' KHAWAJA MUHAMMAD SHARIF, C.J.---This single judgment will dispose of Criminal Appeal No.351 of 2004, Criminal Appeal No.385 of 2004, Criminal Revision No.164 of 2004 and Murder Reference No.435 of 2004.
2. The appellant along with Muhammad Afzal, Sahi Khan, Shaukat Ayub were tried by the learned Additional Sessions Judge, Attock who vide his judgment dated 29-6-2004 while acquitting the co- accused, convicted the Liaquat Iqbal appellant under section 302(b), P.P.C. And awarded death sentence and compensation of Rs.1,00,000, which will be paid to the legal heirs of Faisal Saleem deceased in a case bearing F.I.R. No.100 dated 1-12-2003 under sections 302, 324 and 34, P.P.C, at Police Station Injra District Attock.
3. The convict has filed appeal while learned Additional Sessions Judge has sent a Reference to this Court under section 374, Cr.P.C, for confirmation or otherwise of death sentence.
4. Brief facts of the case as given by the complainant Muhammad Saleern in the complaint Exh.P.G, are that on 28-11-2003, he, his son Faisal Saleern, Tariq son of Abdul Hamid and Riaz son of Muhammad Aslam were sitting in a high place in their village, Muhammad Ayyub son of Muhammad Afzal came there and sat beside them, as Muhammad Ayyub was murderer of the son of complainant, Muhammad Nadeem, therefore, he was asked by the complainant not to sit before him. Upon which an altercation took place between the complainant and Muhammad Ayub, while leaving the place Muhammad Ayyub asked the complainant that he will revenge his insult; that on 1-12-2003 at about 7-30 a.m. The complainant, his son Faisal Salim, father Nasim Gul, Zafar Iqbal and Zafar Hamid were sitting on a place mentioned as paddi, in the meanwhile Muhammad Afzal accused armed with .30 bore pistol, Liaqat Ali accused armed with .7 mm rifle, Sahi Khan accused armed with .12 bore gun and Muhamamd Ayyub accused armed with .30 bore pistol emerged there; Muhammad Ayyub asked that he will revenge his insult whereupon Muhammad Afzal accused raised as lalkara to start firing, upon which Sahi Khan, Muhammad Ayuub and Muhammad Afzal started firing. The complainant side stood up. A fire shot made by Liaqat appellant with his 7 mm - rifle hit on the right side of the head of Faisal Salim who fell down on the ground and died at the spot. Thereafter, the accused fled away after making the fire shots in the air.
5. After completion of the investigation, challan was submitted before the learned trial Court.
Charge was framed to which, appellant pleaded not guilty and claimed to be tried. In order to prove its case, prosecution produced as many as twelve (l2) P.Ws, during the trial.
6. P.W.7 Dr.Zafar Iqbal, M.O. THQ Hospital Jand conducted the post-mortem examination of the dead body of the deceased on 1-12-2003 at 2-00 p.m. The duration between injuries and death within fifteen minutes and the death and post mortem was 4 to 6 hours. Post mortem report is Exh.PN/1.
7. Sabir Hussain S.-I./S.H.O. (P.W.12) who conducted the investigation has stated that on 1-12-2003, on receipt of the information reached at the spot, where the complainant made an oral statement Exh.P.G., which he recorded into writing and sent the same to the police station for registration of case. He also prepared the inquest report of the dead body Exh.P.S. He arrested the accused on 6- 1-2004 due to rejection of the bail petition and on his disclosure recovered the crime weapon i,e, rifle P.7 along with ten live rounds P.8/1-10, vide Exh.P.O.
8. The appellant was examined under section 342, Cr.P.C, and he did not opt to appear and deposed on oath as required under section 340(2), Cr.P.C. In reply to question No,7, that why this case against you and why the P.Ws, deposed against you? The appellant-accused replied as under:- "As due to previous false case against Shaukat Ayyub accused in which he was acquitted there was no talk term with the complainant party and complainant had a grudge against us due to said reason involved me and my available family members in this case falsely due to said enmity.
Faisal Salim was murdered by unknown persons due to his character as he was addicted and used to trespass at the night time in the house of the village and people of the village were annoyed at Faisal Saleem with his conduct. Having opportunity after finding the dead body of Faisal Saleem in the courtyard of the abandoned house of Yaqoob. Complainant party falsely involved me and my sons in this case. I and my co-accused never committed the murder of Faisal Saleem. All the story of the prosecution has been concocted and all the private P. Ws. Are inter se close relatives. Thus they deposed falsely and I.O. Under the pressure of the complainant party partially investigated this case and falsely challaned the accused in this case."
9. The learned counsel for the appellant in Criminal Appeal No,35172004 submits that the motive has been disbelieved by the learned trial Court; that two witnesses namely Naseem and Zafar Hameed were given up the prosecution while P.W.11 Zafar Iqbal has been disbelieved by the learned trial Court; that the learned trial Court had held in the impugned judgment that Muhammad Salim P.W.10 cannot be believed in totality and for that reason he had acquitted the co-accused; that on the same evidence 3 co-accused have been acquitted and without any independent corroboration, conviction of the appellant cannot be maintained; that three other accused had fired at the spot and recoveries were effected from them, that medical evidence is not in line with the assertions made by the eye-witnesses; that the assailants according to prosecution story were 150 feet below from the place where the deceased was sitting while only injury which was received by the deceased hit on the back of right ear and it made an exit wound on the back of left ear, which is not possible; that it was impossible that when 4 persons were firing one can determine that whose fire hit whom; that the recovery was effected on 15-1-2004 i,e, 44 days of the occurrence and it is not believable that accused would keep the said rifle with him in his house under lock and key; that the same witnesses were against Sahi Khan, Muhammad Afzal and Shaukat Ayub, those recoveries have been disbelieved by the learned trial Court; that the I.O. Has not sent the arms recovered from co-accused Sahi Khan and Shaukat Ayub along with crime empties of .30 bore pistol and .12 bore gun and why the I.O. Chosen to sent the recovery effected from the appellant and three crime empties of 7 mm rifle; that the projectile which was recovered by the doctor during the post-mortem examination from near the left ear, that was never sent to the Forensic Science Laboratory in order to determine that whether it was of pistol .30 bore or gun.
Learned counsel has referred to the report of Fire Arm Expert (Forensic Science Laboratory) Exh. At page 14 of the paper book and submitted that on the original report of Exh.P.W. It has been written as under:-- "Note: Any report without embossing mark is not genuine."
10. Learned counsel submits that this report has not any embossing mark, so it cannot be termed as genuine report.
11. Learned counsel submits that the recovery allegedly effected from the appellant cannot be relied upon. He further stated that the recovery is supportive piece of evidence and not substantive evidence. Reliance is placed upon 2008 SCM R 6, 2008 SCM R 707 and 2006 YLR 2170.
12. Learned D.P.G. Assisted by the learned counsel for the complainant submits that fatal injury is attributed to the present appellant; that P.W.10 Muhammad Salim and P.W.11 Zafar Iqbal are natural witnesses; that death sentence can be awarded even on solitary statement of the complainant; that it is broad-daylight occurrence with promptly lodged F.I.R. And the present appellant is specifically nominated with specific role; that weapon of offence has been matched with the crime empties from the spot; that the prosecution has proved its case against the appellant beyond any shadow of doubt; that the learned trial Court rightly convicted and sentenced the appellant.
13. Learned counsel for complainant in support of appeal against acquittal submitted that it was ulterior motive and mala fide on the part of the police that it had not sent the recovered weapons from the co-accused to the Fire Arm Expert; that specific roles were attributed to them. Learned counsel adds that it is a broad-daylight occurrence and promptly lodged F.I.R., and the learned trial Court has wrongly acquitted the respondents.
14. We have heard the learned counsel for the parties and gone through the record with the able assistance of learned counsel for the parties.
15. Occurrence in this case took place on 1-12-2003 at 7-30 a.m. Within the revenue estate of Mauza Gurvi which is at a distance of 30 kilometers from the Police Station Anjra District Attock. Matter was reported to the police at 11-15 a.m. And formal F.I.R. Was also recorded but time is not legible on the original record while wrong time has been given in the paper book. The deceased in this case is Faisal Saleem. P.W.10 Muhammad Saleem is father of Faisal Saleem. P.W.11 Zafar Iqbal is first cousin of complainant while two witnesses Naseem Gul and Zafar Hameed were given up by the prosecution.
16. During the course of investigation, appellant was arrested on 6-1-2004. He got recovered 7 mm rifle from Liauqat Iqbal on 15-1-2004 vide recovery memo. Exh.P.O. Sahi Khan acquitted co-accused got recovered pistol .30 bore on 15-1-2004 vide memo. Exh.P.Q. Shaukat Ayub acquitted co- accused got recovered licensed pistol 30 bore on 6-3-2004 vide memo. Exh.P.R. No recovery was effected from Muhammad Afzal acquitted co-accused. Dr.Zafar Iqbal P.W.7 conducted post- mortem examination on the dead body of deceased on 1-12-2003 at 2-00 p.m. Time between injury and death was within 15 minutes whereas time between death and post-mortem was 4 to 6 hours.
The distance between police station and place of occurrence was 30 kilometers, so one can say that it is a promptly lodged F.I.R. Due to above-said distance. Three co-accused as mentioned above were acquitted on the ground that they fired at the spot but no body was hit with their firing.
The only fire shot is specifically attributed to Liaquat Iqbal, which hit on his head and he immediately died at the spot.
17. As far as motive is concerned, it was stated that earlier the son of the complainant was murdered by the appellant party. Shaukat Ayub was awarded life imprisonment by the learned trial Court but on appeal this Court acquitted him. On 28-11-2003 when complainant was sitting with his son Faisal Saleem, Tariq son of Abdul Hameed and Riaz son of Muhammad Aslam at some high place in their village, Muhammad Ayub also came there and sat near him. Complainant told him that already you have murdered my son, so do not sit before him, on which altercation took place.
He went away and threatened that he will take the revenge of his insult, so this occurrence took place on 142-2003 at 7-30 a.m.
18. It has been stressed by the learned counsel for the appellant that the fire was shot from a distance of 150 feet below while the deceased was sitting on the top of hill,
19. We would like to mention site plan Exh.P.H. For just decision of the case. Point No,1 is the place where Faisal Salim was injured and blood-stained earth was recovered. In the said point it has also been mentioned that it is 94 feet from the road while 20 feet on the hill. Then points No,2 is the place where Zafar Iqbal and Muhammad Salim complainant, eyewitnesses were present who also appeared before the learned trial Court. While point No,3 is the place where Naseem Gul and Zafar Hameed eye-witnesses (not produced) were present. Point No,4 is the place where un-attended house of Muhammad Yaqoob situate and it is 42 feet from the place of occurrence. The other very important in this case is point No,5 from where Liaquat Iqbal appellant fired a shot with his rifle taking shelter of wall and three crime empties were recovered from there. This point is 120 feet away from point No,l.
20. We have very minutely gone through the points Nos.1, 2 & 3, which are on the Eastern side. Point No,5 is towards somewhat West and North. There is not much difference in the height and in this regard we would also like to reproduce some portion of statement of P.W.5 Draftsman Muhammad Suleman at page-20 of the paper book, which was brought on record by the defence himself:- "Point No,1 is place where dead body was found. It is correct that point No,1 is towards south of points Nos.5, 6 & 7 and that point No,1 is on a hillock."
' Point No,1 is the place where the deceased was fired at when he was sitting on the hillock. We are not going to believe that height of deceased was 150 feet from the accused who was firing from below. There is not much difference. Moreover, it is principle of law settled for all times to come by the apex Court that as the people are telling lies in this country, so the learned trial Court should sift the grain from the Chaff. In this case the learned trial Court after sifting grain from the chaff awarded death sentence to the appellant only because firing of co-accused never hit any body. It was only the fire of appellant which had hit on the vital part of the deceased and it proved fatal. As far as the contention of false implication of the appellant is concerned, if there was any intention to involve falsely, he would have involved Muhammad Ayub, who had earlier murdered his son, who was convicted and sentenced by the learned trial Court to life imprisonment but acquitted by this Court. He did not implicate him by stating that he caused a fatal shot. Moreover three crime empties also matched with the rifle recovered on the pointation of appellant and C he remained fugitive from law for 35 days. If he was so innocent, he should have appeared before the police and given the proof of his innocence through some evidence, which he failed.
21. It has been argued that the parties were inimical towards each other and there is no independent corroboration. It is correct that there was enmity but it is fact that it is the accused party who had already murdered the son of the complainant and this is the second son which has been murdered by the accused party. In this situation no independent or un-related person would appear before the Court, so that he could purchase the enmity of accused party.
22. After going through the evidence on record, we are fully satisfied in our mind that as it was a broad-daylight, occurrence and it was the appellant who is attributed specific injury. Ocular account is fully supported by medical evidence and the report of Forensic Science Laboratory, which is positive. The result is that the appeal is dismissed. Death sentence is confirmed. Murder reference is answered in affirmative.
23. For the reasons given in this judgment, Criminal Appeal No,385 of 2004 against acquittal is also dismissed.
24. Criminal Revision No,164-04 is also dismissed.