, that the appellants are behind the bars for the last about 5 years, that the prosecution has failed to prove its case against the appellants, that on the same evidence co- accused of the appellants have been acquitted and that the appellants are entitled to acquittal.
6. On the other hand learned counsel for the State submits that though the enmity is admitted between the parties, but there is evidence on record about the abduction of the deceased from his house and he supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties. In all there were 16 accused named in the F.I.R., six were murdered later on, two are still P.O and 8 were tried including the present appellants out of them 4 namely Maqbool Ahmad, Maqsood Ahmad, Nazar Muhammad and Muhammad Mansha have been acquitted. As far as the present appellants are concerned they had been convicted under sections 364/149 and 148, P.P.C. Read with section 171, P.P.C. Three eye-witnesses were named in the F.I.R., namely Khalil Ahmad the brother of the deceased (complainant), Muhammad Siddique and Sarfraz Ahmad who was given up. Khalil Ahmad and Muhammad Siddique appeared in the witness-box. It is correct that there is enmity between the- parties but it cuts both the ways Khalil Ahmad complainant is the resident of Place of occurrence. He is the most natural witness. A The occurrence took place on the night between 15/16-6-1997 while F.I.R. Was lodged on 18-6-1997 and for this delay in the F.I.R. The complainant has explained that he wanted to get his brother through the respectable of the area. Cross-examination was also conducted on him and he gave names of the arbitrators who were - sent to the accused party to return the deceased and on the refusal on the part of the accused party the instant F.I.R. Was lodged. A lengthy cross-examination was conducted on the complainant but he stood firm. Riaz appellant was injured by Khushi Muhammad deceased prior to the occurrence and that case was still pending when the present occurrence took place. This was the motive for the abduction of the deceased. Riaz Ahmad had admitted that Khalil Ahmad complainant prior to this had tried to commit Qatl-e-Amd and in this regard case was pending in Police Station Noshehrah Virkan. The other motive as B alleged in the F.I.R. By the, complainant was that Arshad Mahmood and Imtiaz had set on tire the house of the complainant where wheat and chaff was lying. Th. Deceased Khurshid Ahmad had nominated them in the application submitted before the police for registration of the case, although he has denied this fact in his statement recorded under section 342, Cr.P.C, Court has to see the quality of evidence and not the quantity of evidence. It was also alleged during the course of examination before the learned trial Court that Shahid Zafar was Gujjar by caste and was siding with the complainant party as they were also Gujjar by caste but he has declared Maqbool Ahmad, Maqsood Ahmad, Nazar Muhammad and Muhammad Mansha innocent and they were acquitted by the learned trial Court. Even the said Shahid Zafar also declared Akhtar and Manzoor innocent but the learned trial Court was not satisfied with this innocence of Akhtar and Manzoor. No evidence in defence whatsoever was produced by Akhtar and Manzoor appellant about their innocence before the learned trial Court. Even Riaz and Imtiaz appellants also did not produce any defence evidence because Riaz Ahmad had taken the version to the effect that he was not present in village Kurlkay but was present at Head Qadirabad in the house of his relatives but none of them was produced C by him before the learned trial Court. Unfortunately till today dead body of the deceased has not been recovered because according to the prosecution case it was thrown in the canal. Imtiaz appellant was taken into custody on 22-5-2000 by Muhammad Mansha P.W.5 (retired S-I.) because he was already in custody in a case for F.I.R. No,133 of 1999. Same was the position of Riaz Ahmad appellant who was taken into custody on 26-5-2000. Warrants of arrest were also obtained by Muhammad Ashraf F.0 P.W.4 against Imtiaz and Riaz appellant in this regard also.
8. After having heard the learned counsel for the parties and going through the record available on the file specially the statement of the complainant Khalil Ahmad who was the inmate of the house and this fact has not been denied that he was not resident of that house where the occurrence had taken place so I am of the view that there is no merit in this appeal and the same is dismissed.