' RAUF AHMAD SHEIKH, J.---Faisal Mehmood, Nisar Ahmed and Bilal Ali appellants have assailed the vires of judgment dated 1-2-2008 passed by the learned. Additional Sessions Judge, Jhelum, in case F.I.R. No,241 dated 17-10-2006 Police Station Sohawa, District Jhelum, whereby they were convicted under sections 302(b)/34, P.P.C. And were sentenced to death on two counts each. They were also ordered to pay a sum of Rs,.100,000 each to the legal heirs of Abdul Hameed and Abdul Hafeez deceased and in case of default thereof to undergo R.I. For six months. The learned trial Court submitted Murder Reference No,59/RWP of 2008 for confirmation or otherwise of death penalty awarded to the appellants. Complainant Mst. Tahira Hameed has also filed Criminal Appeal No,66 of 2008 against acquittal of Sarfraz Mehmood, Rustam Ali and Muhammad Afzaal respondents Nos.2 to 4. As all these matters are interconnected and interlinked so are being decided through this single judgment.
2. The facts, in brief, as set-forth in the F.I.R. (Exh.PH) recorded on the complaint (Exh.PU) submitted by Mst. Tahira Hameed widow of Abdul Hameed, Caste Jat, aged about 30/35 years, resident of Hathia Pine, Tehsil Sohawa, District Jhelum, is that she resided in one house alongwith her husband Abdul Hameed and brother-in-law i,e, husband's brother Abdul Hafeez. She has three sons. Out of them 2 sons study in Lincon School, Sohawa, who daily go to school and return home on a van. On the day of occurrence as per routine, she started making children ready for going to school. Her husband. Abdul Hameed went outside towards road to see the van. She reached on the road along with her children by following her husband. In the meantime van bearing Registration No,6120/PRH of light blue colour came from Kot Dhamaik side and stopped in front of her husband. Faisal, Sarfaz sons of Mehmood, Rustam son of Yaqoob, caste Jat, residents of Donghi, Nisar Ahmad alias Kala, Bilal sons of Mehrban, all armed with Pistols .30 bore and Muhammad Afzaal son of Mehrban, caste Jat, resident of Hathia Pine empty-handed were sitting in it. Afzaal raised a Lalkara that Hameed be killed and Hafeez would be dealt with later on. On this Faisal fired with his .30 bore Pistol, which hit Abdul Hameed on left side of the head, second fire made by Sarfraz with .30 bore Pistol, landed on the right side of the head of complainant's husband and then Bilal fired with his .30 bore. Pistol, which landed on his left upper arm, who fell on the ground in seriously injured condition and succumbed to the injuries at the spot. On hearing the report of fires, Abdul Hafeez arrived at the spot. Nisar Ahmad alias Kala then made fire with his .30 bore Pistol, which landed on the right side of his back. Abdul Hafeez also fell down. On the alarm of complainant and her children, Muhammad Riasat son of Fazal Ellahi, Gultasab son of Mehr. Ellahi, residents of the same village came there and witnessed the occurrence. Other residents of the village were also attracted. All the accused fled away while making aerial firing. The aforesaid accused after making mutual consultation and on the abetment of Abdul Qayyum son of Muhammad Shafi, murdered her husband and seriously injured Abdul Hafeez. The latter was sent to DHQs Hospital, Rawalpindi, for treatment, who died in the hospital. The motive of the occurrence was stated to be an injury caused with Churri by Abdul Hafeez deceased to Faisal accused one year back, in respect of which a criminal case was registered against Abdul Hafeez but a compromise was effected between the parties, however accused did not extinguish the grudge from their hearts and for this reason, they have murdered Abdul Hameed and Abdul Hafeez.
3. The appellants and 3 others (respondents Nos.2 to 4 of Criminal Appeal No,66 of 2008) were sent up to face the trial. They were charged under sections 302/148/149/109, P.P.C. They pleaded not guilty and claimed the trial.
4. The prosecution has examined 12 witnesses in support of its allegations in addition to documentary evidence. The medical evidence was adduced through Dr. Zahid (P.W.1) and Dr. Suresh Kumar (P.W.2). Dr. Zahid (P.W.1) stated that on 17-10-2006, he examined injured Abdul Hafeez son of Karam Ellahi, aged 23 years, caste at; resident of Hathia Pine, Tehsil Sohawa. He found following injuries on his person:-
(1) An oval shape penetrating wound 1 x 1 cm with inverted margins at right flank on posterior exillary line 5 cm from right iliac crista, tattooing were present around the wound. There was bleeding from the wound. The wound seemed to be wound of entry. Clothes were torn corresponding to injuries.
(2) A bruise 3 x 4 cm on left side of the chest. On anterior exillary line, 4 cm below from left axilla.
There was also bleeding from mouth. This injury was declared as 337-L(2) of P.P.C.
' He opined that duration of the injuries was 1 to 2 hours. All the injuries were found to be of fire arms.
General condition of the patient was critical and he was in shock, severely pallor. Pulse was very weak. B.P. Was 50 by pulable method. He proved medical legal report (Exh.PB) and stated that injury. Statement (Exh.PA) prepared by Police bears his signatures as Exh.PA/1. The patient was referred to DHQ Hospital.
' Dr. Suresh Kumar (P.W.2) stated that on 17-10-2006, he was posted as Medical Officer at THQ Hospital, Sohawa. He conducted the postmortem of dead body of Abdul Hafeez. He found following injuries on his person:--
(1) Wound about 1 x- 1 cm above 5 cm from iliac crest on postering exillary line. Oval in shape, edges inveted. Blackening and collar abrasion were present. This was wound of entry. All clothes were torn on corresponding side.
(2) A bruise about 6 x 6 cm on left axillary line 4 cm below the left axilla, 8 cm from left nipple.
' He opined that cause of death was injury No,1 leading to internal and external haemorrhage and damage to vital organs. The same was sufficient to- cause death in ordinary course of nature.
Injury No,1 was anti-mortem caused by a fire-arm weapon. The probable time between injuries and death was within 2 to 3 hours while between death and postmortem was 2 to 3 hours. He proved postmortem report (Exh.PC), application for postmortem (Exh. PD) and inquest report (Exh. PE).
' He further stated that on the same day he also conducted postmortem examination on the dead body of Abdul Hameed son of Karam Ellahi, caste Jat, aged about 25-35, resident of. Hathia Pine, Police Station Sohawa. He found following injuries on his person:--
(1) Wound about 1 x .1 c.m. On left side of the skull vault tempo partial region 8 cm from left ear, edges inverted circular shaped. Collar abrasion was present. It was wound of entry.
(2) Wound about 2 x 3 cm on right side of skull vault temporal region 5 cm above right ear. Edges everted irregular shaped. Small amount of bony pieces were present.
(3) Wound about 1 x 1 cm on left shoulder on mid deltoid region oval shaped. Edges inverted.
Blackening and collar are present and blood was coming from the wound.
' He opined that the cause of death was injury No,1 leading to internal hemorrhage and brain death.
The same was sufficient to cause death in ordinary course of nature. It was ante-mortem injury, caused by a firearm weapon. All the injuries were ante-mortem. The time between the injuries and death was 15 to 20 minutes and between the death and postmortem was 6 to 8 hours. He proved the postmortem report (Exh. PF), application for postmortem examination (Exh. PG) and inquest report (Exh. PG/1).
5. The ocular account was adduced through the complainant Mst. Tahira Hameed (P.W.10) and Gultasab (P.W.11). Mst. Tahira Hameed (P.W.10) almost reiterated the contents of the complaint (Exh.PU). She stated that complaint (Exh.PU) bears her signatures in token of its correctness. She added that the Police was not investigating the case properly and was favouring the accused so she filed a complaint (Exh.PV), which was also signed by her. Gultasab (P.W.11) stated that on 17-10- 2006 at about 6-05 a.m., he saw Abdul Hameed deceased standing on the roadside. He was waiting for the wagon to board his children. Wagon bearing No,6120 came from side of Kot Dhamyak. Faisal, Sarfraz, Rustam, resident of Donghi armed with .30 bore Pistols along with Nisar alias Kala, Bilal and Afzal, resident of village Hathia Pine were sitting in the Wagon. They were armed with .30 bore Pistols, whereas Afzal was empty-handed. Afzal raised a Lalkara that Abdul Hameed may be done to death and Abdul Hafeez will be dealt with subsequently. Faisal, who was sitting on the front seat fired with .30 bore Pistol, which hit Hameed on left side of his head. Thereafter Sarfraz made fire with Pistol .30 bore, which hit on the right side of his head and the 3rd fire was made by Bilal, which hit Abdul Hameed on left upper arm. Abdul Hameed fell on the ground and expired at the spot. Hafeez was attracted at the place of occurrence after hearing the reports of fires. He tried to run back on seeing Abdul Hameed but Nisar alias Kala came out of the Wagon and fired on him, which hit on the right lumber region of Hafeez and he fell down. Rustam also came out of the Wagon and made aerial firing. Thereafter all the accused fled away from the spot. Abdul Hafeez was removed to THQ Hospital, Sohawa, in an injured condition but he was referred to Rawalpindi Hospital and he died after arriving there.
6. Mst. Tahira Hameed (P.W.10), Gultasab (P.W.11) and Muhammad Akhtar (P.W.9) have supported the prosecution version regarding motive and categorically stated that Abdul Hafeez gave a Chhuri blow to Faisal, a case was registered but subsequently the matter was patched up but Faisal nourished the grudge in spite of compromise. Gultasab (P.W.11) and Muhammad Akhtar (P.W.9) have also stated that one day prior to the occurrence Abdul Qayyum, Faisal, Sarfraz, Rustam, Nisar alias Kala, Bilal and Afzal tried to abduct Abdul Hafeez. Mst. Tahira also stated in the cross-examination that she learnt about the attempt of abduction in the night on 16-10-2006.
7. Muhammad Saleem (P.W.6) stated that on 18-11-2006 Nisar accused during investigation made disclosure and led to the recovery of Pistol P.5 from the heap of Maize, which was secured by the I.O. Through memo (Exh.PL). The witness further stated that Faisal Mehmood accused on 8-12-2006 led to the recovery of Pistol P.6 from which bullets P.7/1-3 were recovered and secured through memo (Exh.PM). Muhammad Naeem Akhtar (P.W.7) stated that Bilal accused on 19-11-2006 made disclosure and led to the recovery of P.13 from the room of his house from which three bullets P.14/1- 3, which was secured from memo (Exh.PR).
8. P.W.3 recorded formal F.I.R. (Exh.PH) and stated that the parcel containing earth and empties were given to him on 17-10-2006, which he gave Muhammad Akram, C/287 for onward transmission to the office of the Chemical Examiner and FSL. He received the parcels of Pistols on 18-11-2006, 19-11-2006 and 8-12-2006, which he gave to Fazal Aabbas for delivery in the office of FSL on 11-12-2006. P.W.4 and P.W.5 have stated that they delivered the parcels in the respective offices.
P.W.8 has proved the site plan with scale (Exh.PT).
9. The investigation was conducted by Nisar Ahmad, S.I. (P.W.12), who stated that on 17-10-2006 he received an information from THQ Hospital, Sohawa, about the injured persons. He prepared the injury statement (Exh.PA) and application for medical examination of Abdul Hafeez and handed over the same to Muhammad Akram, C/267 for his examination. Then he arrived at the place of occurrence and recorded statement of Tahira Hameed (Exh.PU), which was signed by her after hearing and sent the copy to the Police Station for registration of the case. He has proved the injury statement of Abdul Hameed (Exh.PG) and inquest report (Exh.PG/1), memo of recovery (Exh.PN) regarding securing of blood-strained earth from the place of murder of Abdul Hameed, memo of recovery (Exh.P0) regarding securing of blood-stained earth from the place, where Abdul Hafeez was injured. He stated that he secured three empties from the Wagon P.9 and P.10/1-2, two empties from road P.11/1-2 and secured the same through memo (Exh.PP). He secured the Wagon No,6120 PRH P.12 through memo of recovery (Exh.PQ). He has also proved the injury statement of Abdul Hafeez (Exh.PD) and inquest report (Exh.PE), memo of recovery (Exh.PK) regarding securing of last worn clothes of Abdul Hameed deceased (P.2)', Phial containing bullet and led (P.3) and last worn clothes of Abdul Hafeez (P.4) and Phial containing bullet led. He has further proved the rough site plan (Exh.P.W.). C.W.1 stated that he verified the findings of the I.O. Regarding innocence of accused Rustam, Afzal and Qayyum after spot inspection and inquiry. The prosecution has also produced the report of Forensic Science Laboratory (Exh.PX), report of the Chemical Examiner (Exh.PY) and report of Serologist (Exh. PZ).
10. In their statements under section 342, Cr.P.C., appellants Bilal Ali and Nisar Ahmad stated that they along with Sarfraz and Abdul Aziz were going to take the children in their Wagon and when they arrived near Hathia Pine the road was blocked with logs. Gultasab armed with stick, Abdul Hafeez armed with Soti and Abdul Hameed armed with Pistol .30 bore forcibly tried to drag Bilal outside the Wagon and gave him beating with stick so Nisar Ahmad alias Kala tried to rescue Bilal and snatched Pistol from Abdul Hameed and in this scuffle, Abdul Hameed and Abdul Hafeez both received single fire arm injuries. Faisal Mehmood also categorically stated that he was not present at the time of the occurrence. Bilal accused submitted photocopy of MLC (Mark-A). They, however, opted neither to produce the defence nor to appear as witnesses under section 340(2), Cr.P.C.
11. After conclusion of the trial, the learned trial Court proceeded on to convict the appellants Faisal Mehmood, Nisar Ahmed alias Kala and Bilal Ali as mentioned above, whereas respondents Nos.2 to 4 of Criminal Appeal No,66 of 2008 were acquitted.
12. Learned counsel for the appellants has contended that the F.I.R. Has been lodged with due deliberations and after making consultations as is clear from the statement of P.W.11, who categorically stated that he 'along with others went to the Hospital, where Police arrived in his presence but he did not narrate the facts to it and as such the contents in the statement of Mst.
Tahira Hameed (Exh.PU) are concocted; that Gultasab P.W. Had arrived after the occurrence so he does not lend necessary corroboration to the statement of the complainant; that the fact that the Wagon was found standing at the place of occurrence proves the defence version that the road was blocked with logs and an attack was made by the deceased persons and Gultasab (P.W.11); that the presence of tattooing around injury No,1 of Abdul Hafeez shows that the fire. Was made from a distance of 6 inches or less so the contention that he was trying to drag Bilal out of the Wagon stands established and it is proved that the Pistol trigged off while there was scuffle between him and Nisar Ahmed appellant; that the motive was attributed to Faisal alone and the other appellants had neither any grouse nor anyone of the appellants had any grudge against Hameed deceased so there was no reason to make an attack on him; that allegedly four fires were made during occurrence, whereas five empties were allegedly found so mystery remains unsolved as to who had made the 5th fire and as such the defence plea that Hameed was armed with Pistol and he had made the attack along with Hafeez and Gultasab is established; that the incident, which allegedly took place on 16-10-2006 has not been mentioned in the F.I.R. And in fact due to this dispute the Wagon of the appellants on which Nisar and Bilal along with others were going to take the children was stopped by blocking the road and an attempt was made to drag Bilal from it, which resulted into unfortunate episode; that even if the defence version is not proved, a reasonable doubt arises as to veracity of the prosecution version because the injuries sustained by Bilal, which are clear from Mark-A, has not been specifically explained; that absconsion alone is no ground to prove the allegation against the appellants; that the medical evidence as to the injury on the right side of the head attributed to Sarfraz is against ocular account being an exit wound so the whole prosecution case falls on the ground and that the witnesses, who are related and interested have made dishonest improvements and as such the learned trial court erred in believing them. In support of the contentions raised, reliance is placed Muhammad Aslam alias Aslam v. The Crown (PLD 1953 FC 115), Sahab Khan and 4 others v.. The State and others (1997 SCM R 871), Akhtar Ali and others v. State (2008 SCM R 6) and Rohtas Khan v. The State (2010 SCM R 566).
13. Learned counsel for the complainant and learned Law Officer have vehemently controverted the arguments advanced at the bar by learned counsel for the appellants and have urged that the learned trial Court has properly appreciated the evidence and the findings recorded by it are based on trustworthy and confidence-inspiring evidence; that the F.I.R. Was promptly lodged; that the motive is established and even otherwise the same is not denied; that no dishonest improvement is made and only the minor variations, which are result of passage of time are immaterial and do not effect the credibility of the witnesses; that presence of Mst. Tahira Hameed (P. W.10) and Gultasab (P. W.11) is natural and they have narrated the facts in straightforward manner so they were rightly believed by the trial court; that the medical evidence and recovery of the weapons of offence also lend necessary corroboration to the ocular account; that no wooden log was found on the road and as such the defence version that the deceased and Gultasab P.W.
Had made an attack and the Pistol triggered off during scuffle is totally devoid of force; that the empties were found from inside and out of the Wagon, which also support ocular account as to the events, which have taken place during the occurrence; that absconsion alone is not sufficient to prove the charge but in presence of the strong ocular account, the medical evidence and recovery of weapons the same attains significant that mere relationship of the witnesses with the deceased or complainant is no ground to discard their evidence because they have no reason to depose falsely; that even if Nisar had made single fire but he knew the consequences of his act and that respondents Nos.2 to 4 of Criminal Appeal No,66 of 2008 have been acquitted wrongly although strong evidence was available against them also. In support of the contentions raised, reliance is placed on Faisal Mehmood and another v. The State and another (2010 SCM R 1025), Muhammad Nisar v. The State (2006 SCM R 161), Gul Khan v. The State (1999 SCM R 304) and Shahidullah Khan and others v. The State (PLD 1961 Dacca 1).
14. The prosecution case mainly hinges upon the evidence of Mst. Tahira Hameed (P. W.10) and Gultasab (P. W.11). The site plan (Exh. PT) shows that the place of occurrence is the Pacca road in front of the street in which the gate of the house of the complainant opens. She has categorically stated that her husband went to stop the Wagon and she followed him along with her children. The time of occurrence given in the F.I.R. Is same at or around which usually people send their children, .Who have to travel on Wagons to other villages for' schooling Her presence at the place of occurrence i,e, road in front of the street to board the children on the Wagon is very natural.
Similarly Gultasab, who is also resident of the same street and whose house is on the brim of the road i,e, place of occurrence is also a very natural witness. The minor difference between his statement under section 161, Cr.P.C. And in the witnesses box as P. W.11 is absolutely neglectable. It is a matter of common knowledge that our villagers go to offer prayers and then proceed to fields to 'ease up or after easing up go to the Mosque- for offering the prayer so the difference in this regard does not create any doubt. The contention that these witnesses have not seen the occurrence, therefore, cannot be accepted. The presence of both these witnesses was natural and there was no reason for them to depose falsely against the appellants. The contention that injury was wrongly attributed to Sarfraz or presence of the acquitted accused persons was not believed would also be not sufficient to falsify the evidence of P.Ws. Because it is the duty of the court to sift the grain from the chaff by identifying the persons, who are proved guilty on the basis of trustworthy evidence and separating them from those against whom sufficient evidence is not available. The njuries attributed to all the appellants and fully supported by the P.Ws. Are also established so the exit wound attributed to Sarfraz does not prove that the prosecution evidence in respect of the injuries attributed to the appellants was false. The contention of the accused as put through cross-examination that during scuffle the Pistol triggered off and bullet landed on head of Abdul Hameed and thereafter on his shoulder does not appeal the rational mind. It is also not acceptable that both the deceased sustained injuries with single fire shot. It is true that copy of MLR Mark-A was tendered in statement under section 342, Cr.P.C. Of Bilal Ali but it was not put to Dr. Zahid P.W.1. Moreover it shows that he was examined on 19-10-2006, whereas the occurrence took place on 17-10-2006. The defence version, therefore, is not plausible. The case-law cited at the bar by learned counsel for the appellant is not applicable on the facts of this appeal. It is true that injury No,1 on C person of Abdul Hafeez had tattooing, which shows that the fire was made from the closest possible range but it is in evidence that he came on report of firing and then Nisar appellant made fire, which landed on his back. The assailants and victim do change their positions during the occurrence so t'he presence of tattooing would not disprove the prosecution version. It has then been urged by the learned counsel for the appellants that the Wagon was left there so it is proved that the road was blocked otherwise the accused could have easily fled on it. It is in the evidence that after the occurrence in addition to P.Ws. The other residents of the village also arrived so in these circumstances the fleeing from the place of occurrence while leaving the Wagon is just possible. The contention that the appellants Nisar, Bilal along with others have come to take the children is also without any weight because large number of the persons were not required for taking the children and even otherwise the possession of arms negates this contention. The recovery of 5th empty is also no ground to disbelieve the prosecution version becaue it is categorically alleged in the complaint and stated by the P.Ws. That aerial firing was also made after injuring the deceased persons. The occurrence took place at about 6.05 a.m. And the statement Exh.PU was recorded at 8-30 a.m., whereas there is a distance of 12 Kilometers between the place of occurrence and the Police Station so it is a promptly lodged F.I.R. By all standards. It is true that P.W.11 D had stated that when they took Abdul Hafeez to the Hospital, Nisar Ahmad, S.I. Came there and he did not make statement before him. Nisar Ahmad stated that after making the injury statement, he came to the place of occurrence, where he recorded statement of Mst. Tahira Hameed. Naturally at that time Gultasab and others were looking after the injured and the mere fact that they did not make statement does not show that any deliberations were made.
Even otherwise P. W.10 whose husband and brother-in-law were murdered had no reason to falsely implicate the appellants as she had no previous animosity or enmity with them. P.Ws.10, 11 and 9 have categorically stated that one year back the deceased Abdul Hafeez had caused a stab wound to Faisal and he nourished the grudge in spite of a compromise. P.Ws. Have also stated that one day prior to occurrence the appellants along with others tried to abduct Hafeez. The contention of the learned counsel for the appellant that after compromise in the previous case, the immediate cause of fight was the events, which took place on 16-10-2006. So the deceased family was aggrieved and that is why they blocked the passage. No proof of blocking the road is available and the circumstances of the case also do not lead to this conclusion. It is true that the witnesses of recovery of weapons of offence are the cousins of the deceased but they have no enmity with the appellants. The empties and Pistols were sent to FSL with delay and for this reason the report of FSL was not believed by the trial court but the report of FSL is merely a corroborative piece of evidence and even if it is discarded the strong ocular account coupled with medical evidence is sufficient to prove the guilt of the appellants. However, the learned trial court rightly extended the benefit of doubt to respondents Nos.2 to 4 of Criminal Appeal No,66 of 2008 as' they had not caused any injury to anyone. The learned counsel for the appellants has argued that at the most it can be presumed that the fires were made by one person, whose identification is not positively established from the prosecution evidence and as such all of them are entitled to the benefit of doubt, cannot be accepted because it is proved through trustworthy evidence that the fires by appellant Faisal landed on head of Abdul Hameed, whereas the fire made by Bilal appellant hit him on his upper arm. Nisar Ahmad made fire with Pistol, which landed on the back of deceased Abdul Hafeez. The injuries specifically attributed to these appellants are proved through trustworthy ocular 'account duly corroborated by the medical evidence. The fatal injury to Abdul Hameed deceased was caused by Faisal Mehmood appellant, whereas the fatal injury to Abdul Hafeez was attributed to Nisar Ahmad alias Kala appellant. Both of them were rightly awarded the capital punishment. However, the case of Bilal stands on different footings. He has caused injury, on the upper left arm of deceased Abdul Hameed. This injury was not fatal and ultimately did not lead 'to demise of the deceased so the sentence awarded to him appears to be on higher side and in his case to our considered opinion, the imprisonment for life would serve the ends of justice.
15. For the reasons supra, Criminal Appeal No,41 of 2008 is without merits and the same is hereby dismissed. The death penalty awarded to Faisal Mehmood and Nisar Ahmad alias Kala appellants is confirmed. Murder Reference No,59/RWP of 2008 is answered in the affirmative to their extent.
However, the sentence of death awarded to Bilal Ali appellant is not confirmed and Murder Reference to his extent is answered in the negative. The sentence of death awarded to Bilal Ali appellant is commuted to imprisonment for life. He would be entitled to benefit under section 382- B, Cr.P.C. The judgment of the learned trial court to the extent of compensation to the heirs of the deceased under section 544-A, Cr.P.C. And the sentence of imprisonment in default thereof is maintained. Criminal Appeal No,66 of 2008 is without merits and the same is dismissed.