' CH. EJAZ YOUSAF, J.--- By this common judgment we intend to dispose of Criminal Appeals Nos.
220 to 222 of 2002 along with Jail Petition Nos.34 of 2002, which are directed against a common judgment dated 18-7-2001 in Criminal Appeal No,397 of 1993 and Criminal Revision No,189 of 1995, whereas Criminal Appeal No,223 of 2002 is directed against a separate judgment dated 18-7-2001 in Criminal Appeal No,291 of 2001, passed by a learned Division Bench of the Lahore High Court, Lahore, whereby the said appeals and revision were dismissed.
2. Facts of the case, in brief, are that on 3-12-1992 complaint was lodged by one Muhammad Arshad with Police Station Girjakh, Gujranwala, wherein it was alleged that on the said date, at about 2-15 p.m., the complainant was present in the land of Muhammad Basharat located in Pippal Wali Gali, Mohallah Rehmanpura, District Gujranwala along with Muhammad Basharat, his maternal uncle Muhammad Shafi and Sarfraz son of Haji Muhammad Shafi. All of a sudden, Shahid Mahmood and his brother Ghaffar armed with .222 bore automatic rifles, Tariq alias Heero son of Muhammad Hussain Ansari armed with mouser, Talib Dogar son of Ghulam Muhammad armed with pistol and Tariq alias Billa son of Muhammad Younis Ansari armed with mouser, emerged there and after raising Lalkara, resorted to indiscriminate firing. The complainant and Sarfraz P.W. In order to save their lives, withdrew themselves to a distance of few paces whereas, Muhammad Basharat deceased and Muhammad Shafi asked Shahid Mahmood and his companions not to take law in their own hands, however, ignoring his request, Shahid Mahmood exhorted his co- accused to teach a lesson to the complainant party for purchasing the land and getting registered the criminal case. Resultantly, Ghaffar accused fired at Muhammad Basharat hitting his right thigh and left knee. Shahid Mahmood also fired a shot with his rifle at Muhammad Basharat, and the bullet landed on his head. Consequently, Muhammad Basharat fell down. In the meantime Tariq alias Heero fired two successive shots at Muhammad Shafi hitting his right shoulder and right knee.
Then Talib Dogar fired with his pistol at Muhammad Shafi hitting his left knee. Tariq alias Billa accused also fired at Muhammad Shafi hitting his left arm and right leg, as a result whereof Muhammad Shafi too, fell down. The complainant and Sarfraz P.W. Raised alarm and advanced for the rescue of the injured but since they were also fired at by the accused persons, they barely escaped by throwing themselves on the ground. Thereafter the accused persons fled away.
Muhammad Basharat succumbed to the injuries at the spot whereas Muhammad Shafi was taken to hospital in injured condition by Sarfraz P.W. On the stated allegation formal F.I.R bearing No,399 of 1992 was registered at the said police station under sections 302/ 324/148/149, P.P.C. And investigation was carried out in pursuance thereof. On completion of the investigation the accused persons except Shahid Mehmood were challaned to the Court for trial.
3. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. At the trial, the prosecution, in order to prove the charge and substantiate the allegations levelled against the accused persons, produced 18 witnesses in all, whereafter the accused persons were examined under section 342, Cr.P.C. They, however, failed to lead any evidence in their defence or to appear themselves as their own witnesses in terms of section 340(2), Cr.P.C. On completion of the trial, the learned trial Court convicted the accused persons/appellants and sentenced them to the punishments as under:--- ' Tariq Mahmood alias Billa, and Talib Dogar
(i) For murder of Muhammad Shafi, death each with compensation of Rs,25,000 under section 544- A, Cr.P.C. Each.
(ii) For murder of Muhammad Basharat, life imprisonment each with compensation of Rs,25,000 under section 544-A, Cr.P.C. Each.
' In default of payment of compensation both accused to undergo two years' R.I. In toto ' Abdul Ghaffar ' For murder of Muhammad Shafi and Muhammad Basharat. Life imprisonment on two counts with compensation of Rs,50,000 on two counts to the legal heirs of deceased.
' In default of payment of compensation, to undergo R.I. For three years in toto.
' The sentences of imprisonment of all the convicts were ordered to run concurrently.
4. It would not be out of place to mention here that appellant Shahid Mehmood was arrested on 31- 1-1995 and proceedings against him were initiated on the basis of private complaint lodged with the Special Court for Suppression of Terrorist Activities, Gujranwala, as earlier he was found innocent by the Investigating Agency. Trial against him, therefore, proceeded separately, on conclusion whereof he was sentenced to death for committing Qatl-i-Amd of Muhammad Basharat. He was also sentenced to undergo life imprisonment for sharing common intention with other accused persons in committing Qatl-i-Amd of deceased Muhammad Shafi. In addition, he was also asked to pay compensation in the sum of Rs,1,00,000 to the legal heirs of both the deceased.
' Appeals filed by the accused/appellants against their convictions and the revision filed by the complainant for enhancement of the sentence of the appellant were dismissed by the High Court, hence, these appeals.
5. Mr. Aftab Farrukh, learned counsel for appellant Talib Hussain has urged; that pistol mark P-H was allegedly recovered from the appellant and as per Forensic Science Laboratory's report Exh.P.L.
None of the empties recovered from the place of occurrence matched with the same, but it was wrongly taken as an incriminating piece of evidence against the appellant perhaps under the impression that, at the trial, it was marked as P-2, whereas in the F.S.L. Report it was marked as P-1, and it also escaped from notice of the learned Judges in the High Court; that only one fire i,e, at the right knee of deceased Muhammad Shafi was attributed to the appellant whereas, two other shots i,e, one at right shoulder and the other at the right knee joint were attributed to co-accused Tariq alias Billa; and since the injury attributed to appellant Talib Hussain was at non-vital part of the deceased, and death of Muhammad Shafi was the result of cumulative effect of all the injuries, therefore, to the extent of Talib Hussain, appellant, it was not a case of capital punishment by any standard. He has further contended that appellant Talib Hussain was charged under section 302 read with section 149, P.P.C. And since section 141, P.P.C. Requires participation of more than five persons, to form unlawful assembly and due to acquittal of Tariq alias Heero the number of the accused persons fell short of the required number, therefore section 149 could not have been pressed into service. He maintained that in the circumstances, section 34, P.P.C. Would have been applicable; that appellant/accused Talib Hussain had no concern with the motive i,e, dispute over the encroachment of land. In the end he stated that the occurrence in the instant case took place in the year, 1992 and since then appellant Talib Hussain is in the death cell, in great agony, hence, he may be dealt with leniently.
6. Ch. Naseer Ahmad, learned Advocate Supreme Court, appearing on behalf of appellant Shahid Mahmood, has urged that since the ocular evidence consists of interested witnesses therefore, their evidence could not have been believed; that abscondance of Shahid Mehmood was wrongly taken as an incriminating circumstance against him despite the fact that at the relevant time he was at Karachi. It is further his grievance that since complainant Muhammad Arshad had subsequent to earlier trial died and his statement was taken on record under section 512, Cr.P.C. At the trial against appellant Shahid Mehmood and that too, without confronting him in the course of his statement under section 342, Cr.P.C., therefore, it could not have been relied upon in recording conviction against appellant Shahid Mehmood.
7. Syed Ali Hassan Jillani, learned Advocate Supreme Court appearing on behalf of petitioner/accused Tariq Mehmood alias Billa in Jail Petition No,34 of 2002 has submitted that recovery of Exh.P-III was wrongly attributed to the appellant whereas, in the Forensic Science Laboratory's report Exh.P.L., it was marked as Exh.P-II. He has also stated that since two injuries i,e, at the shoulder and knee of deceased Muhammad Shafi were attributed to Tariq alias Billa, whereas Talib Hussain had also allegedly fired at him and his death was the cumulative effect of all the injuries, therefore, to the extent of appellant Tariq Mehmood alias Billa too, it was not the case of capital punishment.
8. Sardar Muhammad Latif Khan Khosa, learned counsel appearing for the complainant, while vehemently controverting the contentions raised by the learned counsel for the appellants/accused, has submitted that so far as the case against Tariq alias Billa is concerned, it is not correct that recovery of pistol mark P-3 was wrongly attributed to him as in the F.S.L. Report, it was marked as P-2. He stated that actually weapons are marked by the laboratory staff as per their own convenience and it has nothing to do with the actual exhibits. He pointed 'out that in the statement of P.W.8, the recovery witness, it has been categorically mentioned that mark P-3 was recovered from appellant/accused Tariq Mehmood alias Billa, therefore, it was rightly taken as incriminating piece of evidence against him. He added that it was a broad-daylight occurrence whereas F.I.R was promptly lodged by Muhammad Arshad, brother of the deceased, at the police station, situated at a distance of 2-1/2 furlong from the place of occurrence; roles to each of the accused persons were duly attributed and injuries mentioned in the post-mortem report correspond with the same; that absconsion of the accused further strengthens the prosecution case. Regarding acquittal of accused Tariq alias Heero, he stated that his acquittal was a laboured pretext as reason weighed with the learned trial Court in recording his acquittal was that since complainant Muhammad Arshad was not aware of the names of the opposing candidates who had contested election against his brother, therefore, his testimony was not believable. He maintained that for such a petty and fake idea the statement of the eyewitness could not have been disbelieved.
9. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the record of the case minutely, with their assistance.
10. Admittedly a .30 bore pistol bearing No,3466 was recovered from the possession of appellant Talib Hussain vide Exh.P.J. The recovery memo. In the F.S.L. Report the said pistol was shown and marked as P-I and as per report none of the empties recovered from the place of occurrence matched with the same, hence we see force in the contention raised by the learned counsel for the petitioner that due to change in the mark it was wrongly presumed by the Courts below that empties recovered from the place of occurrence wedded with the pistol bearing No,3466 allegedly recovered at the instance of petitioner Talib Hussain. It would be pertinent to mention here that as per said report crime empties of .30 bore marked as C-11 and C-12 were found to have been fired from the pistol butt signed mark as P-II, which as per said report was allegedly recovered from the possession of Tariq Mahmood alias Billa.
11. As to the contention that only one shot at the right knee of deceased Muhammad Shafi was attributed to the appellant Talib Hussain, hence, the injury being on non-vital part, the appellant could not have been saddled with the liability of murder. It may be pointed out here that while conducting post-mortem examination, P.W.2 Dr. Sardar Ahmad, had found a number of injuries i,e, 16 on the person of deceased Muhammad Shafi, out of which only one injury i,e, No,5 at the right knee joint was attributed to appellant Talib Hussain by the witnesses. After examination it was found by the Doctor that death occurred due to secondary haemorrhage and shock consequent upon injuries Nos.1, 3, 5, 7, 9, and 11, which were sufficient to cause death in the ordinary course of nature collectively. Thus we see force in this contention of the learned counsel for the appellant as well that since death was the cumulative effect of all the injuries and injury attributed to appellant Talib Hussain i,e, No,5, was at the non-vital part, therefore, to his extent, instant was not the case of capital punishment.
12. Adverting to the next contention raised by the learned counsel for the appellant Talib Hussain that both the eyewitnesses i,e, Muhammad Arshad and Sarfraz were not present at the place of occurrence, it may be pointed out here that similar objection was raised before the learned trial Judge, who repelled the same by categorically observing that since as per prosecution version injured Muhammad Shafi was immediately taken to hospital by P.W. Sarfraz which fact was not disputed by the defence and F.I.R was got registered within fifty minutes of the occurrence by the other P.W. i,e, Muhammad Arshad, therefore, presence of both the eyewitnesses, at the place of occurrence could not have been doubted and for the stated reasons we are also unable to subscribe to the contention raised by the learned counsel for the appellant.
13. As regards the contention raised by the learned counsel for appellant Shahid Mahmood that since ocular evidence consists of interested witnesses, therefore, it could not have been believed, it may be pointed out here that no doubt eye-witnesses in the instant case are related to the deceased but they by no stretch of imagination could be termed or regarded as interested witnesses. It is well-settled that an interested witness is one who is partisan or inimical towards the accused or has a motive previously or cause of his own to falsely implicate the accused in the crime. Mere relationship of a witness with the deceased or the very fact that he is interested in prosecution of the accused on account of the occurrence, would not dub him as an interested witness. This view receives support from the following reported judgments:---
(i) Sheraz Tufail v. The State 2007 SCM R 518, (ii) Khair Muhammad and another v. State 2007 SCM R 158, (iii) Amal Sherin and another v. State through A.G. N.-W.F.P PLJ 2004 SC 320, (iv) Dosa and others v. The State 2002 SCM R 1578, (v) Mulla Riaz Ahmad v. The State 2002 SCM R 626, (vi) Feroze Khan v. The State 2002 SCM R 99, (vii) Farmanullah v. Qadeem Khan and another 2001 SCM R 1474,
(viii) Muhammad Amin v. The State 2000 SCM R 1784, (ix) Saeed Akhtar and others v. The State.
2000 SCM R 383, (x) Mir Hassan and others v. State and others 1999 SCM R 1418, (xi) Sharafat Ali v.
The State 1999 SCM R 329, (xii) Sardar Khan and others v. State 1998 SCM R 1823, (xiii) Wahid Bukhsh and others v. The State 1997 SCM R 1424, (xiv) Muhammad Arshad alias Achhi v. The State 1995 SCM R 1639, (xv) State of Rajasthan v. Hunaman AIR 2001 SC 282, (xvi) State of Punjab v. Wassan Singh and others AIR 1981 SC 697.
' In the instant case account of the occurrence has been given by the eyewitnesses in natural and convincing manner and their statements find ample corroboration from other evidence, hence, in our view they were rightly believed by the Courts below.
14. In order to supplement his next contention that abscondence of Shahid Mehmood was wrongly taken as incriminating piece of evidence against him despite the fact that at the relevant time he was at Karachi, the learned counsel for the said appellant stated that since, in the course of investigation appellant Shahid Mehmood was declared innocent by D.W.1 Mr. Muhammad Anwar Virk, S.S.P., therefore, he could not have been convicted for the offence. Having been questioned, however, as to with whom the said appellant was at Karachi at the time of occurrence, the learned counsel stated that he was with his friend Wajid Ali but candidly conceded that said Wajid Ali was neither produced at the trial nor plea of alibi was substantiated through evidence. In the circumstances the contention, on its face is devoid of force.
15. As to the contention raised by the learned counsel for appellant Tariq alias Billa that recovery of mouser P-3 was wrongly attributed to the said appellant because in the F.S.L. Report i,e, Exh.P.L. It was marked as P-2, it may be pointed out here that no doubt, at the trial, Mouser P-3 allegedly recovered from the possession of the appellant was marked as P-3 but in F.S.L. Report, Exh.P.L.
Is/was marked as P-2 and it was categorically noted therein that crime empties of .30 bore mark C-11 and C-12 were found to had been fired from .30 bore pistol marked as P-2, thus there is no discrepancy with regard to the allegedly recovered weapon from appellant Tariq Mehmood.
16. In the instant case the learned Judges in the High Court having found that there being strong motive with the accused who committed the crime and a dispute existed between the parties in respect of landed property, the F.I.R. Having been lodged with promptitude i,e, within fifty minutes of the occurrence wherein not only names of all the accused were mentioned but role to each of them was also attributed, the presence of all the eyewitnesses at the place of occurrence having been proved Ly independent and reliable evidence and ocular account of the occurrence having, been supported by other evidence including the evidence of recoveries and the medical evidence, there was nothing to doubt that the occurrence had not taken place in the manner as suggested by the prosecution and we are also not inclined to take a different view because it was a day time occurrence and possibility of substitution of the accused or that it was a case of mistaken identity had to be ruled out.
17. We also see force in the contention raised by the learned counsel for the appellant Talib Hussain that since section 141, P.P.C. Requires participation of more than five persons to form unlawful assembly and due to acquittal of Tariq alias Heero, the number of persons fell short the required number, therefore the case of each accused was to be dealt with as per section 34, P.P.C.
18. Upshot of the above discussion is that:-- ' "Criminal Appeal No,220 of 2002 filed by appellant Talib Hussain is partly allowed and while maintaining his conviction under section 302(b), P.P.C., sentence of death there under is altered to that of life imprisonment with benefit of section 382-B, Cr.P.C. Criminal Appeal No,222 of 2002 and Jail Petition No,34 of 2002 filed by appellant Tariq Mahmood alias Billa are partly allowed and while maintaining his conviction under section 302(b), P.P.C., sentence of death is altered to that of life imprisonment.
' Criminal Appeal No,223 of 2002 filed by the appellant Shahid Mahmood is dismissed and his conviction under section 302(b), P.P.C. And sentence of death are maintained.
' Criminal Appeal No,221 of 2002 filed by the complainant against acquittal of respondent Tariq Mehmood alias Heero and for enhancement of sentence of respondent Abdul Ghaffar is also dismissed.
' These are the reasons of our short order of even date announced in open Court.