Mazhar Iqbal Sidhu, J.--This judgment will dispose of above captioned Criminal Appeal filed by Mitha, Riaz alias Lal, Fareed and Baati appellants as well as above captioped Murder Reference for confirmation of death sentence or otherwise of Mitha and Riaz alias Lal appellants who were convicted by learned Addl. Sessions Judge, Mandi Baha-ud-Din in case FIR No, 29/2004 dated 30.1.2004 registered under Sections 302/324/148/149 PPC at Police Station, Mianagondal, Distt.
Mandi Baha-ud-Din vide impugned judgment dated 26.5.2006 and were sentenced as fellows:-- MITHA AND RIAZ (a) LAL, APPELLANTS NO. 1 & 2.
(i) Death sentence each under Section 302(b)/34 PPC as Tazir and to pay Rs, 50,000/- each as compensation to the legal heirs of deceased, Muhammad Akram u/S. 544-A of Cr.P.C. and in default whereof to further undergo S.I. for a period of six months each.
FAREED AND BAATI, APPELLANTS NO. 3 & 4
(i) Life imprisonment each u/S. 302(b)/34 PPC as Tazir for commission of Qatl-e-Amad with common intention and to pay Rs, 50,000 as compensation to the legal heirs of deceased Muhammad Akram and in default whereof to further under SI for six months each.
BAATI, APPELLANT NO. 4.
(i) Ten years RI u/Ss. 324, 342/34 PPC for committing murderous assault on Muhammad Ashraf injured PW.9.
Fareed and Baati appellants were extended the benefit of Section 382-B of Cr.P.C.
2. Nutshell of the prosecution saga as disclosed by complainant Ijaz Ahmad (PW.08) in FIR (Ex.PH) is that his brother Muhammad Akram deceased was Army Personnel at Sialkot who came to his house about 20 days before the happening of infelicitous incident leave. On 30.1.2004 at about 1.00 p.m. appellant Mitha armed .12 bore double barrel, Farid appellant armed with .12 bore double barrel gun, Soeni sons of Zaida armed with .12 bore gun, Zaida armed with hatchet, Soeni s/o Hayat armed with .12 bore gun, Bakhsha armed with pistol, Riaz alias Lal appellant armed with .12 bore double barrel gun, Hayat armed with, dagger, Fateh Muhammad armed with .12 bore double barrel, Mustansar armed with .12 bore double barrel gun, Inayat armed With .12 bore double barrel gun, Muhammad Yousaf empty handed, Baati appellant armed with .12 bore gun, Ghulam Abbas armed with 8 MM rifle, all residents of Mumdana came there. Farid appellant raised a Lalkara that Akram etc. should not let free and on his Lalkara Mitha appellant made fire shot with his gun which hit on forehead of Muhammad Akram, then Farid appellant made fire shot with his gun which landed on the left upper arm of Muhammad Akram, Riaz alias Lal appellant made fire shot which hit on the right shoulder and upper arm of Muhammad Akram deceased, Baati appellant made fire shot with his gun which hit on the right upper arm of Muhammad Ashraf. On sustaining the injuries, Muhammad Ashraf (injured PW) and Muhammad Akram (deceased) both fell down. The complainant to save his life escaped beside the wall. The accused while making indiscriminating firing and raising Lalkaras made off from the spot. On hearing the firing reports, persons from the village gathered. The occurrence was witnessed by Muhammad Nazir, Ahmad and Muhammad Nawaz. Muhammad Ashraf and Akram injured were being taken to the hospital Mianagondal and on the way to hospital, Muhammad Akram succumbed to the injuries.
The motive of the occurrence was that three years before a fight had taken place between brother of Mitha appellant namely Gulzar and Muhammad Akram deceased. The accused rankled grudge in their mind and the accused on the abetment of Gulzar and Bashir with their common object committed murder of Muhammad Akram deceased and injured Muhammad Ashraf. Henceforth the case.
3. The investigation of this case was conducted by Syed Sabir Hussain Shah Inspector/SHO (PW.12).
He deposed that on 30.1.2004 Muhammad Ijaz complainant while appearing before him alongwith the dead body of Muhammad Akram deceased and Muhammad Ashraf injured PW got recorded his statement Exh.PH, who signed the same in token of its correctness. He prepared injury sheet of Muhammad Ashraf injured Exh.PL and sent him to RHC Mianagondal through Shehzad Ahmad 416/C, prepared injury sheet of Muhammad Akram deceased Exh.PK/2, inquest report Exh.PK/3 and dispatched dead body through Zafar Iqbal 501/C alongwith application for post-mortem Exh PK/4 and himself proceeded towards the place of occurrence. After spot inspection, he secured blood imbrued earth, made the same into sealed parcel and took into possession vide memo Exh.PJ and recorded statements of PWs u/S. 161 Cr.P.C. On 31.1.2004, he went to RHC Mianagondal, recorded statement of Muhammad Ashraf injured. Zafar Iqbal 501/C after postmortem of deceased produced before him last worn blood imbrued raiments P-1 to P-4 which he took into possession vide recovery memo Exh.PD attested by the PWs. On the same day, he also prepared rough site- plan of the place of occurrence Exh.PN, got prepared scaled site-plan from the draftsman in duplicate Exh.PG and Exh.PG/1. On 24.2.2004 he arrested Farid, Mitha appellants, Soeni and Inayat co-accused. On 7.3.2004, during interrogation, accused Inayat made a disclosure and got recovered .12 bore gun P-5 from his residential house, made the same into sealed parcel and took into possession vide recovery memo Exh.,PC attested by the PWs and prepared rough site-plan of the place of recovery Exh.PC/1. On the same day, appellant Mitha got recovered gun .12 bore P-8 from his residential house, he made the same into sealed parcel and took into possession vide recovery memo Exh.PE attested by the PWs and prepared rough site-plan of the place of recovery Exh.PE/1. On the same day, Accused Soeni s/o Zaida also got recovered .12 bore gun single barrel P- 9, he made the same into sealed parcel and took into possession vide recovery memo Exh.PF attested-by the PWs and also prepared rough site-plan of the place of recovery Exh.PF/1. On the same day, Appellant Farid also got recovered gun .12 bore double barrel P-6 alongwith its licence P-7 from his residential house, he made the same into sealed parcel and took into possession vide recovery memo Exh.PD attested by the PWs. He also prepared rough site-plan of the place of recovery Exh.PD/1. He handed over the case property to the Moharrar for its safe custody in the Malkhana and further action thereon as per law. He also recorded the statements of the PWs step- wise.
Thereafter investigation of this case was entrusted to Mozaffar. Hussain Inspector (Investigation Cell) Sargodha by the order of District & Sessions Judge, Mandi Baha-ud-Din. He summoned all the accused in office and heard both the parties and came to conclusion that accused Fateh Muhammad, Zaida and Mustansar were not involved in the occurrence and remaining accused in his opinion were found involved in the occurrence. He also added offence u/S. 109 PPC against Baati appellant, accused Abbas, Bashir and Gulzar which was deleted by the previous I.O.
Thereafter, accused party moved an application for the re-investigation of case before Sessions Judge, Mandi Baha-ud-Din. The Court summoned both the parties and after hearing the parties directed that according to his investigation challan may be submitted. Investigation culminated in preparing the report u/S. 173 Cr.P.C.
4. Trial concluded, resulted in pronouncement of impugned judgment.
5. At the trial, the prosecution in order to prove its case produced 13 witnesses in all.
The medical evidence was adduced by the statement of Dr. Hafiz Iftikhar Ahmad M.0 RHC Mianagondal (PW.1) who on 21.1.2004, at 8.00 a.m., medically examined injured Muhammad Ashraf and observed as follows:-- INJURIES:
(i) Fire-arm entry wound round in shape of the size 1/2 x 1/2 cm located on anterior aspect of right arm 13 cm below the shoulder joint and 17 cm above elbow joint. Margins of wound were inverted and wound was going deep into the muscle. The corresponding hole was present in clothes. X-ray was advised.
Probable duration of injury was within 24 hours, caused by fire-arm. Exh.PA was the correct carbon copy of MLR and Exh.PA/1 was the pictorial diagram, the same bore his signatures.
Dr. Muhammad Akhtar, M.O., (PW.10) deposed that on 31.1.2004 at DHQ hospital Mandi Baha-ud-Din he conducted post-mortem examination on the dead body of Muhammad Akram deceased and observed as under:-- INJURIES.
1. Fire-arm wound of entrance 1 cm x 1 cm with inverted margins on mid forehead.
2 Fire-arm wound of entrance 1 cm x 1 cm on the right shoulder top.
2-AFire-arm wound of entrance 1 cm x 1 cm on the right upper arm anteriorly.
2-BFire-arm wound of exit 1.5 cm x 1.5 cm with everted margin on the medial side of right upper arm.
3-B. Fire-arm wound of entrance 1 cm x 1 cm on out side of left upper arm.
4-B. Fire-arm wound of exit 1.5 cm x 1 cm on the inner side of left upper arm.
5. Fire-arm wound of entrance 1 cm x 1 cm on right knee interiorly.
6. Fire-arm wound of entrance 1 cm x 1 cm on left lower leg interiorly with inverted margin.
(Remarks)
In his opinion, the death was caused due to injury to vital organ, brain and left lung, caused by injury No, 1&2. Both injuries were sufficient to cause death individually. All injuries were ante-mortem and were caused by firearm weapons.
Probable time that elapsed between injury and death was within minutes and between death and post-mortem was within 24 hours.
Exh.PK was the correct carbon copy of post-mortem examination report and Exh.PK/1 was the pictorial diagram showing the seat of injuries, the same bore her signatures.
Learned DDA renounced PWs namely Muhammad Nawaz s/o Monda, Muhammad Nawaz s/o Bashir Ahmad, Muhammad Nazir, Ahmad Khan and Ghulam Abbas ASI as being unnecessary, thereafter, he by tendering in evidence reports of Chemical Examiner Exh.PN and that of Serologist Exh.PQ, closed the prosecution case. Then the statements of the appellants were recorded under Section 342 Cr.P.C. wherein they refuted the charges and possessed their innocence and claimed acquittal. The appellants except Mitha neither opted to produce defence evidence nor opted to make statements as required u/S. 340(2) Cr.P.C. in disproof of allegations levelled against them.
The appellant Mitha in answer to a question "why this case was made up against you and why the PWs deposed against you" replied infra:-- "PWs are closely related, interested and inimical to me and they got the motive to falsely implicate me. The actual facts are that Muhammad Akram deceased abused and exchanged hot words With the mother of mine and also fired at that time. After that deceased went to his house and again armed with firearm weapon alongwith his other companions came to the house of mine and fired towards the house of mine. During the firing from the complainant party, the deceased Muhammad Akram received a fire from their own companions and expired and complainant party subsequently roped me alongwith my co-accused in this false case."
The remaining appellants in reply to the same question also deposed in line with the above said appellants.
The trial concluded in conviction and sentence of the appellants as mentioned supra while their co-accused were acquitted by the same impugned judgment.
6. In support of appeal learned counsel for the appellants has argued that motive mentioned in FIR that about three years before the happening of instant incident, Gulzar Ahmad (acquitted accused) brother of Mitha appellant and Muhammad Akram, the deceased ensued a strife and due to the same, dudgeon had been rankling, the same does not appeal to reasons on the ground that reasons for the fracas have not been brought on record by the prosecution and the prosecution's story is mute over this fact that during the intervening period any untoward incident had taken place or not. Further submitted that even on the day of occurrence what happened immediately before the occurrence has not been brought on record. In these circumstances, the prosecution has miserably fizzled out to prove its motive. With another angle, arguments have been raised on the motive that Gulzar, the real brother of Mitha appellant had the direct motive against the deceased but he neither struck back of the same nor physically participated in the alleged occurrence. Further submitted that prosecution story with reference to motive becomes doubtful when Gulzar Ahmad whom the motive was attributed has been arrayed as an accused for the alleged abetment in this case and has not been even recommended by the investigating agency for trial. Further submitted that Muhammad Ashraf the alleged injured of this case had not caused any inconvenience to any of the appellants, then why he was made a target in this case by the accused of FIR. Learned counsel submits that no independent evidence has been brought on record to establish the motive and has, thus, submitted that the prosecution has miserably washed out to prove its motive.
7. Learned counsel has argued as to ocular testimony of hinges upon the statement of Ijaz Ahmed, the complainant (PW.8) and Muhammad Ashraf, the injured (PW.9). Both are real brothers inter se as well as the deceased Muhammad Akram and because of their propinquity with the deceased have made false statement against the appellants. Further submits that alleged incident took place in a thoroughfare of village, during the time of incident, people of the vicinity were passing through there but neither any of them has been cited as witness nor has been examined as witness. In view of this, prosecution case hinges depends not only on the statement of related PWs but also the inimicals. Learned counsel has submitted that occurrence took place at the spur of moment and what happened immediately before the occurrence is in gloom, the complainant party in connivance with the police after due deliberations and consultation has made a mesh widen and involved as many as 14 persons excluding the accomplices of alleged conspiracy.
Further submits that deceased Muhammad Akram in fact received a single gun fire shot but the complainant has allocated each pellet injury to as many as three persons/appellants namely Mitha, Farid, Riaz and Muhammad Ashraf injured also received a strayed/ isolated/wandered pellet during the occurrence but the same has, too, been attributed to Baati appellant. Further submitted that medical evidence does not support the ocular account, in this way, has hankered for acceptance of appeal.
8. Learned counsel with respect to the recovery of alleged crime weapons submits that since no report of the Fire-arm Examiner/Forensic Science Laboratory, Lahore has been produced by the prosecution, therefore, evidence of recovery is inconclusive and insignificant. Learned counsel for the appellants has lastly argued that prosecution has floundered to prove its case and the appellants may be acquitted after acceptance of the appeal.
9. Learned DPG assisted by learned counsel for the complainant has opposed the submissions by contending that record is mute over this particular fact that deceased had ever any enmity or grudge with any person of the locality except the appellants' party and no such efforts have been made by the appellants to bring any such evidence on record. In this way, the motive of the prosecution has not been considered to have been disproved.
10.Learned counsel submits that occurrence took place during daylight; parties were of the know each other before occurrence and the case rests upon the statements of PW.9 Muhammad Ashraf injured besides the complainant, statements of these two PWs are consistent, corroborated by the medical evidence and simply for the reasons that they are related to the deceased by itself cannot be held false PWs.
11.As to the recovery of crime weapons, learned counsel submits that it is an open and shut that no report of Fire-arm Examiner/F.S.L., Lahore is available in this case but at the same time, the doctor has categorically opined that deceased as well as injured had received fire shot injuries, therefore, in absence of the positive report, recoveries of the weapons can be taken into consideration.
Learned counsel for complainant has lastly argued that medical evidence is not in contrariety with the ocular account. In these.circumstances, prosecution has been able to bring home the charges against the appellants successfully.
12.Heard and record perused.
13.Occurrence took place on 30.1.2004 at about 1.00 p.m. and the matter was reported on the same day at about 3.45 p.m. to the police detailing all facts in the FIR. No inordinate delay has been caused by the complainant party in lodging the FIR. No doubt number of accused have been shown as 14 who participated in the occurrence but at the same time, effective roles have allegedly been ascribed to only four persons and the prosecution case is based upon statements of Ijaz Ahmed complainant (PW-8 non-injured) and Muhammad Ashraf injured (PW.9). Indubitably they are not only inter see related but are also related to the deceased, therefore, testimonies cannot be thrown out of consideration because of their kinship as Muhammad Ashraf injured PW received injuries during the occurrence. In this view of the matter, his presence cannot be doubted at the spot especially when his injury has not been called in question to have been caused with friendly hands or it was manoeuvred so as case of Ijaz Ahmad PW.8 that it cannot be accepted that he by leaving the actual culprits might had involved the appellants especially when his relation with the deceased does not allow him to do same and again his statement has been corroborated by Muhammad Ashraf injured PW. We have thoroughly gone through the statements of these two eye-witnesses and found that they have suffered from rigors of protracted cross- examination but the defence remains failed to bring out/elicited anything in favour of the appellants. No major contradictions, confrontations or deliberate improvements and dishonest omissions have been found therein.
14.So far as non-participation of the independent persons in this case is concerned, the Hon'ble Supreme Court of Pakistan has settled down since 1972 that unrelated or unconcerned persons do not come forward to become a witness in any case, particularly, in the murder cases so that he may not be entangled with in future enmity and impending circumstances are apprehended by them in this respect. No deep rooted enmity has been found in this case, therefore, no need existed of any independent corroboration for the support of these PWs. Even otherwise, principle of independent corroboration is not a rule of law but it is a rule of prudence and the same does not apply in each and every murder case. However, in some cases where remarkable circumstances are found, such as, night occurrence, deep rooted enmity between the parties or aggrieved party may have enmity with other persons of the vicinity apart from the accused persons of that case but no such stance has been found available in this case, therefore, we have found nothing to disbelieve the evidence of eye-witnesses.
15.So far as crime weapons allegedly recovered from the appellants are concerned, expendably. it seems proper to dilate upon this piece of evidence of the prosecution in absence of Fire-arm Examiner/ Forensic Science Laboratory.
16.Medical evidence adduced by doctor Hafiz Iftikhar Ahmad PW.1 and doctor Muhammad Akhtar.
PW. 10 has supported the ocular account and no contradiction or diversity has been found in between the ocular account and medical evidence.
17.Blood imbrued earth was taken into possession from a place where deceased received fire shot injury, the same remains un-rebutted during the trial.
18.For what has been discussed supra, we are of the opinion that prosecution has fully proved its case against the appellants.
19.On further exploring the record throws up that certain circumstances/factors and loopholes existed in the case which have persuaded us not to upheld the capital sentences of Mitha and Riaz appellants and to acquit Baati appellant. These are as follows:--
(i) Prosecution has introduced remote motive and the same has not been proved. Obviously for the same, prosecution has to suffer.
(ii) What happened between the parties after the incident of motive till the happening of incident is in gloom.
(iii) Appellants Mitha, Riaz, Fareed and Baati had no direct motive either against the deceased or against the injured and what happened on the fateful day immediately before the occurrence has been found shrouded in mystery.
(iv) Recovery of crime weapons does not advance the prosecution case owing to lack of any report of Fire-arm Examiner/Forensic Science Laboratory about their use and also no spent crime empty was taken into possession during the investigation.
19.In these circumstances, Death sentence of Appellant No, 1 Mitha and Appellant No, 2 Riaz @ Lal are commuted from Death to Imprisonment for life each while dismissing the instant appeal to their extent. However, they are extended benefit of provisions of Section 382B Cr.P.C. Murder Reference is answered in the Negative.
20.So far as appeal to the extent of Appellant No, 3 Fareed is concerned, the learned trial Court has already taken a condign view as to his quantum of sentence and we have not found any flaw vis-a-vis proof of case to his extent, therefore, appeal to his extent is dismissed and the impugned judgment qua Fareed is maintained and upheld.
21.As far as Appellant No, 4 Baati is concerned, injury attributed to him towards injured Muhammad Ashraf is on non-vital part of his body. At the time of occurrence, the deceased and injured PW were present with close proximity as shown in scaled site-plan Exh.PG/1 prepared by the draftsman. The doctor has categorically made statement that injury received by him is simple in nature. No foreign body or bony lesion was seen therein and possibility of hitting him a migrated pellet cannot be ruled out and by taking guidance from the principle of abundant caution for the safer administration of justice and keeping in view his relationship with the principal accused, chances of his false implication cannot be ruled out, therefore, appeal to his extent is accepted.
Consequently, his conviction and sentence is set aside and he is acquitted of the charges levelled against him by extending benefit of doubt.