Muhammad Ahsan Bhoon, J.--This judgment shall dispose of Criminal Appeal No, 510/04 (Qazi Shah Zaman vs. The State); Criminal Appeal No, 511/04 (Qamar Abbas vs. The State); Criminal Appeal No, 512/04 (Munawar Abbas vs. The State); Criminal Appeal No, 519/04 (Muhammad Abid Shahzad vs. The State etc.), Criminal Revision No, 296/04 and Murder Reference No, 458/04, sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellants, as they arise out of the same judgment dated 19.07.2004, passed by the learned Additional Sessions Judge, Karor, District Layyar (Camp at Central Jail, Dera Gazi Khan), whereby, appellants were convicted and sentenced in the following terms:--
(I) Munawar Abbas & Qamar Abbas: under Section 302(b)/34 PPC to death with a further direction to pay a compensation of Rs. 1,00,000/- each to the legal heirs of deceased Moeed Mohsin as provided under Section 544-A Cr.P.C. in default whereof to further undergo RI for three years each; (II)Qazi Shah Zaman: under Section 302(b)/34 PPC to imprisonment for life with a further direction to pay a compensation of Rs.1,00,000/- to the legal heirs of deceased Moeed Mohsin as provided under Section 544-A Cr.P.C. in default whereof to further undergo RI for three years. Benefit of Section 382-B Cr.P.C. was also extended to him; (III)Ghulam Akbar, Ejaz Ahmad, Dr. Abdul Rasheed, Mushtaq Ahmad and Malik Allah Bakhsh were given the befit of doubt and acquitted from the case.
2. Brief facts of the case, as given by Muhammad Abid Shahzad complainant (PW-12) in the FIR (Exh.PA/1) are that on the day of occurrence he was present at his home when Rana Hamid and Muhammad Siddique came to him at about 5.00 p.m. and apprised that at about 4.00 p.m. on the said day, they visited the house of Dr.Abdul Rasheed in connection with some personal affair, where, Malik Mushtaq Ahmad Samtia, Dr.Abdul Rasheed, Allah Bakhsh Samtia, Munawar Abbas and Qazi Shah Zaman were planning to kill Muhammad Amin Guddu and his brother Moeed Moshin(deceased), upon which, Munawar Abbas and Qazi Shah Zamart gave a tongue to Allah Bakhsh Samtia that they would give him a good news till evening of that day; that thereafter, he, in the company of Muhammad Siddique and Rana Hamid went to Bazar to inform the said Moeed Mohsin; that when they reached near the vegetable shop of Faqir Muhammad, they saw Moeed Mohsin buying household articles for Eid from the shop of Rana Akram; that in the meanwhile, from the clinic of Dr.Fazal Elahi, .accused Munawar Abbas armed with Kalashnikov, Qamar Abbas armed with a Kalashnikov Qazi Shah Zaman armed with a Kalashnikov alongwith an unknown accused armed with a Kalashnikov emerged at the scene while raising Lalkaras to Moeed Mohsin that they would take revenge from him for the murder of Niaz Samtia, whereafter Munawar Abbas fired shots which landed on his back who fell down; that thereafter Qamar Abbas fired which hit on his heart side; that in that condition, Qazi Shah Zaman fired upon him; that Muhammad Ishtiaq @ Kaka, who was polishing shoe in corner of the street, raised hue and cry upon which unknown accused fired upon him which landed on his right knee and left buttock; that upon the hue and cry raised by the PWs, the accused decamped from the spot along with Ijaz Ahmad Sial and Ghulam Akbar on the motorcycle; that the occurrence was witnessed by the complainant and other PWs and that the deceased breathed his last in the hospital while injured was admitted there for his treatment.
Motive behind the occurrence, as alleged by the complainant in the FIR, was that the accused had a suspicion that the deceased Moeed Mohsin and Muhammad Amin Guddu had hand in the murder of Niaz Ahmad Samtia and the deceased was on bail in the said case.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused, charge was framed against the accused, they pleaded not guilty and claimed to be tried.
4. In order to prove its case, prosecution produced as many as 18 witnesses during the trial. The appellants/accused were examined under Section 342 Cr.P.C. They produced 07 DW in defence but did not opt to depose on Oath as required under Section 340(2) Cr.P.C. However, the learned trial Court convicted and sentenced them as detailed above.
5. While assailing for acquittal from this Court, learned counsel for the appellants contend that the appellants have falsely been involved in this case; that it is a case of un-seen occurrence wherein the murder was committed by two un-known assailants and, later on, the prosecution story was concocted wherein all the three appellants along with an unknown accused were falsely implicated; that the ocular account in this case was furnished by the interested and 'inimical witnesses as is evident from the evidence that enmity between the appellants and the complainant party was already there as the appellants belonged to Shia sect whereas the complainant and the deceased belonged to Sunni sect;. that Muhammad Ishtiaq PW-11 admitted the fact that he, being neighbor of the deceased as well as complainant, had good relations with the complainant party, so, he cannot be termed as an independent witness; that the injuries on the person of Muhammad Ishtiaq PW-11 were self inflicted and the medical prepared qua the said injuries was a concocted document; that the motive is always a double edged weapon and in this case the motive of false implication was available with the complainant party; that the deceased had so many enemies, so, he might have been murdered by any of his enemies and thereafter the appellants were falsely involved in the present case; that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt; that benefit of doubt always goes to the accused and that, in the afore-referred circumstances, appellants are entitled to acquittal.
6. Conversely, the learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant, while vehemently opposing the appeals filed by the respective appellants, contend that it is a broad-day-light occurrence, so, no question of false identity of the appellants arises; that there is no question of false implication or substitution; that even otherwise substitution is a rare phenomenon; that the ocular account in this case is corroborated by the medical evidence; that the witnesses of the occurrence proved their presence at the spot; that although the witnesses were subjected to cross-examination but nothing could shake their testimony; that the prosecution has proved its case against the appellants beyond any shadow of doubt; that it is a cold blooded murder, so, no question of leniency arises in this case; that Muhammad Ishitaq PW-11, who was injured in this case, was a star witness anti his testimony cannot be discarded from the prosecution evidence; that it is settled law that when a charge of murder is proved against the accused then the normal penalty is death; that the learned trial Court has rightly convicted and sentenced the appellants through a well reasoned judgment and that the sentence awarded to the appellants by the learned trial Court be maintained.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. We have found that the occurrence in this case took place at 5.00 p.m. in the month of April, 1996 and the FIR was lodged within a time of one hour i,e, at 6.00 p.m. on the same day, in which, specific role of causing firearm injury on the back of Moeed Mohsin deceased with a Kalashnikov is attributed to Munawar Abbas appellant. Similarly, Qamar Abbas appellant was also attributed a specific role of causing effective shots with Kalashnikov which landed near the heart of Moeed Mohsin deceased. It was also mentioned in the FIR that the unknown accused, who was present at the spot, caused injury with Kalashnikov on the person of Muhammad Ishtiaq PW-11 near his right knee and left buttock but as far as appellant Qazi Shah Zaman is concerned, he was not attributed any specific injury, rather, allegation against him was that of only firing. The story of FIR was reiterated by Muhammad Abid Shahzad PW-12 while appearing before the learned trial Court but with one improvement and the said improvement was that Qazi Shah Zaman appellant was also attributed the role of causing of fire-arm injuries on different parts of the body of the deceased but the said improvement was confronted during the cross-examination.
9. The evidence furnished by Muhammad Abid Shahzad PW-12 was corroborated by Muhammad Ishtiaq PW-11, who was an injured eye-witness of the occurrence. No doubt it was admitted by the said Muhammad Ishtiaq PVT-11 that he was living in the neighborhood of the complainant and the deceased but it is an admitted fact that he was a cobbler by caste and had no relationship either with the deceased or the complainant. It is apparent from the evidence on record that near the place of occurrence, he was working as a cobbler to earn his livelihood when he fell victim of the attack, hence, we have no reason to disbelieve A his presence at the place of occurrence as mere non-recovery of his blood stained clothes would not be fatal to the prosecution case, as was vehemently argued by the learned counsel for the appellants. As per evidence furnished by Dr. Jalaluddin PW-7, he medically examined Muhammad Ishtiaq PW-11 on 28.4.1996 and found following injuries on his person:--
1. An inverted margin wound 1 cm. x 1 cm. on the right knee. No wound of exit was found and no blackening was seen. X-Ray of right knee was advised.
2. An inverted wound 1 cm. x 1 cm. on the left buttock wound was bleeding and depth was not probed. There was no exit wound. X-Ray of pelvis was advised. Both the injuries were kept under observation".
10. The above quoted injuries would show that the entry 'wounds were available on the person of Muhammad Ishtiaq PW-11 as the same were with inverted margins and non-availability of exit wound does not mean that the said injuries were self suffered when seats of injuries were never challenged by the defence during the course of investigation nor they ever applied for re-examination of the said injured-PW.
11. We may observe here that in case of a capital punishment when there was enmity between the parties, prosecution evidence must come through an un-impeachable source and if there was an evidence of inimical witness that must be corroborated by an independent witness and in the present case no doubt Muhammad Abid Shahzad PW-12 was . inimical towards the appellants but his evidence was corroborated by the independent evidence of Muhammad Ishtiaq PW-11 as far as the appellants Qamar Abbas and Munawar Abbas are concerned. However, so far as the improvement made by the complainant qua the attribution of injury to Qazi Shah Zaman appellant is concerned that was floating on the surface. Hence, evidence of both the eye-witnesses qua appellants Qamar Abbas and Munawar Abbas was confidence inspiring.
12. As far as medical evidence is concerned, that is further supportive piece of evidence being in line with the ocular account qua appellants Qamar Abbas and Munawar Abbas as the injuries attributed to these two appellants, are available on the body of the deceased.
13. So far as recoveries are concerned that would not be of any consequence in the present case and there is no need to dilate upon the same. However, non-recovery of any weapon of offence cannot take away the probative force of the ocular account furnished through credible ocular evidence.
14. Apart from above, there is another aspect of the case. The accused took a specific defence plea and produced certain DWs to the effect that occurrence in question was committed by two un- known assailants but none the said Defence Witnesses is the eye-witness of the occurrence, therefore, the story prepared by them does not appeal to reason and it appears that they had come forward for the rescue of their relatives i,e, the appellants. It is settled law that when a specific plea is raised then the onus lies on the shoulders of the initiator and in this case the accused have failed to discharge the said onus as provided under Article 121 of the Qanun-e- Shahadat Order, 1984.
15. In the afore-referred circumstances, this Court is of the any shadow of doubt against appellants Qamar Abbas and Munawar considered view that the prosecution has proved its case against beyond Abbas and we are inclined to maintain their conviction under Section 302(b)/34 PPC.
16. As far as quantum of sentence of Munawar Abbas and Qamar Abbas appellants is concerned, we have noted that it is admitted in the evidence of complainant Muhammad Abid Shahzad PW-12, a brother of Moeed Mohsin deceased, that the deceased was involved in different cases of heinous nature including murder, attempt to murder and police encounter which fact would show that he was a man of questionable character, therefore, the sentence of death in such circumstances would be harsh one. In this regard reliance is placed on MUSHTAQ AHMAD VS. THE STATE (PLD 2004 Supreme Court 150), wherein, their Lordships of the Apex Court, at page 154, held as under:-- "16. We have given our anxious thought to the contentions raised at bar and are of the considered opinion that the prosecution has fully proved its "case by bringing on record the ocular testimony furnished by PWs 1, 2 and 3 fully corroborated by the medical evidence. Irrespective of this, his remaining fugitive from law 1993 is also strong corroborative piece of circumstantial evidence to connect him with the commission of crime. As regards the quantum of sentence, it would be appropriate to have a glance over the evidence of complainant Liaqat Ali who in an unequivocal words admitted before the trial Court that the deceased was challaned in 5/6 criminal cases which were still pending. Though denied to the suggestion that his brother was involved in assault, narcotics and unlicensed arms cases yet he oluntarily admitted that he had fought with the guard of Makhdoon Syed Faisal Saleh Hayat while trespassing into h s bungalow and such case was registered against him. From the above resume it transpires that the deceased was man of questionable character which in our opinion is a sufficient extenuating circumstance to reduce the sentence of the appellant from death to imprisonment for life. According, while maintaining the conviction, we reduce the sentence of appellant from death to imprisonment for life. However, the order of compensation is upheld", (emphasis supplied)
17. After having fortified our view by the above quoted judgment of the Hon'ble Supreme Court of Pakistan, the sentence of death of appellant Qamar Abbas and Munawar Abbas is converted from sentence of death into imprisonment for life each while amount of compensation of Rs. 1,00,000/- each to be paid to the legal heirs of the deceased shall remain in tact but the imprisonment in default of the amount compensation shall be six months SI each. Benefit of Section 382-B Cr.P.C. is also extended to the said appellants. With the above modification in the quantum of sentence, both the appeals filed by the said appellants i,e, Criminal Appeal No, 511/04 (Qamar Abbas us. The State) and Criminal Appeal No, 512/04 (Munawar Abbas us. The State) are dismissed.
18. Now we are left with the case of Qazi Shah Zaman appellant. In view of the above discussion we have found that no specific injury either on the body of the deceased or to the PWs was attributed to him as per FIR and the improvement qua the attribution of role by the complainant was duly confronted and even during the course of investigation no recovery of any incriminating article was affected from him, therefore, we are of the affirmed view that the prosecution has failed to prove its case against the said appellant beyond any shadow of doubt and his case is a doubtful in nature. It is settled law that in such like circumstances grant of benefit of doubt is a right of the accused and not a grace. Hence, Criminal Appeal No, 510/04 (Qazi Shah Zaman vs. The State) is allowed, the impugned judgment is set-aside to his extent and appellant Qazi Shah Zaman is acquitted from the case. He is behind the bars and shall be released forthwith if not required to be detained in any other case.
19. Crl. Appeal No, 519/2004 was filed by complainant Muhammad Abid Shahzad against the acquittal of Ghulam Akbar, Ejaz Ahmad, Dr.Abdul Rasheed, Mushtaq Ahmad and Malik Allah Bakhsh.
We have noted that the same was neither admitted to regular hearing nor ever notice was issued in it to the respondents/acquitted accused. Even otherwise, none amongst the above mentioned five acquitted accused was attributed any role of causing injury either on the person of the deceased or the PWs. The role attributed to the acquitted accused, namely, Malik Allah Bakhsh, Dr.Abdul Rasheed and Mushtaq Ahmad was of abetment. We have gone through the impugned judgment and the evidence on record and noted that the learned trial Court has rightly acquitted them from the case qua which reasons have been given in Paras 23, 24 and 25 of the impugned judgment. So far as acquitted accused, namely, Ejaz Ahmad and Ghulam Akbar is concerned the only role attributed to them was that they were present near the place of occurrence on a motorcycle and the accused decamped from the spot along with them. The learned trial Court, while acquitting them, has discussed their role in detail and has given cogent reasons in Para 26 and 27 for their acquittal. Even otherwise, it is very common in our society that while lodging the criminal cases innocent persons are also implicated along with the main culprits to widen the net so that no body should be left behind to pursue the cases and in our view false implication of all the above mentioned five acquitted accused cannot be ruled out, hence, the afore-mentioned appeal filed against their acquittal is hereby dismissed.
20. In view of the above, Criminal Revision No, 296/04 stands dismissed having no merit.
Murder Reference is answered in the Negative and sentence of death is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.