JUDGMENT ' MAZHAR HUSSAIN MINHAS, J. -- Muhammad Ashraf appellant faced trial before Mr. Mushtaq Ahmad, learned Additional Sessions Judge, Sahiwal, in case F.I.R. No. 137, dated 16.5.2000 for offence under Section 302, P.P.C, registered at Police Station Farid Town, District Sahiwal, for having committed the Qatl-i-Amd of Ahmad Ali and Muhammad Aslam. Vide judgment dated 31.10.200 the learned Additional Sessions Judge, convicted him under Section 302(b), P.P.C, and sentenced to death punishment on two counts and compensation of Rs. 25,000/- to the legal heirs of each deceased under Section 544-A, Cr.P.C, In case of default to pay compensation he was ordered to undergo three months'R. I. On each count.
The appellant has challenged his conviction and sentence through Criminal Appeal No, 814/2001, whereas the. Learned Trial Court has sent Murder Reference No. 869/2001 seeking confirmation or otherwise of death sentence awarded to the appellant. We propose to dispose of both these matters together .Through this single judgment. Precisely, the prosecution case as reported by Waheed Ahmad complainant through F.I.R. No. 137/2000 (Exh.PB), is that on the night between 15th/16th May, 2000 he alongwith his father Ahmad Ali, Rustam son of his maternal uncle, and a guest namely Zafar Iqbal, who also happened to be his relative was sleeping on the roof or his house where electric bulb was on. At about 1.00 a.m. They awoke up on the report of fire shot and saw that his father had received a fire shot injury on his head and was writhing on the cot. With bleeding from' his wound. Ashraf Ali accused whose house is adjacent to their house was standing there armed with .12 bore gun. Within their view, accused made second fire shot which hit his father oh right side of face and neck. Third fire shot made by accused hit at his father's right wrist and hand. Thereafter accused went to the roof of his own house alongwith. Gun. The complainant alongwith Zafar Iqbal and Rustam PWs went to the- house of his maternal. Uncle Muhammad Aslam, who had also awoken on hearing alarm, In the meantime, accused fired a. Shot from the roof of the house at Mohammad Aslam hitting on his chin and upper side of the neck. After the occurrence, accused fled away alongwith his gun. Both the injured shifted to Civil Hospital, Sahiwal where they succumbed to the injuries.
Motive behind the occurrence was that Muhammad Arshad accused demanded the hand of daughter of Muhammad Aslam deceased for his brother Muhammad Arshad. Muhammad Aslam deceased declined to marry his daughter with his brother. Due to that grudge, Muhammad Arshad and his mother Mst. Noor Bhari threw acid in the house of Muhammad Aslam deceased for which case F.I.R. No. 242/99 was registered against them. Due to that grudge, Muhammad Aslam accused committed the occurrence.
3. After the occurrence, complainant reported the matter to Rashid Ahmad, S.I. (PW.8) who recorded formal r F.I.R. (Exh.PB). After registration of case, Rasheed Ahmed 5.1. /I.O. Went to Civil Hospital, Sahiwal, where he prepared inquest reports (Exh.PL) of Ahmad Ali deceased and (Exh.PN) of Muhammad Aslam deceased. Then he proceeded to place of occurrence and inspected the spot in the house of Ahmad Ali, collected blood-stained earth from the place where Ahmad Ali received injuries, scaled into parcel and took the same into possession vide recovery memo. (Ex.PC). He also took into possession empty cartridges P-4/i-3 lying at the spot, sealed them into parcel and took the same in possession vide recovery memo. (Exh.PD). An empty of .12 bore gun was recovered from the roof of accused also, which was sealed in a parcel and taken into possession vide recovery memo. (Exh.PF). Then 5.1. /I.O. Visited the house of Muhammad Aslam deceased, collected blood- stained earth from there, scaled into a parcel and took the same vide recovery memo. (Exh.PG), After post-mortem examination, last worn clothes of the deceased' were produced before him which were taken into possession vide recovery memo. (Exh.PA). He also got prepared site- plans from the Draftsman (Exh.PQ and Exh.PQ/1).
Appellant was arrested on 24.5.2000 and he led to the recovery of ,12 bore gun P.8 alongwith 7 live cartridges P.9/1-7 from his house. Gun was sealed into a parcel and was taken into possession vide recovery memo. (Exh.PH). After completion of investigation, appellant was challaned to face trial. - Formal charge was framed against him to which he pleaded not guilty and claimed his Trial.
4. During trial the prosecution examined as many as nine witnesses. Wahid Ahmad complainant appeared as PW.2 and made statement in line with the F.I.R. Rustam Ali (PW-3) also supported the statement of PWf.2. Bashir Ahmad (PW.I), Muhammad Sharif, Constable (PW.4), Ijaz Ahmad, Constable (PW.5) and Muhammad Younus, Constable (PW.9) are formal witnesses, Ashraf Baig (PW.7) is a Draftsman who prepared the site-plans. Rasheed Ahmad, S.I. (PW.8) investigated the case submitted challa against the appellant.
Dr. Munir Ahmad (PW.6) conducted the post-mortem examination of Ahmad Ali and found following injuries on the dead-body:--- .
(i) A fire-arm wound 10 cm x 5 cm into deep going with under neath bone absent and brain matter coming out on right side of head, 6 cm above right ear.
(ii) Fire-arm wound 1.5 cm.x 1.5 cm into deep going, 3 cm below the injury No. 1,
(iii) Fire-arm wound 1.5 cm x 1 cm into deep going with inverted margin on right side of 5 cm of behind right ear.
(iv) Fire-arm wound of entry 1.5 x 1 cm 1 x into deep going on right side of head. 3 cm below the injury No. 3.
(v) Fire-arm entry wound 1.5 x 1 cm x deep going on right side of head 1.5 cm behind injury No. 1.
(vi) Fire-arm wound of entry 1 cm x 1 cm x deep going in front of right ear.
(vii) Fire-arm entry wound 1 cm x 1 cm x deep going on right cheek.
(viii) Two fire-arm wounds each measuring 1 cm x 1 cm x deep going on right side of face 4 cm below the injury No. 6.
(ix) 3 fire-arm wounds on right side of neck x deep going:
(x) Fire-arm entry wound 1.5 cm x 1 cm x deep going on dorsum of right forearm on ulnar side.
(xi) 1 cm x 1 cm fire-arm wound x deep going into radial side of right forearm.
(xii) 3 cm x 2 cm fire-arm wound with bone exposed with fracture and dislocation of right M.C.
Joint.
(xiii) 6 cm x 5 cm fire-arm wound on right thumb x deep going.
(xiv) 3 cm x 4 cm fire-arm wound on volar aspect of. Right forearm just above wrist.
(xv) 1 cm x 1 cm fire-arm wound on base of middle finger.
In post-mortem report, the doctor opined that death occurred due to multiple fire-arm injuries on head and neck, leading to shock and haemorrhage, which were sufficient to cause death in ordinary course of nature.
Qn the same day, he conducted the post-mortem examination on the dead-body of Muhammad Aslant and found following injuries on the dead-body:-
(i) Lacerated wound 8 cm x 3 cm x deep going on right chin and upper part of the neck.
(ii) Fire-arm wound 1.5 cm x 1 cm.x deep going on front and middle of neck.
Fire-arm wound 1.5 cm x 1 cm X deep going on right lower neck just about clavicle 2 cm below the injury No. 2, and to the right side.
2 fire-arm injuries, each measuring 1.5 cm x 1 cm x deep going on front and lower part of neck, on left side of chest and clavicle region.
Fire-arm entry wound 1 cm x 1 cm x deep going on right clavicle.
Fire-arm entry wound 1.5 cm x 1.5 cm x deep going blacking around of front and upper part of right chest and clavicle region* * 1.5 cm x 1.5 cm x fire-arm wound x deep going on right side of neck and lower.
(viii) Fire-arm wound 1.5 cm x 2 cm x deep going on back upper part of chest left side.
According to the doctor, death was caused due to multiple injuries on neck and chest leading to haemorrhage and shock which was sufficient to cause death in ordinary course of nature.
5. After the recording of prosecution evidence, appellant was examined under Section 342, Cr.P.C.
He pleaded his innocence and false involvement due to enmity with the complainant party, in a blind murder. He did not opt to make statement under Section 340(2), Cr.P.C, or to produce defence evidence. After conclusion of the trial, appellant was convicted and sentenced as mentioned above.
6. We have heard arguments of learned counsel for appellant, learned Deputy Prosecutor General for the State and have gone through the record with their assistance.
Learned counsel for the appellant has contended that the occurrence took place in the late hours of night and was not witnessed by any person. Waheed Ahmed (PW.2) and. Rustam Ali (PW-3) are related to the deceased and inimical against the appellant and as such are highly interested witnesses. There are material contradictions in their statements and their, evidence is in conflict with medical evidence also. Motive for the occurrence alleged by the prosecution is not directly attributed to the appellant. Recovery of weapon is also not proved from any independent evidence and gun has been planted against him.
Learned Deputy Prosecutor General representing the State, on the other hand, has repelled the above contentions and has submitted that Waheed Ahmed (PW.2) and Rustam Ali (PW.3) are natural and independent eye-witnesses of the occurrence- Their evidence is fully corroborated by the medical evidence as well as the evidence of recoveries.
Motive for the occurrence is also established from the evidence on record.
7. The prosecution version in this case hinges upon the eye-witness account, medical evidence, recoveries and evidence or motive. The ocular account consists of Waheed Ahmed (PW.2) and Rustam Ali (PW-3), real sons of Ahmed Ali and Muhammad Aslam deceased, respectively. They have consistently stated that on the eventful night they were sleeping on the roof of house of Ahmed Ali deceased who was also sleeping there. One of their relatives, namely, Zafar Iqbal son of Muhammad Ramzan, resident of Harrapa, who was staying as a guest in the house of Ahmed AII, was also sleeping alongwith them on the roof. At 1.00 a.m. They woke up on report of firing and saw that Ahmed Ali had received a fire shot injury on his head and appellant carrying a .12 bore gun was present there. According to both the PWs, within their view Muhammad Ashraf fired two gun shots at Ahmed Ali which hit on his face, neck, right hand and wrist. Thereafter, appellant went away to the roof of his own house adjacent to the house of Ahmed Ali deceased and fired a shot at Muhammad Aslam deceased, who was present fn his own house. Muhammad Aslam deceased received injuries on his chin and neck. Both the eyewitnesses have deposed that at that time, electric bulb on the wall of appellant's house was on and they witnessed .The occurrence in its light.
Their .Statement regarding source of light is supported from the statement of Rasheed Ahmed S.I. /I.O. (PW.8) as well as the site plan (Exh.PQ) prepared by Ashraf Baig, Draftsman (PW7), In site plan (Exh.PQ) electric bulb has been shown at point No. 10 on the wall or appellant's house. According to the eye-witnesses, Ahmed Ali and Muhammad Aslam in injured condition were immediately shifted to Civil Hospital., Sahiwal where they both succumbed to the injuries.. According to PW.2, after the death of his father he went to the police station and lodged report (Exh.PB). Perusal of F.I.R, shows that it was registered at 1.45 a.m. Within 45 minutes of the occurrence. The promptitude in lodging the F.I.R, implicating the appellant with specific role in the occurrence, Excludes the possibility of his false, involvement. No doubt, Waheed Ahmed (PW.2), Rustam Ali (PW.3) are respectively sons of Ahmed Ali and Muhammad Aslam deceased, but they are not having any - direct enmity with the appellant. Their presence at the spot at the relevant time is quite natural.
Rustam Ali (PW.3) has given plausible explanation of his presence on the roof of Ahmed Ali deceased. He has stated that since Zafar Iqbal was staying as guest in the house of Ahmed Ali deceased, therefore he also went there. They kept on gossiping till late night, therefore he also slept there. He is son of maternal uncle of the complainant, therefore his presence at the spot is not odd or unnatural, it may also be mentioned that appellant is also related to the complainant. His father was cousin or Ahmed Ali deceased, In the absence of any enmity with the appellant, eye-witnesses cannot be held to be interested witnesses and their evidence cannot be discarded merely on account of their relationship with the deceased. Reference in this respect may be made to "Noor Muhammad v. The State and on the (2005 SCM R 1958). In this judgment the horible Supreme Court of Pakistan has observed mere relationship qr close association of prosecution witness with deceased, in absence of established hostility, animosity or any other motive to depose falsely would not be sufficient to hold him an interested witness and his testimony would not be discarded on such ground. Apart from, the above, substitution is a rear phenomenon and it cannot be expected from real son of deceased to substitute the real culprit by an innocent person. We have carefully analyzed evidence of both the eye-witnesses and have not found any material discrepancy or contradiction in their statements affecting their credibility. We are of the view that Waheed Ahmed (PW.2) as well as Rustam Ali (PW.3) are independent, disinterested and truthful witnesses and their evidence is confidence inspiring.
8. Medical evidence is furnished by Dr. Munir Ahmed (PW.6) D.H.Q. Hospital, Sahiwal, who conducted post-mortem examinations of both the deceased. At the time of autopsy, he found fifteen injuries on the dead-body of Ahmed AN deceased, which were all caused by fire-arm weapon. During autopsy some pellets were recovered from the injuries, which were handed over to the police in a' sealed phial. On the person of Muhammad Aslam deceased as many as eight fire-arm injuries were found. According to the doctor, on dissection a bullet was recovered from 3rd rib and two bullets were recovered from left arm shoulder region. But in the last para of his examination-in- chief he has stated that he handed over a scaled phial said to contain pellets to Muhammad Sharif 895/C (PW.4) alongwith last worn clothes or the deceased. From the above statement of doctor, it appears that he could not differentiate the pellets and bullets and misunderstood the metallic bodies recovered from the injuries as bullets. The dimension of the injuries of Muhammad Aslam deceased also clearly show that those were caused by pellets and were not caused by bullets.
Except the above minor discrepancy there is no inconsistency in the medical evidence and ocular evidence of eye-witnesses, it has been held in "Shafqat Ali and others v. The State" (PLD 2005 SC 288) that medical evidence or expert's opinion is always treated to be confirmatory in nature and if there is ocular account fully reliable in support of incident, then the minor contradiction in medical and ocular evidence should be outweighed, In another judgment "Muhammad Riaz v. Muhammad Zaman Khan and another" (PLD 2005 SC 484) it has been observed that conflict of medical evidence with ocular account in respect of number and nature of injuries can be relevant to ascertain the role of an individual accused in .Occurrence but suclat not valid ground to disbelieve the eye-witnesses and exclude their evidence from consideration. Thus, we hold the ocular account of the prosecution version is fully corroborated by the medical evidence.
9, So far as recoveries, after carrying out necessary proceedings in the hospital and dispatch of deadbodies for post-mortem examination, Rasheed Ahmed, S.I. /to. (PW.8) visited the place of occurrence and carried out spot inspection. Firstly he collected blood-stained earth from the place where Ahmed .Ali deceased had received injuries, scaled it into a parcel and took the same in his possession vide recovery memo. (Exh.PC), which was attested by Rustam Ali (PW.3) and Zafar Iqbal (GPW). He took into possession blood-stained cot and pillow plgo vide recovery memo. (Exh.PH) attended by the said PWs. During the course of spot inspection, he recovered three empty cartridges of 12-bore from near the place where Ahmed Ali deceased was injured. Another empty of .12 bore was recovered from the roof of appellant's own house. The empties recovered from both the places were sealed into separate parcels and taken into possession vide recovery memos.
(Exh.PD) and (Exh.PF) attested by the afore-said recovery witnesses. Thereafter* he inspected the spot where Muhammad Aslam deceased had sustained Injuries and collected bolded -stained earth, sealed it into a parcel and took the same in possession through recovery memo. (Exh.PG) attested by the same witnesses- The parcels of empties and blood-stained earth were handed over to Ijaz Ahmed, HC (PW.5) who dispatched the same on 19.5.2000 to the Forensic Science Laboratory and office of Chemical Examiner through Muhammad Younas 668/C. Said Constable has been examined as PW.9 and the has stated that he deposited the parcels of empties and blood-stained earths in the Forensic Science Laboratory and office of Chemical Examiner, respectively on 20.5.2000. The appellant was subsequently arrested on 24.5.2000 and on 26.5.2000 he led to the recovery of .12-bore P-8 from his house, which was scaled Into a parcel and taken into possession by Rasheed Ahmed S.I./I.O. (PW.8) vide recovery memo. (Exh.PH) attested by Rustam Ali (PW.3) and Rustam son of Noor Muhammad (GPW). Itmay be mentioned that Rustam son of Noor Muhammad is next-door neighbour of the appellant. As per site plan Exh.PQ , his house is adjacent to the house of appellant on southern side. RUstam Ali (PW.3) as already discussed is an independent and truthful witness. Therefore, the objection of learned counsel for the appellant that requirement of Section 103 Cr.P.C, has not been fulfilled, is without any substance. The parcel of gun was also handed over by the Investigating Officer to Ijaz Ahmed Moharrir (PW.5), who dispatched the same to the Forensic Science Laboratory on 29.5.2000 through PW.9 Muhammad Younas, Constable. All the empties already sent to the Forensic Science Laboratory, as per report t(Exh.PU) matched with the gun P-8. Thus the above recovery evidence and report of Ballistic Expert furnish strong corroboration to the prosecution case.
10. - Now we advert to the motive for the occurrence. Waheed Ahmed (PW.2) has recorded in FIR (Exh.PB) as well as in his statement before the learned Trial Court that appellant demanded hand bf daughter of Muhammad Aslam deceased for his brother Muhammad Arshad, but the deceased did not oblige him and refused to marry his daughter with his brother. Due to that grudge, about a year before Arshad and his mother Mst. Noor Bhari threw acid in the house of Muhammad , Aslam deceased upon which case F.I.R. No. 242/99 was registered against them in police station Farid Town. According to PW.2, his father used to help Muhammad Ashraf deceased in that case. On account of, that grudge, appellant committed the occurrence. Rustam Ali (PW.3) has also corroborated the statement of PW.2 on 'this count, In his statement under Section 342, Cr.P.C., the appellant has admitted the registration of case against his brother Muhammad Arshad and mother Mst. Noor Bhari, however he has denied that he demanded hand of daughter of Muhammad Aslam deceased for his brother Muhammad Arshad. The appellant has not explained the nature of the case registered against his brother and mother. As against his statement; the version of Waheed Ahmed (PW.2) Rustam All (PW.3) regarding motive seems trustworthy that the appellant was feeling aggrieved by refusal of Muhammad Aslam deceased to marry his daughter with Muhammad Arshad. On account of registration of case against his brother and mother also he was inimical against both the deceased who were vigorously pursuing the case. Therefore, he committed the Occurrence. Thus, motive asserted 6y the prosecution is proved from the evidence on record and lend corroboration to the prosecution case.
In his statement under Section 342, Cr.P.C., the appellant has simply denied his participation in the occurrence and has not taken any specific defence plea. He has simply got recorded that the PWs of this case are closely related to each other, it was a blind murder and he has been falsely involved due to enmity with the complainant party, In the light of prosecution evidence of unimpeachable character, appellant's plea carries no weight.
11. After careful appraisal of the whole evidence on record, we have come to an irresistible conclusion that there is no other person except the appellant who committed the occurrence in a brutal and gruesome manner, and the prosecution has successfully proved its case against him beyond any reasonable doubt. Therefore, we dismiss the appeal having no merits in it. . .
12. Death Sentence awarded to Muhammad Ashraf-appellant by learned Trial Court is confirmed and Murder Reference is answered in the affirmative.