SH. NAJAM UL HASAN, J.---Ali Slier, appellant was tried by the learned Additional Sessions Judge, Faisalabad in case F.I.R. No,395 dated 16-9-1999 under sections 302/324/109/34, P.P.C. registered at Police Station Bhalak Distt. Faisalabad. At the conclusion of trial the learned trial Court vide judgment dated 27-10-2007 convicted the appellant under section 302(b), P.P.C. and sentenced him to death for committing qatl-e-amd, of Abdul Razaq. He was also directed to pay compensation of Rs,1,00,000 under section 544-A, Cr.P.C. to the legal heirs of the said deceased or to undergo six months' simple imprisonment in default thereof. The appellant was also convicted under section 302(b)/34, P.P.C. for sharing common intention for the murder of Maula Dad and sentenced to suffer imprisonment for life and also to pay compensation of Rs,50,000 provided under section 544-A, Cr.P.C. to the legal heirs of the said deceased or to undergo six months' S.I. in default thereof. Benefit of section 382-B, Cr.P.C. was also granted to him.
2. Feeling aggrieved of the above mentioned convictions and sentences, the appellant filed Criminal Appeal No, 1439 of 2007 whereas the learned trial Court approached this Court by way of Murder Reference, No, 540 of 2007 seeking confirmation of death sentence awarded to him. Since both these matters are inter related as such are being disposed of together through this single judgment.
3. The occurrence in the present case took place on 16-9-1999 at 3-00 p.m. in the fields within the vicinity of village Thatha Dhado Ke, 20 kilometers away from Police Station Bhalak in which Abdul Razaq and Maula Dad were murdered by Ali Sher alias Muhammad Slier 'appellant and Imtiaz, co- convict and the matter was reported to Qadir Bukhs A.S.-I. (P.W.11) by Liaqat Ali, complainant (P.W.12) vide statement (Exit. PN) at 4-35 p.m. at Peeray Wala bridge on the basis of which formal (Exh.PN/1) was recorded at police station at 5-10 p.m. same day.
4. The prosecution -story; in brief, as narrated by the complainant in the is that on the fateful day at 12.00 noon the complainant and his brother Abdul Razaq (deceased), Maula Dad.(deceased), Muhammad Mirza and Aman Ullah, P.Ws. were sitting under the trees in front of their house where Ali Sher alias Muhammad Sher, appellant armed with rifle and Imtiaz co-convict empty handed arrived and resorted to aerial firing upon which Abdul Razaq and Maula Dad also responded in the same way and fired through their licensed weapons as a result of which the culprits went away.
The complainant alleged that he along with his brother Abdul Razaq, Maula Dad, Muhammad Mirza and Aman Ullah proceeded towards Pul Peeray Wala to report the matter and when 'they reached in the land owned by one Slier Muhammad son of Dost Muhammad, suddenly Ali Slier appellant and Imtiaz, co-convict both respectively armed with rifle and kalashnikov sitting ambushed intercepted the complainant pdrty. The appellant raised a lalkara that Abdul Razaq and Maula Dad would not be let alive. On hearing lalkara Abdul Razaq and Maula Dad run away but they were chased by the culprits. The appellant fired a shot with his rifle hitting Abdul Raiaq on his left shoulder and he fell down. Imtiaz, co-convict who was chasing Maula Dad fired with his kalashnikov, hitting him on the legs who also fell down. Thereafter the culprits ran away from the. spot while tiring the air. Abdul Razaq succumbed to the injuries at the spot .whereas Maula Dad was seriously injured. However, later on he also expired on the way to the hospital at Faisalabad.
' Motive stated for the present occurrence was that about 10/12 days earlier Ali Sher, appellant came drunk to the village of the complainant who was admonished by Abdul Razaq and Maula Dad but lie took it ill. The complainant further alleged that the matter was brought to the notice of father of the appellant but he also threatened the complainant party with dire consequences.
5. Dr. Captain Muhammad Anwar (PW.7) conducted post mortem examination on the dead body of Abdul Razaq at 9-30 a.m. on 17-9-1999 and found the following tire arm injuries:-- (i)A firearm entrance wound 1/2 cm x 1/5 cm on the front of left shoulder 9 cm below the top shoulder 5 cm from axilla.
(ii)An exit wound 1/2 cm x 1 cm on the back of left chest 12 cm from mid line and 20 cm down the top shoulder.
' On dissection the doctor observed 4th and 5th ribs on left front of chest broken, pleura perforated in the site of ribs and left lung lacerated and damaged.
' In the opinion of doctor injuries Nos.1 and 2 were ante mortem and sufficient to cause death in ordinary course of nature due to shock and haemorrhage. Probable tune between injuries and death was immediate and between death and post mortem was 16 to 17 hours.
6. This doctor had also conducted post mortem examination on the dead body of Maula Dad at 8- 30 a.m. on 17-9-1999 and found the following fire arm injuries:-- (i)A firearm entrance wound 2 cm x 1 cm on the lateral part of left thigh 3 cm above the left knee.
(ii)A firearm exit wound 7 cm x 6 cm on the medial side of left thigh 3 cm above the left knee.
Femur was broken into pieces in this situation.
(iii)A firearm re-entrance wound 2 cm x 2 cm on the medial side of right thigh 5 cm above the knee.
(iv)An exit wound on the lateral side of right thigh on the same level as in injury No, 3 as on pictorial diagram (injury No,4 had not been mentioned in the post mortem examination due to mistake).
' The doctor found bilateral femurs fractured above the knee. He also observed symptom of shock due to bleeding.
' In the opinion of the doctor injuries Nos. 1 to 4 were ante mortem, caused by firearm and sufficient to cause death in ordinary course of nature due to shock and haemorrhage. Probable time that elapsed between injuries and death was within six hours and between death and postmortem was nine to ten hours.
7. Qadir Bukhsh, Sub-Inspector (P.W.11) along with other police officials was present at Peerawala bridge where Liaqat Ali, (P.W.12) met him and got recorded his statement (Exh.Pt4) which was sent to the police station for formal F.I.R. Thereafter the Sub-Inspector proceeded to the spot and conducted formal investigation. He examined.dead body of Abdul Razaq, prepared injury statement (Exh.PK), inquest report (Exh.PI) and rough site plan (Exh.PQ). He collected blood stained earth from the place of murder of Abdul Razaq and secured the same vide memo. (Exh.PB). He also collected blood stained earth from theplace where Maula Dad had been, injured and took the same into posseission vide memo. (Exh.PA). After recording statements of the witnesses at the spot, the investigator proceeded to the hospital where Maula Dad had been taken but on the way he was informed by Muhammad Mirza that Maula Dad had also died on the way to Faisalabad hospital. He reached the hospital and examined dead body of Maula Dad, prepared injury statement (Exh.PG), Inquest report (Exh.PH) and sent the same to the mortuary for autopsy. He conducted other formal investigation of the case. On 16-10-1999 the investigator arrested Ali Muhammad, father of the appellant in this case. Ali Sher appellant and Imtiaz Ahmad .co-convict were not traceable and the investigator got them declared proclaimed offenders. However, at later stage Imtiaz co-accused who was already in custody in some other case was also formally.arrested in this case. He was tried along with Ali Muhammad accused and vide judgment dated 26-9-2009 he was convicted and sentenced whereas Ali Muhammad was acquitted.
8. After about six years, Shujjat Ali Malhi, Sub-Inspector (P.W.10) arrested the appellant on 28-6- 2006 who was coming out of his house holding .12 bore gull with 25 live cartridges. After arrest the appellant made a disclosure and got recovered kalashnikov (P.4), 189 live bullets (P.5/1-189) and five magazines (P.6/1-5) which were taken into possession vide recovery memo. (Exh.PE). The appellant also got recovered a rifle (P.7) and 98 live bullets (P.8/1-98) which were also taken into possession through recovery memo. .(Exh.PE/1). After completion of investigation the appellant was challaned to Court to face trial
9. At the commencement of trial, charge was framed against the appellant to which he pleaded not guilty and claimed to be tried. At trial the prosecution produced 13 witnesses to prove charge against the appellant.
10.At the conclusion of prosecution evidence, the appellant was examined under section 342, Cr.P.C. He dismissed each and every piece of prosecution evidence. To a question, "Why the prosecution witnesses deposed against you and why this case against you?" the appellant replied as under:-- "The case is false and fabricated one as stated by the P. Ws. Actually there are two parts of population known as Thatha Dadoka and Thatha Saika. The distance in between both the above said Dadoka and Saika is about one square and there was a dispute between said two villagers regarding the passage and on the fateful day firing was exchanged between villagers of both Abadis. Aslant, Sardool, Shalfa, Zafar Iqbal, Barkha, Fazal, Umra, Maula Dad and Abdul Razzaq (both deceased) participated in the firing from Thatha Dadoka whereas Rustum, Liaqat, Rab Nawaz and Peera participated in the firing from Thatha Saika side. The said firing was started from 12.00 noon and finished at 4-00 p.m. Maula Dad and Abdul Razzaq both deceased were killed due to the firing of their companions as they were on front line of their group but the complainant clad the P. Ws. in connivance with each other as well as the police prepared instant false case against me. I did not participate in the occurrence nor I was armed with any kind of weapon. The complainant party did not get inspect the place of occurrence to the police where they were resorting firing and that is why no crime empty was taken into possession by the police. The P. Ws. are inimical towards me and I have been implicated in this case falsely."
' The appellant, however, neither made statement under section 340(2), Cr.P.C. nor produced evidence in defence. At the end of trial learned trial Court convicted and sentenced the appellant as noted above.
11. Learned counsel for the appellant contended that in this case the prosecution has fabricated the whole story and in fact the occurrence took place in a different way and as two persons received injuries, the appellant was later on implicated; that the occurrence took place at 3-00 p.m. in which Abdul Razaq received injuries and died at the spot and allegedly the matter was reported to the police at 4-35 p.m. but the post mortem was conducted on the next day at 9-30 a.m. i.e, after a delay of considerable time and such a delay in post mortem has not been explained by the prosecution which circumstance leads to only one inference that time was consumed to fabricate a case against the appellant and the eye-witnesses were not present at the spot. Learned counsel contends that the complainant (P.W. 12) who was brother of the deceased and Muhammad Mirza (P.W.13) who was cousin of Maula Dad were produced as eye-witnesses and no independent witness produced at trial and that one Aman Ullah was an independent witness but he was given up as unnecessary.' It is contended that non-production of independent witness leads to infer that the occurrence was unseen and the case was later on concocted. By referring the statement of complainant that the appellant was chasing the deceased when he fired, learned counsel submitted that the ocular account is self contradictory inasmuch as it was not possible for a chasing person to fire from front side so the medical evidence does not support the prosecution version. Learned counsel further contended that dimensions of injuries do not co-ordinate with the weapon with which the appellant was saddled as the doctor observed 1/2 x 1/2 cm and such injury cannot be caused by a weapon like rifle. While arguing motive part of the prosecution story the learned counsel contended that it is neither natural nor acceptable in our society that a father would like to encourage nefarious activities of his son and thus the motive alleged is far fetched.
Learned counsel also contended that no crime empty was recovered from the place of occurrence which leads to infer that the occurrence had taken place somewhere else. Learned counsel further contended that it was alleged that the appellant got recovered a rifle, a .12 bore gun and a kalashnikov and recovery of so many weapons from the appellant indicate that the prosecution has tried to exaggerate the matter to show that the appellant was of desperate nature. Even otherwise in all these recoveries no disclosure was made by the appellant so recovery of these weapons does not connect him with commission of the crime. Learned counsel took exception by arguing that since no crime empty was collected from the spot and there is no report of Firearm Expert, as such recovery of these weapons is of no use to the prosecution. While discussing absconsion of the appellant after the occurrence the learned counsel contended that it has been held by the superior courts that it cannot be inferred that some person had absconded because he was guilty of the offence rather even an innocent person would try to escape the law if he is falsely involved. Learned counsel submitted that absconsion by itself is not a corroboratory piece of evidence unless supported by other circumstances. Also contended that both the deceased received one fire shot each and same appeared to be tired from same kind of weapon and it cannot be ascertained as to who was responsible for the death of Abdul Razaq, deceased.
12. So far as conviction of the appellant under section 302(b)/34, P.P.C. for the murder of Maula Dad is concerned, learned counsel contended that there was absolutely no role attributed to the appellant for causing injury to Maula Dad and no circumstance has been shown to exist leading to inference that the appellant shared common intention for murder of Maula Dad as such he is not liable for death of the said victim.
13.In the alternate learned counsel contended that it is the prosecution's own case that the appellant made a single fire and did not repeat the same; that motive was not proved and even recovery of the weapon of offence is not helpful to the prosecution case as such the appellant deserves some leniency.
14.Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant submits that it was a broaddaylight occurrence; that the parties were previously known to each other as they were residents of the same locality; that two persons lost their lives in this occurrence for which two accused were nominated in the F.I.R. with specific role; that specific role of causing fire arm injury on the person of Abdul Razaq was attributed to the appellant which proved fatal; that the co-convict Imtiaz was assigned the role of causing injury on the person of Maula Dad which also proved fatal; that the F.I.R. was lodged with promptitude so there was no chance of deliberation and consultation; that the prosecution version in the F.I.R. as also at trial was that the appellant fired a shot which hit Abdul Razaq, deceased on his shoulder and the post mortem examiner declared that the deceased died due to fire arm injury on his shoulder therefore the ocular account was fully corroborated by the medical evidence; that the complainant was real brother of Abdul Razaq, deceased, he had no reason to falsely implicate the appellant and to let of the real culprit; that no previous enmity existed between complainant and eye-witnesses on one side and the appellant and his co-convict on the other side, as such the eyewitnesses were not inimical or interested; that the investigator after receiving information about the occurrence immediately reached the spot and prepared inquest report of Abdul Razaq at the spot which was duly signed by Muhammad Mirza, (P.W.13) which is more than sufficient proof of presence of at least said witness at the spot; that the complainant pariy was going to the police station, when they were waylaid; that the appellant absconded after the occurrence and was as such declared proclaimed offender and could be arrested after six years; that father of the appellant, namely, Ali Muhammad was also arrested in this case and subsequently tried as such it cannot be said that the appellant was. unaware unaware about his involvement; that motive part of the case coupled with recoveries of different weapons and ammunition at the instance of the appellant are sufficient to cast light on character of the appellant that he was a person of desperate nature; that the appellant and his co-convict were sitting ambushed while armed with lethal weapons as such they had made planning to kill both the deceased; that the appellant raised lalkara that both Abdul Razaq and Maula Dad be killed and thereafter he fired and killed Abdul Razaq whereas his co-convict Imtiaz fired and killed Maula Dad, as such both the accused had shared common intention to kill both the deceased and were not entitled to any leniency. Learned counsel lastly contended that although one shot was fired by the appellant but he had fired at the deceased after chasing him as such he had all the intention to kill Abdul Razaq, as such he is not entitled to any exceptional circumstances.
15.We have heard the learned counsel for the parties and have also minutely gone through the record with their assistance.
16.It is case of the prosecution that the appellant and his co-convict Imtiaz arrived at house of the complainant party at 12.00 noon and resorted to aerial firing in response to which the deceased persons also tired shots. Thereafter the complainant party proceeded to report the matter to the police station at 3-00 p.m. and when they reached in the fields of one Sher Muhammad son of Dost Muhammad near Pul Peer Wala, the present occurrence took place. So it was a day light occurrence. The motive stated for the occurrence was that a few days earlier the appellant had come drunk to the village of the complainant party and on being admonished he bore grudge in his mind leading to the present occurrence. This circumstance establishes that the parties were previously known to each other and identity of the appellant is, therefore, not a matter in issue. The place of occurrence was field near the passage leading towards the main road. The deceased were statedly coming from the village Dhadho Ke and were going towards the main road. The site plan indicates that the other village Thatha Saika ke was towards the road. The complainant specifically mentioned that the appellant and his co-convict were sitting ambush on seeing the complainant party the appellant raised lalkara upon which both and deceased persons ran who were chased and fired by the appellant and his co-convict. The fire of the appellant hit Abdul Razaq, deceased who fell down and died at the spot. The other deceased Maula Dad was chased and fired at by Imtiaz on his legs who also fell down and ultimately died when he was being shifted to the hospital. Specific fire on Abdul Razaq was attributed to the appellant and there is no allegation of giving any fire arm injury to the other deceased, namely Maula Dad. The fire-arm injury on Maula Dad was specifically attributed to Imtiaz co-convict. So this is a case in which each of the deceased is attributed specific injury at the hands of each convict. The defence has challenged the prosecution case mainly on the ground that the occurrence remained unseen, the case was registered at much belated stage and time of report mentioned in the F.I.R. was later on fabricated. It was also case of the appellant that as both the deceased died after receiving fire arm from the same kind of weapon, as such possibility of the occurrence having been committed by one person cannot be ruled out, both the eye-witnesses were related to both the deceased and the only independent witnesses mentioned in the F.I.R., namely, Aman Ullah was not produced by the prosecution and was given up as unnecessary. Learned counsel has mainly emphasized that as the post mortem was conducted on the next date at 9-30 a.m. whereas the occurrence took place at 3-00 p.m. a day earlier as such the delay in conducting post mortem only leads to the inference that time was consumed in fabricating a case and for making false witnesses. This contention of the learned counsel is against the record. The place of occurrence is at considerable distance from the hospital. The occurrence was reported in the police station at 5-10 p.m. so there was no time for conducting post mortem and the same was conducted in the morning next day, so such a delay in post mortem is not a circumstance which could lead to the inference that the F.I.R. was registered at a belated stage. The inquest report regarding Abdul Razaq deceased bears signatures of Muhammad Mirza, P.W. which indicates that at least he was present at the place of occurrence at relevant time. So far as the matter regarding presence of witnesses at the place of occurrence is concerned, complainant Liaqat Ali was the real brother of Razaq, deceased and the other P.W. Muhammad Mirza, P.W.13 was cousin of Maula Dad, deceased. Both these persons nominated each accused for causing injury to each deceased. There was no enmity between the parties and the defence remained unable to bring on record any previous enmity between the complainant party and the appellant. So in absence of any such circumstance there must be some strong circumstance to disbelieve such witnesses who have implicated the appellant for killing their close relatives. The appellant has taken a specific stance stating that firing was made between two factions of the village and the deceased received injury by stray bullets of their own party. The post mortem report indicate that fire made on Abdul Razaq was of such a nature which cannot be presumed to have been fired from a far off distance. The bullet entered the shoulder and while penetrating the whole body made its exit from the back. Such a penetration can be caused by a bullet when it is fired from not a much more distance. There was no blackening seen so it can be said that the fire was not made from very close range but the fact remains that the injury was the result of tire which was made not from a considerable distance. Therefore the defence plea that the deceased received fire-arm injuries at the hands of their own companions does not appeal to a prudent mind. There is another circumstance that no one from the side of appellant received any kind of injury and two persons from the complainant side received fire-arm injuries and ultimately died. So the version of the appellant is absolutely not acceptable. The appellant after the occurrence absconded. Perpetual warrants were issued against him and he could only be arrested after six long years and the evidence in respect of his arrest indicates that even at that time he was having .12 bore gun and cartridges with him. Later on he also got recovered a kalashnikov along with 189 bullets. Yet another recovery was effected on his pointation in which a rifle along with 98 bullets were recovered from him. Recovery of such a huge quantity of ammunition throws light on the character of the appellant. Motive stated was that a few days prior to the present occurrence, the appellant had come drunk and was reprimanded by the complainant party and he bore grudge in his mind. Even on the day of occurrence two/three hours before the present occurrence; the appellant along with Imtiaz co-convict came at the house of the complainant and resorted to firing and in retaliation the complainant party also fired shots with their licensed guns as a result of which both the convicts ran away. There is force in the argument of the learned Deputy Prosecutor-General that the occurrence took place on the way when the complainant party was going to report the matter of earlier incident of firing and the appellant and his co-convict were expecting. them to be passing through the said way as such the story of the prosecution is plausible and presence of the witnesses along with the deceased at the relevant time is more than natural. Both the deceased persons received firearm injuries at a distance from each other. Even this circumstance supports the prosecution case that they were tired at when they were running.
' So far medical evidence is concerned, the doctor who conducted the post mortem examination observed that the deceased died because of fire arm injury. It was alleged in the F.I.R. that Abdul Razaq, deceased received fire on his shoulder. The post mortem examiner observed entry wound on the left shoulder which made exit on the back so the presence of injury on the shoulder corroborates the ocular account. It was contended by the learned counsel for the appellant that according to the prosecution case the deceased was running when he was fired at by the appellant and in such circumstances, existence of entry wound on the front side belies the prosecution version. It was case of the prosecution throughout investigation and even at trial and the eye-witnesses remained consistent that Razaq deceased started running when he was fired at by the appellant. The deceased was a human being having fear of his death so it can well be understandable that he might have been changing his positions within seconds to save himself and in this process received fire shot at his shoulder. Presence of injury on the shoulder is a circumstance which strengthens the prosecution version narrated in the P.I.R. and deposed at trial.
Even the time mentioned in the post mortem report and weapon of offence fully co-ordinates with the ocular account.
' Non-availability of crime empties at the spot is a circumstance which can be explained in many ways. The place of occurrence was field near the road where many persons were gathered so possibility of crime empties having been misplaced or taken by some one cannot be ruled out.
Even otherwise it was case of the prosecution that both the appellant and the deceased were running in the field when the deceased was fired at, so possibility of the crime empty having been lost is understandable.
' The appellant absconded after the occurrence and remained fugitive from law for six years. It has come on record that his father Ali Muhammad was also arrested in this case. So it cannot be said that the appellant had no knowledge of his involvement in the present case. This is also a circumstance which goes against the appellant.
17.So this is a case in which ocular account is trust worthy, reliable and there is no reason to disbelieve the same. The ocular account is supported by the medical evidence, motive and absconsion of the appellant. The defence taken by the appellant is absolutely unreliable rather unnatural.
18.The learned trial Court also convicted the appellant under section 34 of the P.P.C. for sharing common intention with Imtiaz Ahmad co-convict for the murder of Maula Dad and sentenced him inter alia to imprisonment for life. It has been brought on record by the prosecution through evidence that earlier to the present occurrence the appellant armed with rifle along with Imtiaz co- convict came to the house of the complainant and resorted to firing. Even at the time of present occurrence both of them armed with lethal weapons remained sitting ambush waiting for the complainant party and attacked them. It has also been brought on record by the prosecution that the appellant raised commanding lalkara and on hearing the same both the deceased ran in order to save their lives. The appellant chased Abdul Razaq whereas Imtiaz co-convict chased Maula Dad and fired shots at them resulting in death of both of them. This shows that both the convicts had shared common intention to kill the deceased and had been rightly convicted for sharing common intention.
19.We have considered the alternate plea of the learned counsel for the appellant regarding lesser sentence. Although only one shot was fired by the appellant but it was case of prosecution throughout the trial that after hearing lalkara, Abdul Razaq deceased ran to save his life but was chased by the appellant. This shows that the appellant had full intention to kill the deceased.
Moreover firing only one shot does not bring the case of an accused within mitigation unless intention of the accused for not intending death is supported by other extenuating circumstances calling for lesser sentence which are absent in the present case. The appellant was sitting ambushed armed with rifle along with his co accused waiting for the deceased persons expecting them to pass through the way to report the matter. The motive was that the appellant had come to the village of the complainant while drunk and was admonished. It is also available on record that the appellant at the time of arrest was armed with a gun and even on his pointation huge quantity of ammunition was recovered. This fact throws light on the character of the appellant. It may be mentioned that after the Court comes to the conclusion that a person is guilty of the offence and he is convicted then the next question comes as to how much sentence would meet the ends of justice. For qatl-e-amd normal penalty provided by law is sentence of death but if there are certain circumstances calling for lesser sentence then the Court considers the said extenuating circumstances. But in the present case no such circumstance is forthcoming. He acted in a callous manner and even in the Matter of quantum of sentence lie does not deserve any leniency. In arriving at such a conclusion we are guided by the Hon'ble Supreme Court in Muhammad Sharif v. Muhammad Javaid (PLD 1976 SC 452) and Umar Farooque v. The State (2006 SCM R 1605).
20. The upshot of the above discussions and conclusions is that the prosecution has proved its case against the appellant beyond shadow of doubt and the learned trial Court has rightly convicted and sentenced the appellant. Criminal Appeal No, 1439 of 2007 is, therefore, dismissed.
Murder Reference No, 540 of 2007 is answered in affirmative and sentence of death is hereby confirmed.