' TARIQ SHAMIM, J.--- This judgment shall dispose of Criminal Appeal No,1418 of 2002 filed by Muhammad Asif alias Assa, Criminal Appeal No,1419 of 2002 filed by Muhammad Mushtaq alias Piddi, Criminal Revision No,1022 of 2002 filed by Fazal Elahi and Murder Reference No,658 of 2003 submitted by the learned trial Court for confirmation or otherwise of sentence of death awarded to Muhammad Mushtaq, appellant, as all these matters arise out of the same judgment, dated 26-7- 2002.
2. Appellants, Muhammad Asif alias Assa son of Muhammad Rafique and Muhammad Mushtaq alias Piddi son of Muhammad Rafique have challenged the judgment passed by the learned Additional Sessions Judge, Lahore, in case bearing F.I.R. No,187 of 2007, registered with Police Station Barki, Lahore, for offence under sections 302, 148, 149 and 324, P.P.C., whereby he convicted and sentenced the appellants as under:-- Muhammad Mushtaq alias PiddiUnder section 302(b), P.P.C.Sentenced to death on two counts with a direction to pay compensation of Rs,1,00,000 in each count to the legal heirs of the deceased and in default thereof to undergo S.I. For two years.
Muhammad Asif alias Assa Under section 302(b), P.P.C.Imprisonment for life with a direction to pay Rs,1,00,000 to the legal heirs of the deceased and in default thereof to undergo S.I. For two years. Benefit of section 382-B, Cr.P.C. Was also extended to him.
3. The prosecution story in brief is that on 12-8-1997, at 11-30 a.m. While the complainant was present in his cattle-shed whereas his son Waris Ali and Muhammad Shahbaz were standing with two cloth vendors, suddenly Mushtaq alias Piddi armed with .12 bore pump action, Younas Ali armed with .222 bore rifle, Asif alias Assa armed with mouser, Muhammad Idrees armed with .222 bore, Muhammad Shafique armed with .12 bore gun, Rashid, Muhammad Hafiz both armed with Sotas and Muhammad Nazir empty-handed came there. Muhammad Nazir raised a Lalkara that Waris and Shahbaz be taught a lesson for abusing them the night before. Mushtaq alias Piddi fired a shot from his .12 bore pump action gun which hit on the front side of the chest of Waris Ali, then Muhammad Shafique fired a shot from his gun which hit on the chest of Shahbaz on the front side who fell down and died at the spot. Thereafter, all the accused started incriminate firing Which hit on the different parts of the body of Waris. On hearing the report of fire Ghulam Nabi, the other son of the complainant, came in the street, Muhammad Hafiz and Rashid chased him who in order to save his life ran away. Meanwhile, people gathered there and the accused decamped from the place of occurrence while raising Lalkaras. Waris Ali ran in an injured condition to save his life but he fell in front of the house of Muhammad Din Sakka and died. The occurrence was witnessed by the complainant, his son Ghulam Nabi, Muhammad Rafique, Muhammad Anwar and Nawab alias Bau.
4. Motive behind the occurrence, as stated in the F.I.R., was that on the night before the occurrence at about 10-00 p.m. Mushtaq, Younas and Asif came to the field of the complainant to pick Phuttan (a type of melon) whereupon the complainant and his son Waris Ali abused them. On account of the said grudge the accused, in connivance with each other, murdered Waris Ali and Muhammad Shahbaz. During the occurrence Manzoor Ahmad, a cloth vendor, also received a bullet injury on his left leg. Consequently, on the complaint Exh.P.A. Formal F.I.R. Exh.P.A./1 was recorded by Muhammad Sharif A.S.-I. P.W.7.
5. After due investigation, report under section 173, Cr.P.C. Was submitted in the learned trial Court.
Charge was framed against the appellants who denied the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellants were examined under section 342, Cr.P.C. In answer to the question as to why the case against you and why the witnesses have deposed against you, Muhammad Asif alias Assa appellant replied as under:--- "I am innocent. We have been involved in this case because father of the deceased Shahbaz namely Siddique was smuggler and deceased Shahbaz and Waris were taking care of smuggled goods, which were confiscated by the FIU. The father of the deceased Shahbaz was taken into custody by FIU and complainant party got suspicious of the smuggled goods, and above mentioned Siddique was taken into custody on their information. The witnesses have not seen the occurrence. The dead body was removed to police station and F.I.R. Was registered after deliberation and concoction. The witnesses are inter se related and deposed against us due to above mentioned facts. The prosecution has other enemies due to murder of Mubarik Masih."
' In answer to the same question Muhammad Mushtaq alias Piddi replied as under:--- "I am innocent. We have been involved in this case because father of deceased Shahbaz namely Siddique was smuggler and deceased Shahbaz and Waris were taking care of smuggled goods, which were confiscated by the FIU. The father of the deceased Shahbaz was taken into custody by FIU and complainant party got suspicious that the accused had disclosed the information of the smuggled good and above mentioned Siddique was taken into custody on their information. The witnesses have not seen the occurrence. The dead body was removed to police station and F.I.R.
Was registered after deliberation and concoction. The witnesses are inter se related and deposed against us due to above mentioned facts. The prosecution has other enemies due to murder of Mubarik Masih."
' The appellants neither opted to appear as their own witnesses in disproof of the allegations levelled against them as required under section 340(2), Cr.P.C. Nor did they adduce any defence evidence. The learned trial Court after hearing the learned counsel for the parties, convicted the appellants and sentenced them as stated earlier which has been assailed through these criminal appeals.
6. The learned counsel for the appellants has contended that the ocular account is full of contradictions and improvements, thus, no reliance can be placed thereupon; that the medical evidence is not in line with the ocular account furnished by the P.Ws.; that the site plan totally negates the ocular account furnished by the P.Ws., that the motive as asserted by the prosecution could not be proved against the appellants insofar as it relates to Shahbaz deceased; that even otherwise the prosecution version to the extent of motive is unreliable; that both the deceased had been murdered by some unknown persons; that Muhammad Rafique P.W.2 has a criminal record as he was involved in a number of criminal cases in the past, therefore, testimony furnished by him cannot be termed credible; that Ghulam Nabi P.W.3, the brother of the deceased, arrived at the place of occurrence after the occurrence had taken place, therefore, he is not an eye-witness; that father of the deceased Shahbaz was in confinement of Federal Investigating Unit (FIU) and the complainant party apprehended that he had been arrested by the authorities on information provided by the appellants and others and, therefore, due to the said grudge the appellants and others were falsely involved in the case and that clothes of the prosecution witnesses were not stained with blood implying that they were not present at the place of occurrence and that in view of the lacunas in the prosecution case the appellants deserve to be acquitted.
7. Conversely the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has argued that the prosecution has proved its case beyond any shadow of doubt; that the eye-witnesses are natural witnesses and their presence at the place of occurrence cannot be disputed; that none of the prosecution witnesses had any previous enmity or grudge with the accused which could justify false implication of the appellants; that the F.I.R. Was lodged with promptitude, thus, there is no possibility of false involvement or manipulation; that the occurrence is a broad-daylight occurrence, therefore, the question of misidentity of the accused does not arise; that the ocular account is in conformity with the medical evidence to the extent of locale of injuries, time of occurrence and the weapons used; that the empties recovered from the place of occurrence matched with the weapons recovered from the appellants and that the prosecution through unimpeachable evidence has proved its case beyond a shadow of doubt, therefore, the conviction and sentences passed by the learned Court deserve to be maintained.
8. We have heard the learned counsel for the parties and have gone through the record with their able assistance.
9. In the instant case the occurrence took place at 11-30 a.m. Whereas the F.I.R. Was lodged at 1-00 p.m. At Police Station Barki, Lahore which was at a distance of 8 kilometers from the place of occurrence. Keeping in view the time consumed in preparing written complaint and the distance of the police station where the F.I.R. Was lodged it can be safely said that it was lodged with reasonable promptitude. Further, it was a daylight occurrence, thus, the appellants, who were known to the complainant side, were correctly identified by them as the assailants. In view of the foregoing the question of false implication of the appellants in the case or substitution does not arise.
10. The eye-witness account apart from Muhammad Rafiq P.W.2 was furnished by Fazal Elahi P.W.1 who is the real father of the deceased Waris and Ghulam Nabi P.W.3 his real brother. These persons are natural witnesses of the occurrence as they all lived in the same house with the deceased.
Thus, their presence at the place of occurrence at the relevant time cannot be disputed or doubted. Muhammad Rafique P.W.2, the other eye-witness, is the resident of same Mohallah and village, therefore, his having witnessed the occurrence also appears to be natural. From the evidence furnished by these witnesses it is manifest that there did not exist any previous enmity between the parties which could have promoted the witnesses to falsely involve the appellants in the crime.
11. All the three eye-witnesses are consistent in their statements made before the learned trial Court as to the manner in which the occurrence had taken place. According to the eye-witnesses, on 12-8-1997 at 11-30 a.m., Mushtaq, Asif appellants and their co-accused while armed caused injuries to Waris and Shahbaz which resulted in their death. The injury on the chest of Waris Ali deceased, the son of the complainant, was caused by a shot fired by Mushtaq appellant.
Muhammad Shafique, the absconding accused, caused injury on the chest of Shahbaz deceased with a .12 bore gun. All the other accused including Asif appellant caused injuries to the deceased.
The motive behind the occurrence was stated to be an altercation which had taken place between the complainant, Waris deceased and the appellants a night prior to the occurrence. The murder of the deceased was committed in revenge for the said incident. After having gone through the statements made by the witnesses before the learned trial Court we are of the opinion that the witnesses have furnished a credible account of the occurrence as it had taken place.
12. The learned counsel for the appellants has pointed out some minor discrepancies and slight improvements in the statements made by the witnesses at the trial. In our view the same are on account of passage of time between the occurrence and time of recording of their statements by the learned trial Court. In the present case all the witnesses are uneducated and appear to be simpletons. In any case, the discrepancies and the improvements pointed out by the learned counsel for the appellants in the statements of the witnesses are not such as would vitiate the trial or cause any significant dent in the testimony of the said witnesses. Although the witnesses are related to the deceased but on that score alone, their testimony cannot be discarded or excluded from consideration.
13. Although it has been asserted by the learned counsel for the appellants that the motive could not be proved by the prosecution at the trial and that it was insufficient for committing murders of the deceased, however, it is pointed out that the motive is the state of mind of an accused which can be formed even at the spur of the moment. Mere lack of proof, non-proof or even absence thereof is of no consequence as it is only a supporting piece of evidence.
14. From the spot five empties of .12 bore gun and four empties of .30 bore pistol were recovered by the police on the same day and taken into possession vide memo. Exh.P.D. Which were sealed into a parcel on the spot. The appellants were arrested by the police and on 7-9-1997 Mushtaq appellant after being arrested led to the recovery of a .12 bore pump action shot gun P.7 from his house which was taken into possession vide recovery memo. Exh.P.F. On the same day Asif appellant also got recovered a .30 bore pistol from his residential house which was sealed and taken into possession vide recovery memo. Exh.P.G. According to the evidence on the record the empties recovered from the spot were dispatched to Forensic Science Laboratory on 29-12-1997 which is after a delay of more than four months and that too after the arrest of the appellants.
Although according to the report of the Forensic Science Laboratory the empties were wedded with the weapons recovered from the possession of the appellants, however, the fact remains that the empties were sent after recovery of weapons from the appellants. Thus, possibility of the same being manipulated by the police cannot be ruled out. Consequently, we exclude the evidence of recovery of weapons from consideration being unreliable.
15. Dr. Azhar Masood Bhatti P.W.10 conducted the post-mortem examination on the dead body of Waris deceased whereas Dr. Allah Baldish Maitla P.W.11 conducted post-mortem examination on the dead body of Shahbaz deceased. Dr. Fawad Mumtaz P.W.14 appeared as the secondary witness to verify the medico-legal report of Manzoor P.W.3. According to the learned counsel for the appellants there is contradiction between the ocular and medical account inasmuch as the doctors in their statements before the learned trial Court have mentioned that probable time between receipt of injuries and death was 30 minutes whereas the eye-witnesses in their statements had stated that Shahbaz deceased on receipt of injuries had died at the spot and Waris Ali deceased after receiving fire shot injury caused by Mushtaq appellant managed to proceed a few paces before he expired. We have observed that the doctors P.W.10 and P.W.11 have used the word "probable" which obviously implies that the deceased could have died earlier to the expiry of 30 minutes. This being inline with the ocular account does not further the case of the defence in any manner. Moreover, the learned counsel has not disputed the place and time of occurrence and the weapons used. The factum of pellets having been recovered from the dead bodies of Waris Ali and Shahbaz deceased has also not been denied. Thus, we are constrained to hold that the eyewitness account furnished by Fazal Elahi, P.W.1, Muhammad Rafique, G P.W.2 and Ghulam Nabi, P.W.3 stands fully corroborated by the medical evidence.
16. The blood-stained earth of both the deceased was taken into possession by the police on the day of occurrence vide memos. Exhs.P.B. And P.C. Report of the Chemical Examiner has been returned in the positive meaning thereby that the earth sent for analysis was found stained with blood. Even otherwise, the place of occurrence is not seriously disputed by the appellants.
17. In support of thA defence plea taken by the appellants at the trial no evidence was produced by them to substantiate the same. There is no H evidence on the record to suggest that there existed any strong enmity between the parties which could have prompted the appellant and others to falsely implicate the appellants in the crime of double murder. It is highly unlikely for the relatives of the deceased to let off the real culprits in order to implicate some one else in a crime which carries a capital sentence.
18. Now adverting to the case of Asif appellant it has been noticed that a number of accused namely Younis Ali, Muhammad Idrees, Muhammad Hafiz, Muhammad Nazar and Rasheed who were armed with fire-arm weapons and Sotas were acquitted by the learned trial Court. The appellant Asif's role is identical to the accused acquitted by the learned Court except that during investigation a pistol was recovered from his possession which was subsequently wedded with the empties recovered from the spot. We have disbelieved the evidence of recovery of weapon from Asif appellant on the premise that the empties were sent to Forensic Science Laboratory after a delay of more than 4-1/2 months and that too after his arrest and also on account of material defects in the recovery proceedings. Once the evidence of recovery of weapon of offence is excluded from consideration, the case of Asif also comes at par with the acquitted co-accused. As benefit of doubt has been extended to the acquitted co-accused, therefore, in view of the rule of consistency, Asif appellant also deserves acquittal. Consequently, we accept his appeal (Criminal Appeal No,1418 of 2002) and while extending him the benefit of doubt we acquit him of the charge of murder of the deceased. He shall be set at liberty forthwith if not required in any other case.
' Insofar as the case of Muhammad Mushtaq appellant is concerned, we are convinced that the prosecution has been able to prove its case against him beyond any reasonable doubt through unimpeachable and trustworthy ocular account fully corroborated by the medical evidence and the supporting evidence of motive. Resultantly, Criminal Appeal No,1419 of 2002 filed by him stands "dismissed." The sentence of death awarded to him by the learned trial Court is maintained. The murder reference is answered in the "affirmative."