Shahid Hameed Dar, J.--Muhammad Riaz-appellant was held guilty under Section 302(b) P.P.C. for the murder of Munawar Hussain, by learned Additional Sessions Judge, Faisalabad vide judgment dated 7.5.2005 and convicted/sentenced to death with direction to pay a sum of Rs, 1,00,00* as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C, or in default thereof to undergo simple imprisonment for six months. His co-accused Muhammad Nawaz and Muhammad Iqbal alias Bali were, however, acquitted of the charge by the learned trial Court on extension of benefit of doubt.
2. The convict-appellant by filing Criminal Appeal No 796 of 2005 has called in question his conviction and sentence under the impugned judgment, whereas, the learned trial Court has submitted reference under Section 374 Cr.P.C. (Murder Reference No, 640 of 2005) for confirmation or otherwise of the sentence of death of the appellant. Mst. Shahadat Bibi, mother of the complainant as well as of the deceased has also approached this Court by filing Criminal Revision No 469 of 2008 praying therein enhancement in compensation amount imposed upon the appellant by the learned trial Court. We propose to dispose of all these matters together through this single judgment.
3. The facts, as unfolded by Saddi Ahmad-complainant (since dead) in complaint Exh.PG, on the basis of which F.I.R, (Exh.RG/3) had been registered were that at about 4.30 p.m., on 26.8.2001, he along with Sakhawat Ali (P.W.2) and Azhar Abbas (P.W 1), was present at his dhari, situated at a metalled road leading to Chak No, 592/GB; Muhammad Riaz (appellant), armed with Kalashnikov and Muhammad Nawaz, armed with carbine .12-bore, reached there while riding a motorcycle Honda 125-CC and saw around; the accused on catching sight of Munawar Hussain, brother of the complainant, who was coming towards dhari from the village on foot, drove their motorcycle and on reaching near him, Muhammad Riaz (appellant) exhorted a Lalkara that they had come to avenge their father's insult and fired a burst at Munawar Hussain, which landed at different parts of his body, as a result of which he fell onto the ground; thereafter, Muhammad Nawaz fired a carbine shot at legs of Munawar Hussain; besides the complainant the occurrence was witnessed by his companions; almost at the same moment, Ahmad Ali, armed with rifle, Sajjad Akbar, armed with .12-bore double barrel gun and Abdul Khaliq, armed with rifle, who were sitting in a nearby chari crop, emerged at the scene, when Muhammad Riaz (appellant) induced them to come out as they had done the job; after accomplishing their ignoble design, the accused scampered off while making aerial firing; the complainant and his companions shifted Munawar Hussain in injured condition to Civil Hospital, Faisalabad, where he succumbed to the injuries.
The motive behind the scene was previous animosity and criminal litigation between the parties, due to which the accused in consultation with each other and on the abetment of Iqbal alias Bali committed the crime in question. Leaving his companions to guard the dead body, the complainant left for the police station and came across Muhammad Ashraf, SI (P.W.8), Police Post Kurr, at Pull Peeraywala, at 3.30 a.m. on 27.8.2001, who recorded his statement (Exh.PG) and despatched the same to Police Station Bahlak, District Faisalabad for registration of formal F.I.R.; Liaqat Ali, ASI (P.W.15) on receipt thereof drafted formal F.I.R. (Exh.PG/3) at 4:15 a.m.; the same day.
4. Muhammad Ashraf, SI, PW-8 assumed the investigation of this case, examined the dead body of the deceased, prepared injury statement Exh.PD, inquest report Exh.PE, appointed Ghulam Mustafa, 2073/C (PW-11) to escort the dead body to the mortuary and left the hospital for the venue of crime; on reaching the place of occurrence, he caused the inspection thereof, collected blood- stained earth vide memo Exh.PA, secured empties, eight in number (P1/1-8), vide memo Exh.PB, prepared visual site-plan Exh.PH; Ghulam Mustafa, constable (PW-11) tendered the last worn blood- stained clothes of the deceased which he took into possession vide memo Exh.PJ; got prepared site-plan in scale in duplicate Exh.PF and Exh.PF/1 by Noor Jamal, Patwari (PW-6). After completion of investigation, challan was submitted against the accused before the trial Court for their trial in accordance with law.
5. At trial, prosecution in order to prove its case produced sixteen witnesses in all. The ocular account was furnished by Azhar Abbas (P.W.1) and Sakhawat All (P.W.2). They also stated about the motive part of the incident:
6. The medical evidence was presented by Dr. Mehmood-ul-Hassan (P.W.14) and Dr.Muhammad Azam Athar Gill (P.W.5). The former, while posted as C.M.O., D.H.Q. Hospital Faisalabad, medically examined Munawar Hussain (deceased), while in injured condition, at about 6.20 p.m. on 26.8.2001, who was brought by his brother Saddi Ahmad-complainant (not produced because of being an absconder in a criminal case). The medical officer found following injuries on the person of the then injured vide medico-legal report Exh.PQ (pictorial diagrams Exh.PQ/1 & Exh.PQ/2):--
1. A fire-arm cluster of three entry wounds, measuring 3(1/2) cm x 2 cm; 1/3 cm x 1/3 cm & 3 cm x 1(1/2) cm (DNP), back of left side of chest, middle part.
2. A fire-arm entry wound measuring 1 cm x 3/4 cm (DNP) on outer side of left chest, lower part.
3. A fire-arm entry wound measuring 2(1/2) cm x 1(1/4) cm (DNP) on outer side of left abdomen, 20 cm from umbilicus.
4. A fire-arm entry wound measuring 1 cm x 1 cm (DNP) on outer side of left abdomen, 3 cm below Injury No, 3.
5(A). A fire-arm entry wound measuring 1 cm x 1 cm on outer side of left thigh upper part.
5(B). A fire-arm entry wound measuring 1 cm x 1 cm on outer side of left thigh middle part.
6-AA fire-arm entry wound measuring 1 cm x 1 cm on back of left thigh, middle part.
6-BA fire-arm exit wound measuring 2 cm x 2 cm in front of left thigh, 6 cm above knee.
7. A fire-arm entry wound measuring 1 cm x 1% cm (DNP) on left buttock.
8. A grazing fire-arm wound measuring 11 cm x 6 cm on outer side of right leg, lower part extending up to right foot.
9. A grazing fire-arm wound measuring 1(1/2) cm x 1/2 cm on left ring finger breaking the nail.
10.A fire-arm wound measuring 1/3 cm x 1/3 cm (DNP) on inner side of right leg, middle part.
11.A fire-arm wound measuring 1/2 cm x cm (DNP) on outer side of right thigh, 10 cm above right knee.
12.A fire-arm wound measuring 1/2 cm x 1/2 cm (DNP) on outer side of right knee.
13.A fire-arm grazing wound measuring 6 cm x 1(1/2) cm on outer end lower part of right buttock.
14(A). A fire-arm entry wound measuring 1 cm x 1/2 cm on back of right thigh, middle part.
14(B). A fire-arm exit wound measuring 1 cm x 1 cm on back of right thigh, upper part.
15.A fire-arm entry wound measuring 2 cm x 1 cm on lower part of right buttock.
16.A fire-arm entry wound measuring 2 cm x 1 cm (DNP) on upper part of right buttock.
17. A fire-arm entry wound measuring 1(1/2) cm x 1 cm (DNP) on right side of front of abdomen upper part, 18.A fire-arm entry wound measuring 1/2 cm x 1/4 cm (DNP) on front of right abdomen upper part.
19-A A fire-arm entry wound measuring 1/2 cm x 1/4 cm on inner side of right forearm, 2 cm above right wrist joint.
19-B A fire-arm exit wound measuring 3/4 cm x 1/4 cm on inner side of right forearm, 4 cm above the wrist.
20.A fire-arm wound measuring 1/2 cm x 1/2 cm (DNP) on back of right arm near elbow.
The above said examinee expired 40 minutes after arrival in the hospital. The duration of injuries was noticed by the medical officer between two to three hours approximately. The injuries were ante-mortem and caused by fire-arm.
The dead body of Munawar Hussain (deceased) was dissected by Dr. Muhammad Azam Athar Gill (P.W.5), at 10.00 a.m., on 27.8.2001, vide necropsy report Exh.PC (pictorial diagram Exh.PC/I), who found following injuries thereon:--
1. Fire-arm entry wounds, 3 in number, measuring 3.3/5 cm x 2 cm, 1 cm x 3 cm & 3 cm x 1(1/2)cm on back of left side of chest, middle part, depth probed, superficial.
2. A fire-arm entry wound measuring 1 cm x 3/4 cm on outer side of left chest, lower part, one bullet was recovered from chest cavity on exploration.
3. A grazing fire-arm wound measuring 11/2 cm x 1/2 cm on left ring finger breaking the nail.
4. A fire-arm entry wound measuring 1/2 cm x 1/2 cm on back of right arm near elbow, depth probed, superficial injury.
5(A). A fire-arm entry wound measuring 1/2 cm x 1(1/2) cm ,on inner side of right forearm, 2 cm above the right wrist.
5(B). A fire-arm exit wound measuring 3/4 cm x 1/4 cm on inner side of right forearm, 4 cm above the wrist joint.
6. A grazing mark 1/4 cm x 1/4 cm on outer end back of left upper arm.
7. A fire-arm entry wound measuring 21/2 cm x 1% cm on outer side of left abdomen, 20 cm above umbilicus, one bullet was recovered from abdominal cavity, on exploration.
8. A fire-arm entry wound 1 cm x 1 cm on outer side of left abdomen, 3 cm below Injury No,
7. One bullet was recovered on exploration.
9(A). A fire-arm entry wound measuring 1 cm x 1 cm on outer side of left thigh, upper part.
9(B). A fire-arm exit wound measuring 5 cm x 2 cm on outer side of left thigh, middle part.
10(A). A fire-arm entry wound measuring 1 cm x 1 cm on back of left thigh, middle part.
10(B). A fire-arm exit wound measuring 2 cm x 2 cm in front of left thigh, 6 cm above left knee.
11.A fire-arm entry wound measuring 1/2 cm x 1/2 cm on left buttock, depth probed superficial injury.
12.A fire-arm entry wound measuring 1/4 cm x 1/2 cm on outer side of right thigh, 10 cm above right knee joint, depth probed superficial injury.
13.A fire-arm grazing wound measuring 6 cm x 1(1/2) cm on outer end lower part of right buttock.
14(A). A fire-arm entry wound measuring 1 cm x 1/2 cm on back of right thigh, middle part.
14(B). A fire-arm exit wound measuring 1 cm x 1 cm on back of right thigh, upper part.
15.A fire-arm grazing wound measuring 2' cm x 1/2 cm on lower part of right buttock, depth probed, superficial injury.
16.A fire-arm entry wound measuring 2 cm x 1 cm on upper part of right buttock, depth probed, superficial injury.
17.A fire-arm entry wound measuring 1/2 cm x 1/4 cm on front of right thigh upper part, depth probed, superficial injury.
18.A fire-arm entry wound measuring 1(1/2) cm x 1 cm on right side front of abdomen upper part, depth probed, superficial injury.
19.A fire-arm grazing wound measuring 11 cm x 6 cm on outer side of right leg, extending upto right foot.
20.A fire-arm wound measuring 1/3 cm x 1/3 cm on inner side of right leg middle part, superficial injury.
21.A fire-arm wound measuring 1/2 cm x 1/2 cm on outer side of right knee, depth probed, superficial injury.
The cause of death, recorded by the medical officer was the haemorrhage and shock due to Injuries No, 2, 7, & 8, which, individually as well as collectively, were sufficient to cause death in ordinary course of nature and time. All the injuries were ante-mortem and caused by fire-arm. The probable time that elapsed between injuries and death was "approximately 3 to 4 hours", whereas between death and post-mortem examination, it was "approximately 15 hours".
7. In their statements under Section 342 Cr.P.C., Muhammad Riaz (appellant) as well as his acquitted co-accused denied and controverted all the allegations of fact, alleged against them, by the prosecution and professed their innocence while responding to the question as to why this case against them and why the PWs had deposed against them. The reply to the said question answered by Muhammad Riaz-appellant is relevant, which reads as under:-- "I am innocent I was not residing at Chak No, 594/GB at the time of alleged occurrence. I and my co-accused have been involved in this case due to suspicion and doubts because it was a blind murder. Neither any PIN was present at the spot at the time of occurrence nor any other person witnessed the occurrence. There was a long chain of litigation among the complainant party and the accused Ghulam Murtaza (since acquitted). Ahmad Ali, the real brother of co-accused Ghulam Murtaza (since acquitted) was sentenced to undergo life imprisonment U/S. 10, Zina (Enforcement of Hadood) Ordinance for having illicit relations with Mst. Shaming, Chachi of Sadi Ahmad complainant of this case. When Ahmad came back to his home after having passed the imprisonment, he was fired at by the complainant and his deceased brother which was mistakenly hit to Ziadat Bibi, sister of the accused. Murtaza (since acquitted) and case FIR No, 69/95 U/S. 324/148/149 P.P.C. was registered at P/S Bahlik against the complainant and the deceased. I produce the copy of FIR Ex.DA in this respect. Due to grudge of Mst. Ziadat, Murtaza (since acquitted) murdered Munawar deceased. I also produce copy of FIR No, 72/94 U/S. 324/148/149 PPC Ex.DB registered at P/S Bahlik against the complainant party by Murtaza accused (since acquitted).
I also produce copy of FIR No, 221/95 Ex.DC, copy of FIR No, 278/2000 U/S. 337-F1, 337-L2/34 PPC P/S Bahlik Ex.DD showing enmity between the complainant party and Murtaza accused (since acquitted) and others. Saddi complainant, who is P.O. in another case also got registered a case FIR No, 75/99 P/S Bahlik against Murtaza and others which is Ex.DE and in case FIR No, 69/95 U/S. 324/148/149 PPC, a cross-version was lodged against Murtaza and his party U/S. 429/148/149 PPC which is Ex.DF. Saddi Wattoo group belongs to a narcotics group known as Nazrou Sahi group while Murtaza (since acquitted) belongs to Akrou narcotics group residents of Sheikhupura. In this way, complainant Saddi who is an absconder in case FIR No, 327/03 is a hardened and desperate person and involved me and my co-accused in this case due to, suspicion and doubts, Murtaza party with the help of Akrou group murdered Munawar Hussain. When the complainant Saddi came to know that his brother was murdered by Murtaza party, then he in order to take the revenge of his brother, murdered Murtaza (since acquitted) and abducted his real nephew Shahid and later on he was also murdered in Sheikhupura. I produce the copies of FIRs No, 327/03, 249/03 U/S. 302/148/149 PPC P/S Bahlik Ex.DG and copy of FIR. No, 9 dated 5.1.2005 U/S. 365 PPC P/S Bahlik Ex.DH in this regard. Therefore, the complainant Saddi who is a P.O. in case FIR No, 327/03 did not appear in this Court intentionally to make statement because he knew that I and my co-accused were innocent in this case. PW-1 and PW-2 produced evidence against me due to the reason that I belong to Khichi family who were closely related to the complainant party."
The appellant and his co-accused (since acquitted) did not opt to make statements, under Section 340(2) Cr.P.C. to repel the charge against them, however, the appellant opted to adduce evidence in defence, but did not do so.
8. By believing the ocular account, the motive set up, the medical evidence and the evidence of recovery of the Kalashnikov at the instance of the appellant, the trial Court proceeded to convict the appellant, but recorded the acquittal of two co-accused Muhammad Nawaz and Muhammad lqbal alias Bali, who faced the trial along with the appellant.
9. Learned counsel for the appellant has assailed the above-said items of evidence, which had impressed the trial Court and canvassed that the prosecution had badly failed to prove its case against the appellant beyond reasonable shadow of doubt; both the eye-witnesses being the relations of the deceased and inimically disposed towards the appellant are, thus, interested, whose testimonies having bee1i disbelieved qua the acquitted co-accused needs independent corroboration, which is lacking in this case; the role of acquitted co-accused Muhammad Nawaz overlaps the role of the appellant and circumstances being identical the conviction/sentence of the appellant is not sustainable; the same evidence having been disbelieved qua the acquitted co-accused, cannot form the basis for returning the guilty verdict for the capital charge on the appellant and, thus, he is also entitled to the acquittal.
10.While learned Deputy Prosecutor General Punjab on behalf of the State assisted by learned counsel for the complainant has supported the judgment in question.
11.Having minutely perused the entire evidence with the assistance of learned counsel for the parties, we are not persuaded by the contentions urged on behalf of the appellant because presence of the eyewitnesses, independent of their relationship, at the place of occurrence at the crucial hours stands convincingly explained. The Occurrence admittedly took place near the Dhari of Saddi Ahmad-complainant (not produced), where Azhar Abbas (P.W.1) and Sakhawat Ali (P.W.2), both close relation-.to the deceased and the complainant, were also present.
12.Saddi Ahmad-complainant is the real brother of Munawar Hussain deceased, whereas Azhar Abbas (P.W.1) is maternal nephew of the deceased and Sakhawat Ali (P.W.2) is maternal cousin (Khalazad) of the deceased. The prosecution failed to produce the complainant at trial and he was given up being untraceable. Both the eye-witnesses Azhar Abbas and Sakhawat Ali (P.W.1 & P.W.2) formed the ocular account. Azhar Abbas. (P.W.1) tendered details of the occurrence in his testimony with the assertion that Muhammad Riaz (appellant) fired a burst through his Kalashnikov hitting various parts of the body of Munawar Hussain deceased and sent him reeling to the ground badly wounded followed by a fire shot of his carbine on the legs of fallen Munawar Hussain. by Muhammad Nawaz accused (since acquitted), Munawar Hussain was immediately shifted to D.H.Q. Hospital, Faisalabad by Saddi Ahmad-complainant (not produced) and his companions, which fact is borne out from the medico-legal report (Exh.PG), wherein, name of Saddi Ahmad- complainant has been mentioned as the one, accompanying the then injured Munawar Hussain.
Dr. Mehmood-ul-Hassan (P.W.14) has also deposed about this fact in his testimo y that Munawar Hussain could not last long and he succumbed to the injuries almost within 40 minutes as stated by P.W.14. Azhar Abbas (P.W.1) stood the test of cross-examination confidently and hardly stammered at any stage during the course of his testimony. Denied the suggestion that he had deposed falsely being a relation to the deceased and the complainant. Also refuted that Munawar Hussain deceased had been murdered by Murtaza, because of the previous grudge between them mainly touching on the murder of Mst. Ziadat Bibi, the sister of Murtaza accused by Saddi Ahmad- complainant in the backdrop of abduction of Mst. Shamim, a paternal aunt of the complainant, by Ahmad Ali, the real brother of Ghulam Murtaza accused (since acquitted). Affirmed the suggestion that Saddi Ahmad-complainant was required in the murder case of Murtaza accused, who was allegedly murdered by him on 24.9.2003 with reference to F.I.R. No, 327/2003. Maintained that the motive behind the occurrence was the previous pitched enmity and criminal litigation between the parties. Impetus motive was broadened and further detailed in the testimony of this witness.
13. Sakhawat Ali also did not err while tendering his evidence as P.W.2 and he narrated the facts qua occurrence with the same degree of precision and confidence as is the hallmark of the testimony of P.W.1; he categorically contended that the appellant sprayed a volley of bullets through his Kalashnikov at the deceased and despatched him to the ground with multiple fire- arm injuries on various part of his body; verified that Munawar Hussain was carried to the hospital in injured condition from the place of occurrence by Saddi Ahmad-complainant and them, but they could not save him as he succumbed to the injuries at D.H.Q. Hospital, Faisalabad. Straightly denied the identical suggestions having been refuted by the other eye-witness P.W.1 that Munawar Hussain deceased had been murdered by Murtaza in the peculiar circumstances, as suggested to the other eye-witness. Also refuted that the appellant and his co-accused had been falsely implicated in this case due to party friction and grouping in the area. The line of cross: examination adopted by the defence is interesting as it emphasizes, presence of the complainant and the eye- witnesses near the place of occurrence at the crucial hour. The following suggestion put to P.W.2 is important: "it is incorrect that at the time of occurrence, we and Saddi Ahmad-complainant were armed with fire-arms at the time of occurrence at our Dharies."
14.The medical evidence tendered by Dr.Muhammad Azam Athar Gill (P.W.5) reveals twenty five fire-arm injuries on the body of the deceased and all these injuries stand mentioned in the post- mortem examination, report (Exh.PC). Besides, the testimony of Dr.Mehmoodul-Hassan (P.W.14) also discloses, almost as many fire-arm injuries, which stand detailed in medico-legal report (Exh.PQ) of Munawar Hussain (deceased). The date of arrest of the appellant i,e, 18.8.2003 is crucial as proceedings under Section 87 Cr.P.C. had been completed against him through non-bailable warrants of arrest (Exh.PM) bearing report (Exh.PM/1) of the process server Muhammad Asghar (P.W.12), who was a constable at the time of execution of the warrant on 6.2.2002, but he had been promoted as A.S.I, when rendered his testimony at trial on 17.3.2005, the same process server is also responsible for the execution of proclamation (Exh.PP) of Muhammad Riaz (appellant) bearing report (Exl%.PP/1), dated 11.2.2002 of the above said police official.
15.The above-said state of affairs patently rules out any possibility of substitution leaving the real culprit(s) get scot-free and the prosecution case cannot be discarded, merely on account of relationship of the witnesses with the deceased, for the same having been corroborated unimpeachably by the medical evidence, the motive, the abscondance of the accused-appellant and other attending circumstances of the case. The delay in lodgment of the F.I.R. and in autopsy of the dead body of the deceased is understandable because of the compelling circumstances enumerated hereinabove. The non-examination of the complainant at trial hardly does any damage, to the prosecution's case as circumstances leading to his non-appearance at trial have been sufficiently explained by the defence themselves. The evidence qua recovery of Kalashnikov at the instance of the appellant, however, is of no consequence because of non-availability of report of Fire-arm Expert. The acceptance of the recovery evidence by the trial Court as an intriminating piece of evidence is not impressive at all.
16.The vehemence shown by the learned counsel that the appellant merited same treatment as meted out to Muhammad Nawazaccused, who had been acquitted by the trial Court, cannot be given any weight, as in the absence of any strong circumstance, we cannot subscribe to the said view point, so as to evolve a conclusion totally different from the prosecution version. Even otherwise, the maxim falsus in uno, falsus in omnibus is not applicable to the facts and circumstances of this case because of the availability of corroboration of ocular testimony in abundance from other sources, besides, we do not find any element of cogency, so far as the reasons advanced in the impugned judgment regarding acquittal of Muhammad Nawaz-accused are concerned. The grounds made basis by the trial Court for recording acquittal of the said accused are flimsy, unconvincing and implausible. The unfortunate aspect of the case is that the complainant had not challenged that part of the impugned judgment, which exonerated Muhammad Nawaz-accused of the charge of murder of Munawar Hussain. By non-filing of an appeal against the acquittal of Muhammad Nawaz-accused, it does not mean that the principle of consistency was applicable to the case of the appellant Muhammad Riaz, whose conviction in this case, is found unexceptionable for the reasons, discussed in detail hereinabove. Only a legitimate and cogent finding of acquittal can be taken into consideration to deal with the prayer regarding equity of treatment and equation, so as to balance the scale but certainly not a finding/conclusion like the one, we find in the impugned judgment in respect of Muhammad Nawaz-accused. The parity of treatment is a legal phrase, which ought to be handled legally. Therefore, we are not persuaded by the argument of the learned counsel that Muhammad Riaz-appellant was entitled to identical treatment like Muhammad Nawaz-accused was extended to.
17.The upshot of the above discussion is that the appellant's conviction/sentence under Section 302(b) P.P.C. being unexceptionable, is maintained and his Criminal Appeal No, 796/2005 is hereby dismissed being devoid of any substance.
18.The Murder Reference No, 640/2005 is answered in the affirmative, with confirmation of death sentence of the appellant-Muhammad Riaz.
19.We do not find any good reason for enhancement in the compensation amount awarded to the appellant by the learned trial Court through the impugned judgment, hence, Criminal Revision No, 469/2008 filed by the mother of the complainant is dismissed.