1. ' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.---Appellants namely Muhammad Saeed son of Muhammad Ramzan ad Liaquat Ali son of Ashiq Hussain were tried by Additional Sessions Judge, Khushab in case F.I.R. No,60 of 2003 dated 13-9-2003 for the offence under sections 302/324/34, P.P.C. Registered at Police Station Jaura Kallan, who vide judgment dated 21-2-2004 convicted and sentenced both the appellants which read as under:-- Under section 302(b), P.P.C.Death to both the appellants on two counts as Tazir.
2. They were also directed to pay Rs,50,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of Mubarik Ahmed, or in default whereof to undergo three months' R.I. Each.
3. Under section 324/34, P.P.C.Five years' R.I. To Liaquat Ali with a fine of Rs,50,000 or in default whereof to further undergo S.I. For two months.
4. Under Section 337-A(i), P.P.C.Two years' R.I. To Liaquat Ali and to pay daman of Rs,10,000 ' Feeling aggrieved by the impugned judgment, appellants filed the instant appeal through jail (Criminal Appeal No,214 of 2004), whereas trial Court also sent a reference.(i.e. Murder Reference No,414 of 2004) seeking confirmation of death sentence awarded to both the appellants. We propose to dispose of both these matters together through this single judgment.
2. Briefly stated facts of the prosecution case as penned in the F.I.R. (Exh.P.E.) are that Tasawar Ahmed complainant along with his brothers namely Mubashar Ahmed, Muhammad Qasim, Muhammad Ahmed and Mubarik Ahmed was residing in separate houses constructed in one Haveli and towards north outside of the said Haveli they used to keep their cattle. On 13-9-2003 at about 6-00 a.m., he along with Muhammad Qasim, Mubashir Ahmed and Mubarik Ahmed brothers, for milking their buffaloes, were coming out from southern door of the Haveli, when Liaquat Ali armed with Kalashnikov and Muhammad Saeed armed with .30 bore pistol who were in ambush raised Lalkara upon which they came back and bolted the door of the Haveli from inside.
5. Muhammad Saeed and Liaquat All scaled over the southern and eastern walls respectively and came in the courtyard. Mubarik Ahmed and his wife Nasreen in order to save their lives entered into the western and eastern rooms of their house respectively. Muhammad Saeed fired at Mubarik Ahmed hitting him on the right side of chest and right thigh. Liaquat Ali fired twice with Kalashnikov hitting Mubarik Ahmed on the left side of his chest and right thigh due to which he fell down. In the other room Muhammad Saeed fired at Mst. Nasreen which hit her on the right side of face. Liaquat Ali fired three shots of Kalashnikov hitting on her right side of face, left temporal region and right flank who also fell down. The brother of complainant Muhammad Qasim raised Lalkara upon which Liaquat All fired with Kalashnikov which hit him on the left side of head. Thereafter the accused while firing in air went out of Haveli from northern side. Statedly both Mubarik Ahmed and Mst.
6. Nasreen succumbed to the injuries at the spot.
7. ' In the year 1993 and 1998 Mubarik Ahmed had abducted Mst. Nasreen twice and later on due to interference of Bradari, matter was patched up and compromise was effected with heirs of Nasreen upon which she was married with Mubarik Ahmed and she was living with her husband.
8. Statedly Liaquat Ali appellant had a grudge against Mubarik Ahmed qua the abduction of his sister (Mst. Nasreen) and due to this grudge, accused in pursuance of their pre-concert had killed both of them and caused injury to Muhammad Qasim with intent to kill him.
3. The formal F.I.R. Was entered upon the statement (Exh.P.E.) made by Tasawar Ahmed before Muhammad Islam S.-I. (P.W.12). This police officer also conducted the formal investigation of this case who visited the place of occurrence, prepared injury statements Exh.P.K., Exh.P.P., inquest reports Exh.P.L., Exh.P.Q. And sent the bodies to the mortuary for post-mortem examination. He also prepared injury statement of Muhammad Qasim (Exh.P.N.) and sent him for medical examination.
9. During the spot inspection, he took into possession bloodstained earth vide recovery memo Exh.P.G.
10. And Exh.P.F., he also collected seven crime empties of Kalashnikov P.10/1-7 and three crime-empties of pistol .30 bore P.11/1-3 from the spot which were taken into possession vide recovery memo Exh.P.H. This Police Officer also arrested both the appellants on 19-9-2003 and on 23-9-2003, Muhammad Saeed appellant led to the recovery of pistol .30 bore P.9 which was taken into possession vide recovery memo Exh.P.D. On the same day Liaquat Ali appellant also led to the recovery of Kalashnikov P.8 which was taken into possession vide recovery memo. Exh.P.C. And finally investigating agency after complying with legal formalities submitted challan before the trial Court where prosecution produced eight witnesses including Tasawar Ahmed P.W.5 complainant and Muhammad Qasim P.W.6 (eye-witnesses of the occurrence).
4. Learned trial Court also examined appellant under section 342, Cr.P.C., who while answering to question "Have you anything else to say?", made almost the same reply which reads as under:-- "I am innocent. In fact, Khan Muhammad husband of Nasreen was inimical towards Mubarik Ahmed and Mst. Nasreen because of her elopement. Moreover, the deceased and Qasim P.W. Were challaned for the murder of one Tayyab. The sons and brothers of said Tayyab were also inimical towards Mubarik Ahmed and Muhammad Qasim. The murders were blind and seems to be occurred during night time. I was implicated only because of relationship with Mst. Nasreen".
11. ' None of the appellants made statement under section 340(2), Cr.P.C., however Liaquat Ali appellant produced some documents i.e. Complaint Exh.D.B. Instituted by Khan Muhammad against Mubarik Ahmed and Nasreen Akhtar deceased persons, certified copy of F.I.R. No,11 of 1998 which was got registered by Khan Muhammad against Mubarik Ahmed and Mst. Nasreen Exh.D.C., attested copy of F.I.R. No,8 of 1993 Exh.D.D. Which was got registered by Khan Muhammad against Mubarik Ahmed and Nasreen deceased persons, attested copy of death register of Mubarik Ahmed Exh.D.E., memorandum of S.S.P. Mark "A" in case F.I.R. No,11/1998, a letter from Prime Minister's Secretariat to Khan Muhammad Mark "B, affidavit of Muhammad Ramzan uncle of daughters of Nasreen deceased Mark "C", affidavit of Waseem Bibi Mark "D", of Amiran Bibi Mark "E", Muhammad Asif Mark "F" and that of Khan Muhammad Mark "G" in his defence.
12. ' Learned trial Court after appraisal of evidence vide judgment dated 21-2-2004 convicted and sentenced the appellants, as narrated earlier, hence, this appeal.
5. Learned counsel for the appellants at the very outset does not press this appeal to the extent of Liaquat Ali appellant qua his conviction and asked for lesser sentence on the grounds that he had committed the murder under Ghairat because his sister Mst. Nasreen was abducted by Mubarik deceased and both of them were living without proper Nikah. With regard to Saeed Ahmed appellant, learned counsel submits that he being cousin of Liaquat Ali accused was involved in this case with mala fide intention, the medical evidence contradicts the ocular account to the extent of this appellant, the empties recovered from the spot had also not matched with the crime weapon recovered at his instance and that in the circumstances to the extent of this appellant impugned judgment could not be upheld.
13. ' Conversely learned counsel for the complainant as well as Additional Prosecutor-General while supporting the impugned judgment vehemently opposed the instant appeal.
6. Heard. File perused.
14. ' Mst. Nasreen and Mubarik Ali were done to death in their house on 13-9-2003 at 6-00 a.m., by the appellants while causing them fire-arm injuries. Allegedly they had also caused fire-arm injury to Muhammad Qasim (P.W.6). At the relevant time Liaquat Ali appellant was carrying a Kalashnikov, whereas Saeed Ahmed appellant had a .30 bore pistol and along with Muhammad Qasim (P.W.6) this occurrence was also witnessed by complainant Tasawar Ahmed (P.W.5). Both these witnesses while deposing before the trial Court had supported the prosecution case and narrated the circumstances under which the deceased were done to death.
15. ' A careful analysis of ocular account shows that the possibility that eye-witnesses had exaggerated to the extent of Muhammad Saeed appellant could not be ruled out.
16. Firstly: ' Allegedly at the relevant time Muhammad Saeed appellant was carrying a .30 bore pistol, whereas his co-accused was carrying a Kalashnikov and both of them had caused injuries to both of the deceased. On the other hand, the medical evidence i.e. Postmortem reports prepared by Dr. Munawar Khatoon (P.W.9) and Dr. Tauqeer Ahmed (P. W.10) reveal that injuries on the persons of both the deceased were the result of the same kind of weapon i.e. Entry wounds were of the same dimension.
17. Secondly: ' Allegedly Muhammad Saeed appellant had caused injury to Mst. Nasreen on the right side of her face and the doctor observed blackening and tattooing around the entry wound which means the fire was made from a very close range but the data available on the record reveals that the firing was made by the appellant while standing at one Karam (i.e. Five and half feet)and if fire from a pistol is made from such a distance blackening and tattooing could not occur.
18. ' Major Sir Gerald Burrard in his book. 'The Identification of Fire-arms and Forensic Ballistics' has given the opinion that with revolver and pistol scorching (efflux of the very hot power gases from the muzzle which are projected against the target) can occur upto 2 to 3 inches and blackening would occur if the fire is made with revolver or pistol upto 6 inches.
19. ' Similarly I. Gordon H.A. Shapiro in his book 'Forensic Medicine, A Guide to Principles' in Chapter 13.
20. Fire-arm Wounds has expressed that burning, blackening and tattooing are caused only when the fire is made from a very close range. He has further explained that beyond range 6 inches all traces of blackening usually disappear and marks of tattooing could be seen upto range 16 to 20 inches with medium calibre weapon. Relevant portion reads as under:-- "At a close range there is usually some burning, blackening, and tattooing of the skin around the bullet entrance opening, while the hair in the region of the wound is often signed. In contact wounds, the whole of the discharge passes into the tissues through the bullet entrance opening and the burning, blackening, and powder grain deposit are found in the depths of the wound. The burning, blackening, and tattooing effects are relatively less marked with smokeless powder than with black powder.
21. ' Range up to About 6 inches. When a revolver or automatic pistol is discharged at a range of about 6 inches, the lacerating and burning effects of the gases are usually lost owing to the dispersion and cooling of the gases before they reach the skin. Under these conditions the bullet entrance wound is circular in shape and is surrounded by a narrow zone of desquamation and bruising of the skin. Blackening of the skin is sometimes seen, while tattooing is invariably found at this range.
22. ' Range beyond 6 inches. Beyond a range of 6 inches. All traces of blackening usually disappears, while the bullet opening remains circular in shape. Tattooing is still present, and is usually seen upto ranges of about 16 to 20 inches with medium calibre weapons, but the limit within which powder can occur varies with different weapons and different cartridges."
23. The said observations of the experts are indicative of the fact that tattooing, blackening and burning can only occur when fire is made from a very close range with a weapon like revolver/pistol. In the present case data available on the record reveals that the fire was made from one Karam i.e. 5-1/2 feet.
24. Thirdly: From the spot Investigating Officer had collected many crime-empties but none of the same had matched with the weapon recovered at the instance of appellant (report from the Forensic Science Laboratory Exh.P.S. Is very much clear in this regards).
25. Fourthly: Statedly during investigation Muhammad Saeed also led to the recovery of crime weapon (i.e. Pistol) but it is apparent from the statement of Jabar Muhammad (P.W.4) that during the recovery proceedings the residents and the respectables of the area were not made to join the proceedings thus the provisions of section 103, Cr.P.C. Were never complied with during the investigation.
26. Fifthly: Liaquat Ali appellant had no brother, whereas Muhammad Saeed appellant was his cousin and younger brother of Muhammad Saeed was a student of second class thus the possibility of involvement of all the male adult members of the same family with mala fide intention could not be ruled out.
27. As far Liaquat Ali appellant is concerned, to this extent we are of the considered view that not only the eye-witnesses whose presence at the spot could not be doubted had unanimously stated about the active participation of Liaquat Ali, their evidence also finds corroboration from the recovery evidence i.e. Report from the Forensic Science Laboratory which reveals that the empties recovered from the spot had matched with the weapon of crime recovered at the instance of appellant. In this regard, the case of the prosecution also finds support from the motive for the commission of this offence i.e. Mst. Nasreen Bibi was abducted by Mubarik deceased and they were living together for the last many years. To this extent appellant had made affirmative statement while answering to the relevant question during his examination under section 342, Cr .
28. P. C .
29. ' As far the submissions of learned counsel for the appellant qua the quantum of sentence of Liaquat Ali are concerned the same have no force because statedly the appellant had grudge against his sister Mst. Nasreen that she was living with Mubarik without Nikah but in this regard learned counsel for the complainant while relying on the decree of dissolution of marriage between Mst. Nasreen and her previous husband Khan Muhammad (i.e. Exh.P.AA.) dated 12-2-1999, took the stand that Mst. Nasreen after getting divorce from her earlier husband namely Khan Muhammad had contracted marriage with Mubarik deceased. Learned. Counsel in support of his arguments read out certain portions from the observations of learned trial Court made in the judgment dated 22-6-2001 passed in case F.I.R. No,11/98 dated 17-2-1998 for the offence under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, sections 298-C/109, P.P.C.
30. Registered at Police Station Jaura Kalan (copy of the judgment is available as Exh.P.Y. On the record of this case). Said case was got registered against Mubarik (deceased) with regard to the abduction of Mst. Nasreen (deceased) and learned trial Court while acquitting them from the charge observed as under:--- "Therefore, the prosecution failed to produce any evidence of enticement of Mst. Nasreen Akhtar by Mubarik Ahmed and the commission of Zina-bil-Raza by them before their Nikah."
31. ' Learned counsel for the appellant also argued that deceased Mubarik Ahmed was Ahmedi (Marzai) whereas Mst. Nasreen was Muslim and since she was living with a non-Muslim in a sinful manner, appellant Liaquat Ali had committed the murder under provocation. While rebutting the same, learned counsel for the complainant submitted that the deceased had already embraced Islam before contracting marriage with Mst. Nasreen and that the submissions of learned counsel for the appellant have no force.
32. Admittedly Mst. Nasreen was abducted by Mubarik twice in the year 1993 and then in the year 1998 and since then both of them were living together under the same roof. Present occurrence took place on 13-9-2003 i.e. After almost five years of the second elopement. After such a long period it would be difficult to say that both the deceased were done to death by the appellant Liaquat Ali under any kind of provocation or Ghairat. The data available on the record is very much clear that Liaquat Ali appellant had committed the offence in a well calculated manner and for the reasons discussed above, we see no force in the instant appeal to the extent of Liaquat Ali, the same stands dismissed, death sentence is Confirmed and reference (Murder Reference No,414 of 2004) is answered in the Affirmative.
33. As far Muhammad Saeed appellant is concerned, to his extent we are of the considered view that benefit of doubt tilts in his favour and to his extent this appeal is allowed, his conviction and sentence is set aside and he stands acquitted from the charges. He (Muhammad Saeed) be released forthwith if not required to be detained in any criminal case. Resultantly death sentence awarded to Muhammad Saeed Appellant is Not Confirmed and to his extent reference (Murder Reference No,414 of 2004) is answered in the Negative.