' ABDUL LATIF KHAN, J.---Through this single judgment , we propose to decide Criminal Appeal No,14-D of 2012 filed by convict's/ appellants, namely, Aamir Iqbal and Shahid Iqbal sons of Shah Jehan, Murder Reference No,2-D of 2012 forwarded by the trial Court and Criminal Revision No,8-D of 2012 for the conviction of convicts/ appellants in sections 324/34, P.P.C, arising out of the same judgment/ conviction order passed by the learned trial Court.
2. The convicts/appellants have impugned their conviction passed by learned Additional Sessions Judge-III D.I.Khan dated 12-3-2012, vide which they have been convicted and sentenced as under:- -
(i) Under section 302(b), P.P.C. On three counts to death with compensation of Rs,2,00,000 to the legal heirs of each deceased under section 544-A, Cr.P.C.
(ii) Under section. 449/34, P.P.C. To suffer three years' S.I. With fine of Rs,20,000 each and in default to' suffer two months' S.I.
(iii) Under section 337-A(iii)/34, P.P.C. To deposit 1/3rd of the Diyat as Arsh Rs,4,88387.66 to be paid to the injured Tasawar Hussain along with imprisonment of three years' S.I. Each.
(iv) Under section 337-A(iii)/34, P.P.C, to deposit 1/3rd of the Diyat as Arsh Rs,4,88387.66 to be paid to the injured minor Abubakkar along with imprisonment of three years' S.I, each.
(v) Under section 337-F(v)/34, P.P.C. To suffer three years' S.I with payment of Rs,10,000 as dargan and in default, to suffer one month's S.I.
' The awarded penalties of imprisonment were ordered to run concurrently. Hbwever, benefit of section 382-B, Cr.P.C. Was extended to the convicts/appellants.
3. Succinct facts of the present case as per F.I.R. Are that complainant Tasawar Hussain on 5-9- 2010 reported the matter to the Police to the effect that accused Muhammad Sadiq, Muhammad Asif, Muhammad Aamir and Muhammad Shahid alias Gada duly armed, with Kalashnikovs entered into their house and started firing, due to which complainant and minor Abubakar became injured while Muhammad Imran, Muhammad Ejaz and Mst. Ghazala alias Gago died on the spot. The occurrence was witnessed by Muhammad Irshad, Muhammad Imtiaz, Mst. Fozia Bibi and Mst. Rani Bibi and the motive behind the occurrence was dispute over womenfolk, hence the instant F.I.R.
Was chalked out.
4. Challan against the Convicts/appellants was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Convicts/appellants refused to plead guilty in response to the charge framed against them; therefore prosecution was directed to record its evidence to prove guilt of the convicts/appellants.
5. The prosecution examined nine witnesses during trial against the convicts/appellants and then closed its evidence. Whereafter statements of convicts/appellants were recorded under section 342, Cr.P.C. Neither they recorded their statements on Oath nor produced any evidence in defence.
6. The learned trial Court after hearing arguments of both sides, convicted the convicts/appellants and sentenced them as per detail given in second Para of this judgment.
7. The learned counsel for the convicts/appellants contended the impugned conviction judgment is based upon conjecture, material contradiction in the case of prosecution has been ignored, the complainant made report in the murasila on the basis of which F.I.R. No,472 was registered on 5-9- 2010, does not contain the time of occurrence; that the complainant deviated from the report made in the murasila and from the contents of F.I.R. In his statement through dishonest improvements made; that the site plan speaks contrary to the version of the F.I.R.; that the alleged eye-witnesses namely Muhammad Irshad and Muhammad Imtiaz are also not corroborating the case of the prosecution; that the eye-witness Muhammad Irshad has been abandoned and the statement of Muhammad Imtiaz is contrary to the version of the F.I.R. As well as the statement of Tasawar Hussain complainant; that P.W. Mst. Rani Bibi has also deposed the story not in line with the prosecution case; that all the P. Ws. Are contradictory inter se with special reference to the time of report, preparation of site plan and the eye-witnesses of the occurrence. He contended that the medical evidence is not in consonance with the ocular account. He referred to the statement of P.W.1 Lady Dr.Khurshid Bhittani, who conducted the postmortem examination of deceased Ghazala Bibi with special reference to the wounds on the body of deceased and contended that all the wounds were shown as entry with no corresponding exit wound, in this respect no clarification has been put forward. He contended that the statement of Dr. Malik Akhtar Javed, Medical Officer with reference to the time is of great importance as to the arrival of the complainant in the hospital. He argued that the time is given in murasila and the arrival in the hospital coupled with the statement of complainant are . Not in line with the evidence of the alleged eye- witnesses. He referred to the site plan wherein at Points Nos.11 and 12 Imtiaz and Irshad shown, who have witnessed the occurrence, whereas the evidence on file speaks otherwise. He contended that already two incidents took place in the family of P.W. Irshad due to sectarian issue and commission of offence by the assailants with regard to the present incident cannot be ruled out. He contended that Imtiaz P.W. Is a chance witness whereas prosecution abandoned Irshad P.W. He argued that the complainant Tasawar Hussain is not the eye-witness. He referred to the statement of doctor who deposed that no report was made in his presence in the reporting center. He contended that the presence of Mst. Rani Bibi and Imtiaz on the spot is doubtful. He argued with vehemence that the motive for the occurrence relates to the elopement of a lady, real sister of the convicts/appellants and the assailants, as stated by the prosecution, raided the house of complainant fully armed and murdered three persons and injured two persons including complainant and a minor boy, so the question of ignoring two women, does not stand to reason, meaning thereby that the occurrence has not taken place in the mode and manner as narrated by the prosecution. He contended that no recovery of weapon of offence has been made from the con,victs/appellants. He contended that contradiction in the prosecution case in respect of murasila, statement of witnesses and site plan are of grave nature and ocular account has not been supported by the medical evidence leading to the conclusion that the learned trial court has wrongly convicted the convicts/appellants and the impugned judgment of the learned trial court is liable to be reversed by acquitting the convicts/appellants.
8. Learned Additional Advocate General assisted by learned counsel for the.Complainant contended that the F.I.R. Has been promptly lodged; that it is daylight occurrence, identification is not doubtful, convicts/appellants are directly charged with specific role. He contended that two co-accused Sadiq and Asif are still absconding whereas convicts/ appellants namely Aamir Iqbal and Shahid Iqbal were arrested after 16/17 days. He vehemently contended that the sister of the convicts/ appellants namely Ghazala was murdered apart from the other victims and if they had not committed the offence, was supposed to rush to her house as the incident of a grave nature had taken place in her house as three persons were murdered and two injured. He contended that the complainant is aged about 16/17 years and in his presence close relatives including brothers and sister were murdered brutally and he was also injured and in such state of affair, if any minor contradiction made, though there is no such contradiction, would amount to a natural variation and it cannot be based for acquittal of convicts/appellants. He contended that the complainant had given time in the murasila and later on in his statement he has fortified the same, so minor discrepancies cannot be seen and based in such senioro. He supported the conviction judgment passed by the learned trial court and stressed upon his connected revision bearing No,8-D of 2012 filed by him against the impugned judgment to the extent of deletion of section 324, P.P.C. And prayed for acceptance of revision petition.
9. We have heard the learned counsel for the parties and perused the record with their valuable assistance.
10. The convicts/appellants namely Aamir Iqbal and Shahid Iqbal sons of Shah Jehan along with two absconding co-accused namely Muhammad Sadiq son of Ghulam Qasim and Muhammad Asif son of Shah Jehan duly armed with Kalashnikovs entered into the house of complainant and started indiscriminate firing as a result of which Tasawar Hussain complainant and one minor Abubakar son of Muhammad Ejaz aged about 10/11 years were injured on receipt of firearm injuries while Muhammad Ejaz son of Riaz Hussain and Mst. Ghazala w/o of Muhammad Ejaz (sister of convicts/appellants) and Muhammad Imran succumbed to the injuries or, the spot. This report was made by complainant through murasila on the basis of which. F.I.R. No,472 dated 5-9-2010 was registered at Police Station, Cantt: D.I.Khan. Deceased Muhammad Ejaz was the real brother of complainant while deceased Ghazala was the sister in law of the complainant (wife of Muhammad Ejaz deceased). Three accused (Aamir Iqbal and Shahid Iqbal convicts/appellants) and Muhammad Asif son of Shah Jehan are real brothers while Muhammad Sadiq son of Ghulam Qasim is the real uncle of the other three accused. Aamir Iqbal and Shahid Iqbal convicts/appellants were apprehended in the instant case while accused Muhammad Asif and Muhammad Sadiq have been absconded from day one and are still absconders. Eye-witnesses of the occurrence complainant Tasawar Hussain, Mst. Fozia Bibi, Mst. Rani Bibi, Muhammad Irshad and Muhammad Imtiaz, complainant party and accused party are residing in the same vicinity as neighbourers. The motive for the occurrence was on the marriage of sister of convicts/ appellants Aamir lqbal, Shahid Iqbal and absconding co--accused Muhammad Asif namely Ghazala Bibi deceased, with Ejaz deceased against their consent. Initially they resided at Karachi and came back to the village a year ago.
11. The complainant in the murasila has given full detail of the occurrence and charged all the accused for the murder of the deceased and the injuries caused to the injured, duly witnessed by the eyewitnesses. His statement was recorded as P.W.7, who has fully corroborated the version taken in the initial report. The defence counsel laid much stress on the point that exact time is not mentioned in the murasila and in court statement 9-30 a.m. Was given and termed as contradiction/improvement which is not correct for the simple reason that the complainant aged about 16/17 years having received injuries on his person and lost lives of his brother and sister in law at the hands of the accused four in number reached the house duly armed with Kalashnikovs, in such state of mind had deposed accurate account of the occurrence report has been made at 10-00 a.m. a bit earlier the occurrence has been shown and in the court statement as P.W.7 he has narrated 09.30 a.m. Which cannot be termed as contradiction and improvement in his statement with regard to the P. Ws.. Irshad and Imtiaz would not be fatal in the light of above state of affairs and the recording of statements after a long period more than one year. Great panic caused due to the nature of occurrence cannot be brushed aside and in such scenario the accurate deposition by the complainant, having the fear of firing made by the four persons in his house, shall not be discarded even if there are certain contradiction.
12. The statement of complainant is natural, no addition or deletion seems to be made and minor discrepancies if any would not be fatal to the- case of prosecution. The prosecution has produced eye-witnesses namely Mst. Rani Bibi as P.W.8, who fully supported the version of prosecution.
Regarding these witnesses to the defence had reservation with regard to the contradiction but the same were not of vital importance and would damage the case of the prosecution. One Imtiaz eye-witness was produced as P.W.9, who is shown in the site plan also as such fully verified the version of the prosecution. Besides this the I.O. Has deposed in the line with the evidence produced by the complainant. All the recoveries made by the I.O. Are proved. The site plan prepared by the I.O. Fully supports the version made by the complainant.
13. The ocular account was corroborated by the medical evidence. P.W.3 Dr. Malik Akhtar Javed Medical Officer, who conducted the postmortem examination of the deceased, prepared postmortem documents, endorsed injury sheet, inquest report of the deceased and examined injured Abubakar, Tasawar Hussain and prepared their MLCs and verified the same. P. W,1 Lady Dr, Khurshid Bhittani, Women Medical Officer, who conducted the postmortem examination of deceased Ghazala Bibi and verified the documents by her Nothing adverse to the version of prosecution could be dig out by defence during searching cross-examination on the doctor and the medical evidence as such fully . Supports the prosecution case. The learned defence counsel raised certain reservation with regard to the statements of doctor, size of the wounds which differed from each other and tried to take benefit of it but could not justify his objection to create any difference and doubt in the ocular and the medical evidence. The mere difference of, size of entry wounds on the dead body of the deceased would not damage the prosecution case as the same can be different in dimension and size with special reference to direction and distance.
14. During of course of investigation nothing adverse to the natural course has been pointed out as normal investigation has been conducted with all necessary legal requirements, connecting the convicts/appellants with the commission of offence.
15. The testimony of prosecution witnesses is trustworthy and confidence inspiring. The recovery of blood stained earth and empties of 7.62 bore from the places of accused as per the site plan freshly discharged is also cogent and strong corroborating piece of evidence in line with the prosecution story. The existence of motive also strengthened the prosecution version. All these facts establish the guilt of convicts/appellants and connecting them with the commission of offence, therefore, the learned trial court has rightly evaluated the evidence on record while awarding, conviction and sentence to the convicts/appellants A through impugned judgment.
16. In view of the above discussion, we have reached to the conclusion that a strong case is made out against the convicts/appellants and they are rightly convicted. Therefore, the appeal in hand is dismissed being without merit and maintain the conviction awarded by the learned trial Court.
17.The Murder Reference bearing No,. 2-D of 2012 is answered in affirmative and death sentence is confirmed.
18.As far as Criminal Revision bearing No,8-D for 2012 is concerned we are of the view that the trial Court is proper forum to decide the quantum of sentence to be awarded. Learned trial Court has given sufficient ground in the impugned judgment for awarding punishment to which we agree and accordingly dismiss the Criminal Revision No,8-D of 2012.