' TARIQ SHAMIM, J.--- Appellants, Muhammad Arif and Muhammad Waris, involved in case bearing F.I.R. No,171 of 2001, dated 26-10-2001, for offences under sections 302, 436 and 34, P.P.C., registered at Police Station Piplan, were tried by the learned Additional Sessions Judge, Mianwali, who, vide his judgment dated 8-8-2003, convicted the appellants under sections 302(b)134, P.P.C. And sentenced them to death on two counts for committing Qatl-e-Amd of All Muhammad and Abdur Rehman deceased.
2. Briefly, the facts of the case, as per F.I.R. (Exh.P.R.) lodged by Atta Muhammad complainant P.W.9, are that on 26-10-2001, at about 9-30 a.m., Muhammad Arif and Muhammad Waris appellants, who were armed with rifle .44 bore and pistol .12 bore respectively, after setting the door of the room on fire in which Ali Muhammad had taken shelter committed his murder by indiscriminate firing when he emerged therefrom and subsequently committed the murder of Abdur Rehman some distance away from the said house in the presence of the Atta Muhammad P.W.9, the complainant of the F.I.R. And the brother of both the deceased, Muhammad Nasrullah P. W.10, and others.
3. After supply of copies as required under the law, charge was framed against the appellants, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced Muhammad Shafiq Draftsman P. W.1, Fazal Ahmad Constable P.W.2, Fateh Sher Constable P.W.3, Fateh Muhammad P.W.4, Muhammad Ramzan P.W.5, Hafiz Bashir Ahmad, Medical Officer, R.H.C., Hafiz Wala, Tehsil Piplan, District Mianwali P.W.6, Wazir Khan Head Constable P.W.7, Muhammad Ramzan Khan Constable P.W.8 Qaisar Raza Zaidi Inspector, Police Line, Jauharabad P.W.11 Atta Muhammad complainant P.W.9 and Muhammad Nasarullah P. W.10 furnished the ocular account of the occurrence. The learned after tendering in evidence reports of the Chemical Examiner (Exh.P.X. And Exh.P.Y.), reports of the Serologist (Exh.P.Z. And Exh.P.A A.) and report of the Forensic Science Laboratory (Exh.P.BB.), closed the prosecution case.
4. The statements of the appellants were recorded under section 342, Cr.P.C. They denied the charge. In response to the question "Why this case against you and why the P.Ws deposed against you?" Muhammad Arif, appellant, replied as under:-- "I am innocent. Atta Muhammad complainant and his deceased brothers were not having good reputation in the locality and the people of Jal Janubi, 3/4 years prior to present occurrence, expelled them from Jal Janubi and they migrated to their own land which was situated at 4/5 Kms.
Away from village Jal Janubi. In the intervening period, the accused did not visit Jal Janubi. The deceased were visiting the house of their `Nani' from the last one month and were indulged in nefarious activities. They were also indulged in committing Zina with the women of vicinity .And there was rumour of their having illicit relations with my nieces Bhanjian. In the early morning of 26- 10-2001 when it was dawn and both the deceased were indulging themselves in the nefarious activities in the house of their 'Nani when she and her daughter were not present in the house. The people of the vicinity who were annoyed with them, came there and committed their murders. The accused were unknown and occurrence was unseen. Complainant of the case suspected me and my brother as an accused on account of rumour of illicit relations of the deceased with my nieces. I am poor man while the complainant is a rich person who with collusion of local police got this case registered against me. No P.W. Was present at the spot. Statement of Nasarullah P.W. Was recorded after one month of the occurrence as he was inimical towards me and for this reason he deposed against me. I am innocent. The story of two independent occurrences was introduced by the Investigating Officer with the collusion of complainant to strengthen the prosecution case."
' In response to the same question Muhammad Waris, appellant, replied as under:--- "I am innocent. Atta Muhammad complainant and his deceased brothers were not having good reputation in the locality and the people of Jal Janubi, 3/4 years prior to the present occurrence, expelled them from Jal Janubi and they shifted to their .Own land which was situated 4/5 Kms.
Away from village Jal Janubi. In the intervening period, the accused did not visit Jal Janubi. The deceased were visiting the house of their `Nani' from the last one month and were indulged in nefarious activities. They were also indulged in committing Zina with the women of vicinity and there was a rumour of their having illicit relations with my nieces Bhanjian. In the early morning of 26-10-2001 when it was dawn and both the deceased were indulging themselves in the nefarious activities in the house of their `Nani' when she and her daughter were not present in the house. The people of the vicinity who , were annoyed with them, came there and committed their murders. The accused were unknown and occurrence was unseen. Complainant of the case suspected me and my brother as an accused on account of rumour of illicit relations of the deceased with my nieces. I am poor man while the complainant is a rich person who with the collusion of local police got this case registered against me. No P.W. Was present at the spot. Statement of Nasarullah P.W. Was recorded after one month of the occurrence as he was inimical towards me and for this reason he deposed against me. I am innocent. The story of two independent occurrences was introduced by the Investigating Officer with the collusion of complainant to strengthen the prosecution case."
5. The appellants did not opt to appear as their own witnesses to disprove the allegations leveled against them as required under section 340(2), Cr.P.C. However, Muhammad Ijaz, Arms Clerk, D.C.O.
Office, Bhakkar was produced as D.W.1.
6. The learned trial Court after concluding the trial convicted and sentenced the appellants as stated above. The appellants have challenged their convictions and sentences through the instant appeal while the learned trial Court has sent Murder Reference No,762 of 2003 for confirmation or otherwise of death sentence awarded to Muhammad Arif and Muhammad Waris appellants. Atta Muhammad complainant filed Criminal Revision No,1079 of 2003 for awarding punishment under section 436, P.P.C. To the appellants and also for awarding compensation. All these matters are being decided together through this single judgment.
7. The learned counsel for the appellants contended that the F.I.R. Was lodged after inquiry, meditation and consultation; that the deceased were persons of bad character who were murdered by some unknown persons at the night time; that specific injury has not been attributed to the appellants by the complainant and the witnesses; that from the medical evidence it was not found that the rifle had been used; that the motive is shrouded in mystery; that the motive could not be proved by the prosecution; that the statements made by the witnesses were materially discrepant and contradictory with each other; that the investigation was conducted dishonestly and that the recovery could not be proved at the trial.
8. The learned Deputy Prosecutor-General while arguing the case on behalf of the State contended that the prosecution had proved its case against the appellants beyond a shadow of the doubt by producing convincing ocular account of the occurrence, the evidence of motive, unimpeachable medical evidence and that of recovery.
9. We have heard the learned counsel, the learned Deputy Prosecutor-General and have gone through the record.
10. The occurrence in this case took place on 26-10-2001, at about 9-30 a.m., in which Ali Muhammad was murdered in the house of Mst. Mubaran Bibi his maternal grandmother and on the same day shortly after his murder, his brother Abdur Rehman was also murdered some distance away from the said place. According to the F.I.R., on the fateful day at the time aforementioned, Muhammad Arif and Muhammad Waris appellants who were armed with rifle .44 bore and pistol .12 bore respectively, after setting the door of the room on fire in which Ali Muhammad had taken shelter committed his murder by indiscriminate firing when he emerged from the room and subsequently committed the murder of Abdur Rehman some distance away from the said house in the presence of Atta Muhammad P.W.9, the complainant of the F.I.R. And the brother of both the deceased, Muhammad Nasrullah P. W.10, an independent witness and others.
The motive behind the murders of the deceased was stated to be the suspicion of the appellants about illicit relations of the deceased with their nieces.
11. The medical evidence in this case was furnished by Dr. Hafiz Bashir Ahmad P.W.6 who had conducted post-mortem examination on the dead bodies of both the deceased Exh.P.H. And Exh.P.J. And had also signed inquest reports etc. The doctor noted the following injuries on the dead body of Abdur Rehman deceased:--
(1) Two fire-arm wounds of entry each measuring 0.7 x 0.5 c.m. On back and inner side of right forearm in an area of 3.2 x 2 c.m., 8 c.m. Below the prominence of right elbow joint and 14 c.Rn.
Above the right wrist (ulna prominence).
(2) A fire-arm wound of exit 1 x 0.6 c.m. On front and inner side of upper part of right forearm 4.5 c.m. Below the front of right elbow joint. Corresponding hole present in the Qameez.
(3) Eight (8) fire-arm wounds of entrance each measuring 0.8 x 0.6 c.m. In an area of 7.5 x 7 c.m. On the right side of lower part of chest and upper part of right abdomen, four c.m. Above and rightward from the umbilicus and 13 c.m. Below and leftward from the right nipple corresponding holes were present in Qameez and Bunian.
' According to the medical officer, he examined the dead body of Abdur Rehman deceased on 26- 10-2001, at 1-30 p.m. He removed pellets from his abdominal cavity and in his opinion, death occurred due to combined effect of all the injuries but mainly due to injury No,3. All the injuries were ante-mortem and were caused by fire-arm. The probable time that had elapsed between receipt of injuries and postmortem was between 4 to 5 hours.
12. On the same day, at 2-45 p.m. He conducted post-mortem examination on the dead body of Ali Muhammad deceased and found the following injuries on his body:---
(1) A fire-arm wound of entry 4.5.1 c.m. On outer aspect of lower part of right forearm 3 c.m. Above the back of right wrist joint, radious and ulna were fractured in the lower part with black margins.
(2) Eight (8) firearm wounds of entry each measuring 0.7 x 0.5 c.m. In an area 4 x 3 c.m. On below the front of left chest, 6.5 c.m. Above and leftward from the umbilicus and 16 c.m. Below the left nipple.
(3) A firearm wound of entry 0.5 x 0.5 c.m. On the lower part of left flank, 1 c.m. Above the left blade of hip bone and 11 c.m. Below and leftward from injury No,2 with blackening of the margins.
(4) A firearm wound of entry 0.5 x 0.7 c.m. On back and inner side of lower part of left forearm, 7 c.m. Above the back of left wrist joint with black margins, ulna and radius were fractured.
(5)- A firearm wound of exit 2.9 x 1.5 c.m. On front and outside of lower part of left forearm 5.5 c.m.
Above the front of left wrist joint.
(6) A firearm wound of entry 2 x 0.8 c.m. Just above the left buttock, 4.5 c.m. Leftward from the corresponding border of spine with partial blackening of the margins, corresponding holes were present on the Shalwar.
(7) A firearm wound of entry 2 x 3 c.m. On back and middle part of right chest, 7 c.m. Below and slightly inward from the tip of lower part of right shoulder blade and 6.5 c.m. Rightward from the corresponding border of spine, with black margins. There were corresponding holes present in Qameez and Bunian with blackening. One cork was removed from injury No,7.
' In his opinion, death occurred due to combined effect of all the injuries but mainly due to injuries Nos.2, 3, 6 and 7 which had caused damage to vital organs leading to excessive bleeding and shock. All injuries were ante mortem and caused by fire-arm. The time between receipt of injuries and post-mortem was between 5 to 6 hours.
13. On the basis of recovery of pellets from the dead bodies, it was argued by the learned counsel that the use of rifle by Arif appellant stood excluded and in view thereof, conflict between the ocular account and the medical evidence was manifest. We are afraid the argument is without any basis as the doctor in his cross-examination admitted that he did not know the distinction between pellets and bullets and that he cannot tell the difference between injury caused by a gun or a rifle.
From the said statement of the doctor it cannot be inferred that rifle was not used in the occurrence. Mere recovery of pellets from the dead bodies of the deceased does not exclude the use of rifle particularly when the dimensions of some injuries suffered by the deceased reflect that these were caused by such a weapon. Injury No,3 on the dead body of Ali Muhammad is one example. Keeping in view the nature of injuries suffered by the deceased in the occurrence, the prosecution version and the evidence led by the prosecution in this behalf, it was rightly held by the learned trial Court that the medical evidence had corroborated the ocular account as being in consonance therewith.
14. Now adverting to the evidence of recovery, three crime empties of .44 bore and two crime empties of 12 bore were taken into possession by the police from the place of murder of Ali Muhammad deceased and one empty of .44 bore and .12 bore each was recovered from the place of occurrence of Abdur Rehman deceased. Blood stained earth was also taken into possession from two different spots by the police Exh.P.D. And Exh.P.E., which lends support to the stance of the prosecution that the deceased were murdered at two different places. The recovered empties were made into sealed parcel and taken into possession vide memo. Exh.P.G. Muhammad Ramzan P.W.5 and Muhamniad Ramzan Khan P.W.8 are the attesting witnesses of the memo. Of recovery Exh.P.G. On 4-11-2001, in the presence of the Investigating Officer Qaiser Raza Zaidi P.W.11 and Muhammad Ramzan Khan Constable P.W.8, Arif appellant led to the recovery of rifle .44 bore, 10 bullets and magazines from an iron box lying with southern wall of his residential room which was secured vide memo. Exh.P.P. On the same day, Waris appellant led the witnesses to his residential room from where, at his instance, pistol .12 bore and 5 cartridges were recovered and taken into possession vide memo. Exh.P.Q. It is well-established from the evidence furnished by the Investigating Officer P.W.11, Wazir Khan Moharrar P.W.7, Fazal Ahmad Constable P.W.2 and Fateh Sher P.W.3 that the empties and the weapons recovered from the appellants were kept in safe custody and were dispatched, to the office of the Forensic Science Laboratory separately. Although the report of the Forensic Science Laboratory does not disclose that the empties and the weapons were received separately but the fact remains that the witnesses had proved at the trial that the empties were sent to the forensic Science Laboratory prior to the arrest of the appellants and before recovery of weapons at their instance. On comparison, the empties recovered by the B police from two different spots matched with the weapons recovered from the appellants Exh.P.BB.
Although some discrepancies in the statement of the witnesses of recoveries were pointed out by the learned counsel for the appellants, however, in our opinion, the same are trivial in nature and of no consequence.
15. Now adverting to the ocular account furnished by Atta Muhammad P.W.9 and Nasar Ullah P.W.10, at the trial both the witnesses reiterated the story narrated in the F.I.R. And the statements made before the police as to the manner in which the occurrence had taken place. The witnesses are natural witnesses and their presence at the place of occurrence is well-explained. Some discrepancies or differences in their statements were pointed out by the learned counsel for the appellants, however, these are natural and being minor deserve to be ignored. It is not possible for the witnesses to remember each and every minor detail about the occurrence. The fact remains that despite lengthy cross-examination, the defence has not been able to demolish their evidence.
The appellants could not substantiate through testimony of the eyewitnesses or through independent evidence that the deceased were persons of bad character or that the murders had been committed by someone other than the appellants. It cannot be ignored that the occurrence had taken place in broad daylight and the F.I.R. Was lodged by the complainant promptly. Further the appellants had failed to extend any plausible reason for the witnesses to falsely implicate them in the crime of double murder, while letting off the real culprits. The defence had also failed to establish that the witnesses were not present at the place of occurrence at the relevant time.
Having scanned the statements made by the eye witnesses at the trial, we have come to an irresistible conclusion that the witnesses have furnished a trustworthy and a credible account of the occurrence and have remained unfaltered in their stand despite grueling cross-examination. In so far the charge under section 436, P.P.C. Is concerned, the prosecution had not been able to prove the same at the trial, as has rightly been held by the learned trial Court.
16. The last piece of evidence which needs to be discussed is that of motive which according to the complainant was suspicion of the appellants about illicit relations of the deceased with the daughters of their sister namely Mst. Niaz Bibi. The motive had been successfully proved at the trial by the complainant and admitted by the appellants through cross-examination of Muhammad Ramzan P.W.5.
17. Insofar as the investigation conducted by, the police is. Concerned, although some discrepancies therein were pointed out by the learned counsel for the appellants, but in our view the same occurred mainly due to inefficiency of the police and not for any other reason. In any case, the prosecution cannot be made to suffer on account of any lapse on the part of the police.
18. Now taking into account the defence plea, we have noticed that the same has remained unsubstantiated and when juxtaposed with the prosecution evidence we have found it to be highly improbable and even to an extent preposterous.
19. In sequel to the above made discussion, we feel no hesitation in holding that the prosecution had succeeded in proving its case against the appellants to the hilt by producing at the trial credible and unimpeachable evidence. Consequently, we dismiss the appeals filed by Muhammad Arif G and Muhammad Waris appellants and while maintaining their convictions and sentences, we confirm the sentence of death awarded to them by the learned trial Court. The Murder Reference is answered in the affirmative.
' For reasons recorded here-in-above, Criminal Revision No,1079 of 2003 is dismissed.