' HASNAT AHMAD KHAN, J.--- Imran Khan, the appellant, was tried by a learned Additional Sessions Judge, Sahiwal, in case F.I.R. No,261 of 1995, dated 9-8-1995, registered at Police Station Dera Rahim, Sahiwal for the offences under sections 452, 302 and 34, P.P.C. After the conclusion of the trial, the said learned Additional Sessions Judge found the appellant guilty of murdering Zawar Khan and Rab Nawaz, husband and son of the complainant, respectively. Consequently, the appellant was convicted and sentenced to the rope under section 302(A), P.P.C. As Taazir, on two counts, vide judgment, dated 19-2-2001. Under section 544-A, Cr.P.C. He was ordered to pay Rs,50.,000 on two counts as compensation, to be paid to the legal heirs of both the deceased, or in default of payment thereof he was directed to undergo six months simple imprisonment on each count.
2. Aggrieved by the judgment of the learned trial Court, the appellant challenged his conviction and sentence through Criminal Appeal No,154 of 2001, while the trial Court sent a Reference (Murder Reference No,300 of 2001) for the confirmation or otherwise of the death sentence awarded to Imran Khan, the appellant. The complainant also filed P.S.L.A. No,19 of 2001 for conviction of the appellant under sections 452 and 324, P.P.C. As well as for enhancement of compensation adequately. This consolidated judgment will dispose of all the aforesaid matters.
3. Concisely, the prosecution's story, as narrated by the complainant Mst. Zarina Bibi (P.W.5), wife of Zawar Khan (deceased) and mother of Rab Nawaz (deceased), through her statement, which later on culminated into F.I.R. (Exh.P.A.), was/is to the effect that on the night of 8/9th August, 1995, the complainant, Zawar Khan, complainant's husband and Rab Nawaz, her son, were sleeping on their cots in the courtyard of their house where an electric bulb was lit; at about 2-00 a.m. The complainant got up on hearing screams of her husband, Zawar Khan, at the same time the complainant's son Rab Nawaz also woke up and saw that four masked people/accused, one armed with a pistol and the remaining three armed with Batons, were forcibly taking away Zawar Khan towards the garage of the house, two persons had caught hold of Zawar Khan by his arms from his back and one had put his pistol on his neck, an electric bulb was also lit in the garage, the complainant and her son Rab Nawaz rushed towards garage and tried to release Zawar Khan from the clutches of the culprits, the appellant fired a shot with the pistol in the mouth . Of Zawar Khan (deceased), who bled to death on the spot, Rab Nawaz (deceased), son of the complainant, falling on the body of his father tried to save him on which the appellant fired a second shot with his pistol, which hit on the back of his left shoulder causing serious injury; when the complainant raised hue and cry the appellant also tried to open fire at her but fortunately the pistol did not go off, whereupon the appellant gave pistol's butt blows on the head of the complainant, on hearing the firearm shots and screams of the complainant, Riaz Khan and Ejaz Khan, the P.Ws., rushed to the scene of occurrence, whereupon all the four accused ran towards the vacant house of Sarfraz Khan and during their effort of fleeing, the face of the accused/appellant was unmasked and he was identified by the complainant as Imran Khan; Riaz Khan and Ejaz Khan, the P.Ws. Tried to nab the appellant/accused but the accused bawled out that if any one tried to step forward he would meet the same consequences, whereafter, the appellant/accused succeeded to flee from the outer gate of the house of Sarfraz Khan.
' The motivating factor behind the occurrence is stated to be that Sarfraz Khan, son-in-law of complainant's brother Zulfiqar Khan, while prpceeding to Murree along with his family members had handed over the keys of his vacant house to the complainant for looking after the same. One day prior to the occurrence the appellant entered into the adjoining house of Zulfiqar Khan suspiciously by opening the window of outer gate. The complainant's husband abused and reprimanded him and in retaliation to that the appellant along with his accomplices, while arming themselves, entered her house, committed the murder of her husband and injured the complainant and her son. Rab Nawaz, the complainant's son, was rushed to the hospital but he succumbed to his injuries and died on 10-8-1995.
4. During successive investigations the appellant was found innocent and consequently, he was never arrested by the police in this case. Therefore, the complainant had no option but to institute a complaint against the appellant. In the said complaint the appellant was summoned and tried on the basis of above said charges.
5. During the trial the complainant, in support of her case, produced as many as 6 witnesses. Mst.
Zarina Bibi-complainant entered into the witness-box as P.W.5 and furnished the ocular account of the occurrence. Ejaz Khan appearing as P.W.6 and deposed that after hearing the report of fire from the house of the complainant he along with his brother Riaz had gone to the house of the complainant where, according to him, he saw, Imran Khan-appellant, who was armed with the pistol, while other three accused were armed with batons. Zafar Iqbal who recorded the F.I.R., appeared in the witness-box as P.W.1. Dr. Ejaz Hussain, who had conducted the autopsy on the dead body of Zawar Khan and Rab Nawaz (deceased), came forward as P.W.3 and furnished the detail of injuries observed by him on the corpses of the deceased, as under:--- Injuries on the dead body of Zawar Khan
(1) Lacerated wound 2 c.m. x 3 c.m. On the inner side of mouth between the soft palate and hard palate with inverted margins and there was blackening around the wound.
(2) Lacerated wound 3 c.m. x 4 c.m. x on the occipital region (back of head) with everted margins and fluid was coming out i,e, brain matter.
(3) and (4) There were two abrasions on left and right knee joints respectively.
' In his opinion the death was caused due to injury No,1, which resulted in shock and severe haemorrhage and hypovolumic shock, which was sufficient to cause death in the ordinary course of nature.
Injuries on the dead body of Rab Nawaz
(1) Lacerated wound 2 c.m. x 3 c.m. On the backside of right shoulder (right scapular region). -(3) An incised wound .2 c.m. x 4 c.m. On the right axill ay line (for chest intubation tube).
' In his opinion death was due to cardio pulmonary arrest due to injury No, 1, resulting severe hypovolumic shock, haemothorax, which was sufficient to cause death in ordinary course of nature.
' Dr. Manzoor Ahmed, M.O. D.H.Q. Hospital, Sahiwal, who examined Mst. Zarina Begum came forward as P.W.2 and furnished the detail of injures, observed by him on her body, as under:---
(1) Lacerated wound 1 c.m. x 1 c.m. x deep going on the right side of the head, 9 c.m. Above right ear.
6. Riaz Khan, P.W., was given up as being an unnecessary witness by the complainant and she closed her evidence.
7. The appellant' made his statement under section 342, Cr.P.C. While responding to question No,4, he stated as under:--- "I am absolutely innocent. It was due to some family disputes and revenge that they tried to involve me falsely."
' The appellant, however, did not opt to appear as his own witness under section 340(2), Cr.P.C.
Nevertheless, he opted to produce Habibullah Khan as D.W.i, Sarfraz Khan as D.W.2 and Haleem Sabir' Malik as D.W.3.
8. After the conclusion of the trial Imran Khan-appellant was convicted and sentenced to death as mentioned above.
9. Learned counsel for the appellant has contended that despite the fact that the prosecution failed to prove its case beyond the shadow of doubt the learned trial Court convicted , and sentenced the appellant illegally; that in fact it was a blind murder which was reported to the police with an inordinate and unexplained delay of eight hours; that during successive investigations the appellant was found innocent and was never arrested by the police during the investigation; that having failed to obtain favourable report/opinion from the Investigating Officers, the complainant of the case instituted a criminal complaint, on the basis of which the appellant has been convicted and sentenced illegally; that the learned trial Court failed to appreciate that the ocular evidence was furnished by interested witnesses whose account remained uncorroborated by any independent piece of evidence; that the motivating factor behind the occurrence, as alleged by the complainant, was demolished by the statement of Sarfraz Khan D.W.2; that the statements of both the eye-witnesses are replete with contradictions, discrepancies and improvements, therefore, no reliance can be placed on the ocular account; that no crime- empty was recovered from the spot; similarly no crime weapon was recovered from the appellant, therefore, naturally there is no report of Forensic Science Laboratory which could. Corroborate the ocular evidence; that Mst. Nadia, the daughter of the complainant, who was also sleeping along with her mother at the time of occurrence, was never produced in the witness-box a fact which shows that the prosecution withheld a very important piece of evidence; that the statement of Ijaz (P.W.6) being in the form of hearsay evidence cannot be relied upon and if his statement is disbelieved then there is no corroboration to the statement of Mst. Zarina Bibi, the other eyewitness, and that the uncorroborated ocular evidence comprising interested witnesses who made contradictory statements while appearing in the witness-box cannot be relied upon for convicting and sentencing the appellant to the rope. In the alternative the learned counsel for the appellant has contended that in any case the appellant does not deserve capital sentence, for, at the time of occurrence he was about 17 years old. In order to augment his last contention learned counsel has relied upon the age of the appellant as given at the time of recording of his statement under sectHn 342, Cr.P.C. Wherein he claimed himself to be 22 years old on 17th of July, 2000 whereas the occurrence in this case took place on 9th of August, 1995. The said circumstance, according to learned counsel for the appellant creates a mitigating circumstance justifying the commutation of death sentence awarded to the appellant into that of imprisonment for life.
10. Conversely the learned Deputy Prosecutor-General assisted by learned counsel for the complainant has opposed the appeal strenuously by contending that the prosecution has proved its case to the hilt beyond any shadow of doubt by producing disinterested and independent eyewitnesses including an injured witness, who, being an inmate of the house where the occurrence took place, is quite a natural witness; that neither the complainant nor the other eye- witness who appeared in the witness-box had any enmity or reason to falsely implicate the appellant in this case; that the ocular evidence is supported by the medical evidence as well as dying declaration (Exh.D.W.3/A) made by Rab Nawaz (deceased) before his death; that opinion of the police being not admissible in evidence cannot be made a basis for discarding the statements of disinterested eye-witnesses and that during the trial the appellant never claimed himself to be a minor/child within the meaning of Juvenile Justice System Ordinance, 2000, therefore, he cannot claim lesser penalty in a case of double murder.
11. We have gone through the entire evidence, ocular as well as documentary, with the able assistance of respective learned counsel for both the parties, and after picking the entire evidence into pieces, we find that prosecution case is mainly hinging,u n the ocular evidence corroborated by the story of motive as narrated by the prosecution witnesses, dying declaration of Rab Nawaz, one of the deceased, and the medical evidence. In so far as ocular evidence is concerned the same has been furnished by Mst. Zarina Bibi, the complainant of the case and Ijaz Khan, the brother of Zawar Khan, the other deceased. Admittedly the occurrence took place in the garage of the complainant's house at 2-00 a.m. On the fateful night. The complainant claims that at the time of occurrence Imran, the appellant, was identified by her in the light of an electric bulb lit in the garage. It is an admitted fact that during the occurrence the complainant herself received a blunt weapon injury due to which she herself was admitted in the hospital just after the occurrence. It is also not denied that the complainant is an inmate of the house where the occurrence took place.
In the circumstances her version that her husband who was shot dead and her son was wounded critically during the occurrence right in her presence cannot be doubted. She being a natural witness cannot be disbelieved simply on the ground that the prosecution's version of taking away Zawar Khan (deceased) towards the garage on gunpoint appears to be improbable. The reason for escorting Zawar (deceased) to 'Garage, whatever it may be, was/is best known to the accused themselves.
' There is no denying the fact that Zawar-deceased, in the month of August, was sleeping along with his family in the courtyard of his house. It is also not denied that he was gunned down in the garage of his house where his son, who had tried to save his life, was also shot injured critically.
During her attempt to intervene in the matter the complainant was statedly given butt blows of the pistol by the assailant, therefore, the story as put forward by the prosecution appears to be quite natural. During the occurrence Imran appellant who is closely related to the complainant party was duly identified by the appellant. There is no question of mistaken identity of the appellant, who is closely related to the complainant.
12. In so far as delay in lodging of the F.I.R. Is concerned, admittedly the complainant's husband was shot dead right at the spot whereas complainant's son a young boy of 18 years, was critically wounded. The complainant, who herself received a serious injury on her head, was admitted in the hospital along with her son. In such-like situation the first worry of the witnesses was to save the life of the two injured witnesses. According to the medical evidence furnished by Dr. Manzoor, P.W.2, at the time of her medical examination the complainant was crying with pain. Her blood pressure was 100170. The said doctor further deposed that her injury was kept under observation for X-ray and Surgeon opinion. In such a pathetic condition, the traumatized and shock-stricken complainant was not expected to report the matter to the police with promptitude and some delay in lodging the F.I.R. Was quite natural, therefore, we are not inclined to discard the ocular evidence on the ground of delay of eight hours in lodging the F.I.R.
13. Now coming to the motivating factor behind the occurrence, it is the prosecution's case that Sarfraz Khan, D.W.2, a neighbour of the complainant, had gone to Murree along with his family members after handing over the keys of his house to the complainant for purpose of looking after the same. The complainant further claims that one day before the occurrence the appellant had entered into the house of Sarfraz Khan in a dubious and surreptitious manner, consequently he was rebuked and admonished by the complainant's husband (the deceased). The appellant tried to controvert the said motive by producing Sarfraz Khan in his defence, who while appearing in the witness-box out rightly admitted that the appellant was his nephew. He also conceded to the fact that before the night of occurrence he along with his family members had gone to Murree. Said Sarfraz Khan is son-in-law of Zulfiqar, the real brother of Zawar, one of the deceased, but on the other hand he is the real brother of Amin Khan, the father of the appellant. It appears that due to his close relationship with the appellant he denied the fact of handing over the keys of his house to the complainant but the fact remains that prosecution's case .Was corroborated by the statement of D.W.2 at least to the extent of his going to Murree before the occurrence. During the cross- examination he stated as under:--- "It is correct that the house of Zawar Khan and of myself are adjacent to each other and there was a window in between the intervening wall."
The said portion of his statement further corroborates the prosecution's version. In these circumstances it cannot be said that prosecution failed to prove its case qua the motivating factor behind the occurrence rather it got strengthened by the statement of D.W.2.
14. Learned counsel for the appellant laid much stress on the fact that the complainant's daughter was not produced in the witness-box but the appellant cannot be benefited of the said fact on two-fold grounds; firstly, the complainant never admitted the presence of her daughter at the place and the time of occurrence; secondly, it was the prerogative of the prosecution to produce as many as witnesses as it chose. In so far as the statement of Mst. Zarina Bibi P.W.2 is concerned, at the cost of repetition, it is observed that she being an inmate of the house and an injured witness, her presence at the time of place of occurrence cannot be doubted. Admittedly there was no deep-rooted enmity between the parties before lodging of the F.I.R. The defence has pointed out some minor disputes between the complainant party and the father of the appellant but the fact remains that the complainant had no enmity whatsoever with the appellant. Though according to her at the time of occurrence the appellant was accompanied by three unknown people yet at no stage the complainant tried to widen the net, so much so the appellant's father was not involved in this case. It is also an admitted fact that there is a close relationship between the parties, therefore, there was no occasion for the complainant to falsely implicate Imran. The complainant's statement was further corroborated by the statement of Rab Nawaz, one of the deceased recorded under section 161, Cr.P.C. On the 9th of August, 1995. The said statement was duly put to Aleem Malik D.W.3, the Investigating Officer of this case and consequently the same was brought on record as Exh.D.W.3/A. In the said statement as well, full detail of the occurrence including the name of the appellant as prime culprit was given by Rab Nawaz - the deceased - before his death. The ocular evidence furnished by the complainant was strengthened and corroborated by the statement of Ijaz who appeared in the witness-box as P.W.6. A perusal of the entire evidence brought on the record reveals that in the days of occurrence the said witness was living in a nearby place. The appellant suggested to him that his residence was at a distance of 300/400 feet from the occurrence (page 42 of the paper book) but the same was denied. Even if the said suggestion is admitted to be true the fact remains that the said witness was living in a nearby place. While appearing in the witness-box the said witness made a straightforward statement by claiming that after hearing the commotion he visited the place of occurrence. He did not claim that he had seen the actual occurrence rather he claimed that when he along with his brother reached at the place of occurrence, just after the occurrence, they had seen Imran armed with a pistol along with the three unknown people. He further claimed that the appellant was duly identified by them in the light of electric bulb. So, the statement of the injured witness/complainant was duly supported by the statement of Ijaz Khan P.W.6. Both the said eyewitnesses stood the test of cross-examination successfully and despite a lengthy cross-examination the cross-examiner could not demolish their testimony. The trustworthy ocular evidence furnished by reliable eyewitnesses, including an injured witness, which was duly corroborated by medical evidence, as well as dying declaration cannot be disbelieved simply on the ground that the Investigating Officers held the appellant innocent during their investigation. Statement of Hakeem Sabir Malik, D.W.3, the Investigating Officer of this case, according to whom the appellant was found innocent during his investigation, cannot advance the defence for the reason that opinion of the police is not even admissible in the evidence. Even otherwise, during his cross-examination he admitted that till 18th March, 1996 he could not reach any conclusion and for the same reason he had not given his finding till the said date. However, on the very next date he gave his finding in favour of the appellant at Yousafwala Rest House. In this view of the matter the appellant cannot be given benefit of favourable findings returned by the Investigating Officers.
16. In a nutshell we conclude that the prosecution proved its case to the hilt beyond any shred of doubt, therefore, the conviction awarded to the appellant on both counts is maintained. At this stage, however, we have observed that in the absence of the required proof the learned Judge illegally convicted the appellant under section 302(a), P.P.C. Instead ofC section 302(b), P.P.C., therefore, the conviction under section 302(a), P.P.C. Is accordingly converted into that of section 302(b), P.P.C.
17. As far as the question of sentence is concerned learned counsel for the appellant claims that at the time of occurrence the appellant was a minor of less than 18 years, therefore, according to him, he cannot be sentenced to death. In support of his contention learned counsel for the appellant has placed reliance on the case of Iftikhar-ul-Hassan v. Israr Bashir and another PLD 2007 SC 111 and Nazeer alias Wazeer v. The State PLD 2007 SC 202.
18. We have examined the said contention in the light of material available on the record. We find that it is an admitted fact that during the trial at no stage the appellant claimed himself to be a juvenile offender. It is true that the occurrence in this case took place before the enforcement of Juvenile Justice System Ordinance, 2000 but it is also true that the trial in this case was concluded after the enforcement of the said Ordinance, which came into force on First of July, 2000 whereas the trial in this case came to its logical end on 9th February, 2001. Even after the enforcement of the said Ordinance the appellant never applied for declaring himself to be a juvenile offender.
However, while making his statement under section 342, Cr.P.C., which was recorded on 17-7-2000, he claimed himself to be 22 years old. During the trial he never suggested to any witness that at the time of occurrence he was minor of juvenile. Similarly he never produced any document for claiming himself to be minor at the time of occurrence, therefore, he cannot be treated to be a juvenile at the time of occurrence simply on the ground that at the time of recording his statement under section 342, Cr.P.C. His age was recorded as 22 years. Trial Courts usually record the age of the accused at the time of recording statement under section 342, Cr.P.C. At random and in a routine manner on the basis of claim of the accused, therefore, the same cannot be made a basis for giving a conclusive finding on an important matter regarding the age of the appellant. Reliance in this regard can be placed on the case of Muhammad Saleem v. The State 2001 SCM R 536.
Besides that there is blood of two innocent persons on hands of the appellant. Zawar Khan one of the deceased was brought down to the grave by the appellant just due to the reason that he had scorned him for entering into his neighbourer's house suspiciously. The record also reveals that a young daughter of the deceased and the complainant was residing along with them. Admittedly, there was a window in between the intervening wall of the said two adjoining houses. Rab Nawaz the other deceased was caused fatal wounds by the appellant during his (Nawaz's) attempt to save his father, therefore, the youth of the appellant cannot be made a ground for awarding lesser penalty to the appellant. Reliance in this regard is placed on the cases of Muhammad Ajmal v. The State through Advocate-General Punjab PLD 2003 SC 1, Muhammad Mushtaq v. The State 1973 SCM R 219, Ghulam Hyder v. The State 1970 Cr.LJ 1052 and Muhammad Khurshid alias Khurshid v. The State 1973 SCM R 324. The case-law cited by learned counsel for, the appellant is quite distinguishable from the facts and circumstances of the case in hand. In the case of Iftikhar-ul- Hassan (supra); the conviction awarded under section 308, P.P.C. Was challenged by the complainant of the said case and in the said view of the matter the appeal filed by the complainant was accepted and the conviction was converted into that of 302(b), P.P.C., and even otherwise in that case the accused was admittedly a minor which is not the case in hand. In so far as case of Nazir alias Wazeer (supra) is concerned, the death sentence awarded to the appellant in the said case had been converted into life imprisonment under the Presidential Order.
Considering the fact that the appellant in the said case was a minor, the benefit given by Presidential order was not interfered with.
19. For the aforesaid reason in our considered opinion the appellant being guilty of a double murder is not entitled to any relief in the matter of sentence, as well. Consequently, the appeal filed by the appellant is dismissed, the death sentence is confirmed and the Murder Reference is answered in affirmative.
20. Insofar as P.S.L.A. No,19 of 2001 is concerned, learned counsel for the petitioner does not want to press this petition, which is dismissed as not pressed.