1. ' AZIZULLAH M. MEMON, J.---Appellant Muhammad Khan was tried by the Court of learned 1st Additional Sessions Judge, Karachi East in Sessions case No,106 of 2001 and was convicted for committing offence punishable under section 302-B, P.P.C. And sentenced to suffer imprisonment for life and also to pay fine of Rs, 1,00,000 (if recovered to be paid in equal shares to the legal-heirs of the two deceased persons of this case), or in default of the payment of fine amount, to further undergo imprisonment for two years; benefit of section 382-B, Cr.P.C. Stands awarded to him; the said judgment dated 15th February, 2005, stands impugned through this criminal appeal.
2. ' Heard Mr. Naveed Ahmed Khan, Advocate for the appellant, and Mr. Agha Zafir Ali for the State; also perused paper-book of the trial proceedings along with all relevant record.
3. ' The prosecution story briefly is to the effect that complainant Mohib Jan was sitting at the "Baithak" of the house of deceased Saeed Ali and Noorzada situated in the House bearing No,835 Sector 48/E, Korangi No,2-1/2, Karachi; Ahsanullah and Sherzada were also sitting there; so also deceased Saeed Ali and Noorzada were sitting there; present accused Muhammad Khan accompanied with absconding accused, namely, Gulbaz, Sartaj and Noor Khan went there duly armed with TT pistols; as soon as they reached the said "Baithak", the appellant along with the said absconding accused persons fired their respective TT pistols on the persons of Noorzada and Saeed Ali, in consequence whereof Saeed Ali died on the spot; Noorzada received bullet injuries on his person; appellant with the absconding accused persons ran away.
4. ' While Noorzada was being taken to the hospital in an attempt to provide medical treatment for his said injuries, he also succumbed to the same and died on the way; both the dead-bodies were taken to the Jinnah Post-Graduate Medical Center, Karachi, where the doctor on duty declared them to be dead; police officials on duty at Police Station Zaman Town were informed by telephone about the incident, which information was received by A.S.-I.P. Saeedullah who made such an entry in the "Roznamcha" and proceeded to the Jinnah Post-Graduate Medical Centre Hospital where he first issued a letter to the Medico-legal Officer on duty for issuance of a certificate as to the cause of death of the deceased persons who issued such certificate; then A.S.-I.P. Saeedullah examined the dead-bodies and prepared such mashirnamas as well as inquest reports. He also recorded 154, Cr.P.C. Statement of complainant Mohib Jan and sent the same to Police Station Zaman Town for registration of the F.I.R. On its basis, which was received by A.S.-I.P. Sagheer Ahmed who incorporated its contents in the 154, Cr.P.C. Book, and then sent its copy to S.H.O. Khanzada Yousuf Zai for investigation, who received the same after he had reached Jinnah Post-Graduate Medical Centre Hospital (on having received the information regarding incident of this case while on patrolling duty).
5. ' In the meanwhile, A.S.-I.P. Saeedullah Khan, after preparing the Mashirnama of the dead-bodies and their inquest reports, referred the dead-bodies to the Medico-legal Officer on duty for postmortem examinations, which were carried out by Medical Officer Iftikhar Ahmed. Then, the dead-bodies were handed over to complainant Mohib Jan by A.S.-I.P. Saeedullah; he secured the blood-stained clothes of the deceased persons and sealed the same, (handed over to him by the Medical Officer); then he handed over the case papers to S.H.O. Khanzada Yousuf Zai who took witness Sherzada to the place of incident; complainant Mohib Jan met them on their way, who was also taken by them with themselves.
6. ' S.H.O. Secured six empty bullets from the place of incident, three "Sika" along with blood-stained earth and prepared such mashirnama; he continued with the search of the accused persons as they belonged to faraway places; however, he received spy information on 18-1-2001 regarding the availability of present appellant in Sector 48-E, House No,77, Korangi Area, raided the said house in presence of Mohib Jan, A.S.-I.P. Saeedullah and Sherzada and arrested the appellant under such Mashirnama; an air-ticket along with a boarding card were recovered from his possession in his name, having travelled from Peshawar to Karachi; then the S.H.O. Took the accused/appellant to the police station and interrogated him, who then voluntarily led the police party and the Mashirs to a house and produced a TT pistol with three live bullets which were secured by the S.H.O. Under Mashirnama; the appellant also led the S.H.O. To the place of incident in presence of the Mashirs and pointed out the same to him.
7. ' After completion of the investigation, appellant was sent up to the competent Court of law to face the trial, while three co-accused were shown as absconders.
8. ' Learned trial Court issued non-bailable warrants of arrest against the absconding accused persons, and the process server reported that their whereabouts were not known and that there was no immediate prospect of their arrest in the near future; hence vide order dated 3rd May, 2001 the trial Court directed to proceed with the trial of the case in their absence under section 512, Cr.P.C., and issued proclamations under sections 87 and 88 Cr.P.C., the process server concerned reported actual publication of such proclamations against them.
9. ' Trial Court framed the charge against the appellant on 16-6-2001 to which he pleaded not guilty.
10. ' In support of its case, prosecution examined witness Hafiz Inamul Haq Qadri (who deposed to the effect that after offering Isha Prayers when he reached the Market Area of Ibrahim Haideri, he was informed that "Saeedullah and his brother" had been murdered, and that he neither witnessed the incident himself nor saw the culprits thereof); complainant Mohib Jan was also examined who deposed to the effect that on 5th January, 2001 at about 8-15 p.m. He was sitting in his house with Ahsanullah and Sherzada, whereas deceased Saeed. Ali and Noorzada were also sitting there, when appellant Muhammad Khan duly accompanied with absconding persons, namely, Gul Baz, Sartaj and Noor Khan went there and started firing with their' respective TT pistols on the persons of deceased Noorzada and Saeed Ali, and then all the four ran away from the place of incident; he further deposed that both deceased received bullet injuries on their respective persons in consequence whereof Saeed Ali died on the spot, and further that while Noorzada was being taken to the hospital to provide medical treatment to him, he also succumbed to the injuries and died on the way; this witness has further deposed about the passing of the information of the incident to the police officials, their arrival at the hospital and conduct of the post-mortem examinations by the concerned Medico-legal Officer; he also further deposed regarding the full details of the investigation carried out by the police officials.
11. ' Prosecution examined P. W . Sherzada, who deposed to the effect that on 5th January, 2001, he was present in the room adjacent to the house of the complainant party; Ahsanullah, Mohib Jan, Noorzada and Saeed Ali were also sitting there when at about 8-00 p.m. Or 8-10 p.m. Present accused/appellant Muhammad Khan along with absconding accused Sartaj, Noor Khan with one other culprit reached there, duly armed with TT pistols respectively, and fired the same on the persons of Noorzada and Saeed Ali, in consequence whereof Saeed All died on the spot, while Noorzada succumbed to the injuries after a shortwhile and died while being taken to the hospital (for medical treatment); further, both the dead-bodies were taken to the Jinnah-Post Graduate Medical Centre Hospital where the police officials also arrived on receiving information regarding the incident by telephone; the medical Officer concerned carried out the postmortem examination over the dead-bodies while the police officials examined the dead-bodies and also carried out inquest reports on the dead-bodies in presence of Mashirs; this witness further deposed that police officials were shown the place of incident and secured six empties of the bullets along with three "Sika", and also the blood-stained earth under such Mashirnama; further that, police official received the information and then raided the house of accused/appellant Muhammad Khan on 18-1-2001 at 11-25 a.m. And arrested him under such Mashirnama. On his personal search, a Boarding Card and air-ticket of Aero Asia Company was secured from his possession; subsequently, the appellant volunteered to produce the weapon of offence and led the police and the Mashirs to his house, took out a pistol from under a carpet and produced the same before the police containing three live bullets in its chamber; such Mashirnama of recovery was prepared in presence of the Mashirs.
12. ' P.W. A.S.-I.P. Sagheer Ahmed deposed that he was working as duty officer at Police Station Zaman Town on 5th January, 2001, received 154, Cr.P.C. Statement sent by A.S.-I.P. Saeedullah and incorporated its contents in 154, Cr.P.C. Book.
13. ' P.W. Qari Muhammad Zaman deposed that on 5-1-2001 at about 8-00 p.m. Or 8-15 p.m. He returned back to the house after purchasing the milk and deceased Saeed Ali, Noorzada were sitting there and so also complainant Mohib Jan, Sherzada and Ahsanullah were present there; further accused/appellant Muhammad Khan with "his three brothers" duly armed with TT pistols entered into same, started firing on the persons of Saeed Ali and Noorzada and then made good their escape; further,' Saeed Ali died on the spot while Noorzada was seriously injured who also succumbed to the injuries and died while being taken to the hospital. Both dead-bodies were then taken to the police station.
14. ' A.S.-I.P. Saeedullah has deposed to the same effect as narrated above Mr. Abdul Latif Abbasi Judicial Magistrate was also examined in the trial Court who deposed that police requested him to record 161, Cr.P.C. Statements of P.Ws. Sherzada, Qari Muhammad Zaman, Mohib Jan and Umra Jan and he directed for recording their 164, Cr.P.C. Statements on 29-1-2001 but only witness Sherzada was produced before him by the police on the said adjourned date and he recorded his 164, Cr.P.C.
15. Statement. Station House Officer, Khanzada Yousuf Zai deposed to the same effect as narrated above.
16. ' Medical Officer Dr. Abdul Hameed Shaikh deposed that on 5-1-2001 he was working as Medico- legal Officer at Jinnah Post-Graduate Medical Centre Karachi when at about 9-05 p.m. Dead bodies of Noorzada and Saeed All were taken to him by A.S.-1.P. Saeedullah with a request to carry out post-mortem examination; he carried out the same and found the following two injuries on the dead body of Noorzada: --
(1) Fire-arm wound 0.5 cm in diameter. On left side chest lower 1/3rd chest.
(2) Fire-arm wound 1.5 c.m. On right side upper 1/3 of thigh Anteriorly, Margins are rough, irregular and everted wound of Ent.
17. ' He further deposed that on opening the chest cavity, it was found full of blood; remaining organs were normal, abdominal cavity was found containing blood, multiple wounds were seen in the intestine; punctured wound was seen in the spleen and liver. He opined that the cause of death was cardio respiratory failure due to severe hamorrhage and shock as a result of firearm wounds described above.
18. ' Dr. Iftikhar Ahmed, Medico-legal Officer of the same hospital, carried out the post-mortem examination on the dead body of deceased Saeed Ali on 5th January, 2001 and issued the post- mortem notes; he found the following six injuries on the dead body:--
(1) Punctured wound 1 cm in diameter over left occipital region margins inverted, wounds of entry.
(2) Punctured wound 1.5 cm x 1 cm over left parietal region, margins inverted, wound of exit.
(3) Punctured wound size 0.5 cm in diameter over left side upper part chest margins inverted, wound of entry.
(4) Punctured wound size 1 cm x 1.5 cm on left side back of chest, margins inverted, wound of Exit.
(5) Punctured wound size 1 cm in diameter over dorsal aspect left index finger, margins inverted wound of entry.
(6) Punctured wound size 1 cm x 1.5 cm over palmer aspect left index finger, margins inverted, wound of Exit.
19. ' According to him, cause of death of the said deceased was cardio respiratory failure, due to head injury resulting from fire-arm, died instantaneously.
20. ' In his statement under section 342, Cr.P.C, the appellant denied the allegations and stated that the witnesses falsely deposed against him due to enmity; he also examined himself under section 340(2), Cr.P.C. To the effect that he was present in his native place viz. Mehmond Agency (Shamsa) on the night of incident; he was informed that his name was given by the complainant party as accused for the incident of this case and, therefore, he came to Karachi from Peshawar "to clear my position" and went to the police station; police officials did not listen to him and instead falsely implicated him in this case by foisting an unlicensed TT pistol on him; he further deposed that the learned Court of Session, Karachi-East, vide judgment dated 11th August, 2004 separately tried him for the alleged offence under section 13(d) of Arms Ordinance and acquitted him (by setting aside the judgment of conviction dated 1st June, 2004 which was earlier recorded by the 14th Judicial Magistrate, Karachi-East, in Criminal Case No,175 of 2001 regarding the above said recovery of unlicensed TT pistol from his possession).
21. ' The appellant examined witnesses Muhammad Ashraf Khan, Zaynoor Shah, Riaz and Bashir Ahmed in his defence.
22. ' D . W . Muhammad Ashraf Khan deposed that the incident took place during a dark night, he heard fire-arm reports, went to the place of incident and, found dead bodies of Saeed Ali and Noorzada; he raised cries but at the first instance no one responded to the same but then one neighbouror arrived there and helped him to shift the dead bodies to the hospital; according to him the incident was not witnessed by anybody.
23. ' D.W. Zaynoor Shah deposed to the effect that accused/appellant was present in District Mardan where he had seen him, when he went to the house of his sister for the purpose of Bid Celebrations.
24. ' D.W.-Riaz deposed to the effect that appellant Muhammad Khan had come to his shop to get his clothes pressed during the month of Ramzan, and informed this witness that he was to leave for his village and actually left for the same on the following day.
25. ' D.W.-Bashir Ahmed deposed that on the 21st day of month of Ramzan, appellant went to him on his milk shop and informed him that he would leave for his village and actually left for the same on the following day.
26. ' Learned counsel for the appellant assailed the impugned judgment by arguing that the witnesses of the prosecution admitted enmity in between the parties, that they are interested as well as hostile to the appellant, that they are also closely related to the deceased persons, that none from the locality of the place of incident was cited as witness of the incident though admittedly many neighbours collected at the time of incident; that the depositions of the witnesses suffer from the contradictions as also infirmity thereby making their statements unreliable for the purpose of conviction on a capital charge; learned counsel further argued that evidence of the defence witnesses was not given due weight by the trial Court and was illegally discarded inasmuch as they fully proved that the appellant had already left for his native place and was not present at Karachi on the night of incident; further that the appellant was informed that the complainant party had falsely given his name as an accused for the incident of this case and, therefore, himself came to Karachi from Peshawar, went to the police station to prove that he was not available at Karachi during the days of incident of this case, but the police officials did not listen him and falsely implicated him at the instance of complainant party, by foisting unlicensed TT pistol; further, though, the appellant was convicted by the Magisterial Court for allegedly being in possession of unlicensed TT pistol but the Appellate Court of Session set aside the said judgment of conviction and acquitted him by awarding benefit of doubt and, therefore, recovery of TT pistol at the instance of appellant cannot be believed for the purpose of present case; learned counsel cited 2003 PCr.LJ 657, 2004 PCr.LJ 1564, 2000 PCr.LJ 1360 and PLD 1982 SC 429.
27. ' Learned counsel further argued that the appellant had come from Peshawar to Karachi by air for the above said purpose and that he was in possession of the air ticket. As well as the Boarding Card which clearly bore the name of the appellant to be the actual passenger against such an air ticket, which mentions the date of flight as 16th January, 2001, thereby indicating that the appellant could not have come from Peshawar during the night of the incident and again to come from Peshawar to Karachi on 16th January through the flight taking off at 1050 hours from Peshawar; even then the trial Court failed to properly appreciate such aspect of the case.
28. ' It is a settled principle of law that merely because the witnesses of the incident are related to the deceased, they cannot necessarily be taken to be interested and until, unless it is established that they falsely involved the accused by exonerating the actual culprit; some of the witnesses of prosecution, though admitted existence of enmity between the deceased persons on the one hand and the appellant and others on the other, yet the details of the enmity have not been furnished in the evidence of the prosecution nor in the evidence produced in the defence though, complainant stated in the F.I.R. That the accused party had kidnapped a girl, got her naked photographs and then killed her and concealed her dead body so as not to be found out, whereafter they falsely alleged the deceased persons for such incident of the murder of the said girl; but the witnesses of the prosecution did not state about any such motive in their respective depositions.
29. ' Merely because the enmity stands admitted to exist in between the parties, it cannot necessarily lead to a conclusion that the witnesses falsely implicated the appellant for the incident of this case; the existence of the enmity by itself would be no ground to say that the witnesses of the prosecution would necessarily get the appellant falsely implicated by means of exonerating the actual culprits of the incident. Such an aspect of the case is to be assessed keeping in view peculiar facts and circumstances of each case separately. Honourable Supreme Court recorded the following observations in 2005 SCM R 1110:-- "11. So far the motive for the commission of crime, prosecution case has been that on the day of occurrence children of Muhammad Akbar (deceased) were playing cricket and ball of the same fell in the courtyard of the petitioners' house which when demanded by Mst. Hajran Bibi deceased was refused on which there was exchange of hot words between the petitioners and Mst. Hajran Bibi who had also abused them consequently in order to avenge the said insult the petitioner inflicted bat blow upon, Mst. Hajran who called Ahmad Khan, Mst. Hayat Bibi and Mst. Chando Bibi in her house when the cause of incident was being discussed, the petitioners/convicts and co- accused entered into the house by scaling over the wall and the occurrence took place as narrated in the F.I.R. Co-accused Amanullah in his statement under section 342, Cr.P.C. Has also admitted in answer to question No,1 that cricket ball fell in their courtyard for which Mst. Hajran Bibi made demand which was refused as a result of which petitioner Mirza Khan inflicted bat blow on the head of Mst. Hajran Bibi. In view of the above evidence on record the prosecution proved the motive for the commission of offence which led to five murders. However, it may also be observed even if we assume that the prosecution has not proved the motive or the motive stated was a weak but the same would not affect the prosecution case considering that proof of motive is not legal requirement in presence of other convincing unimpeachable ocular version coupled with circumstantial evidence viz. Medical and absconsion. Reference may be made to the decision of this Court in Imtiaz Ahmad v. The State 2001 SCM R 1334 at page 1338 wherein this Court has observed:-- "It may also be observed that allegations and proof of motive are not legal requirements for awarding maximum penalty of death in murder case when the prosecution has proved the guilt of the appellant accused beyond reasonable doubt as in the instant case considering also the fact that in the dispensation of criminal justice, decision of the case must not be taken in relation to accused's case "but must rest on the examination of entire evidence" in view of principles in Woolmingtin's case 1935 Act 462. Reference may be made to Talib Hussain v. State 1995 SCM R 1776, so also even in case of weak motive when there has been otherwise strong and reliable evidence, motive would not come in the way of the case of prosecution."
12. The ocular testimony of all the three witnesses is confidence-inspiring and unimpeachable, implicating the petitioner with the commission of crime who have also no animus against them. It is daytime occurrence, which has been reported with promptitude whereby five persons were killed in brutal manner by the petitioners convicts which is fully corroborated by medical evidence and evidence of motive. It may not be out of place to mention here that Mirza Khan under his 342, Cr.P.C. Statement in answer to question No .6 has stated as under:--- "I entered into the courtyard. Seeing there I found Mst., Chando Bibi complainant sitting with Akbar Khan deceased at same cot. Muhammad Akbar deceased was molesting her. I wanted to forbid Muhammad Akbar to remain away from bad habits. No P.W. Was present at that time. After talking and complaining him, he became enraged and took the loaded kalashnikov which had already with him at that time. The other deceased intervened there. During this scuffle, the kalashnikov went off and burst hit all the five deceased including Muhammad Akbar."
30. ' The trial Court at page 31 of the judgment on the point of above defence plea that the kalashnikov went off and burst hit all the five deceased, has observed as under:- "In view of above stand taken by Mirza Khan accused and the learned counsel for the accused persons, the presence of Mst. Chando Bibi stands admitted on the spot. Mst. Chando Bibi while appearing as P.W.1 has fully supported the prosecution story as taken by her in the F.I.R. Exh. P.A. In the same way presence of Sohail Akbar P.W.2 was also natural one because he is a student and it was a public holiday on the day of occurrence (as it used to be before the month of February, 1997). The contention of the learned counsel for the accused that the evidence of Sohail Akbar P.W.2 cannot be considered because, of non-availability of his name in the F.I.R., is not tenable due to the reason that for believing the testimony of a witness the only thing is to be considered is as to whether the occurrence was witnessed by him and nothing else and as discussed above, his presence on the spot and witnessing of the occurrence stands proved beyond any shadow of doubt.""
31. So also, in 2005 SCM R 1958 (a) Honourable Supreme Court observed to the effect that mere relationship or close association of prosecution witness with deceased in absence of established hostility, animosity or any other motive to depose falsely would not be sufficient to hold him to be interested witness and his testimony would not be discarded on such ground, alone.
32. Thus, despite existence of the enmity in between the parties, the depositions of the witnesses of the prosecution can be safely relied upon for conviction of the accused provided they are free from doubt and inspire confidence. The statements of prosecution witnesses having been carefully examined, the same inspire the confidence to the effect that appellant with others went to the "Baithak" of the complainant party duly armed with TT pistols, fired the same upon deceased Saeed Ali and Noorzada with intention to cause their death. On the face of such depositions, the defence theory is to the effect that appellant was informed in his native place that his name was falsely given in the F.I.R, pertaining to the incident of this case and immediately came to Karachi through a flight of Aero Asia Company, and straightaway went to the police station to clarify his position; but there is no evidence to show as to how and in what manner the information to that effect was conveyed to him as the incident is said to have taken place at about 2015 hours on 5th January, 2001 whereas the air-ticket is dated 16th January.
33. G Furthermore, merely because the air-ticket was issued in the name of the appellant the same by itself would not undo entire eye-witness account furnished by the above named witnesses, who clearly implicate the appellant for having gone to the place of incident with others duly armed with the TT pistols, and fired straight upon the deceased persons with intention to kill them.
34. Appellant was acquitted by the learned Sessions Court, Karachi-East, in the case under section 13(e) of Arms Ordinance only for the technical reasons that no private Mashir was examined by the prosecution in support of such a recovery from the possession of the appellant; settled principle of law is that police officials are as good witnesses as anybody else could be until and unless the accused satisfactorily points out cogent reasons to arrive at a conclusion of his having been falsely implicated; evidence produced in defence does not inspire confidence in his defence theory that the complainant party falsely implicated him for the murders of above named deceased persons.
35. It is a settled principle of law that minor contradictions in the depositions of the witnesses of the prosecution which otherwise do not destroy its case, would not be sufficient to record a finding that they falsely deposed against the accused.
36. Under the circumstances, the trial Court rightly found appellant guilty and rightly convicted him for offence under section 302-B, P.P.C; there is no revision/ appeal for enhancement of the sentence of imprisonment for life awarded by the trial Court against the appellant for the murders of two deceased persons.
37. No force is found in this criminal appeal and, therefore, the same is hereby dismissed. 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.