' JUSTICE MAHMOOD AKHTAR SHAHID SIDDIQUI (MEMBER)---Muhammad Shafiq, appellant and one Shahid son of Lal Din were tried by Mr. Justice (R) Muhammad Sharif Chaudhary, Judge, Special Court for Speedy Trials, Multan for offences under sections 302, 397, P.P.C. And section 17 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 34 of the P.P.C. In case F.I.R. No, 505 of 1993 dated 28-11-1992 registered Mumtazabad Police, Multan at the instance of Muhammad Hussain father of Muhammad Aslam deceased. The trial Court convicted both the accused for offence under sections 302/34 and 394/34, P.P.C, vide judgment dated 4-7-1993.
Muhammad Shafiq appellant was sentenced to death, while Shahid co-convict was sentenced to life imprisonment. Under section 397/34, P.P.C. They were sentenced to 7 years' R.I. Each and allowed benefit of section 382-B, Cr.P.C. They were also burden to pay a sum of Rs,100,000 each as compensation to the legal heirs of the deceased and in case of default they were ordered to suffer further simple imprisonment for six months under section 544-A, Cr.P.C. Shahid co-convict of the appellant preferred not to challenge his conviction and serve out his sentence on both the counts.
The appellant challenged his conviction and sentence before the Federal Shariat Court by way of an appeal (Jail Criminal Appeal No,111/I of 2003), which failed. Resultantly, the Murder Reference No,9/01 of 2004 was answered in affirmative.
2. Leave to appeal was granted by this Court for re-appraisal of the entire evidence. The occurrence took place on 28-11-1992 at about 8-45 p.m. In the area of Madina Colony, Police Station Mumtazabad, Multan. It was reported by Muhammad Hussain (P.W.11) father of Muhammad Aslam Khan (deceased) to Muhammad Yousaf, S.-I. (P.W.14), while he was on patrol duty at BC Chowk, Multan. The statement of Muhammad Hussain Exh.PA/1 was made basis of formal. F.I.R.
Exh.A. According to it Muhammad Aslam Khan son of Muhammad Hussain complainant was employed as a sales man with Shan International Enterprise. Neela Guinbad, Lahore, which dealt in bicycles and its spare parts. The said company used to supply their goods to dealers in different cities and the duty of Muhammad Aslam Khan was to collect money from the dealers and send them to his company through bank drafts, On 28-11-1992 Muhammad Aslam Khan went for the recovery of amount from the dealers at Kehror Pacca, Mailsi and Vehari. After making the recovery of cash Muhammad Aslam Khan was on his way back to his house located in Madina Colony, Multan at about 8-45 p,m. When he was intercepted by 'both the accused. Shahid accused allegedly snatched the rexine bag containing cash, accbunt book and receipt book. Muhammad Aslam Khan started grappling with Shahid when Muhammad Shafiq accused is stated to have fired at Muhammad Aslam in order to extricate his co-accused Shahid from the grip of Muhammad Aslam Khan and accidentally both Muhammad Aslam and Shahid were injured. In his bid to chase the culprits Aslam Khan fell down at a short distance and similarly Shahid' also fell down after crossing the turn of the road. Muhammad Hussain, complainant his two sons Muhammad Ashraf, Muhammad Arshad and nephew Muhammad Shafiq heard the report of the firearms. They all rushed to the spot and saw Muhammad Aslam Khan lying injured. Muhammad Aslant Khan told his father, brothers and his cousin Muhammad Shafiq that the injured culprit had tried to snatch the bag containing cash and on his resistance his co-accused fired at him with a pistol and the bullets hit him and Shahid accused. Muhammad Aslam also disclosed that the other accused ran away with the bag containing cash etc. And the pistol of the injured accused. After narrating these facts Muhammad Aslam Khan; who was grievously injured became unconscious.
They questioned the injured accused who told his name and address as Shahid son of Lai Din, caste Ansari, resident of Basti Ahmedabad. He divulged the name of his companion who had run away as Shafiq son of Muhammad Rafiq caste Rajput, resident of Ahmadabad.
3. After the Registration of the case Muhammad Yousaf, S.-I., (P. W.14) rushed to the spot where he prepared statement of Shahid accused Exh.PQ, collected blood-stained earth from two places one from the place where Shahid accused was present and the other from where Muhammad Aslam Khan fell injured. He found five crime empties )?Xh.P1 to Exh.P5 which were made into a sealed parcel vide memo Exh.PF and Exh.PG. Dildar Hussain, S.-I., was also deputed by the SP to investigate the case. He, on the following day of the occurrence, arrested Muhammad Shafique appellant from a graveyard in Ahmedabad and recovered pistol P.1 from his possession. He also recovered a rexine bag P.6, which contained Receipt Book P.7 Account Book P.8 and currency notes worth Rs,10,100. Muhammad Shafique also got recovered another pistol and two daggers which are not relevant to tbis case. After the completion of the investigation, both the accused were challaned.
4. On the commencement of the trial, a formal charge-sheet was framed against both the accused to which they pleaded not guilty and claimed trial. The prosecution examined as many as 14 witnesses and tendered in evidence the reports of the Forensic Science Laboratory, Lahore Exh.PX and that of the Chemical Examiner and Serologist Exh.P.W. Before closing its side. Both the accused in their statement under section 342, Cr.P.C. Denied the allegations. Shahid co-convict pleaded that he at the relevant time was passing by the roadside and was accidentally hit by a bullet. He became unconscious and did not see Muhammad Aslam or Muhammad Shafique accused and gained consciousness in the Nishtar Hospital, Multan on the next day. The present appellant also pleaded innocence and maintained that his father was a police constable and Dildar Hussain, being inimical towards him, had roped him in this case falsely. Both the accused neither made any statement on oath in disproof of the charge under section 340(2), Cr.P.C. Nor did they produce any evidence. Learned trial Court after taking into consideration the entire material available on the file convicted the appellant and his co-convict and sentenced them as mentioned and detailed in the opening paragraph of this judgment. The conviction and sentence recorded by learned trial Court was upheld by the Federal Shariat Court, vide judgment dated 5-1-2006.
5. Learned counsel for the appellant, while assailing the conviction and sentence argued that the absence of direct evidence the extra judicial confession of the co-convict Shahid does not proves judicial certainty and circumstantial guarantee of the participation of the appellant in the occurrence. He further argued that the accused has succeeded in casting some doubt on the prosecution version as such he is entitled to its benefit at least in the matter of sentence. Lastly he argued that the recovery of pistol P.1 and the recovery of five crime empties from the spot shown to have been made from the place of occurrence cannot be safely used as corroborative piece of evidence as both the pistols and the empties were sent together to the Forensic Science Laboratory, Lahore. As such the report of Forensic Science Laboratory, Lahore Exh.PX was of no consequence. The learned Deputy Prosecutor-General has controverted with vehemence the arguments advanced by the learned counsel for the appellant mainly on the ground that the occurrence was reported to the police without any delay, the present appellant was named by Shahid co-convict at the spot which fully stood corroborated by the evidence of arrest of the appellant and the recovery of Rexine Bag P.6, Receipt Book P.7 and Account Book P.B.
6. We have made re-appraisal of the entire incriminating material available on the file in the light of the arguments advanced from both the sides. Muhammad Hussain (P.W .11) and Muhammad Shafique (P.W.12), are the farther and cousin from paternal side of Muhammad Aslam Khan deceased respectively. Site plan Exh. PA/II shows that the house of Muhammad Hussain is situated in the same street in which Muhammad Aslam Khan fell injured. Both the P.Ws. Reached the spot immediately after the occurrence and found Shahid co-convict and Muhammad Aslam deceased in an injured condition. Muhammad Aslam Khan made a dying declaration to the effect that he had been fired at by the companion of the injured co-accused. Shahid accused had snatched the rexine bag and when he caught hold of Shahid, his companion fired at him (Muhammad Aslam Khan) in order to extricate his co-accused and ran away. These witnesses further stated that Shahid co-convict disclosed his name as well as the name of his companion who had run away along with rexine bag. The arrival of both these witnesses immediately at the spot and the disclosure made by Shahid co-convict appear to be natural and appeals to common sense. The disclosure made by Shahid led to the arrest of Muhammad Shafique and recovery of Pistol P.1 and Rexine Bag P.6 containing cash, Receipt Book P.7 and Account Book P.8, which later on were identified by Muhammad Hussain (P.W.11) as belonging of his deceased son Muhammad Aslam Khan. Muhammad Hussain further stated that Account Book P.7 and Receipt Book P.8 contained the hand writing of his deceased son Muhammad Aslam Khan. The statement of these two witnesses were fully corroborated by the testimony Muhammad Yousaf (P.W.11) who recovered five crime empties from the spot immediately after the occurrence and the statement of Dildar Hussain (PW.5), who arrested Muhammad Shafique, appellant on the following morning and recovered pistol P.1 used in the commission of the crime and the articles i,e, rexine bag containing cash of Rs,10,100, account book and receipt book. The five crime empties were recovered from the spot immediately after occurrence whereas the pistol P.6 was recovered on the following day therefore, there was no delay or irregularity in sending the crime empties and the pistol P.6 together on the following day.
7. There is also medical evidence which provided full support to the prosecution case. Dr . Sultan Ahmed (P.W.13) who had medically examined Shahid co-convict on the same night found one firearm injury with one entry wound on the buttock and the other exit wound on the abdomen. Dr. Iftikhar Hussain Qureslii (P.W.10) had conducted autopsy on the dead body of Muhammad Aslam Khan and found five entry wounds the, description of which is as under:--
(I) An oval wound of entry 2 cm x 1.5 cm situated on the lower part of right side of abdomen in right iliac fossa in lower part. Margins of the wound were lacerated and inverted with burning and blackening on and around the margins. Corresponding holes were present in the sweater, shirt and vest.
(II) An oval wound of entry 1.5 cm x 1 cm on the front upper part of right side of chest below the clevicle. Collar of abrasion was present medially. Margins of the wound were lacerated and inverted with blackening on and around. Corresponding holes were present in the shirt and vest.
(III) A rounded wound of entry 1 cm in diameter with lacerated inverted margins situated on the top of right shoulder posteriorly. There was blackening and burning around and margins of wound.
There was an exit wound of this injury oval in shape 1.2 cm x 1.6 cm with everted lacerated margins situated on the back of right chest middle part. Corresponding holes with exit wound were present in vest, shirt and sweater and corresponding hole was present with entry wound in shirt.
(IV) A rounded wound of entry with lacerated inverted margins 1 cm in diameter situated to the back of right wrist outer part. There was blackening and burning around the wound. There was also an exit wound of this injury 1.5 cm in diameter with lacerated everted margins situated on the front of right wrist outer part. Carpal bones of the right wrist were fractured underneath. Corresponding holes were present in shirt.
(V) A rounded wound of entry 1 cm in diameter with lacerated inverted margins having burning and blackening situated on the front of right thigh, upper part. Corresponding holes were present in the shirt and shalwar.
8. In view of the above, we are fully satisfy that the learned trial Court as well as the appellate Court both have rightly come to the conclusion that the prosecution has successfully established its case against the appellant beyond any shadow of doubt. We have not found any reason whatsoever to take any exception even in the matter of sentence as prayed for by the learned counsel for the appellant. Therefore, this appeal fails and is hereby dismissed.