' MUHAMMAD AHSAN BHOON, J. ---Crl. Appeal No,200-J/2002 is directed against the judgment dated 12-4-2002 passed by the learned Addl. Sessions Judge Attock whereby appellant Aleeq Shah was convicted under section 302(b)/34, P.P.C. And sentenced to death on two counts for committing the Qatl-e-Amd of Muzaffar Khan and Adil Khan deceased with a compensation of Rs,5 lac under section 544-A, Cr.P.C. To be paid to each legal heir of both the deceased or in default to further undergo 2 years' S.I. In case F.I.R. No,215, dated 2-7-2001 offence under sections 459/302/34, P.P.C. Registered at Police Station, Hazro District Attock. The learned Addl. Sessions Judge, Attock has sent Murder Reference No,268/2002 for confirmation of death sentence of appellant or otherwise. We propose to dispose of both the matters through this judgment.
2. The prosecution story in brief is that on 2-7-2001 at 7-00 p.m., in the area of village Jalalia, Aleeq Shah while armed with klashnikov along with Hainid Shah P.O. Committed the house trespass of the complainant and murdered Muzaffar Khan and Adil Khan deceased. The motive stated to be was that Aleeq Shah accused had taken on rent flour machine and the house for residence from the complainant. One day before the occurrence there was an exchange of hot words between the accused and Muzaffar Khan who asked him to hand over flour machine and the house to them.
Due to this reason the occurrence took place.
3. After due investigation report under section 173, Cr.P.C. Was submitted to the learned trial court.
Charge was framed against the appellant who denied the same, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellant was examined under section 342, Cr.P.C.
In reply to question "why this case is against you and why P.Ws. Have deposed against you" Aleeq Shah appellant replied as under:-- "I am innocent and I used to operate the mill-stone of Muzaffar deceased who had also provided to me the residence where I was living with my family. Muzaffar deceased asked me many times to send my daughter to his house to work but I refused due to his bad reputation and due to this reason Muzaffar deceased insulted me and also abused and asked me to vacate the house which I did and went back along with my family members to my native village. Subsequently the police arrested me from my village when I was attending the marriage of one Kausar my relative. As I had left the village of the deceased one day earlier to the occurrence, hence due to suspicion this case was registered against me. As a matter of fact Muzaffar was committed to murder by some unknown person because due to different reasons he was having the enmity in the village and area with number of persons including the relatives of his first wife. He was having immoral relation with Adil deceased. He was also having the dispute on the land and election of local bodies. I permanently offer my prayer and I am a pious man. I am a poor man and the father of young girls.
I am quite innocent in this case."
' He opted not to appear as his own witness in, disproof of the allegation levelled against him as required under section 302(2), Cr.P.C. But he produced Hazrat Muhammad (D.W.1) in his defence.
The learned trial court after hearing the parties, passed the above said conviction and sentence, which is being assailed through this criminal appeal.
4. Heard. Record perused.
5. The F.I.R. In this case was lodged by Muhammad Riaz (P.W.7) who is brother of Muzaffar Khan deceased. According to his version given in the F.I.R. The accused/appellant Aleeq Shah being armed with klashnikov along with his son Hamid armed with pistol came in the courtyard of `baithak' adjacent to the house of the deceased where Muhammad Riaz complainant (P.W.7), Nisar Khan (P.W.8) and Aksar Khan (not examined) were present whereas the other deceased Adil Khan was tutoring the children of Muzaffar Khan deceased. After a short while Adil Khan was free from tutoring the children and he was coming towards Muzaffar Khan, when Aleeq Shah accused armed with klashnikov fired a burst which hit different parts of body of Muzaffar Khan deceased whereas some of the bullets of burst also hit Adil Khan, deceased who was also near Muzaffar khan deceased. Both Muzaffar Khan and Adil Khan due to receipt of injuries fell down and thereafter Aleeq Shah accused/appellant and Hamid (since P.O.) while making aerial firing ran away from the spot. Both the injured were transported to Tehsil Headquarters Hostpital Hazro for treatment but Muzaffar Khan died on the way whereas Adil Khan injured was referred by the doctor to D.H.Q.
Hospital, Rawalpindi who also died on the way.
6. The motive of the occurrence was that Aleeq Shah accused/appellant had taken on rent flour machine of the deceased Muzaffar Khan and he was also provided residence but an alteration between the accused Aleeq Shah and Muzaffar Khan deceased took place on 1-7-2001 and Muzaffar Khan deceased asked the appellant to abandon the flour machine and also vacate the house within two days, due to that grudge the occurrence took place. The said version of the complainant was corroborated by Nisar Khan (P.W.8) while appearing before the court. The occurrence A took place in the house of the complainant and the deceased so it was natural that he was present on the spot at the evening time in the month of July and similarly Nisar Khan (P.W.8) an independent witness having no relationship with the accused or A the deceased was also resident of same locality and his presence being co-villager was also quite natural as he used to chat with the deceased and the complainant. Even otherwise the occurrence took place at 7-00 p.m., and the F.I.R. Was lodged at 10-15 p.m., as the Police Station was at a distance of 9 K.M. From the place of occurrence and it is evident from the F.I.R. Itself that curing the interregnum the complainant tried to shift both the victims to the hospital to save their lives, so the B F.I.R. Is also promptly lodged wherein it is mentioned the name of the appellant who caused all the injuries on the bodies of both the deceased i.e, Muzaffar Khan and Adil Khan.
7. Dr. Muhammad Zafar (P.W.2) conducted the post mortem examination on the dead body of Muzaffar Khan deceased on the same day (2-7-2001) at 10-00 p.m., and found 14 injuries on his body, out of which seven were entry wounds and seven were exit wounds. Similarly he also conducted the post mortem examination of Adil Khan deceased on the night between 2/3-7-2001 at 1-00 a.m. And found two injuries on his body. Injury No,1 was entry wound and injury No,2-A was exit wound, so the ocular account furnished by the eye- C witnesses is in line with the medical evidence.
8. Another strong corroboration coming out of the prosecution evidence against the appellant is recovery of crime empties from the spot as 10 empties of klashnikov were collected by Sher Muhammad S.I (P.W.9) on 2-7-2001 i.e, day of occurrence same were sent to Chemical Examiner on 6-7-2001 and thereafter the accused/appellant was arrested on 15-7-2001 and Klashnikov/ weapon of offence was recovered at the behest of appellant on 27-7-2001 and said recoveries were duly proved through he evidence of Sultan Afsar (P.W.6) and Sher Muhammad S.-I. (P.W.9) and Klashnikov was sent to Forensic Laboratory 10-8-2001 and same was found wedded with the crime empties already sent to FSL prior to the arrest of the appellant and report (Exh.PR) was found positive, according to which out of 10 empties 9 were found wedded with the Klashnikov recovered at the behest of the appellant, whereas due to non-existence of the percussion cap of tenth empty, no report was given about the matching of one empty.
9. The motive alleged was not denied by the appellant. However, his defence was that he was not present at the scene of occurrence and on the day of occurrence he was at Lahore. To prove his plea of alibi he produced Hazrat Muhammad (D.W.1) who stated that on 1-7-2001 the appellant was with him at Lahore at about 5/6 p.m. But that defence witness stated that prior to his I deposition before the court neither he ever joined the investigation in this case nor appeared before the I.O. Or any other authority nor he moved any application to any officer about the false involvement of the appellant who was his real `mamoon', so statement of D.W.1 was mere an effort to save the appellant form the prosecution of double murder case being a close relative.
10. In view of above discussion, we are of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt F through confidence inspiring and worth reliance ocular accoupt, medical evidence, recovery and motive and it was the appellant who was "responsible for the brutal double murder of two innocent persons on a very petty dispute and he deserves normal penalty of death. Hence this appeal having no merits is dismissed. The conviction and sentence of the appellant awarded to him vide judgment dated 12-4-2002 by the learned A.S.J., Attock is maintained. Murder Reference No,268 of 2002 is answered in affirmative.