' ABDUL SAMI KHAN, J.---Appellant Muhammad Safdar has assailed the judgment dated 31-1-2007 handed down by the learned Additional Sessions Judge, Mianchannu, District Khanewal in case F.I.R. No, 223 of 2004 dated 11-7-2004 registered at Police Station Saddar Mainchannu, District Khanewal under sections 302, 324, 109, 34, P.P.C. Through Criminal Appeal No, 21 of 2008 whereby he has been convicted and sentenced as under:--
(1) Under Section 302(b), P.P.C. To death on two counts with compensation to the tune of Rs,50,000 each to be paid to the legal heirs of Muhammad Ajmal and Naurang deceased under section 544- A, Cr.P.C. And in default thereof to further undergo imprisonment for 6 months.
(2) Under Section 324, P.P.C. To ten years' R.I. For murderous assault on Nusrat with fine of Rs,5,000 or in default thereof to further undergo three months' imprisonment.
(3) Under Section 337-D, P.P.C. To ten years' R.I. And payment of 1/3rd of Diyat amount payable to Nusrat injured. Both the sentences of imprisonment were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was extended in favour of the appellant.
' The learned trial court also submitted Murder Reference No,295 of 2007 under section 374, Cr.P.C.
For confirmation or otherwise of the death penalty of the appellant. We propose to decide both these matters together through this single judgment.
2. The prosecution story narrated in the F.I.R. Is that the complainant was agriculturist by profession.
On the fateful day the Nikah ceremony of appellant Muhammad Safdar son of Khuda Bakhsh with Mst. Azra daughter of Noor Muhammad was to be 'solemnized. Muhammad Ajmal, brother of Mst.
Azra was not in favour of this marriage. Noor Muhammad who was real brother of Muhammad Safdar went to the house of Muhammad Ajmal at about 1-00 p.m. To see him where exchange of hot words took place. Naurang, father of the complainant, Muhammad Ajmal son of Noor Muhammad, Muhammad Nusrat son of Ghulam Haider left on motorcycle towards city and when they reached on mateled road Ronda .Karamti More situated within the area of Chak No, 123/15-L, the. Accused Safdar, armed with pistol 30 bore, Zafar Iqbal Babbi by parking their motorcycle on road stopped Nusrat, who was driving motorcycle. The moment Nusrat stopped the motorcycle Safdar fired with his pistol upon him which landed on his abdomen at right side and went through backside. He made second fire at Ajmal which landed on left side of his chest and went out from back. The father of the complainant was about to run due to fear when Zafar Iqbal Babbi applied Japha upon which Safdar made straight fire upon him which landed on right side of his throat.
After sustaining injury he fell down on the ground. After some time Naurang, father of the complainant and Muhammad Ajmal succumbed to their injuries and died at the spot. Upon raising hue and cry of the complainant Zahoor Hussain son of Ghulam Haider, Ghulam Muhammad and Muhammad Yousaf attracted, at the place of occurrence and witnessed the occurrence. The motive set up in the F.I.R. Was that the Nikah of Safdar was to be solemnized with Mst. Azra but could not be performed due to opposition of Muhammad Ajmal. Due to this grudge Muhammad Safdar killed Naurang, father of the complainant and Muhammad Ajmal on the abetment of Noor Muhammad and Manzoor Hussain and injured Nusrat with the intention to kill who was removed to hospital.
3. After registration of above said F.I.R. The case was investigated by Syed Mukhtar Hussain Shah, Inspector (P.W.12) who examined the dead bodies, prepared their injury statement (Exh.PK/1)
(Exh.PM/1), prepared inquest report (Exh.PK)(Exh.PM), secured blood-stained earth vide recovery memo (Exh.PB/PC), inspected the place of occurrence, prepared site-plan of the place of occurrence (Exh.PO), collected crime-empties of pistol 30 bore (Exh.PD), recorded the statement of five witnesses under section 161, Cr.P.C., on 30-7-2004 recorded the statement of Nusrat injured under section 161, Cr.P.C. At Nishtar Hospital. Multan, on 3-8-2004 arrested Muhammad Safdar appellant, on 17-8-2004 recovered pistol .30-bore (P-1) at the instance of Muhammad Safdar appellant loaded with live bullet (P-2/2-1) vide recovery memo (Exh.PE). Found Noor Muhammad, Manzoor Hussain and Zafar Iqbal accused innocent and thereafter investigation was changed to DSP Saad Ullah.
4. In order to prove case against the appellant, the prosecution produced as many as 14 witnesses against him. Muhammad Yaseen complainant (P.W.8) and Muhammad Nusrat ,injured (P.W.9) provided the evidence of ocular account and also stated about the motive. Syed Mukhtar Hussain Shah, Inspector (P.W.12) conducted investigation in this case and stated about various steps taken by him during the investigation. The medical evidence was furnished by Dr. Ahmad Bilal Asghar (P.W.10) and Dr. Abdul Waheed (P.W.11). Dr. Ahmad Bilal Asghar conducted postmortem examination of Muhammad Ajmal deceased and found the following injury on his person:- "There is entry wound open 0.5 cm in diameter in the middle of trunk, left posterior axillery line."
"Open exit wound 1 cm in diameter blow and middle of left clavicle."
' According to the doctor the deceased received fire-arm injury which was sufficient to cause death in ordinary course of life. The time elapsed between injury and death was half to one hour and between death and post-mortem examination was about ten hours. On the same day the doctor also conducted post-mortem examination on the dead body of Naurang deceased and found following injuries:-- "There is entry wound open 0.5 cm in diameter just above right strenoclavical joint", "There is exit wound open 1.5 cm in diameter in the middle of back, left side".
' On 11-7-2004 Dr. Abdul Waheed, Medical Officer (P.W.,11), Tehsil Headquarter Hospital, Mianchannu examined Nusrat son of Ghulam Haider injured and found following injuries on his person:-- "1 A. A firearm wound with intervened edges 1.2 x 1 cm into deep going to backwards and slightly downwards towards the peritoneal cavity on right side of upper part of abdomin 6 cm right to midline and 3 cm below the rib cage of chest as wound of entry corresponding tear/hole was present on Qameez blackening burning were not present.
1-B. A firearm wound 0.7 x 0.5 cm x deep going towards the peritoneal cavity on right side of back of abdomin at the level of L-3 vertegral disc 1.5 cm right to the midline with everted edges as sopund of exit."
5. The appellant in his statement under section 342, Cr.P.C. Denied all the allegations levelled against him by the prosecution and professed his innocence. While answering the question "why this case against you and why the P.Ws. Have deposed against you", he stated as under:- "Actually it was blind murder may be in the course of some dacoity. Actual culprits were an- traceable. One real Phuphizad of the complainant named Sarwar son of Dilmir was inimical with the accused Noor, Manzoor (since died) and Zafar. In the year 1996 one Muhammad Aslam son of Hayatum got registered a case F.LR. No, 86 of 1999 dated 6-3-1996 under section 11/7/79 Hudood Laws against accused Noor and Manzoor since died. I am real brother of said Noor and Manzoor.
In this cafe said Sarwar was a witness. Later on during investigating accused Noor and Manzoor were declared innocent and case was cancelled. After cancellation of F. L R. Manzoor accused (since died) filed a complaint under offence of Qazf Ordinance against said Sarwar and others in the court of Mr. Muhammad Tahir Naeem ASJ, Mianchannu. In above said complaint learned ASJ Mianchannu issued bailable warrant against said Samar. In these days Zafar accused wa Process Server. Bailable warrants were entrusted to Zafar accused and on 13-10-2003 he arrested him and asked him to execute a bond but he refused to do so whereupon the accused Zafar arrested him and in this process an altercation took place between them and Sarwar executed bond which were tendered in the court by Zafar accused. But on the given date said Sarwar did not appear before the concerned court whereupon court proceeded against Sarwar under section 514, Cr.P.C, Due to the abovesaid grudge Sarwar with the connivance of the complainant all the accused persons have been involved falsely in this case."
' The appellant neither opted to appear as his own witness under section 340(2), Cr.P.C, nor produced any defence evidence. After conclusion of the trial the appellant was convicted and sentenced as mentioned above.
6. Learned counsel for the appellant submits that the ocular account in this case was furnished by related and interested witnesses. There are glaring contradictions between the statements of eye- witnesses made under section 161, Cr.P.C. Before, the police and the statements made before learned trial court which fact creates doubt in prosecution story and benefit of such doubt of course goes in favour of the appellant. The prosecution had entangled as many as four accused in this case but on the same set of evidence two co-accused of the appellant had already earned acquittal therefore, the evidence qua the appellant is also not believable. The investigating officer has fabricated fake evidence of crime-empties therefore, report of Forensic Science Laboratory is inconsequential and the same cannot be used against the appellant. The motive set up by the prosecution is not proved in the circumstances of this case. The evidence adduced by Muhammad Nusrat (P.W.9) does not find support from any other corner. The complainant could not establish his presence at the spot at the time of incident. The prosecution has miserably failed to prove its case against the appellant beyond any reasonable doubt.
7. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that the appellant is nominated in the promptly lodged F.I.R. With specific allegation of inflicting firearm injuries on both the deceased and the injured P.W. And the medical evidence in this regard fully corroborate the ocular account furnished by P.W.8, and P.W.9. The eyewitness namely Nusrat (P.W.9) also received serious firearm injury during the occurrence, thus, his presence at the spot at the relevant time is proved and his evidence further strengthens the prosecution's case. It was a broad daylight incident and the parties are well known to each other, therefore, identification of appellant is not a question in this case. During the investigation the appellant had got recovered weapon of offence, i.e, pistol .30 bore (Exh.PE) and according to the report of Forensic Science Laboratory the crime-empty collected from the place of occurrence by the investigating officer matched with the recovered pistol from the appellant Safdar which provides sufficient support to the ocular account. The prosecution has proved the motive set up in the F.I.R. Thus, the prosecution has proved its case against the appellant beyond any reasonable doubt.
8. We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance.
9. According to the prosecution story the occurrence had taken place in this case at about 4-00 p.m. On 11-7-2004 and the .Same was reported to the police at about 6-40 p.m. On the same day.
The distance between the Police Station and the place of occurrence is five miles. The occurrence was reported to the police within two hours and forty minutes which was explained by the compliant because first of all he had removed the dead bodies and the injured witness to Tehsil Headquarter Hospital, Mianchannuu and thereafter he left for. Police Station for reporting the matter. In this way we have observed that the matter was reported by the police with sufficient promptitude.
10. To prove the ocular account the prosecution had examined Muhammad Yaseen complainant (P.W.8) and Muhammad Nusrat, injured (P.W.9). Both the eye-witnesses during their evidence before the learned trial court had consistently explained the mode and manner in which the occurrence took place, the weapons used by the appellant and the locale of injuries on the bodies of both the deceased. Muhammad Nusrat (P.W.9) had received a grievous firearm injury from the hand of the appellant, therefore, his presence at the place of occurrence is not doubtful. He is the star prosecution witness who sufficiently supported the prosecution story mentioned in the F.I.R.
Both the eye-witnesses were subjected to lengthy cross-examination but both of them remained consistent on each and every material point inasmuch as the defence could not extract anything which could prove fatal for the prosecution or could provide any benefit to the defence for creating doubt regarding their presence at the place of occurrence or making false statement against the appellant. It was a broad daylight occurrence and both the parties being relatives inter se known to each other which fact disproves possibility of any mistaken identity. No plausible reason has been brought on record by the defence for false implication of the appellant in this case. Even otherwise the complainant would not dare to leave the real culprit who committed the murder of his father and close relative and involve the appellant without any rhyme and reason. The evidence provided by these two eyewitnesses had inspired the confidence of the learned trial court .For convicting and sentencing the appellant and the same also inspired our trust to throw a worthy reliance upon them. On both occasions the defence remained unable to shatter the credibility of the eyewitnesses. Thus, by all stretch of imagination it is safely concluded that the ocular account furnished by both the eyewitnesses (P.W.8 and P.W.9) has been proved beyond any shadow of doubt.
11. The medical evidence amply proves the locale of injuries, the B weapons used by the appellant to do away with the deceased and the time of taking place of occurrence. Dr. Ahmad Bilal Asghar (P.W.10) appeared in the witness-box and unambiguously stated about the nature of injuries, the duration between receiving of injuries and death as well as duration between death and the post- mortem examination, the weapon of offence. The medical evidence is exactly in apt with the ocular account, hence we have no manner of doubt in observing that the medical evidence provides sufficient support to the ocular account.
12. So far, as the recovery of weapon of offence is concerned we have observed that during the investigation of this case two crime-empties of pistol .30 bore were collected by the investigating officer at the time of inspection of place of occurrence which were taken into possession vide recovery memo Exh.PD and were sent to the Forensic Science Laboratory on 23-7-2004 whereas after recovery of pistol (P-1) vide recovery memo Exh.PE from the appellant during the investigation of this case the same was sent to the Office of Forensic Science Laboratory on 27-8-2004 separately and the report of the Forensic Science Laboratory (Exh.PR) is positive.. Abdul Sattar (P.W.2) appeared before the learned trial court as recovery witness who had fully explained all the recovery proceedings. The defence had tried to extract something adverse to the prosecution case during cross-examination but remained unable to shatter his credibility. Thus, recovery effected in this case has provided support to the ocular account.
13. The motive set up in the F.I.R. Is stated to be a dispute which took place before the Nikah ceremony of Muhammad Safdar appellant and one Mst. Azra, sister of deceased Muhammad Ajmal. Prior to the occurrence exchange of hot words took place between the brother of appellant Noor Muhammad and deceased Muhammad Ajmal which prompted the appellant to do away with the deceased and injured Muhammad Nusrat (P.W.9). Both the eye-witnesses as well as both the deceased were present when hot words were exchanged between the brother of the appellant and Muhammad Ajmal deceased. In consequence of such a dispute the Nikah ceremony of the appellant with Mst. Azra could not take place and this fact is also not denied by the defence side.
Muhammad Yaseen complainant (P.W.8) and Muhammad Nusrat (P.W.9) appeared in the witness- box before the learned trial court and proved the motive against the prosecution. Thus, the motive set up by the prosecution against the appellant has amply been proved against him D which provides support to the ocular account.
14. The discussion made above discloses that the appellant after having been failed in performance of Nikah with Mst. Azra had made a desperate murderous attack on the complainant party and in consequences thereof he had taken lives of two persons and severely injured Muhammad Nusrat (P.W.9). He had made repeated fire-shots on complainant party at the spot and tried his best to slay all the three persons in a cold-blooded manner. He has acted mercilessly due to not giving hands of Mst. Azra to him. The distraction showed by him at the spot by dealing with the deceased and the injured victim in such a ruthless manner constrained us to keep sympathy aloof from him. The maximum sentence of murder is death and the appellant also deserve for the same.
15. An irresistible conclusion for the discussion made by us in preceding paragraphs is that Criminal Appeal No,21 of 2008 is dismissed and the sentence of death passed against the appellant by the learned trial court is hereby confirmed.
16. Murder Reference No,295 of 2007 is answered in the positive and the death sentence awarded to the appellant is confirmed.