' S. ALI HASSAN RIZVI, J.---Through this judgment, we propose to decide the following three Criminal Appeals along with Murder Reference, as all these have arisen out of the same judgment dated 31- 7-2002, handed down by Mr. Muhammad Siddique, learned Additional Sessions Judge, Lahore as a result of trial of case F.I.R. Nos.80/99, dated 8-3-1999 registered at Police Station Manga Mandi, Lahore on the statement of Shahadat Ali, complainant P. W.5 (brother of deceased Haji Liaqat Ali):- -
(i) Criminal Appeal No, 24/03 Muhammad Mansha v. The State (preferred from jail).
(ii) Criminal Appeal No, 1197-02 Muhammad Mansha v. The State.
(iii) Criminal Appeal No, 1624-02 Muhammad Latif v. The State.
(iv) Murder Reference No, 683-02
2. The learned Trial Judge had framed the charge on 3-6-2000 against Muhammad Mansha convict-appellant, Muhammad Ali alias Manna son of Muhammad Sharif, Muhammad Ali alias Chhurimar son of Bhaman and Mst. Shakeela Bibi wife of Muhammad All Chhurimar.
3. F.I.R. No, 80 of 1999 (Ext.PC/1) was registered on the statement (Ext.PC) of Shahadat Ali, real brother of deceased Haji Liaqat Ali on 7-3-1999 at 8-30 a.m. It was recorded by Muhammad Asif, A.S.-I. Of Chowki Sundar Adda, Lahore at Jinnah Hospital, Lahore where Haji Liaqat Ali had been removed in injured condition having received fire-arm injuries.
4. The prosecution story as disclosed in the F.I.R. Was as follows. Shahadat Ali complainant was a Zamindar and also used to deal in milk. At about 6-45 a.m., as usual, he went to the house of his real brother Haji Liaqat Ali where Muhammad Ashiq son of Munshi Khan of the same village Rangeelpur was present. When the complainant was just taking up cane of milk, his brother Haji Liaqat Ali deceased came out of his residential room. When he was in the courtyard, suddenly Ali Abbas alias Bholi son of Muhammad Ali Chhurimar armed with Kalashinkov, Muhammad Mansha son of Umer Din armed with .44 bore rifle, at the rooftop of the house of Muhammad Yasin son of Manna, Manna son of Muhammad Sharif armed with .222 bore rifle present on the rooftop of the house of Shah Muhammad and Muhammad Ali Chhurimar son of Bhaman armed with .12 bore gun present on the rooftop of house of Shahadat son of Chirag where they were waylaying the deceased, started firing with their respective weapons. The first fire was issued by Muhammad Mansha hitting Haji Liaqat All deceased on the left side of his front chest, upon which he fell down. It was followed by a burst issued by Ali Abbas alias Bholi from his Kalashinkov hitting Haji Liaqat All on his left Kuhla back side. On the alarm raised by the complainant and Muhammad Ashiq P.W., Manna and Muhammad Ali Chhurimar fired at them with their weapons with the intention to take their life. The bullets hit the Nim tree. All the four accused resorted to further firing, some of which hit the walls of the premises.
' The motive for the occurrence as stated in the F.I.R. Was that there was enmity between Haji Liaqat Ali deceased and Muhammad Ali Chhurimar. It was further alleged in the F.I.R. That the afore-said four accused had committed the occurrence on the instigation of Muhammad son of Mahnd Bukhsh and Mst. Shakeela wife of Muhammad Ali Chhurimar.
5. Haji Liaqat All deceased was removed to Jinnah Hospital, Lahore where statement of Shahadat Ali complainant (P.W.5) was recorded by Muhammad Asif, A.S.-I. (P.W.5) of Chowki Sundar at 8-30 a.m. On 7-3-1999. Initially, the F.I.R. Was registered under sections 324/109/34, P.P.C. Later, on the death of Haji Liaqat Ali deceased the same day (7-3-1999) at 4-5 a.m. In the Emergency Ward of Jinnah Hospital, offence under section 302, P.P.C. Was added and inquest report (Ext.PL) was prepared by the Investigating Officer Muhammad Younas, Sub-Inspector (P.W.13).
6. In the course of trial, the prosecution examined as many as 16 witnesses. Shahadat Ali complainant appearing as P.W.5 proved his statement (Exh.PC) on the basis of which F.I.R.
(Exh.PC/1) was recorded. Muhammad Ashiq, an eye-witness supported the prosecution case on all material particulaRs, Muhammad Asif, A.S.-I. (P.W.15) who had recorded the statement of complainant Shahadat Ali had appeared as P.W.16. Muhammad Younas, (P.W.13) was the Investigating Officer. Dr. Muhammad Khalid (P.W.12), Dr. Manzoor Hussain (P.W.14) and Dr. Mian Muhammad Azam (P.W.17) provided the medical account. Report of Chemical Examiner (Exh.PX), report Serologist (Exh.PX/1), reports of Forensic Science Laboratory (Exh.PY and PZ), copy of the post-mortem report along with pictorial diagram (Exh.PH), copy of inquest report (Exh.PL) were also relied upon by the prosecution. Recovery of empty cartridges (Exh.PA), blood-stained clothes of the deceased (Exh.PA/1), recovery of blood through Ruee from the spot (Exh.PB), recovery of lead bullets (Exh.PB/1) were also relied upon by the prosecution.
7. Likewise, recovery of .222 bore rifle on 14-4-1999 at the instance of Muhammad Ali alias Manna son of Muhammad Sharif Joiya along with 11 bullets was proved vide memo. (Exh.PD). The recovery memo was testified by Muhammad lqbal (P.W.6) and the I.O. Muhammad Younas, S.-I. Similarly recovery of .44 bore rifle with 13 bullets on the leading and pointation of Muhammad Mansha son of Umer Din Awan on 14-4-1999 vide memo. (Exh.PE) was proved through same Muhammad lqbal (P.W.6) and Investigating Officer Muhammad Younas (P.W.13). Recovery of .12 bore gun along with 23 cartridges on the leading and pointation of Muhammad Ali alias Chhurimar son of Bhaman Joiya of Rangeelpur on 9-5-1999 vide memo. (Exh.PF) was also proved through Investigating Officer Mthannnad Younas (P.W.13) and Muhammad Sharif, Constable (P.W.17).
8. The site plan (Exh.PG) and its duplicate (Exh.PG/1) in the scale of 32 feet; equal to one inch was proved by Hameed-ud-Din Chishti, Naqsha Navees (P.W.8).
9. After conclusion of the trial, the learned Trial Judge vide his judgment dated 31-7-2002 acquitted Mst. Shakeela and Muhammad Ali alias Manna on the benefit of doubt. He declared Muhammad Ali alias Chhurimar and Muhammad son of Mahnd Bukhsh as proclaimed offendeRs, Perpetual non- bailable warrants of arrest were directed to be issued and served through the S.H.O. Concerned.
10. However, he found the case against Muhammad Mansha convict (appellant) stridently different and believing the ocular account as provided by Muhammad Ashiq (P.W.1) and complainant Shahadat. Ali (P.W.5) corroborated with recovery of .44 bore rifle along with 13 bullets on the leading and pointing out of Muhammad Mansha vide memo. (Exh.PE), on 14-4-1999 as proved by Muhammad lqbal (P.W.6) and Muhammad Younas, S.-I./Investigating Officer proceeded to convict him under section 302(b), P.P.C. By way of Tazir. Consequently, he awarded him the death penalty thereunder. Additionally, he directed the convict appellant Muhammad Mansha to pay Rs, 50,000 as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. In default of payment, he was directed to undergo simple imprisonment for six months.
11. The learned Trial Judge sent a reference under section 374, Cr.P.C. For confirmation of the sentence of death awarded to Muhammad Mansha convict-appellant. The appellant filed Criminal Appeal No, 1197 of 2002 through counsel while he also preferred jail appeal vide. Criminal Appeal No, 2-J of 2003. On the other hand, Muhammad Latif feeling aggrieved by the order of acquittal passed in favour-of Mst. Shakeela and Muhammad Ali alias Manna, filed Criminal Appeal No, 1624 of 2002 in terms of section 417(2A), Cr.P.C. This is how we are seized of the afore-mentioned three criminal appeals and Murder Reference No, 683 of 2002.
12. We have heard learned counsel for the appellants as also learned counsel for the State. We have also gone through the prosecution evidence from cover to cover.
13. It was argued on behalf of the convict-appellant Muhammad Mansha that there was no independent eye-witness worth reliance on a capital charge; that recovery to rifle .44 bore vide recovery memo. (Exh.PE), was planted on Muhammad Mansha convict-appellant; that the prosecuto evidence suffers from irretrievable dents and that at all events, Muhammad Mansha appellant deserved to be acquitted.
14. On the other hand, learned counsel for Muhammad Latif appellant in Criminal Appeal No, 1624 of 2002 brought under section 417(2A), Cr.P.C. Against acquittal. Mst. Shakeela and Muhammad Ali alias Manna, vehemently argued that the prosecution had proved its case beyond reasonable doubt; that the eye-witnesses were truthful persons and that there was absolutely no motive to falsely implicate any of the accused persons. According to the learned counsel, the appeal filed by convict-appellant Muhammad Mansha deserved to be dismissed and further that the acquitted accused were also liable to be convicted and appropriately sentenced.
15. Once again we have gone through the prosecution evidence in the light of the arguments addressed by learned counsel for the parties. The place of occurrence was not disputed by either side. Both the eyewitnesses, namely, Muhammad Ashiq and Shahadat Ali supported on all material particulars the prosecution case as mentioned in the F.I.R. (Exh.PC/1) which was recorded on the basis of statement of Shahadat Ali complainant (Exh.PC). Repetition of the narration of the F.I.R. Is not necessary here. Detailed allegations have already been mentioned in para-4 ante. The occurrence had taken place at 6-45 a.m. Right in the house of Haji Liaqat deceased where he was shooted at in a calculated attack. The statement of Shahadat Ali was recorded at 8-30 a.m. On the same day. The complainant was naturally more worried to save the life of his brother and he had immediately removed him to Jinnah Hospital, Lahore where his statement was recorded at 8-30 a.m. Considering the distance between the place of occurrence and Jinnah Hospital, we find that there was no worthwhile delay in lodging the F.I.R. Or for making undue deliberations. The presence of both the eye-witnesses at the spot is quite natural and inspires our confidence. Mere relationship of witnesses inter se or with the deceased, would not make them untrustworthy by any stretch of imagination. The occurrence took place in the village during day time. There could be no chance of mis identity of the assailants. The arguments that no person from the village had come forward to become a prosecution witness, is not acceptable. The reason is that reluctant of people for becoming a witness particularly in murder cases where parties are inimical, is a judicially recognized fact. Even otherwise, the instinct of keeping the body and soul together rules harder than becoming a martyr in quest of justice. The presence of P.Ws at the place of occurrence was quite natural.
16. Haji Liaqat Ali deceased when removed to Jinnah Hospital in injured condition, was unconscious and disoriented on account of firearm entry wound on the front of his chest above the left nipple and firearm entry wound on the right buttock. He was examined by Dr. Manzoor Hussain (P.W.14) on 7-3-1999 at 7-23 a.m. He had succumbed to the injuries the same day towards the evening time at 4-5 p.m. Thereafter, post- mortem examination on his dead-body was conducted on 8-3-1999 at 12-45 p.m. By Dr. Muhammad Khalid (P.W.12). The medical evidence provided full corroboration to the eye-witness account.
17. Acquittal of co-accused Mst. Shakeela and Muhammad Ali alias Manna on the benefit of doubt appeared to be as a matter of abundant caution and their acquittal would, in our view, in no manner create any reasonable doubt on the prosecution version. The recovery of .44 bore rifle along with 13 bullets on the leading and pointing out of Muhammad Mansha convict-appellant on 14-4-1999 vide Exh.PE stood proved on record to the satisfaction of the Court vide the statements of Muhammad lqbal, Constable (P.W.6) and Muhammad Younas, S.-I./Investigating Officer (P.W.13).
The recovery memo. (Exh.PE) shows that the convict-appellant Muhammad Mansha led to the recovery of .44 bore rifle from near the manger (Khurli) lying in the Haveli of Muhammad Ali alias Chhurimar co-accused and that the same was concealed under the earth. We conclude that the concealment of rifle .44 bore was within the exclusive knowledge of the convict appellant Muhammad Mansha. The .Medical evidence and the recovery of .44 bore rifle along with 13 bullets provided sufficient corroboration to the prosecution case as disclosed in the F.I.R. And proved through the statements of Muhammad Ashiq (P.W.1) and Shahadat Ali (P.W.6). The expert report returned by the Forensic Science Laboratory relating to .44 bore rifle recovered on the leading and pointing out of Muhammad Mansha convict-appellant was positive vide Exh.PY. It, therefore, provided a link connecting Muhammad Mansha appellant with the crime of murder of Haji Liaqat Ali deceased.
18. The defence version of Muhammad Mansha convict-appellant as given by him under section 342, Cr.P.C. Was that Abbas alias Bholi co-accused had old enmity with the complainant party and it was he (Abbas alias Bholi) who had committed this murder. He further stated that the occurrence was committed only by one person. According to him, the eye-witnesses being related inter se should not be believed. It was also his case that the witnesses were inimical to him. It may be noted that if Muhammad Mansha convict-appellant had no participation in the occurrence, there was absolutely no basis with him to plead that the occurrence was committed only by one person. His version that the eyewitnesses were inimical to him was bald and not acceptable to us.
Conversely, in a way he had admitted Ms enmity with the complainant party. Enmity and motive, they say, would cut both ways.
19. After carefully going through the entire record, we are satisfied that the prosecution has proved its case against Muhammad Mansha convict-appellant beyond responsible doubt. In our view, he is responsible for the murder of Haji Liaqat Ali deceased from top to tottom. It was a stark staring murder and called for just punishment. The appeals filed by him (Criminal Appeals Nos. 2-J of 2003 and 1197 of 2002) are, therefore, dismissed and sentence of death awarded to him by the learned trial Judge is Confirmed.
20. Criminal Appeal No, 1624 of 2002 filed by Muhammad Latif against the acquittal of Mst.
Shakeela and Muhammad Ali alias Manna also fails. The evidence on record was too tenuous to nail them down on a capital charge. The allegation against them was only of abetment. The ratiocination adopted by the learned trial Judge while recording their acquittal was sound. We have no reason to disagree with him. After going through the entire evidence, we do not find any reason to differ with the conclusion arrived at by the learned Trial Judge to the above extent. This appeal too is dismissed.
21. As a result, Murder Reference No, 683 of 2002 as submitted by learned Trial Judge in terms of section 374, Cr.P.C. Stands answered in affirmative.