' M. JAVED BUTTAR, J.--- These appeals, by leave, are directed against the judgment dated 9-6- 2005 passed by a learned Division Bench of Lahore High Court, whereby Criminal Appeal No,703 of 2000 filed by the appellants was dismissed, sentence of death passed by the trial Court was confirmed, and Murder Reference No,335 of 2000 forwarded by the trial Court was answered in affirmative.
2. The appellants Muhammad Tariq alias Tara and Muhammad Nawaz alias Kaka were tried by Honourable Additional Sessions Judge, Lahore in case F.I.R. No,406 dated 24-9-1995 registered at Police Station, Lower Mall, Lahore for the offences under sections 302/324/34, P.P.C. At the instance of complainant Shahid Mahmood P.W.1 for an occurrence which allegedly took place on the same day at 4-00 p.m. In which Zahid Mahmood, brother of the complainant got killed for having suffered firearm injuries and P.W.2 Bashir Ahmad sustained firearm injuries, which were attributed to the appellants who were respectively armed with Gun Pump Action and .30 bore pistol. Learned trial Court vide its judgment dated 8-5-2000 convicted both the appellants under section 302, P.P.C. For committing the murder of Zahid Mahmood deceased and sentenced them to death and compensation of Rs,25,000 each payable to the legal heirs of the deceased or to further suffer six months' S.I. Each. They were also convicted under section 324, P.P.C. For the murderous assault and sentenced to seven years R.I. Each. They were further convicted and sentenced to three years' R.I.
Each and to payment of Daman of Rs,10,000 each for causing injuries on the person of Bashir Ahmad P.W.2 and in case of non-payment of Daman they were to further undergo six months' S.I.
Each.
3. The relevant facts are that the complainant Shahid Mehmood P.W.1, brother of the deceased, got recorded his statement in the Emergency Ward of Mayo Hospital, Lahore on 24-9-1995 at 5-30 p.m.
Alleging that both the appellants armed as above entered in the shop of the deceased, raising Lalkara to teach him a lesson for the prosecution of case registered against them vide F.I.R. No,403 dated 21-9-1995. It was narrated that both the appellants fired indiscriminately which hit on various parts of the body of the deceased and when P.W.2 Bashir Ahmad tried to intervene, he was also targeted and fired upon as a result of which he also received fire-arm injuries. It was alleged that the occurrence took place within the view of the complainant P.W.1, the injured Bashir Ahmad P.W.2 and P. Ws. Zulfiqar Ahmad and Ishtiaq Ahmad who had also reached the spot. It was further stated that both the injured were rushed to the hospital and the deceased succumbed to the injuries in the hospital.
4. As per motive, the case of the prosecution was that the appellants had made indiscriminate firing at the shop of Abdul Hameed, an uncle of the deceased,on 21-9-1995. A case was registered against them vide F.I.R. No,403 of 1995 dated 21-9-1995 under section 506/34, `P.P.C. The deceased was pursuing the said case. The appellants had warned the deceased to stay away from prosecution of the said case. The, present incident was outcome of the fact that the deceased continued pursuing the said case.
5. On receipt of intimation of the occurrence, S.-I. Haseeb Anjum P.W.14 reached Mayo Hospital, Lahore. He recorded the statement of the complainant, which became the basis of the F.I.R.
Investigation was carried out. Weapons of offence were recovered at the pointation of the appellants. Challan was submitted and the appellants were tried.
6. P.W.6 Dr. Mian Azhar Ahmad examined injured P.W. Bashir Ahmad and found two injuries on his person. Which, have been detailed in the impugned judgment.
' He also examined the deceased Zahid Mahmood in an injured condition and found five injuries on his person which, have also been reproduced in the impugned judgment.
7. On 25-9-1995 Dr. Muhammad Maqsood P.W.8 conducted postmortem examination on the dead body of the deceased. The injuries found by him have also been re-produced in the impugned judgment.
' Multiple Pellets like metallic pieces were recovered from the dead body of the deceased.
8. The prosecution examined fifteen witnesses. Reports of Chemical Examiner and Forensic Science Laboratory were tendered in evidence.
9. The appellants in their statements under section 342, Cr.P.C. Denied the allegations and stated that some un-known persons had committed the dacoity in the shop of the deceased and had murdered the deceased and injured P.W.2 Bashir Ahmad, and they had been falsely involved in the present case on account of enmity. They did not lead any evidence in defence and opted not to appear as their own witnesses under section 340(2), Cr.P.C.
10. We have heard the learned counsel for the appellants, learned Additional Prosecutor General, Punjab for the State and have also seen the available record with their able assistance. It is submitted by learned counsel for the appellants that the prosecution had failed to prove its case against the appellants, the eye-witnesses were closely related inter se and were interested witnesses, the recoveries of arms effected from the appellants were fake, the motive was false, it was an incident of dacoity in which the appellants were falsely involved on account of enmity because there was -a petty dispute between the appellants and the deceased over a small shop and that appellants were behind the bars since 24-9-1995 and in the alternate their long incarceration has earned them a right to a lesser punishment.
' On the other hand, learned Additional Prosecutor General, Punjab while opposing the appeals has submitted that the prosecution was able to fully prove its case, the motive was established, the eye-witness account was natural and consistent, the deposition of injured eye-witness P.W.2 proved the prosecution case beyond any shadow of doubt, that mere inter se relationship of the eye-witnesses per se cannot be a lawful reason for discarding their statements if otherwise, their testimonies are reliable, truthful and confidence inspiring and that the eye-witness account was fully corroborated by medical evidence and recoveries.
11. No rebuttal is available as to the motive set up by the IA prosecution. The Courts below, therefore, correctly held that the motive stood established.
12. The ocular account was furnished by the complainant Shahid Mahmood P.W.1 and Bashir Ahmad injured P.W.2. Both of them were present at the shop at the time of the occurrence along with the deceased and his father Rasheed Ahmed, when the appellants launched the attack which resulted in the death of deceased and injuries to Bashir Ahmed P.W.2. Close relationship' of the P.
Ws. Is no ground to discard their testimonies. Reference can be made to Ijaz Ahmad v. The State 2009 SCM R 99. P.W.2 Bashir Ahmed received firearm injuries in the incident. He fully supported the complainant and the prosecution case.
' His presence on the spot at the time of the occurrence cannot be doubted. He was rushed to the hospital but was not in senses at the time when he was medically examined. The Investigating Officer moved an application dated 24-5-1995 (Exh.P.P.) to the medical Officer but he was not able to examine Bashir Ahmed because medical Officer recorded his opinion, on the same, that Bashir Ahmad was not able to make his statement. It was a daylight occurrence. There is no doubt about the identity of the accused. F.I.R. Was promptly lodged, therefore, there was no fabrication. Both the eye-witnesses were consistent in their statements and remained un-shaken during cross- examination. As to the recoveries, appellant Muhammad Tariq alias Tara got recovered .12 bore gun from his house which matched the crime empties recovered from the spot. The said recovery further corroborated the prosecution case. The appellant Muhammad Nawaz alias Kaka got recovered a pistol. The empties recovered from the spot did not match with the pistol. The said recovery was, therefore, inconsequential. This, however, does not make the case against the appellant Muhammad Nawaz alias Kaka as doubtful because the evidence discussed above, fully proved his participation along with the appellant Muhammad Tariq.
13. Medical evidence fully corroborated the ocular account and the prosecution case. Multiple Pellets like metallic pieces were recovered from the dead body of the deceased. The dimensions of injuries established that two types of weapons were used in the occurrence. Thus both the appellants had caused injuries to the deceased.
14. The argument that some unknown persons had killed the deceased and had caused injuries to the injured P.W.2 Bashir Ahmad has no basis. It was a daylight occurrence. They were properly identified. F.I.R. Was lodged promptly in which they were named. Their respective roles were described and the weapons used by them were also described.
' No misreading or non-reading of evidence or any legal infirmity has been pointed out in the judgment impugned before us. In our opinion, the prosecution was able to prove its case against both the appellants beyond any shadow of doubt. Furthermore, the role of both the appellants was identical and evidence against both of them is same.
' The argument that since the appellants are behind the bars from 24-9-1995 and their long incarceration has earned a right in their favour for lesser punishment, has also no force. Reference can be made to Abdul Malik v. The State and others PLD 2006 SC 365. Otherwise also, we have failed to find any mitigating circumstance in favour of the appellants.
' In view of the above mentioned, we find no merit in these appeals which are dismissed.