1. ' SARDAR TARIQ MASOOD, J.---Three persons namely Muhammad Yaseen, Riaz Hussain alias Munay Shah and Ashiq Hussain were tried by the learned Additional Sessions Judge, Burewala District Vehari in case F.I.R. No,163, dated 12-6-2002 registered under sections 302/34, P.P.C. At Police Station Saddar Burewala for the murder of Imtiaz Ahmad Tahir. The learned trial Judge vide judgment, dated 11-9-2003 convicted and sentenced the appellants as under:--
(i) Muhammad Yaseen appellant ' He was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life. He was directed to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo 3 months' R.I.
(ii) Ashiq Hussain appellant ' He was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life. He was directed to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo 3 months' R.I.
(iii) Riaz Hussain alias Munay Shah appellant ' He was convicted under section 302(b), P.P.C. And sentenced to death. He was directed to pay Rs,2,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default thereof to further undergo 6 months' R.I.
2. ' All the appellants - convicts were further convicted under section 460, P.P.C. And sentenced to 10 years' R.I. Each. All the sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Was given to Muhammad Yaseen appellant.
3. ' Riaz Hussain alias Munay Shah, Ashiq Hussain and Muhammad Yasin appellants have filed Criminal Appeals Nos. 680, 658 and 820 of 2003 against their conviction and sentence respectively whereas the complainant has filed Criminal Revision No, 387 of 2003 for the enhancement of sentence of Ashiq Hussain and Muhammad Yasin. The learned trial Court has sent a reference (M.R.
4. No,802 of 2003) for the confirmation of death sentence of Riaz Hussain alias Munay Shah. We propose to dispose of all these matters by this single judgment.
2. Brief facts of the prosecution case are that on 12-6-2002 P.W.2. Asim Tahir complainant made a statement before the police that his father Imtiaz Ahmad Tahir runs a grocery shop. On that night, the alongwith his father, P.W.3. Muhammad Saleem and Aatif Waqas were sleeping in the courtyard of the house. At about 1.30 in the night a motor bike stopped on the gate of the house, due to which, he woke up. In their view, Riaz Hussain alias Munay Shah, Ashiq Hussain and Muhammad Yasin armed with pistols .30 bore scaled over from the gate of the house. Light was on in the courtyard. On the noise of complainant, whole of the family woke up. Riaz. Hussain alias Munay Shah raised Lalkara towards Imtiaz Ahmad Tahir that he is going to give him a taste for insulting him due to not borrowing grocery articles from the shop. Riaz Hussain alias Munay Shah fired three shots with his pistol which hit the deceased on his left arm and below the chest on right side. His father being injured fell down on the ground. Ashiq Hussain and Muhammad Yaseen threatened not to come near by raising their pistols in the air. Due to fear nobody went near them.
5. On hearing the noise of firing, the neighbors also woke up. On seeing them the accused persons went outside through the gate and fled away on their motorcycle. He along with P.Ws. Took his father in injured condition to Civil Hospital Burewala where the injured succumbed to the injuries.
6. ' Motive behind this occurrence was that one day prior to the occurrence, Riaz Hussain alias Munay Shah came on the shop of deceased along with Yaseen for taking grocery articles on credit. The deceased did not give them articles on credit, due to this grudge, all the three accused persons having common intention murdered his father.
3. After completion of investigation, challan was submitted against the accused. Charge under sections 302/34/460, P.P.C. Was framed, to which, Riaz Hussain alias Munay Shah and Ashiq Hussain appellants pleaded not guilty and claimed trial whereas Muhammad Yaseen appellant admitted his guilt. In order to prove its case, prosecution examined as many as 12 P.Ws. In all and also tendered documentary evidence.
7. ' P.W.1. Muhammad Shahbaz identified the dead body of Imtiaz Ahmad Tahir before the doctor at the time of autopsy. After autopsy, a constable produced the last-worn clothes of deceased before the I.O. Which he took into possession vide Exh.P.A.
8. ' P.W.2 Asif Tahir is the complainant of F.I.R. Exh.PB/1 who fully supported the prosecution story. He is also the eye-witness of the occurrence.
9. ' P.W.3. Muhammad Saleem is also an eye-witness of the occurrence who stated that he visited the house of deceased in Chak No,461/EB. He was asleep in the courtyard of house on the night of occurrence. Asim Tahir, Initiaz Ahmad Tahir, Altaf Waqas and other inmates of the house were also asleep. At about 1.30 a.m. In the night, he, Imtiaz Ahmad Tahir, Altaf Waqas and other inmates of the house woke up on the alarm of Asim Tahir P.W. He found Ashiq Hussain, Riaz Hussain alias Munay Shah and Yaseen armed with .30 bore pistols present in the courtyard of the house. Electric bulb was on, due to which, they identified the accused persons. Riaz Hussain alias Munay Shah challenged Imtiaz Ahmad Tahir that he would teach him a lesson for not giving him commodities on credit on the previous day. He also raised Lalkara that he would teach a lesson to the deceased of insulting and abusing him. Riaz Hussain fired three pistol shots at Imtiaz Ahmad Tahir, out of which, one hit on the left arm and two shots hit on right chest of the deceased, who fell injured.
10. Ashiq Hussain and Yaseen threatened them that if they intervened or raised alarm, they would be dealt with in the same manner. After that accused person fled away from the spot along with pistols by riding their motorcycles which was parked outside the gate of house of deceased. After their departure, the P.Ws. Attended Imtiaz Ahmad Tahir who was unconscious but alive. They carried him to the hospital in a car where a doctor attended him and he died at about 2.15 a.m. He is also the recovery witness of pistol.
11. ' P.W.4 Sanaullah HC stated that during investigation, Investigating Officer delivered to him one sealed parcel containing blood-stained cotton, another sealed parcel containing crime empties for safe custody in the malkhana and one sealed parcel containing .30 bore pistol. He delivered the above said parcels intact to P. W.10 Zafar Iqbal constable and P.W.9. Imran Javed constable for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory.
12. ' P.W.5 Amjad Rehman Draftsman visited the place of occurrence and took rough notes on the pointation of P.Ws. He prepared the scaled site plan Exh.PH/1 and Exh.P.H/2.
13. ' P.W.6 Abdul Basit, Inspector/S.H.O. Partly investigated the case. He recorded the statements of Sanaullah H.C. And Imran Javed Constable P.Ws. Under section 161, Cr.P.C. And submitted complete challan.
14. ' P.W.7 Dr. Muhammad Anwar medically examined Imtiaz Ahmad Tahir on 12-6-2002 at 1-45 a.m.
15. And found five injuries on his person. On the same day at 8-15 a.m. He conducted the autopsy of the deceased. There were three entry and two exit wounds of fire-arm. Duration between injuries and death was within an hour and between death and postmortem 4 to 12 houRs, Injuries were sufficient in ordinary course of nature to cause death.
16. ' P.W.8 Muhammad Akram S.-I. Partly investigated this case. Riaz Hussain alias Munay Shah was proclaimed offender who was arrested by the police of District Gujranwala. He got transferred him from District Gujranwala Jail to Burewala. Riaz Hussain alias Munay Shah got recovered .30 bore pistol P.4 from the side of wall of Boys Middle School Chak No,461/EB by digging it out from earth. He made into a sealed parcel and took the same into possession vide recovery memo. Exh. PC.
17. ' P.W.11. Najawat Khan S.-I. On 12-6-2002 after receiving the information, drafted the complaint Exh.
18. PB on the statement of Asim Tahir and sent the same for its formal registration. He prepared injury statement Exh.PM and inquest report Exh.PN.
19. ' P.W.12 Liaqaut Ali A.S.-I. Stated that on 12-6-2002, on receipt of the statement of Asim Tahir, he correctly recorded the formal F.I.R. Exh . PB/1 .
4. On completion of prosecution evidence, the statements of accused persons under section 342, Cr.P.C. Were recorded. Ashiq Hussain appellant in his statement denied the prosecution allegations levelled against him and claimed himself to be innocent. He stated that actually murder was committed by Muhammad Yaseen appellant but the P.Ws. Developed false and baseless story and involved him without any justification. The police declared him innocent. He did not opt to appear under section 340(2), Cr.P.C., however, he opted to produce defence evidence. In his defence, he produced D.W.1. Abdul Majid DSP who stated that in his investigation, Yasin and Riaz were found guilty by him, however, Ashiq Hussain was found innocent.
20. ' Muhammad Yaseen appellant in his statement under section 342, Cr.P.C. Stated that recovery of pistol P.7 is fake one. He stated that he had murdered the deceased due to dispute of money.
21. However, he had given explanation that the pistol was of the deceased with which the deceased had threatened to fire at him. He snatched the pistol from him and fired at him who died as a result of shot. He did not opt to appear under section 340(2), Cr.P.C. Or to produce defence evidence.
22. ' Riaz Hussain alias Munay Shah appellant denied the allegations levelled against him. He stated that it is a false case and he has been falsely involved in this case being friend of Yaseen who had got recorded his judicial confession before the Court and confessed the murder of deceased. He claimed himself to be innocent and did not opt to appear under section 340(2), Cr.P.C.
5. Learned counsel for the appz;ilant Riaz Hussain alias Munay Shah, at the very outset, contends that Imtiaz Ahmad Tahir deceased was shifted to hospital in injured condition but surprisingly, the doctor did not record his statement and the prosecution' had withheld the best evidence. Further contends that at the time of framing of charge, Muhammad Yaseen had admitted his guilt and actually this case is of three versions, one put by the prosecution in the F.I.R., other put forward by Muhammad Yasin during the trial and third one by the Investigating Officer, according to which, Ashiq Hussain was found innocent. Also contends that the motive is flimsy and actually it was Muhammad Yaseen appellant who had to take money back from the deceased and had gone there for taking money. Submits that although P.W.2 Asim Tahir complainant is the inmate of the said house but rest of the two witnesses are chance witnesses. Much stress was given on P.W.1 Shehbaz Ahmad that he is the owner of the cotton factory and Riaz Hussain appellant had enmity with him and earlier to that in year, 1990, such Shehbaz managed a false case against Riaz Hussain appellant and thereafter 7 criminal cases were also got registered by the said P.W.1. It is also a ground in the appeal that P.W.1 Shehbaz got murdered the deceased through Muhammad Yaseen.
23. Further submits that in this case the identification of the assailants is also doubtful as during investigation the bulb was not taken into possession. Also submits that provision of section 103, Cr.P.C. Was not complied with while in such situation the recovery of pistol is inconsequential. It is also the contention of the learned counsel for the appellant that according to the Investigating Officer the caps of the empties were available on the empties at the time of recovery but according to the report of Forensic Science Laboratory Exh.P.R., two empties were having no percussion caps. Further contends that both the E.Ws. Are interested one and their testimony cannot be relied due to their relationship with the deceased.
24. ' Learned counsel for the appellant Muhammad Yaseen contends that while framing the charge, thumb-impression of the appellant was not obtained whereas the thumb-impressions of the other appellants were obtained on their statements. Further states that the version of Muhammad Yaseen was not put to the eye-witnesses and according to him, the said statement is inadmissible.
25. ' Learned counsel for Ashiq Hussain appellant contends that he being brother of Riaz Hussain alias Munay Shah appellant has been falsely involved in this case and during investigation, he was found innocent. To that extent, he had produced the defence evidence which further confirmed the innocence of Ashiq Hussain appellant.
6. On the other hand, learned counsel for the complainant assisted by the learned Deputy Prosecutor-General for the State while arguing the case states that it is a most prompt F.I.R.; that the eye-witnesses are natural; that the ocular account is corroborated by the medical evidence, recoveries, report of FSL and the admission on the part of Muhammad Yaseen appellant.
7. We have heard the learned counsel for the parties at length and have gone through the record with their able assistance.
8. We will discuss the contentions of the learned counsel for the appellants one by one:-- ' So far the contention of the learned counsel for the appellants regarding ocular account that the witnesses are chance witnesses are concerned, in this case, P.W.2 Asim Tahir is the resident of the same house and during the days of occurrence, he was at home for preparation of examination.
26. P.W.3 Muhammad Saleem is working as Accountant in the Cotton Factory having good relations with the family of the deceased and it was brought during cross-examination that whenever he was late in the factory, he oftenly spent the night in the house of the deceased and due to the said reasons, he was present in the said house. P.W.2 is the most natural witness being the inmates of the said house and the explanation given by P.W.3 is also trustworthy which was brought on the file by the defence.
27. We have gone through the evidence, although, both were cross-examined by the defence but their evidence could not be shattered during the cross-examination and they cannot be termed as chance witnesses as argued by the learned counsel for the appellants. Even otherwise, these two witnesses nad no enmity with Riaz Hussain alias Munay Shah and Muhammad Yaseen appellants.
28. Even they could not be termed as interested witnesses as they do not have any motive to falsely implicate the appellants in this case. According to law, mere relationship of a witness with the deceased is not at all a ground to discard their evidence until the defence could point out any illwill or enmity of the said witnesses with the accused.
29. ' So, the ocular account according to our view is trustworthy and remained unshaken during cross- examination rather consistent with each other on each and every point.
30. ' So far the argument of learned counsel for the appellants that Imtiaz Ahmad Tahir was brought in the hospital in injured condition but his statement was not recorded by the doctor or the police is concerned, the injuries caused to the deceased had damaged his internal parts. The liver was extensively injured. 7th rib was fractured. Right lung was injured and doctor had categorically during cross-examination stated that the patient was very irritant, therefore, he could not record his statement. The condition of the body and the damage caused to the deceased and the reply of the doctor is a sound explanation for not recording the statement of the said deceased at the time of his medical examination.
31. ' So far motive is concerned, it is mentioned in the F.I.R. That a day earlier Riaz Hussain alias Munay Shah along with Muhammad Yaseen appellant came to the shop of the deceased and the deceased did not provide grocery to the appellants on credit, due to which, a quarrel took place. It is worth-mentioning here that it was defence who during cross-examination of P.W.2 brought on the file that at the time of quarrel, the complainant was also present and he also witnessed the said incident of quarrel. It is settled principle of law that motive can be deposed by any person having knowledge about the same but in this case, P.W.2. Had himself witnessed the occurrence of motive and he stated so in the F.I.R. And also during the trial. It is also an important aspect of the case that on the said night when P.W.3 and other witness Aatif Waqas visited the house of the complainant, he disclosed this occurrence of motive to the said P.Ws. Which is a natural conduct.
32. The contention of the learned counsel for the appellants that it was Muhammad Yaseen who had to receive money of Rs,20,000 from the deceased which he did not pay and on the night of 11/12-6- 2002, Muhammad Yaseen went to the house of the deceased and demanded the payment of money. This motive was brought on the file during the trial and it is a bald motive which was introduced for the first time during the trial. Even it is not believe able that a person who had to take money from some-one will visit his house at 1-30 a.m. i.e, after mid-night, so the motive put forward by the prosecution rings true and this belated motive put forward by Muhammad Yaseen appellant is an attempt to frustrate the whole case.
33. ' The defence of Riaz Hussain alias Munay Shah appellant is that P.W.1. Muhammad Shehbaz is his enemy and he had earlier managed 6/7 cases against him and said P.W.1. Got murdered the deceased by Muhammad Yaseen and involved him in this case. This plea is also not digestible for the reasons that Muhammad Shehbaz appeared as P.W.1 and no suggestion was put to said P.W.
34. Regarding this version. If P.W.1. Was having any enmity with Riaz Hussain appellant and he had got murdered the deceased through Muhammad Yaseen appellant who according to the appellant is related to the deceased, then why Muhammad Yaseen is exonerating Riaz Hussain on the asking of this P.W 1 .
35. ' The argument of the learned counsel for the appellants that bulb was not taken into possession and in such situation, identification of the appellants is not possible is concerned, admittedly, in the F.I.R. The presence of bulb is mentioned and witnesses categorically stated that in the light of the bulb, they had seen the appellants. In the site plan Exh. PQ prepared on the first day of occurrence, the presence of bulb is mentioned and the site plan Exh. PH prepared by the Draftsman, the presence of bulb is mentioned. Its non-taking into possession could be said at the most inefficiency of Investigating Officer and does not in any manner adversely affects the prosecution version. Even otherwise the appellants are earlier known to the witnesses and they remained at the place of occurrence during the occurrence and in such eventuality, there is no question of mistaken identity of the appellants.
36. ' So far the argument of learned counsel for the appellants that provision of section 103, Cr.P.C. Was not complied with is concerned, Riaz Hussain appellant while in police custody in presence of the witnesses led and then got recovered .30 bore pistol P.4 after digging earth which was taken into possession vide recovery memo. Exh.P.C. Likewise, Muhammad Yaseen appellant while in police custody in presence of the witnesses led and got recovered pistol .30 bore P.7 which was taken into possession vide recovery memo. Exh.PG. It is well-settled principle of law that whenever an accused led and got recovered something, then provision of section 103, Cr.P.C. Will not be applicable because provision of 103, Cr.P.C. Will be applicable only in C the cases where search is to be made by the police officials of a house or place but in this case, there is no question of search of any place rather it was the accused persons who led and got recovered the pistols.
37. We have gone through the whole file. This occurrence took place at 1-30 a.m. After mid night and it was the natural conduct of the eye-witnesses that they took the injured to the hospital with the expectation of saving his life where police arrived and recorded Exh.P.B. At 2-25 a.m. Meaning thereby that the matter was reported to the police within one hour and in recording the said prompt F.I.R. By itself eliminates the chance of fabrication and consultation. It is worth-mentioning here that in the said prompt F.I.R., it is mentioned that Riaz Hussain had repeatedly made fire shots thrice at the deceased hitting on his arm and chest. In the said prompt F.I.R., the presence of light, name of eye-witnesses, name of the accused and their role is mentioned. Even motive part is also described in the said prompt F.I.R.
38. ' The ocular account in this case as discussed earlier is trustworthy and the said ocular account is also corroborated by the medical evidence regarding the time of occurrence and seat of injuries.
39. ' The conduct of the appellants after the occurrence is also a circumstance which proved the guilt of Riaz Hussain alias Munay Shah and Muhammad Yaseen appellants as after the occurrence they remained out law and Muhammad Yaseen was arrested on 6-8-2002 almost after two months of the occurrence whereas Riaz Hussain was arrested on 27-11-2002 after about 5-1/2 months of the occurrence. Riaz Hussain appellant was arrested in another case at Police Station Model Town, Gujranwala. According to P.W.8 Muhammad Akram S.-I. Said Riaz Hussain was a proclaimed offender in this case and on getting information about his arrest in District Gujranwala, he went there and arrested him on 21-11-2002. Although, the prosecution had not produced the warrants or proclamations but when P.W.8 categorically stated in statement that Riaz Hussain appellant was a P.O. In this case. He was not cross-examined on this point meaning thereby that the fact of abscondence is admitted by the defence. Even the said witness was not suggested that Riaz Hussain was not arrested on the said date, so this willful absconsion of the appellants is a strong corroboration to the ocular account.
40. In this case, it is alleged that Riaz Hussain had fired thrice at the deceased and the police on the very first day found 3 empties P.5/1-3 of .30 bore pistol from the site which was made into sealed parcel vide memo. Exh.PE and the said empties were deposited in the office of FSL on 20-6-2002, even much prior to the arrest of Riaz Hussain. Pistol P.4 from Riaz Hussain appellant was recovered on 30-11-2002 and the same was sent to the office of FSL on 13-12-2002 and according to the report of FSL, one empty was found to have been fired from the pistol P.4 (recovered at the instance of Riaz Hussain) whereas two empties were without percussion caps, so the recovery of pistol and the report of FSL further corroborates the ocular account to the extent of Riaz Hussain. So far argument of learned counsel for the appellant Riaz Hussain regarding the caps of empties is concerned, no doubt the Investigating Officer had said that at the time of recoveries of the empties, caps were present there but it is not mentioned in the report of FSL Exh.PR that said empties were not having the caps rather it is mentioned in the report that two empties were not having percussion caps (small place where the trigger hits) meaning thereby the place where striker hits was missing in the said empties and it cannot be presumed as argued by the learned counsel for the appellants that whole caps were missing of the said empties.
41. So far the argument regarding the confession of Muhammad Yaseen is concerned, the said admission on the part of Muhammad Yaseen appellant at the trial is apparently to be an afterthought story because after the occurrence he remained out law and was arrested after two months of the occurrence. Even otherwise, it is not believable that a person will visit the house of other person at 1-30 a.m. For demanding back payment of his money. Snatching pistol from the hand of another is not possible without scratch marks at the hands of deceased which is not the case here. Admission of Yaseen was not unqualified. He tried to make out case of self-defence. It is defence. During alleged snatching, the person already holding pistol must have fired at him. This belated effort on the part of Muhammad Yaseen indicates that in order to frustrate the prosecution version, this attempt was made. Although, said Yaseen was not attributed any fire shot on the deceased but his admission at the time of occurrence is a circumstance which corroborates the ocular account. Thus, to our mind, the prosecution had proved the case against Riaz Hussain and Muhammad Yaseen appellants beyond any shadow of doubt and they had been rightly convicted and sentenced by the learned trial Court. Therefore, relying upon the ocular account, motive, medical evidence, recoveries of pistols and empties and admission on the part of Muhammad Yaseen, We are of the view that the prosecution has successfully proved its case against Riaz Hussain alias Munay Shah and Muhammad Yaseen appellants.
42. So far Ashiq Hussain appellant is concerned, he is the brother of main accused Riaz Hussain and there is a possibility that he might have been involved in this case of the said reason. He was found innocent during the investigation. D.W.1. Abdul Majid DSP while appearing in the Court confirmed the innocence of Ashiq Hussain. Although, the opinion of the police is not binding upon the Courts but the same cannot be thrown away altogether in the air. In view of the role attributed to Ashiq Hussain and having been declared innocent during the investigation, the benefit of doubt is given to Ashiq Hussain appellant.
9. For what has been discussed above, we dismiss Criminal Appeals Nos. 680 and 820 of 2003 filed by Riaz Hussain alias Munay Shah and Muhammad Yaseen appellants. Their conviction and sentence awarded by the learned trial Court is maintained. We accept Criminal Appeal No,658 of 2003 of Ashiq Hussain appellant and acquit him of the charge. His conviction and sentence is set aside. He is already on bail. His bail bonds shall be discharged.
10. The Murder Reference of Riaz Hussain alias Munay Shah is answered in the affirmative.
11. In view of above mentioned reasons, Criminal Revision No,387 of 2003 filed by the complainant for the enhancement of sentence is dismissed.