MAZHAR IQBAL SIDHU, J. - This judgment will dispose of the above-captioned Criminal Appeal filed through jail authorities by Gulfam and Abdul Rehman appellants as well as above-captioned Murder Reference for confirmation of their death sentence or otherwise who were convicted by learned Addl. Sessions. Judge, Faisalabad in case F.I.R. No. 530/2004; dated 28,10.2004 registered under Sections 302/324/34, PPC at Police Station Factory Area, Faisalabad vide impugned judgment dated 30.6.2005 and^sentence as follows:-
(1) GULFAM. APPELLANT
(i) Death sentence under Section 302(b), PPC as Tazir and to pay Rs. 1,00,000/- as compensation to the legal heirs of deceased Faheem Abbas and in default whereof to further undergo six months' imprisonment each.
Ii) Life imprisonment u/s. 394, PPC and to pay fine Rs. 1,00,000/- and in default whereof to further undergo six months' further imprisonment,
(2) ABDUL REHMAN. APPALLANT.
(i) Death sentence under Section 302(b), PPC as Tazir and to pay Rs. 1,00,000/- as compensation to the legal heirs of deceased Muhammad Hanif and in default whereof to further undergo six months' imprisonment each.
(ii) Life imprisonment u/s. 394, PPC and to pay fine Rs. 1,00,000/- and in default whereof to further undergo six months further imprisonment.
All the sentences of both the appellants were ordered to run concurrently. They were also extended the benefit of Section 382-B, Cr.P.C.
2. Nutshell of the prosecution saga as disclosed by the complainant Muhammad Rafique (PW-17) in F.I.R. (Ex.PA) is that he deals in the business of hosiery, In the night between 27/28.10.2004 at about 11.45 p.m. He alongwith Muhammad Ishaq and Mehmood Khalid was present at Usama Medical Store near old Central Jail, Faisalabad while his brother Muhammad Hanif and nephew Faheem Abbas were present at Medical Store situated at T-Chowk Dijkot Road where popped up two unacquainted persons came on motorcycle and demanded medicine from his brother, of of whom, one accused entered in the medical store and caught hold Faheem Abbas (deceased) and tried to pick up cash from the drawer of counter. His brother who was standing in the door of medical store intervened whereupon both the accused brought of their pistols and accused present inside the medical store caused injuries to Faheem Abbas whereas accused standing outside caused injuries to Muhammad Hanif by firing. He and Muhammad Ishaq PWs witnessed the occurrence with their own eyes and the unknown accused persons decamped from the spot on Motorcycle Honda towards Rasala Road who can be identified if they come before them. Both the injured were being shifted to Civil Hospital and Muhammad Hanif injured breathed his last on the way to hospital whereas Faheem Abbas injured was admitted in hospital. He left M/s. Muhammad Abid and Waseem Abbas at the dead-body to guard it and went for registration of the case.
3. Haq Nawaz, Inspector/I.O. PW.21 deposed that during the month of October, 2004, he was posted as Incharge Investigation Cell P.S. Factory Area. He on receiving the information about the occurrence in this case on 28.10.2004 went to Civil Hospital Faisalabad where the dead-body of Muhammad Hanif, deceased was lying in the emergency ward, He took into possession the dead- body, prepared injury sheet Exh.PH, inquest report Exh.PG and sent the dead-body for post-mortem examination Under the escort of Basharat 1109/C. On 28.10.2004 he recorded the supplementary Statement of complainant in hospital about the registration number of motorcycle used in the occurrence by the appellants as 2754/FSD. He also recorded the statements of eye-witnesses Ishaq and Mehmood Khalid. Muhammad Ali constable told him the F.I.R, number and he completed the headings of police papers. Then he arrived the place of occurrence. Waseem Abbas the brother of Faheem Abbas deceased handed over him the blood imbrued togs of deceased when he was injured. He took the same into possession vide memo. Exh.PS attested by the PWs. He inspected the place of occurrence, secured blood imbrued cotton, made the same into sealed parcel where Hanif deceased was injured vide memo. Exh.PN attested by the PWs. Then he secured blood imbrued cotton where Faheem Abbas was injured, made the same into sealed parcel and took into possession vide memo. Exh.PQ attested by the PWs. A led bullet and a pair of chapel were taken into possession vide memo. Exh.PR attested by the PWs. He prepared rough site plan Exh.PZ.
Subsequent to this, he arrived at hospital where Basharat constable handed over to him last worn clothes of Hanif deceased P-1 to P-3 and took the same into possession vide memo. Exh.PE attested by the PWs. At that time, complainant informed him that Faheem Abbas expired in civil hospital.
Then he reached there where the dead-body was lying and prepared injury sheet Exh.PK, inquest report Exh.PL and handed over the same to Maqsood constable for getting conducted postmortem examination. On the same day, Maqsood Ahmad constable handed over to him a sealed phial containing led bullet and he took the same into possession vide memo, Exh.PB attested by the PWs.
On 3.11.2004, he got prepared scaled site plan Exh.PC and Exh.PC/1 from the draftsman. On 13.12.2004 Shahid PW produced the motorcycle before him, the same was taken into possession vide recovery memo. Exh.PW attested by the PWs. On 15.12.2004 Abdul Rehman and Gulfam appellants were arrested by him from the house of Muhammad Amal "Behnoi" of Gulfam appellant, situated at Mai De Jughi, Faisalabad. Both the appellants were directed to muffle their faces because their identification parade was to be held. On 16.12.2004, they were sent to Judicial Lock-Up for the purpose of identification parade, the same was held on 23.12.2004 and all the three PWs correctly identified both the appellants in jail. On 28.12.2004+ie arrested the appellants as accused in this case and obtained their physical remand. During investigation, on 31.12.2004 Gulfam appellant made disclosure and got recovered unlicensed pistol P-7, the weapon of offence and four cartridges P-8 (1-4) from iron box lying in his Baithick, made the same into sealed parcel and took into possession vide memo. Exh.PT attested by the PWs. He prepared site plan of the place of recovery Exh.AD On the same day, Abdul Rehman appellant also made disclosure and got recovered unlicensed pistol P-10 used at the time of occurrence and five bullets P-10 (1-5) from underneath Sofa Set lying in the Baithick, made the same into sealed parcel and took into possession vide recovery memo. Exh.PU attested by the PWs. He prepared the site plan of the place of recovery Exh.PE. On 2.01.2005, he sent both the appellants to Judicial Lock-Up. He recorded the statements of PWs step-wise. He handed over the case property to the Moharrar of Police Station.
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 21 witnesses in all.
Dr. Arshad Masood, Senior Demonstrator, Punjab Medical College, Faisalabad (PW.8) deposed that he conducted the post-mortem examination on the dead-body of Muhammad Hanif deceased on 28.10.2004 at 10.50 a.m. And observed as under:- INJURIES.
(1-A) A fire-arm wound of entry 1 x 1 cm on outer side right arm, 9 cm down to top of shoulder and 5 cm of to anterior armpit fold, It has abraded collar.
(1-B) A fire-arm wound of exit 1 x 1 cm on outer side of left arm, 13 cm down to top of shoulder and 5 cm outer to posterior armpit fold. By this injury the anterior arm muscles were damaged, then anterior right sides chest muscles were damaged.
(2-A) A fire-arm wound of entry 1x1 cm with abraded collar on front and outer side of left fore-arm 8 cm down to left elbow.
(2-B) A fire-arm wound of exit 1x1/2 cm on posterior and outer side of left elbow. By this injury outer side of left fore arm were damaged. No bony injury was present.
(3) An abrasion 3 x 1 cm on outer corner of right eye brow.
(4) Two abrasions on forehead each measuring 1 x 1 cm. One was 2 cm above left eye brow and other was 4 cm above right eye brow.
(Remarks)
In his opinion, in this case, death occurred due to haemorrhagic shock caused by injury No. 1 (A.B) which was sufficient to cause death in ordinary course of nature. All the injuries are ante-mortem.
Injuries No. 1 & 2 were by firearm weapons while injuries No. 3&4 were by blunt means.
Probable time, that elapsed between the injury and death was within a few minutes and between death and post-mortem was within 12 to 24 hours.
Exh.PF was the correct carbon copy of the post-mortem examination report and Exh.PF/1 was the pictorial diagram showing the seat of injuries, the same bore his signatures.
Dr. Javaid Iqbal, Demonstrator appeared as PW.11 and stated that on 28.10.2004 he conducted the postmortem examination on the dead-body of deceased Faheem Abbas and observed as under:- INJURIES.
(1) A fire-arm wound entry 1 x 1-1/2 cm. It was 8 cm below the left nipple and 5 cm from mid line on front of left side of chest. Tattooing marks were also present around the entry wound.
(A) A.5 cm long with black sutures wound on left side of chest.
(B) A 23 cm long with 17 black silk stitching parallel to the mid line on front of abdomen.
(C) A 2 cm long with 2 black silk stitches on right iliac fosa (surgical wound).
REMARKS.
In his opinion, death in this case was occurred due to injury No. 1 inflicted by fire-arm badly damaged the vital organs and its complication. So, stated injury was sufficient to cause death in ordinary course of nature. Also mentioned in MLC of the deceased issued from DHQ hospital, Faisalabad on 28.10.2004 at 12.10 a.m.
Probable time that elapsed between injury and death and between death and post-mortem not mentioned due to hospital death.
Exh.PJ was the correct carbon copy of the post-mortem examination report and Exh.PJ/1 was the pictorial diagram showing the seat of injuries, the same bore his signatures.
Dr. Siraj-ud-Din CMO, DHQ Hospital, Faisalabad PW.14 deposed that on 28.10.2010 he examined Faheem Abbas deceased, the then injured and observed as under:- INJURIES.
1. A fire-arm wound of entry with collar of abrasion 1 cm x 1 cm on left side of front chest 8 cm below nipple and 6 cm from mid line. Correspondence hole was present on Kameez.
The injury was caused by fire-arm. Duration of injury was fresh at arrival. MLC Exh.PM bore his signatures.
Learned SPP left of PWs namely Muhammad Nadeem Abbas, Naseer Ahmad, Ilam-ud-Din, Muhammad Abid and Ghulam Mohi-ud-Din as being de drop and thereafter he tendered in evidence reports of Chemical Examiner regarding cotton blood imbrued of both the deceased Exh.PAF and that of Serologist Exh.PAG. He by tendering in evidence Exh.PAG, closed the prosecution case. Then the statements of the appellants were recorded under Section 342, Cr.P.C, wherein they gainsaid the charges and claimed their innocence. Both the appellants in their statements u/s. 342, Cr.P.C opted to produce defence evidence. However, they did not of to record their statements on oath as required u/s. 340(2), Cr.P.C. Appellant Abdul Rehman by tendering Exh.DB, closed his defence evidence.
The appellant Gulfam in answer to a question "why this case against you and why the PWs deposed against you" replied infra:- "I am innocent. I was falsely implicated in this case by the I.O. With the collusion of complainant and prosecution witnesses. Actually, both the deceased were killed by the unknown persons with muffled faces and they remained untraced. The I.O. On the asking of the complainant and due to pressure of the higher police officials made scapegoat me and my co- accused in this case. All the PWs are closely related to the deceased and complainant and thanks to this, they deposed falsely on the asking of I.O. And complainant against us. All the recoveries regarding motorcycle, register, weapon of offence are managed and planted one by the I.O. And complainant. I am poor person and the complainant is effective one and thanks to this, I was falsely implicated in this case. The police did not investigate the matter according to law and our defence versions were not recorded by the I.O. Mala fidely."
The appellant Abdul Rehman in reply to the same question stated as follows:- "I am innocent in this case. I was already arrested by Iqbal, SI in case F.I.R. No. 248, dated 09.12.2004 u/s. 13/20/65 A.O. At Police Station Rail Bazar, Faisalabad. Hot words were exchanged between said.
SI and me and I was falsely implicated by the said SI in the said case and subsequently, I was referred to Haq Nawaz, SI and he made me scapegoat in this case on the asking of Iqbal, SI and due to pressure of higher police officials because the occurrence remained untraced for many days. Haq Nawaz, SI falsely implicated me due to the said reasons and with the collusion of complainant in this case. Actually, occurrence was unseen and blind one and was committed by unknown persons who were with muffled faces at the time of occurrence. All the PWs are closely related to the complainant and they were made PWs on the asking of I.O. Haq Nawaz just to strengthen the prosecution version."
In conclusion of the trial, appellants were convicted and sentenced as mentioned above by the learned Trial Court.
6. In support of this appeal learned counsel for the appellants submits that occurrence took place during the dark hours of night; proper figurations have not been mentioned in the F.I.R, and just in a casual way, their descriptions have been mentioned which coincide almost on every average person; no proper source of illumination has been brought on record; presence of the complainant Muhammad Rafique and other PWs at the place of occurrence at the relevant time is highly doubtful; the appellants have been arrested much before the actual date of arrest i.e. 15.12.2004 time and again they were exposed to the PWs prior to the test identification parade held on 23.12.2004 Exh.PY arid the same is defective rather illegal because it, being a joint and non- specifying role of the appellants each and on account of objections raised by the appellants before the learned Magistrate and those have not been answered by him at the time of identification parade; the recovery of the crime weapons allegedly effected from each appellant on 31.12.2004 is inconsequential on account of non-positive report of the Fire-arm Expert/Ballistic Expert as no spent crime empty was taken into possession from the spot; the recovery of the motorcycle does not corroborate the prosecution case on the ground that the same was not recovered on the pointing of of either of the appellants; it otherwise has no value because in F.I.R, it has been mentioned that it was without any registration number and took into possession the record of the motorcycle by Subhanallah Rent a Motorcycle is of nothing except pending; no motive has been brought on record as to why the appellants killed the deceased person especially when nothing was robbed either from the person of the deceased or from the medical store and identification of the accused during the trial proceedings with assigning of specific role that Gulfam appellant caused injuries to Faheem Abbas whereas Abdul Rehman appellant caused injuries to Muhammad Hanif cannot absolutely be relied upon for the reasons that till such much water has flown under the bridges and possibility of legal advice in the circumstances of the case to make crafty statement before Court by the PWs cannot be ruled of. It has thus been prayed that prosecution has miserably failed to prove its case against the appellants beyond shadows of doubts.
7. Learned DDPP assisted by learned counsel for complainant has vehemently opposed the submissions by contending that incident took place on the medical store being run by the complainant party; it was operational at the time of occurrence, then natural corollary is that electric light was on and in its absence it is not possible to continue working on it during the night time; the matter was reported within the shortest proximity of time at about 10.00 a.m. (night) whereas the incident took place at 11.45 p.m. Proper descriptions of the appellants were mentioned in F.I.R, and before the happening incident, no enmity has been found or brought on record by the appellants for their malevolent involvement in the occurrence; police has not been shown to be hostile towards the appellants for their false involvement; the appellants were arrested on 15.12.2004, then on the follow day, they were sent to Judicial Lock-Up and thereafter. On 23.12.2004 test identification parade was held intramural jail in which all the PWs correctly identified them, thereafter, their custody was obtained by the I.O. For further investigation and then both of them while in police custody got recovered the weapons and the medical evidence corroborates the same as both of the deceased have received fire shots injuries. So much so, from the body of Faheem Abbas a lead of bullet was recovered, motorcycle hired by the appellant from Subhanallah Rent a Motorcycle, record of the same was taken into possession and the motorcycle was also produced by its owner, again it corroborates the fact and further during the trial, all the PWs have identified the appellants and they have categorically made statement that Gulfam appellant made firing with. His pistol hitting Faheem Abbas whereas Abdul Rehman appellant made fire shot hitting Haneef deceased and because of the injuries, both the PWs succumbed to the injuries, their statements have not been broken during the lengthy cross-examination and nothing has been brought on record that PWs have made false statements and it is evident that appellants intended to rob the complainant party but on being un-succeeded, both the appellants took away the lives of two innocent bread winners, In these circumstances, prosecution has proved its case against the appellants beyond shadow of doubts and even no iota of evidence or circumstance exists in the case to provide benefit of doubt to the appellants or even to tone down the quantum of sentence imposed upon them and has thus craved for dismissal of appeal and affirmative answering of the murder reference.
8. We have listened the arguments of both the parties as well as learned DDPP concentrated and have also perused the record minutely.
9. Three elements in this case have gone unchallenged i.e. Place of occurrence, time of occurrence as well as receipt of fire shot injuries resulting in death of the deceased persons. Obviously the occurrence took place at 11.45 p.m. But at the same time it is indubitably available on record that medical store (place of occurrence) is situated in populated area and nothing has been brought on record that at the time of occurrence electric light was shut and even in absence of sufficient light, it is not possible to run the shop because medicinal work is very sensitive, therefore, it is presumed that electricity was available and the light was on at the store and this fact has been proved by the site plan Exh.PC. Again one fact is very important that appellant Gulfam while entering in the shop attempted to pull drawer of the counter used for placing money and when Faheem Abbas resisted, caused fire shot injuries to him whereas on the deceased Muhammad Hanif, Abdul Rehman appellant, caused fire shot injuries when he came for his rescual who was beside the main door of the shop and the PWs were also present there, In these circumstances, regarding distance all were with close proximity and in this view the descriptions of the appellants were necessarily exposed to the PWs.
10. Of course, the appellants were not nominated in the F.I.R, but at the same time, it is bona fide and plus point of the prosecution case that they did not know the appellants by their names before the incident and it is taken not against the prosecution version rather it is considered the bona fide of the prosecution instead of naming anybody on speculations, It is common phenomenon that the eggs are not known to the. Aggrieved and it is also found to be so but it seldom happens otherwise, In these circumstances, legitimately it is construed that complainant has not involved any innocent person in this case. So far as motive is concerned, it is very much mentioned in F.I.R, that one assailant while entering in the shop after overpowering Faheem Abbas deceased, pull of the drawer of the counter in order to pick up money/cash from it but the drawer fell to the ground, In the meanwhile, upon seeing it, Muhammad Hanif deceased made interference, and then both the appellants made firing one to one on deceased persons. Now there was no other motive except to commit robbery but on being fizzled of to accomplish their task, appellants took the lives of two innocent persons who were the bread winners of bereaved benighted families. I.O. Arrested both the appellants on 15.12.2004 and then immured them to judicial lock up by the orders of learned Area Magistrate for the purpose of identification parade, thereafter; arrangements were made for the test identification parade. After accomplishment of necessary formalities on 23.12.2004, the same was held in the premises of District Jail Faisalabad, PWs participated and under the supervision of learned Magistrate Mohsin Rasheed examined as PW.20 correctly identified the appellants. After that, both of them were brought of from the said jail, and then both of them got recovered the pistols allegedly used by them in the commission of crime. Motorbike hired on rent basis from Subhanallah Rent a Motorcycle, its record as well as the same motorcycle were also taken into possession and this fact went unchallenged that both the appellants hired it on rent and the same was used in the commission of crime. During the trial, both the PWs namely Muhammad Rafique (PW17) and Muhammad Ishaq (PW-18) made categorical statements by identifying both the PWs in the open Court that Gulfam appellant after having entered in the medical store when became fail in looting the cash, on the interference of Faheem Abbas deceased, made fire shots upon him and on seeing this situation when Muhammad Hanif deceased who was present beside the outer door of the medical store, tried to rescue him, Abdul Rehman appellant made fire shots upon him. Both the injured died. Medical evidence supports ocular version and the recoverance of the weapons have also synchronized the ocular account Notwithstanding PWs have been cross-examine searchingly but nothing could be elicited in favour of the appellants. We have not located and even explored any reason of false involvement of the appellants by the PWs in this case. Again another factor has indubitably persuaded us that police was not hostile towards the appellants to make them scapegoat to show its efficiency, It has been notice that such-like incidents are being rampant day by day and this fact is otherwise unfortunate and in the incident if the lives of innocent persons are lost, it is more-so and is not only regrettable but also pitiable. We have seen lethargic attitude of the police during the investigation but if the follies of the police do not go to the roots of case in order to extirpate, then the same can be ignored as it has been held in plethora of judgments of this case as well as by the Hon'ble apex Court. We have not found any hiatus in the prosecution case and it has succeeded in bringing home the charge against the appellants.
11. For what has been discussed above, the instant appeal being sans of force stands dismissed Resultantly, death sentences imposed upon the appellants are CONFIRMED and murder reference is answered in AFFIRMATIVE.