CH. MUHAMMAD TARIQ, J. This single judgment shall dispose of Criminal Appeal No, 486 of 2006 filed by the appellants against their conviction and sentence and Criminal Revision No,326 of 2006 filed by the complainant for enhancement of sentence of the appellants-convicts, as both these petitions arise out of one and the same judgment dated 28-2-2006 passed by Mr. Salah-ud-Din, learned. Additional Sessions Judge, Jhang who, while acquitting other co-accused, convicted and sentenced the appellant as under: --
(i) MUHAMMAD RIAZ
(a) Under section 302-B/34, P.P.C., life imprisonment as Tazir with payment of Rs,100,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default of payment of compensation, to further undergo six months' S.I.
(ii) JAVED AKHTAR
(a) Under section 324, P.P. C., 7 years' R.I. with fine of Rs,20,000 and in case of failure of payment of fine, to further undergo 1 year's R.I.
(b) Under section 337-F(iii), P.P. C., 2 years' with payment of Rs, 30,000 as Daman.
(c) Under section 337-F(i), P.P.C., 3 months' S.I. with payment of Rs,2,000 as Daman.
(d) Under section 337-L(2), P.P.C., payment of Rs,5,00 as Daman.
All the sentences of Javed Akhtar were ordered to run concurrently. Benefit of section 302-B, P.P.C. was awarded to both the convicts.
2. Precisely stated the prosecution story as contained in F.I.R. No,177 of 2004, dated 17-4-2004, for the offences under sections 302/324/34, P.P.C. registered with Police Station City Shorkot, District Jhang on the complaint of Muhammad Kabeer are that Muhammad Munir the grand-child of the complainant Run a shop at Mauza Shah Sadiq Nehang. Muhammad Munir and Dalmeer Hussain, complainant's brother, were standing near the said shop on 17-4-2004 at 3-00 p.m., when, at the behest and abetment of Pervaiz, Javed accused armed with a Mouser, Muhammad Riaz alias Raja armed with rifle .7 mm, Ashraf with Sota and Akbar with Pistol .30 bore emerged on a tractor. They raised a lalkara at Dalmeer and Munir to teach them a lesson for false allegations of theft against them. Riaz fired with his rifle at Dalmeer which hit his abdomen at the left front. He fell down. Javed accused inflicted two Mouser shots at Muhammad Munir which hit his outer left thigh and right thigh in the back. He too fell down. Ashraf gave two sota blows landing at his left side of neck and little finger of left hand. Akbar pointed his pistol at the complainant and threatened to kill him if he stepped forward. On his alarm, son of the complainant Abdul Rasheed who was harvesting wheat and others attracted to the, spot but the accused persons succeeded to flee away on their tractor while making aerial firing. Dalmeer died at the spot.
3. The motive of the occurrence is stated to be the allegations of theft levelled by the complainant party against the accused party.
4. After completion of investigation, the police submitted report under section 173, Cr.P.C. The copies of the challan were provided to all the accused, as required under section 265-C, Cr.P.C. The charge was framed which was denied by all the accused who pleaded not guilty and false implication in the case. In order to prove its case, the prosecution produced many as 12 witnesses.
5. During the trial, the ocular account was furnished by Muhammad Kabeer (P.W.9) and Muhammad Munir (P.W.10/injured witness) who reiterated the contents of the F.I.R.
6. During the trial, Aman Ullah, S.-I. (Retd.)/ Investigating Officer/ P .W.11 deposed that on receiving complaint, he proceeded to the place of occurrence, where he found Muhammad Munir injured while Dalmeer Hussain dead. After preparing injury statements and Inquest report, he sent the, injured for medical treatment while the dead body of the deceased for post-mortem. He inspected the place of occurrence, secured blood-stained earth and last worn clothes of the victims, prepared site plan, recorded statements of P.Ws. under section 161, Cr .P .C. and also arranged sending of blood-stained earth to the Office of Chemical Examiner, Punjab. Then, he proceeded to Tehsil Headquarters Hospital Shorkot and recorded the statement of injured Muhammad Munir under section 161, Cr.P.C. The I.O. arrested Jived Akhtar, Muhammad Ashraf and Akbar accused on 24-5-2004. On 3-6-2004, he recovered rifle (P-3) on the pointation of Javed Akhtar. He also took into possession the tractor allegedly involved in the case. On disclosure by Muhammad Ashraf and Akbar Ali while in police custody, the I.O. recovered sota (P-4) and pistol (P-5) from their respective residences which were secured by the Investigating Officer. After completion of investigation, the Investigating Officer submitted challan in the learned trial Court.
7. Dr. Muhammad Hashir, MO, DHQ Hospital Shorkot is P.W.1 who examined. the injured Muhammad Munir. Dr. Zafar lqbal SMO/P.W.4 conducted' autopsy on the dead body of Dalmeer Hussain and found inter alia following injuries on his person.
Injury No,1 A firearm entrance wound 1 cm x 1 cm x passing x abdomen on left side 14 cm outer to naevus- ubblicus. The margin of the wound inverted but no blackening.
Injury No,1-A A firearm exit wound 1.5 cm x 1.6 cm on upper most part of right buttock 2 cm from midline.
In his opinion, the death had occurred due to haemorrhage and shock resulting from above noted injuries which were sufficient to cause death in ordinary course of nature.
8. The other witnesses being formal in nature need not to be discussed here.
9. After close of prosecution evidence, the accused were examined under section 342, Cr.P.C., wherein Riaz, Ashraf, Akbar and Pervaiz accused denied their presence at the place of occurrence at the time of occurrence and pleaded innocence Ashraf and Akbar accused even questioned the recoveries of sota and pistol made from them and stated that these were planted upon them. Riaz accused took the following plea:-- "I am innocent. I and my brother had got land on lease from Auqaf Department at Chah Muraday Wala. On 17-4-2004, I along with my brother Muhammad Javed Muhammad Ashraf and Akbar son of Rahm Din were busy in cultivating sugarcane crop and after sowing the said crop Javed and Ashraf went back to their Dera and I was busy in watering the sugarcane crop. At about Deegar Waila I was present near the said crop along with other persons. During that period we heard noise of firing and proceeded towards that direction. When we had covered distance of half kanal we also heard- noise raised by ladies that the fight in between Chaudhries and Arain had taken place and the persons of Arain tribe reside at Chah Arbian Wala. I came across Rasheed son of Shafi, who informed me that there was a noise of firing. I went to my Dera and from there to my house. I also heard announcement from the Mosque that Dalmeer Arain was murdered. During the investigation I pleaded in my first version about my innocence and in successive investigation I was found innocent. I was not present at the time of occurrence and the complainant and the P.
Ws. have involved me falsely in this case."
10. Javed Akhtar, Ashraf and Akbar accused stated as under:-- "On the day of occurrence, I was passing in front of the shop of Muhammad Munir P.W. at about 2- 00 pm. and that Dalmeer deceased and Muhammad Munir injured P. W. tried to stop me as they were armed and also had developed enmity with me. I managed to run away on a tractor.
I sent Yasin and Liaquat to inform my brother Pervaiz that the complainant party was out to pick up a fight and that he should not pass in front of the shop of Munir and when they were going on the way and reached near the shop the deceased and Munir again tried to get hold of them Yasin managed to run away and informed that Liaqat was in their custody. I along with Yasin and Faryad Ali had gone to get released Liaqat Ali from the illegal custody of deceased and Munir injured and when we reached there then the present incident took place. I am innocent. The deceased and the injured had launched attack upon us. During the successive investigations, my version was accepted. Version of the prosecution was proved to be false."
11. After conclusion of the trial, the learned trial Court while acquitting other accused, convicted and sentenced Riaz and Javed as mentioned in para 1 above. Hence this Criminal Appeal.
12. Learned counsel for the appellants-convicts inter alia contends that the prosecution has failed to prove its case beyond any shadow of doubt and learned trial Court has convicted the appellants merely on the basis of surmises and conjectures. Learned counsel argues that in fact, it was the complainant party who waylaid and attacked on Faryad and Yasin and during this scuffle, Dalmeer Hussain, the son of the complainant/P.W.9 died and Muhammad Munior/P.W.10 suffered injuries but since the appellants are head of the family and well- known persons in the area, therefore, they were implicated in the case. Learned counsel avers that the appellants-accused persons were declared innocent in 4 consecutive investigations conducted by various agencies; the site plan prepared on the instructions of the complainant negates the version of the complainant party and the prosecution has failed to produce any independent witness. Learned counsel further argues that P.W.9 deposes that the distance between the shop and the place of occurrence was one acre while in fact the distance was only about 1 kanal. He argues that the prosecution has failed to prove the motive of occurrence and could neither produce the tracker nor Ghulam as P.W. According to the contents of F.I.R., accused Javed was armed with pistol and Muhammad Riaz accused was armed with .7 mm rifle but during the investigation and physical remand, only rifle was recovered by the police from accused Javed while no recovery could be effected from convict Riaz. Similarly, police has not recovered any empty from the place of occurrence nor there is any report of Forensic Science Laboratory on record to corroborate the version of the complainant. Learned counsel asserts that the appellants are innocent who have been roped in the case as a wider net on the instance of one Khalid, Retired Police Inspector who has close relations with complainant party. Learned counsel has also pointed out that Javed accused has been released from the jail after serving his sentence. He prays that the appeal be allowed, the criminal revision be dismissed and the conviction and sentence of the appellants be set aside.
13. On the contrary, learned District Public prosecutor assisted by Raja Akhtar Nawaz, Advocate has vehemently opposed this appeal and has contended that it was a broad-day occurrence, the appellants are not only well-nominated in the F.I.R. but have also been ascribed with specific roles.
Learned Law Officer argues that. Muhammad Munir P.W.10 is a natural and independent witness who suffered injuries at the hands of Javed and being injured, his presence at the spot cannot be denied; that the contents of F.I.R. are in line with the medical evidence and that the ocular account is consistent and is in line with the medical evidence. Learned Law Officer apprises the Court that the appellants are well-known influential persons in the area who had joined hands with the local police; that is why, despite the fact that it was a broad-day occurrence which had taken place in the village, the police not only declared the appellants-convicts innocent but also did not recover any empty from the place of occurrence to protect the appellants-convicts from the clutches of law. Similarly, the police did not send the weapon of offence to the Forensic Science Laboratory for their report. Learned District Public Prosecutor has further argues that substitution is a rare phenomenon. The appellants have taken a specific plea of alibi but have failed to produce any evidence in support thereof. Learned District Public Prosecutor prays that the appeal be dismissed, criminal revision be accepted and sentence awarded to Muhammad Riaz and Javed be enhanced to death and 10 years imprisonment respectively.
14. I have heard the arguments advanced from all the corners and have also gone through the record with able assistance of learned counsel for the parties.
15. Perusal of record shows that it is a broad-day occurrence. The appellants-convicts are nominated in the F.I.R. with specific role that they waylaid and when the complainant party arrived at the place of occurrence, the accused party attacked on the complainant party and as a result, Dalmeer Hussain, son of complainant/PW-9 succumbed to the injuries inflicted by the A appellants party while Muhammad Munir/P.W.10 who is grandson of the complainant suffered fire arm injuries.
P .W.9 and P.W.10 furnished ocular account and despite lengthy cross-examination, the defence has failed to shatter their evidence and put any dent in the prosecution story.
16. According to the contention of learned defence counsel the complainant party was aggressor.
However, if the complainant party would have attacked the appellants, the appellants must have received some injuries but there is no such medical evidence in support of contention of learned counsel for the appellants-defendants. As per record, none from appellant side suffered any injury.
P.W.10., Muhammad Munir is an injured witness, so his presence at the spot could not be denied.
17. During the arguments, learned defence counsel has admitted the occurrence but has taken the plea of substitution which is a rare phenomenon. Despite the fact that the defence has taken a specific plea but the appellants side has failed to produce any evidence in support of their assertion, which itself negates the defence version. The argument of learned defence counsel that the prosecution has been unsuccessful to prove motive is untenable as weakness of motive or failure to prove it or even absence of motive is not fatal to the prosecution as held by the Hon'ble Supreme Court of Pakistan in cases titled, "Musa v. The State" and, "Nazir Ahmed v. The State", reported as 2008 SCM R 997 and 2009 SCM R 523 respectively.
18. The contention of learned defence counsel that there is delay in lodging the F.I.R. is also belied from the record. Admittedly, the occurrence had taken place on 17-4-2004 at 5-00 p.m. while the F.I.R. was lodged on the same day at 6-40 p.m. The Investigating Officer has explained the delay while stating that he had firstly taken the injured P.W. Muhammad Munir to hospital for his medical treatment.
19. The next contention of learned defence counsel is regarding recovery of empties and result of Forensic Science Laboratory. It transpires from the mode of investigation that the Investigating Officer has never co-operated with the complainant party. Despite the fact that the appellants D have admitted the occurrence and firing at the place of occurrence but the Investigating Officer had neither recovered the empties nor sent the weapon of offence to Forensic Science Laboratory for their report which clearly shows the dishonesty on the part of the Investigating Officer. So, declaring accused persons innocent by the police is not surprising to this Court keeping in view the conduct and mode of investigation adopted by the police. Respectful reliance is placed on the ratio decidendi laid down by the Hon'ble Supreme Court of Pakistan in cases titled, "Sheraz v. The State" and "Abdul Hameed v. The State" reported as 2007 SCM R 830 and 2008 SCM R 1228 respectively.
20. The contention of learned counsel for the appellants- defendants that the site plan negates the version of the complainant is misconceived because site plan is not a substantive piece of evidence as, definitely, the Draftsman is not the eye-witness, so difference between the distances as contained in the F.I.R. and site plan is not fatal to the prosecution case as held by the Hon'ble Supreme Court of Pakistan in case titled, "Yara v. The State", reported as 2005 SCM R 829.
21. In a nutshell, the prosecution has been successful in proving its case beyond any shadow of doubt. The contentions raised by learned counsel for the appellants carry no weight. The impugned judgment is well reasoned and has been passed in accordance with law and facts of the case. The complainant side has also failed to convince this Court for enhancement of sentence of the appellants-convicts. Hence, the criminal appeal as well as the criminal revision are dismissed.