' JAMAL KHAN MANDOKHAIL, .J.---The officials of National Accountability Bureau (NAB) Balochistan in supervision of the respondent No,3 on 27th September, 2012 raided the office of the Balochistan Public Service Commission (called hereinafter as "the Commission") and took into possession the record pertaining to the examination in respect of different posts. The petitioner being the Chairman of the Commission, feeling aggrieved from the action of the NAB authorities, filed the present petition.
2. Learned counsel for the petitioner contended that under section 6 of the Balochistan Public Service Commission Act 1989 (called hereinafter "the Act"), only Governor is competent to initiate an inquiry against the Chairman and members of the Commission, therefore, the 4 NAB has no jurisdiction to initiate proceedings against them. It is further alleged that, no inquiry was sanctioned by the competent authority at that time, therefore, the entire proceeding of the raid at the office of the Commission is illegal. The learned _counsel for the petitioner alleged that the respondent No,3, during the raid, misbehaved and abused the petitioner and the officials, which act is against the provisions of Article 14 of the Constitution of Islamic Republic of Pakistan.
3. The learned Deputy Prosecutor-General (DPG), NAB, appeared along with the respondents and opted not to file the para-wise comments or the counter-affidavit on their behalf and decided to argue the matter. He opposed the contention and stated that the NAB has got the authority to initiate proceedings against the officials of the Commission, who are holding a public office, therefore, the proceedings initiated against them are quite competent. Controverting the arguments of the learned counsel for the petitioner, the learned Prosecutor produced a letter dated 1st October, 2012, showing that the matter has been referred for inquiry against the Commission by DG NAB. He further stated that the respondent No,3 did not abuse the petitioner or the officials, however it was informed that the officials of the Commission were called for two dates before the institution of the petition. According to him, the Director (Investigation) NAB (B) is the overall Incharge of the inquiry and Investigation Cell, who is supervising the inquiry in accordance with law. He made a statement that though the Chairman and the members of the Commission come within the definition of "a person holding a public office", but so far, no proceedings have been initiated against them, therefore, the petition is premature.
4. After arguing the matter, the Court was left) to decide the jurisdiction of the NAB regarding the proceedings against the Chairman, the Members and the officers of the Commission. The Balochistan Public Service Commission was promulgated in the year 1989 and was suitably amended in the year 2004, and section 6 of the Act provides the procedure for initiating inquiry against the Chairman and Member of the Commission, which is reproduced hereinbelow:- "6. (1) If the Government is of the opinion that the Chairman or Member, by reason of physical or mental incapacity, is unable to perform his duties or is guilty of misconduct, the Government shall appoint a Judge of the High Court of Balochistan, to inquire into the matter.
(2) If after holding the inquiry, the Judge submits a report that the Chairman or. Member is incapable of performing his duties or is guilty of misconduct, the Government may, notwithstanding the provisions of section 4, recommend to the Governor to remove such Chairman or Member. (*).3 ' Explanation---for the purpose of this subsection, "misconduct" means a conduct prejudicial to the good order or service discipline or contrary to the rules of conduct applicable to Civil Servants of the Province of Balochistan or unbecoming of an officer and gentleman and include any act on the part of the Chairman or a Member, to bring or attempt to bring political or other outside influence directly or indirectly to bear on Government or any Government Officer, in respect of any matter relating to his retention as such Chairman or Member, punishment, retirement of other conditions of his service and include-
(i) Conviction for an offence involving moral turpitude;
(ii) Active participation in the sectarian, communal or political controversy; '
(iii) Persistent disregard of the regulation relating to conduct of affairs of Commission.
(iv) Assuming a style of living beyond his legitimate means.
(3) For the purpose of inquiry under this section the Judge have power vested in a Civil Court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely:-
(i) enforcing the attendance of any person and examining him on oath;
(ii) requiring the discovery of documents;
(iii) receiving evidence affidavits;
(iv) issuing commission for examination of witnesses or documents."
5. The Act empowers the Government to initiate an inquiry against the Chairman and the Members of the Commission through a Judge of the High Court. Of course that inquiry is not equivalent to an inquiry or investigation as provided by the Criminal Procedure Code or the NAB Ordinance, but it is a preliminary proceedings before initiating any action against the incumbents, who are holding a constitutional post. It is just to collect the material fact as far as the allegations concerned, and to judge if prima facie case is made out or otherwise? On completion of an inquiry, the Judge of the High court has to submit his report to the Government with recommendation for the-removal and initiation of criminal proceedings against the incumbents. On receipt of the recommendation, the Government shall immediately take action against him/her. It is true that the posts of the Chairman and the Members is a constitutional post, but they don't enjoy any immunity, except the adoption of the procedure in accordance with section 6 of the Act before taking any action under any law. The procedure provided by the Act has neither an overriding effect, nor it is inconsistent with any provision of the NAB Ordinance. The Chairman and the Member of the Commission deal in the affairs of the public, therefore, can be proceeded under the NAB Ordinance, but subject to his/their removal in accordance with the Act, or after completion of his/their tenure.
6. The Act says that if the Government is of the opinion, it shall appoint a Judge of the High Court to inquire into the matter. The opinion of the Government could be formed from its own sources or upon any complaint received from any source. There are widespread allegations against the Chairman, the Commission, regarding exams for the different posts holding by the Commission, which is enough information for the Government to initiate inquiry. The NAB has started inquiry into the matter against the officials, therefore, if any material comes on record sufficient to initiate proceedings against the Chairman, the same be submitted to the Government as a complaint for initiating inquiry against the Chairman as provided under the Act.
7. As far as the officials of the Commission are concerned, they are the permanent employees and as such are in the service of Pakistan, therefore, their service comes within the definition of "a person holding public office." The Ordinance empowers the NAB authorities to initiate proceedings against any person holding a public office on the charge of corruption, corrupt practices or misuse of authority etc. There was a need to curb the menace of corruption, corrupt practices and misuse of authority by the holder of a public office, therefore, the NAB Ordinance was promulgated to initiate a proceeding against an officer holding a public office. Under section 18 of the Ordinance, if the Chairman NAB or an officer of the NAB duly authorized by the Chairman is of the opinion that it is necessary and appropriate to initiate proceedings against any person as defined in the Ordinance, he shall refer the matter for inquiry or investigation. The Chairman NAB has already delegated powers to the Director-General NAB Balochistan to refer the matter for inquiry or investigation, if he is of the opinion that it is, or may be, necessary and appropriate against the following holders of a public office;
(i) Officer of Grade 20 and below.
(ii) Holder of an office or post in connection with the affairs of a legal council.
' Thus in view of above, the DG NAB(B) has referred the matter for inquiry into the scam, of the examination, held in respect of different posts, conducted by the Commission, which is quite competent. Thus, the DG NAB(B) has got the authority to initiate the inquiry only against an officer up to Grade-20. The objection of the learned counsel for the petitioner over the jurisdiction of the NAB authorities in respect of the proceedings against the officials of the Commission is contrary to law, as such, is overruled.
8. The NAB is a national institution, having a great mandate and enjoys respectability and confidence amongst the general public, therefore, the Chairman NAB and the officials must maintain such respect and confidence. To save the institution from destruction and bad reputation, the NAB authorities must take care of it faithfully in the national interest. Sometime any officer or its employee brings a bad name to an institution, and thereby damages its reputation. It is, therefore, expected that the conduct and honesty of the officials of the NAB must be above board and their actions must not be in violation of the Constitution and law. No doubt, the NAB officials are dealing with the persons, involved' in corruption or corrupt practices, who may be convicted by a competent Court of law, but it does not allow anybody to disgrace, abuse or torture them. Article 14 of the Constitution safeguards such right of an individual, which reads as under:-- "14. Inviolability of dignity of man, etc.---(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable.
(2) No person shall be subjected to torture for the purpose extracting evidence."
9. In view of the constitutional provision, no authority is above the law and even one must remain within the domain of the provisions of the Constitution and the law. Through this petition, the violation of the fundamental rights of the petitioner and the officials of the Commission by the respondent No,3 has been complained, therefore, it is necessary to dilate upon this aspect as well.
This petition contains certain allegations against the respondent No,3 supported by an affidavit of the Chairman of the Commission. The learned DPG NAB appeared on behalf of the respondents, opted not to file the counter affidavit or the rejoinder to the petition. By not doing so, the allegation levelled against the respondents remained unrebutted. It is a fact that the documents produced by the DPG NAB shows that the inquiry into the matter was sanctioned on 1st October, 2012, but the letter No,FCIW/NAB(B)/2012/320 dated 27th September, 2012, shows that the respondent No,3 had visited the office of the Commission and got into possession the record. It is a settled principle of law that when a thing is required to be done in a manner, then it should be done accordingly.
Under the Ordinance, no one is empowered to start proceedings against any person, until and unless an inquiry or investigation is sanctioned by the competent authority. Admittedly, on 27th September, 2012, no inquiry was sanctioned into the matter, therefore, the raid conducted by the respondent No,3 in the office of the Commission was illegal and without jurisdiction. While taking the record into possession, no legal formality was fulfilled. On the first date of hearing before this Court, the respondent No,3 admitted that after the raid, he called two officials of the Commission for two consecutive dates, but he did not record their statements for the purpose of getting information necessary for the inquiry. He was unable to answer that under which law and authority, he was competent to call the officials, to which the respondent No,3 remained answerless. It shows that either the respondent No,3 with mens rea, illegally detained the officials of the Commission for two days or he is not acquainted with the manner and procedure, in which an inquiry or an investigation should be conducted. Keeping in view the unrebutted contents of the petition, there is no reason to disbelieve the allegations levelled by the petitioners against the respondent No,3.
10. It is pertinent to mention here that the respondent No,3, while appearing before this Court, was charged and he was interrupting the arguments of the learned DPG. The Court twice directed him to keep quiet and remain calm, but he was anxious to address the Court. His conduct was contemptuous, however, for the smooth hearing of the case, he was expelled from the Court room.
Over the behaviour of the respondent No,3, the DPG and the Director (Investigation) NAB (B) tendered apology and assured that he would be disassociated from the matter, which was subsequently done and this restrained us from initiating the contempt of the Court proceedings against him. On the last date of hearing, the learned counsel for the petitioner placed on record another letter issued by the respondent No,3 to the officials of the Commission for their appearance, despite the fact that he did not remain associated in any manner with the inquiry. The DPG NAB and the newly posted Investigating Officer were asked as to how the letter was issued by the respondent No,3, they could not justify his action. The manner in which the respondent No,3 is acting, shows his personal interest into the matter, for the reasons best known to him. The conduct of the officer will not only damage the valued reputation of the NAB Balochistan, but may also damage the high profile inquiry initiated in the affairs of the Commission. Under such circumstances, the respondent No,3 is not a fit person to be assigned any inquiry or investigation.
The competent authority may assign him a desk job, preferably at the NAB Headquarter with no frequent contact with public.
11. Thus, in view of what has been stated and discussed hereinabove, the petition is partly accepted.
The inquiry initiated by the DG NAB on 1st October, 2012 in the scam of the Commission is permissible under the law against the officials of the Commission upto Grade-20. The people of Balochistan expect fair and transparent inquiry into the matter, therefore, the DG NAB should personally supervise it and if needed, he may depute a competent and an honest investigator, so as to enable the Court to bring the culprits to justice. Order accordingly.
20 3 P Cr. L I 412 [Lahore] Before Rauf Ahmad Sheikh and Shahid Hameed Dar, JJ MUHAMMAD GHALIB and others---Appellants versus The STATE and others---Respondents Criminal Appeal No,79, Criminal Revision No,112 and Murder Reference No,299 of 2004, heard on 18th October, 2010.
(a) Penal Code (XLV of 1860)- ----Ss. 302(b)/324/34/337-Fiii)/337-D---Qatl-e-amd, attempt to commit qatl-e-amd, common intention, ,ghayr-jaifah-mutalahimah, jaifah--- Appreciation of evidence---Incident reported to police promptly---Motive for occurrence established---Enmity between parties admitted--- Medical evidence corroborating ocular account---Defence plea not believable--- Effect--- Accused persons while armed with weapons allegedly ambushed the deceased persons and the injured witness---Motive for the occurrence was strained and, tense relations between the parties spanning over a period of 4 to 5 years---Although complainant was brother of the deceased persons and injured witness was also related to the deceased, but their evidence could not simply be discarded due to their relationship--- Matter was reported to the police within two hours--- Enmity between the parties stood admitted and prosecution had successfully proved the motive for the occurrence---Presence of injured witness at the place of occurrence could not be questioned and he had perfectly corroborated his stance before the police, as contained in his statement under 5.161, Cr.P.C.---Medical evidence provided corroboration to the witnesses of the ocular account as both the deceased persons and the injured witness had received multiple sharp edged injuries---Duration of injuries, time elapsed between injuries and death, and between death and post-mortem examination were all in line with the ocular account furnished by complainant and injured witness---Medical officers were subjected to detailed cross-examination but no infirmity was found in their statements---Regarding recovery of weapons at instance of accused persons, report of Chemical Examiner revealed that weapons were stained with blood and scrapings thereof sent to Serologist had been found to be of human origin---Weapons recovered from accused persons and scrapings thereof, had been received in sealed parcels by the relevant Laboratories---Defence did not suggest that weapons were sent to the relevant Laboratories after having been tampered with in any manner---One of the accused took the defence plea that deceased and injured witness while armed launched an attack on his house and attacked his wife and mother-inlaw---Said accused claimed that he alone managed to club and stab the deceased and injured witness in self-defence, however such a defence plea seemed unnatural and preposterous as said accused could not show even a single scratch on his person nor on the person of his wife or mother-in-law, who even otherwise were not taken into custody by the police nor examined by a medical officer/doctor-Appeal was dismissed in circumstances and conviction and sentences recorded by Trial Court were confirmed. [pp. 420, 422, 423, 424, 425, 426, 427, 428, 429] A, B, C, D, E, F, G, I, J, K, L, M, N, 0, P & Q Anwar Shameem and another v. The State 2010 SCM R 1791 rel. (b) Criminal trial-- ----Post-mortem examination, evidentiary value of--- Non-existence of pictorial diagrams/sketches- Effect--- Non-existence of sketches did not undermine the intrinsic value of post-mortem examination reports nor could such reports be thrown away due to such an omission. [p. 424] H Muhammad Tanvir Ch. And Sayeda B.H. Shah for Appellants.
Ch. Abdul Aziz for Respondents.
Muhammad Nazeer Abbasi, Standing Counsel.
Date of hearing: 18th October, 2010.
' SHAHID HAMEED DAR, J.---The appellants Muhammad Ghalib, Nasir Mahmood, Muhammad Hanif and Waheed Ahmad have been convicted by the learned Additional Sessions Judge, Islamabad for the charge of murder of Liaqat and Shaukat deceased and attempting on the life of Wajid Abbasi, (P.W.9). The appellants were sentenced as under:-- Muhammad Ghalib and Waheed Ahmad. Under section 302(b)/34, P.P.C.
' Death on two counts to the each appellant, with order to pay Rs,1,00,000 each, as compensation to the legal heirs of the deceased, under section 544-A, Cr.P.C., in default thereof to undergo six months' S.I. Each.
' Under section 324/34, P.P.C.
10 years' R.I to the each appellant, with fine of Rs,50,000 each, in default thereof to undergo three months' S.I each.
' Muhammad Ghalib appellant was also convicted under section 337F(iii), P.P.C. And sentenced to three years' R.I. With payment of Rs,5,000 as Daman.
Nasir Mahmood and Muhammad Hanif appellants.
' Under section 302(b)/34, P.P.C.
' Life imprisonment on two counts each with order to pay Rs,50,000 each as compensation to the legal heirs of the deceased, under section 544-A, Cr.P.C., and in default thereof to undergo three months' imprisonment each.
' Under section 324/34, P.P.C.
10 years' R.I. Each with fine of Rs,25,000 each, and in default thereof to undergo imprisonment for three months' S.I. Each.
' Muhammad Hanif appellant was also convicted under section 337-D, P.P.C. And sentenced to 10 years' R.I. With payment of Rs,1,00,000 as Arsh, being 1/3rd of Diyat amount.
' All the sentences of imprisonment were ordered to run concurrently with benefit of section 382-B, Cr.P.C.
' Through the same judgment the co-accused of the appellants namely, Arshad, Azhar, Sajid and Talib were acquitted of the charge.
2. The convicts have filed Criminal Appeal No,79 of 2004 against their conviction/sentence, besides, there is a usual reference under section 374, Cr.P.C. Against Muhammad Ghalib and Waheed Ahmad appellants, for the confirmation of their sentence of death, on two counts, transmitted by the learned trial Court. Rafaqat alias Bagga complainant (P.W.8) has also filed Criminal Revision No,112 of 2004 against Muhammad Hanif, respondent No,1 and Nasir Mahmood, respondent No,2 for enhancement of their sentence to death. This judgment will dispose of the above said appeal, revision and the reference.
3. The appellants along with their acquitted co-accused were tried in the Court of learned Additional Sessions Judge, Islamabad for Committing qatl-e-amd of Shaukat and Liaqat and for attempting on the life of Wajid Abbasi, P.W.9 at 9-00 p.m on 26-7-2002, in the area of Noorpur Shahan, Bari Imam, falling within the jurisdiction of Police Station, Secretariat, District Islamabad.
The statement Exh.P.W. Got recorded by Muhammad Rafaqat alias Bagga, complainant (P.W.8.) formed the basis for the registration of formal F.I.R. Exh.PA.
4. The prosecution story, as stated by the complainant in his complaint Exh.P.W. Is that he was not on speaking terms with Ghalib alias Guddi (appellant) for 3/4 years due to a petty quarrel between them; they exchanged hot words in early hours of the day on 26-7-2002 in the bazaar of Bari Imam and the matter was patched up; he was present at the shop of Miskeen, situated in Adda, at about 8-00 p.m, the same day, the accused Ghalib alias Guddi (appellant), armed with chhuri, Talib (since acquitted) armed with danda, Kala (since acquitted) armed with danda, Waheed (appellant) armed with hatchet and pistol .30 bore, Sajid (since acquitted) armed with .12 bore gun, Pappu armed with chhuri, Nasir (appellant) armed with chhuri and Azhar (since acquitted) armed with a knuckle duster came there and beat him, the people present at the spot intervened and rescued him; his family members, later on, learnt about the brawl; his brothers Shaukat and Eiaqat (deceased) along with Wajid Abbasi (P.W.9) also reached there, consoled him and intended to lodge a complaint with Aurangzeb, the brother of Ghalib; they all came to the shop of Aurangzeb and complained of the excesses committed by his brothers with the request that he should check their unruly behaviour; thereafter, they moved towards their house, Liaqat, Shaukat and Wajid were ahead of the complainant, who was a little behind; when they reached near the house of Riaz, they were all at once, ambushed by the above named accused at 9-00 p.m.; they pounced upon Shaukat, Liaqat and Wajid and caused them severe injuries by means of their respective weapons; they also made firing and ran away; in the meanwhile, Muhammad Fayyaz P.W. (not produced) and Mahmood alias Mooda P.W. (not produced) and Javed P.W. (not produced) reached their and witnessed the occurrence; the complainant and his companions shifted the injured to Poly Clinic Hospital in a Suzuki Pickup. But Shaukat and Liaqat succumbed to the injuries on the way to the hospital.
5. The complainant (P. W.8) got recorded his statement Exh.P.W. Before Arshad Ali SI, P.W.10 at 11-10 p.m on 26-7-2002 at Poly Clinic Hospital, which was sent to the Police Station, Secretariat, District Islamabad by P.W.10, for registration of formal F.I.R. (Exh.PA), through Mushtaq 5847/C.
6. Arshad Ali SI/I.O., P.W.10, examined the dead bodies of Shaukat Ali and Liaqat deceased and prepared inquest reports Exh.PY, Exh.PX and also drafted applications Exh.PBB and Exh.PCC respectively for. Postmortem examination of both the dead bodies. He prepared injury statement Exh.PZ of the injured Wajid and wrote down a memo of identification Exh.PAA of both the deceased.
Thereafter, he reached the place of occurrence, caused its inspection and drafted visual site plan Exh.PDD about it. He took into possession blood-stained earth from two spots vide memo Exh.PH and rendered it into two separate sealed parcels. He returned to the PIMS and shifted the dead bodies of the deceased to DHQ Hospital, Rawalpindi for postmortem examination. He, after the autopsy of the dead bodies, took into possession the last worn blood-stained clothes of the deceased vide memo Exh.PM. He arrested Muhammad Ghalib (appellant), Muhammad Talib (acquitted co-accused), Nasir Mehmood (appellant) and Sajid Mehmood, (acquitted co-accused) on 28-7-2002. Muhammad Ghalib appellant got recovered chhuri P-6, vide memo Exh.PJ, attested by Tariq Mahmood, P.W.3 and Talib Mahmood P.W. (not produced), Talib appellant led to the recovery of a danda P-7 vide memo Exh.PK and Nasir Mahmood appellant got recovered chhuri P- 8 vide memo Exh.PL attested by the above said P.Ws. The I.O. Prepared the site plans qua the places of the recovery of the aforesaid weapons Exh.PEE. He also arrested Arshad Mahmood (since acquitted), Azhar Mahmood (since acquitted), Muhammad Hanif (appellant) and Waheed Ahmad (appellant), Muhammad Haneef accused led to the recovery of chhuri P-1 vide memo Exh.PC attested by Haji Ghaffar, P.W.2 and Maula Dad P.W. (not produced). Sajid Mahmood accused (since acquitted) got recovered .12 bore gun P-2 vide memo Exh.PD, attested by Haji Ghaffar P.W.2 and Muhammad Nazakat P.W. (not produced). Waheed Ahmad (appellant) got recovered hatchet P-3 and a pistol P-4 vide separate memo of recovery Exh. PE and Exh.PF, both attested by Haji Ghaffar P.W.2 and Muhammad Nazakat P.W. (not produced). Azhar Mahmood accused (since acquitted) led to the recovery of a knuckle duster P-5 vide memo Exh.PG attested by Haji Ghaffar, P.W.2 and Maula Dad P.W. (not produced). The I.O/P.W.10 also prepared the site plans qua the places of the recovery of the above said weapons.
7. The medical evidence was presented by Dr. Muhammad Arshad C.M.0, Federal Services Hospital, Islamabad, P.W.6, who conducted postmortem examination of both the dead bodies at DHQ Hospital, Rawalpindi, one after the other. Firstly, he performed autopsy on the dead body of Muhammad Liaqat at 1-00 p.m., on 27-7-2002, vide post mortem examination report Exh. PR, bearing his signature Exh.PR/1 and found the following injuries thereon:--
(1) An incised stab wound on the right temple just in front of the upper border of the right ear pinna, measuring, 3 c.m x 1 c.m, cutting the under lying bone. The brain matter was coming out through the wound, right ear was plugged.
(2) An incised stab wound, bone deep, measuring 3 c.m x 1 c.m on the upper border of the right shoulder.
(3) An incised stab wound measuring 1.5 c.m x c.m on the front of right shoulder just medial to the axillary fold.
(4) An incised stab wound measuring 1.5 c.m. x .8 c.m. On right front chest, 1 inch below the nipple.
(5) An incised stab wound measuring 3 c.m x 1 c.m on the lateral surface of the right chest, 9 c.m lateral to the nipple.,
(6) An incised stab wound measuring 2 c.m x .8 c.m on posterior of the right chest at the level of posterior axillary line.
(7) A penetrating wound measuring 8 c.m diameter on the right side of the abdomen, 6 inches lateral to the umbilicus.
' The cause of death recorded by the Medical Officer was due to the damage to the brain and right lung. All the injuries were ante-mortem and except injury No,7, caused by sharp-edged weapon.
The injury No,7 was guessed as a blunt weapon injury.
' The probable time elapsed, as noticed by this P.W., between injury and death was 'immediate' and between death and postmortem examination, within 30 hours.
' The dead body of Muhammad Shaukat deceased was dissected at 11-40 a.m. On the same day by the same Medical Officer, P.W.6, vide post mortem examination report Exh.PS with his signature Exh.PS/1, who found the following injuries on the dead body:--
(1) An incised wound on the anterior surface of the left mid arm, muscle deep measuring 3 c.m x 1 c.m, 16 c.m below the shoulder and 19 c.m above elbow.
(2) An incised stab wound on right upper front part of the chest, measuring 1.5 cm x 1 c.m, one inch medial to the axillary fold.
(3) An incised stab wound on the right abdomen, measuring 4 c.m x 2 c.m, above and lateral to the umbilicus (7 c.m).
(4) A long transversely placed incised wound on the lower back chest 10 c.m in length, bone deep, on the left end with tale on the right, 16 c.m above the iliac crest.
(5) A bruise measuring 11 c.m x 2 c.m on back of right shoulder.
(6) An abrasion measuring 2 c.m x nail head on the forehead, just right to the mid.
' The cause of death recorded by the Medical Officer was the haemothorax and haemorrhage due to damage to the right sub-clavian vessels, upper lobe of the right lung and the liver. All injuries were ante mortem and caused by sharp-edged weapon(s) except injury Nos.5 and 6 which were caused by the blunt weapon.
' The probable time elapsed, as noticed. By this P.W., between injury and death was 'an hour' and between death and postmortem examination, within 30 hours.
' Dr. Rana Muhammad Mobeen C.M.O Poly Clinic Islamabad, P.W.7, though examined the dead bodies of both the deceased on 26-7-2002 and noticed their external injuries vide OPD Tickets Exh.PT and Exh.PU, but he did not perform the autopsy, therefore, the description of the injuries on both the corpses, deposed about by this witness might not be important to be reproduced, as, the testimony of Dr. Muhammad Arshad, C.M.O, P.W.6 entails all such details. He, P.W.7, however, conducted medical examination of Wajid Abbasi injured, P.W.9, at 9-55 p.m. Vide MLR Exh.PV and found the following injuries on his person:-
(1) Transverse incised/cut wound over right side of neck, skin deep with haematoma.
(2) Incised/cut wound over right side of scalp, skin deep with sharp skin edges.
(3) Cut wound. Over lower abdomen through which loops of small intestine protruded out with perforation on it.
(4) Cut wound over abdomen in midline just above umbilicus.
' The patient was operated by the. Surgeons of General Surgery Department who found Jejunum perforation, 2 to 3 tears in mesentery of small intestine and Serosal tear. Three centimeters of jejunum resected and end-to-end anastomosi done.
' The above said injuries were declared as Jurh Jaifah (337-D, P.P.C.) Ghayr Jaifah Badiah (337-Fii, P.P.C.) and Ghayr Jaifah Damiyah (337-Fi, P.P.C.) and were found to be caused by sharp-edged weapon.
8. The prosecution, after indictment of the appellants-accused and their acquitted co-accused, produced JO witnesses before the learned trial Court, in toto to establish the charge against the accused. Muhammad Rafaqat, P.W.8 and Wajid Abbasi, P.W.9 furnished the ocular account.
' The, medical evidence was tendered by Dr. Muhammad Arshad, C.M.O. P.W.6, who performed autopsy on, both the dead bodies vide Postmortem Examination Report Exh.PR and Exh.PS. Dr. Rana Muhammad Mobeen C.M.O. P.W.7, also externally examined the injuries of both the deceased vide OPD tickets Exh, PT, Exh. PU and medically examined Wajid Abbas: (P.W.9) vide MLR Exh.PV. The evidence of recovery of the crime weapons was furnished by Haji Ghaffar, P.W.2, Tariq Mahmood P.W.3 and Arshad Ali SI/I O., P. W.10 who completed, the investigation and submitted a report under section 173, Cr.P.C. Before the learned trial Court. The I.O. Got prepared scaled site plan Exh. PQ, Exh.PQ/1 and Exh.PQ/2 in triplicate, by Muhammad Akram draftsman, P.W.5 in the scale of I inch equal to 20 feet. The rest of the prosecution evidence is, more or less, formal.
9. In his statement under section 342, Cr.P.C., Muhammad Ghalib, the appellant-accused, denied and controverted the prosecution case and advanced a specific plea of exercise of right of self- defence, while recording his reply to the question, "Why this case against you and why the P. Ws.
Have deposed against you" as follows:-- "All the private witnesses are related to the deceased persons and remaining witnesses arc police officials who are public servants. No independent witness of the area deposed against me. The prosecution witnesses are interested and inimical towards me therefore, they supported the false story of the prosecution against me. On the day of the occurrence actually, Liaqat, Shoukat and Wajid trespass to my house after coming almost a distance of one kilometer. They gave injuries to me and my wife and mother-in-law due to the earlier altercation between me and Rafaqat alias Baga. I by exercising my right of private defence took out a chhuri from my kitchen and gave few blows to the assailants. After receiving injuries they ran back towards the street,. Liaqat and Shoukat fell down near the house of Najmul Hassan and Zarwaiz whereas Wajid fled, away from the said place. Both the injured remained in lying condition at the said place for 30 minutes and subsequently died. I being injured along with other injured family members went to the Poly Clinic Hospital for treatment where I was arrested. I also lodged complaint of the attack of the complainant party in my house but police did not lodge report against the complainant party. The police with the connivance of the complainant party, registered a case against me and my other innocent relatives in this case. During the attack of complainant party at my residence Talab my brother after hearing my hue and cry came to the scene of the occurrence and tried to rescue myself and save my family members who also saw the occurrence but the complainant party and police also subsequently made accused of this case. The complainant party for the purpose to save their skin regarding their aggression upon me and my family members changed the venue of the occurrence and concocted a story that occurrence was taken place near the house of Riaz."
' Nasir Mahmood, Muhammad Haneef and Waheed Ahmad appellants-accused however, denied and rebutted the allegations of fact against them and professed their innocence, in their separately recorded statements under section 342, Cr.P.C., while recording reply to the above said question in the following words:- "I have been falsely implicated in this case due to my relationship with Ghalib accused, at the time of occurrence I was not present at the spot and did not participate in the occurrence, the police subsequently arrested me in this case and false recoveries were planted upon me. I am innocent and may be acquitted from this case."
' The appellants did not produce any defence evidence nor they opted to appear as their own witness to repel the charges against them under section 340(2), Cr.P.C.
10. The learned trial Court on appraisement of the evidence, available on the record held the appellants guilty, convicted and sentenced them in the aforementioned terms, through the judgment under appeal. The co-accused of the appellants, namely Muhammad Talib, Azhar Mahmood, Sajid Mahmood, and Arshad IVIahmood, however, were acquitted through the same judgment.
11. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.
12. Muhammad Rafaqat alias Bagga, complainant, P.W.8 is the real brother of both the deceased.
Wajid Abbasi, P.W.9, is the real maternal uncle of the deceased. Muhammad Fayyaz P.W. (not produced) is the maternal cousin (khalazad) of the deceased. Mahmood alias Mooda P.W. (not produced) is the husband of the real sister of the deceased and Javed Iqbal P.W. (not produced) is the paternal cousin (chachazad) of the deceased. It has been admitted by the complainant P.W.8 in his evidence that all the prosecution witnesses including himself are close relatives inter se as well as, of the deceased.
13. The learned counsel for the appellants has argued that the prosecution had failed to prove its case against the appellants beyond the reasonable doubt and thus they are entitled to be acquitted by this court; the eye-witnesses produced by the prosecution were closely related to the deceased, interested and inimical to the appellants who, maliciously had suppressed the real facts of the case; the F.I.R. Is an ante dated and ante timed document which has been fabricated by the prosecution with false timings shown on it, to pose it as a promptly lodged document; the motive setup by the prosecution had remained far from being proved so the prosecution has to face its consequences; the recovery of chhuries P-6, P-8 and P-1 have been planted upon Muhammad Ghalib, Nasir Mahmood and Muhammad Haneef appellants, whereas, a hatchet P-3 and pistol P-4 have been planted upon Waheed Ahmad appellant with fictitious proceedings, to substantiate, an otherwise unproven prosecution's case; the medical evidence is inconsistent with the ocular account, furnished by the inimical and biased witnesses; the complainant party had committed aggression against the appellants by causing severe injuries to the appellants in an unprovocative attack at the residential house of Muhammad Ghalib appellant; the co-appellants of Muhammad Ghalib appellant had not taken part in the incident and it was he alone who had retaliated in self- defence to fend off the aggression launched by the deceased; impugned judgment/has been passed in arbitrary, perverse and capricious manner which may be set aside and the appellants may be acquitted of the charge.
14. As against the submissions of learned counsel for the appellants, the learned Deputy Prosecutor-General appearing for the State and the learned counsel for the complainant have submitted in agreement that the prosecution had fully established the guilt of the appellants beyond reasonable doubt through trustworthy ocular account, corroborative medical evidence, the evidence of the recovery of weapons of offence from all the appellants and the evidence of motive; the appellants and their co-accused had committed a barbaric act, by taking the life of two innocent persons and almost, killed the third one during the occurrence; the appellants Nasir Mahmood and Muhammad Haneef should have been awarded the capital punishment like their co-appellants in absence of any extenuating circumstance, being vicariously liable for the murder of. Shaukat and Liaqat deceased, hence, the revision petition filed by the complainant for enhancement of sentence may be accepted and the instant appeal of the appellants may be dismissed.
15. The prosecution case hinges upon the ocular account furnished by an injured witness P.W.9 and Muhammad Rafaqat P.W.8, the evidence of motive, the medical evidence presented by Dr. Muhammad Arshad C.M.O., P.W.6 and Dr. Rana Muhammad Mobeen, C.M.O., P.W.7 along with the evidence of recovery of the crime weapons, chhuri P-6, vide memo Exh.PJ, hatchet P-3 vide memo Exh.PE, pistol P-4 vide memo Exh.PF, chhuri P-8 vide memo Exh.PL and chhuri P-1 vide memo Exh.PC, at the instance of Muhammad Ghalib, Waheed Ahmad, Nasir Mahmood and Muhammad Haneef appellants-accused, respectively.
16. After having heard the learned counsel for the parties and going through the record we straightaway find that Muhammad Ghalib appellant has advanced a specific defence plea, as regard to the prosecution case and in his statement under section 342, Cr.P.C. He has contended that he along with his wife and mother-in-law had been badly injured by Liaqat (deceased), Shaukat (deceased) and Wajid (P.W.9). Who being armed, had, attacked him, at his residential house, after covering a distance of about 1 kilometer. We further noticed that despite having raised the specific defence plea, he has neither appeared, in his defence, under section 340(2), Cr.P.C. Not he has adduced, any, defence evidence. The requirement of Article 121, Qanun-e-Shahadat appears to have been ignored and overlooked by the defence during the course of the trial. The unfortunate incident was reported to the police promptly, within two hours and ten minutes by Muhammad Rafaqat alias Bagga complainant P.W.B. We have also gathered that on the basis of the same evidence, four co-accused of the appellants have been let off by the learned trial Court so in this background we have to see whether or not the ocular account, gets the complete corroboration from the other attending circumstances and whether the ocular account in its present form is trustworthy and unimpeachable? In these circumstances we have to deal with each bit of the evidence available on the record so as to plumb the depth of the real facts of this case.
17. As far as the motivating factor in the instant case is concerned we have noticed that it relates to the tense and strained relations between Muhammad Rafaqat alias Bagga, P.W.8 and Ghalib alias Guddi, C appellant spanning over a period of 4/5 years which led to an exchange of hot words between them in the early hours of the fateful day but due to the intervention of the people around, the matter was, for the time being, resolved. The trail of this tension-full tale did not come to an end as the complainant, who sat at the shop of one Miskeen, situated in the Adda, at about 8-00 p.m., he, in the backdrop of the animosity, was attacked and thrashed by the appellants, joined by their acquitted co-accused, who took part in the violent drill being armed with different weapons. To his good-luck, the people present at the spot again intervened and rescued him. This piece of the motive incident, when known by the family members of the complainant, P.W.8, prompted his real brothers Shaukat, Liaqat and his maternal nephew Wajid Abbasi to reach the point of trouble and they consoled and solaced him but decided that the unruly behaviour and conduct of Ghalib be reported to his brother Aurangzeb who incidentally was their close relative (behnoi) and ran a shop not far off from the house of the appellants-accused. The residential house of Talib accused (since acquitted) was situated close to the shop of Aurangzeb. There was close relationship between the parties as Liaqat deceased was married with the real sister of Ghalib accused-appellant and as discussed above, the real sister of Liaqat deceased was married with Aurangzeb. Muhammad Rafaqat alias Bagga P.W.8 has contended in his testimony that the relations between the two families had become strained due to many complications involving the inter se marriages between the two families. The hostility between the complainant and Ghalib appellant in fact sparked off due to aforesaid reasons which got compounded because of repeated clashes between them. The strained, but close relationship between the two families had been admitted by both the sides. When we come to the statements under section 342, Cr.P.C. Of the appellants, they have frankly admitted that a quarrel had taken place in the early hours of the day on 26-7-2002, between the deceased and the complainant and all of them have replied in affirmative while answering question No,2, relating to the previous skirmishes between them. By this way, the enmity between the complainant and the appellants stands admitted. The last incident, pursuant to the sore relationship between the parties, prior to the main occurrence took place at 8-00 p.m. When the complainant was beaten, by the appellants and their acquitted co-accused, at the shop of Miskeen, situated in the Adda. The motive emerges to contain a number of collisions between the parties, the last in the sequence, taking place at 8-00 p.m. On the fateful day. The deceased brothers of the complainant after seeing the haplessness of their real brother decided to lodge a complaint with Aurangzeb, the brother of Ghalib, appellant-accused and behnoi of the deceased so, as to bring an end to the hostilities. Their decision in this regard is neither offensive nor entails any mischief as Aurangzeb was the person who being a relative on both the sides, could be effective in enforcing a lull between the related rivals. They acted upon their decision without having the slightest idea as to what was there for them in the store and what monstrous moments waited for them in the next few hours. The non- production of Miskeen on whose shop, the last clash prior to the occurrence occurred does not weaken the motive part of the incident as P.W.8 and P.W.9 have satisfactorily rendered the details of the clashes between the complainant and the accused, coupled with the fact that the statements of the accused-appellants under section 342, Cr.P.C. Lend a strength of corroboration to the motive set up by the prosecution. In these circumstances, we have come to a definite 'conclusion that the prosecution has succeeded to prove motive, as set up by them while triggering off the legal machinery into motion.
18. As far as medical evidence is concerned, it provides unflinching corroboration to the witnesses of the ocular account as both the deceased, Muhammad Liaqat and Muhammad Shaukat had received multiple sharp-edged injuries at the hands of the appellants-accused besides, Wajid Abbasi, P.W.9 was almost killed by them, having given him grievous multiple sharp edged injuries.
The postmortem examination of both the deceased was conducted by Dr. Muhammad Arshad, C.M.O, P.W.6 vide postmortem examination report Exh.PR, qua Muhammad Liaqat deceased and Exh.PS qua Muhammad Shaukat deceased. The necropsy report Exh.PR discloses the infliction of six sharp-edged injuries and one punctured wound whereas, the postmortem examination report Exh.PS entails description of four sharp-edged fatal injuries and two blunt weapon injuries, a bruise and an abrasion. Same is the situation with the Medico-legal Report Exh.PV of Wajid Abbasi, injured.
P.W., which shows four sharp edged injuries on, various parts of his body and he appears to have survived through his sheer good-luck as injury No,iii on his abdomen had caused the loops of small intestine, protruding out of the wound. The witnesses of ocular account, specially PW-9 has categorically deposed about the specific role played by the appellants- accused in committing the occurrence and the medical evidence supports their version in totality. The duration of injuries, the seat of injuries, the time elapsed between injuries and death, and between death and postmortem examination are all in line with the ocular account furnished by P.W.8 and P.W.9. We have noticed that the postmortem examination reports are not attached with the pictorial diagrams and the learned counsel for the appellants has effervescently pointed at the said omission with the contention that in absence of the pictorial diagrams the entries of the postmortem examination reports cannot be read against the appellants, we are afraid, that the learned counsel is badly misconceived as the non-existence of the sketches does not undermine the intrinsic value of these important reports nor these can be thrown away due to the said omission. Both the Medical Officers have been subjected to detailed cross-examination but we do not find any infirmity in their statements which could cause brushing aside of their statements; therefore, we have concluded that the medical evidence did corroborate the ocular version perfectly.
19. Insofar as the evidence of recovery of the weapons of offence from the appellants is concerned, we find from the statements of Haji Ghaffar, P.W.2, Tariq Mahmood, P.W.3 and Arshad Ali SI/I.O., P.
W.10 that Muhammad Ghalib, Nasir Mahmood, and Muhammad Haneef appellants led to the recoveries of blood-stained chhuri P 6, vide memo Exh.PJ, blood-stained chhuri P-8 vide memo Exh.PL and blood stained chhuri P-1 vide memo Exh.PC, respectively while Waheed Ahmad appellant-accused led to the recovery of blood stained hatchet P 3 vide memo Exh.PE. He also led to the recovery, of pistol P-4, vide memo Exh. PP. The report of Chemical Examiner Exh.PFF reveals, that the weapons got recovered by the appellants were stained With blood and the scrappings thereof, sent to the office of the Serologist have been found to be of human origin, vide report Exh.PPF/1, released by the Serologist Govt. Of Punjab, Lahore. Haji Ghaffar P.W.2 and Tariq Mahmood P.W.3 have established the factum of the recovery of the aforesaid weapons at the instance of the appellants. Though, some discrepancies appear in their testimonies but those are of trivial nature.
The Investigation Officer Arshad Ali, SI, P.W.10 who recovered all the above said articles during the course of investigation, at the behest of the appellants, looked a bit wavered and reminiscence- less in his testimony but his inattention and heedlessness has done little damage to the evidence in this regard. The statements of P.W.2, P. W.3 and P. W.10 read with the above said documentary evidence lend a sense of corroboration to the prosecution's case. The laboratory reports cannot be discarded by any argument as the sealed parcels containing the above said weapons and the scrappings thereof, had been received intact by the said Labs. Besides during the cross- examination of the above said witnesses it has not been suggested by the defence that the weapons in question were sent to the said Lab. After having been tampered with in any manner, rather the suggestions put to P.W.4 by the defence are found to be self-destructive to the arguments raised before us. Therefore, we find the evidence on the point of the recovery of the above said weapons of offence, creditworthy and reliable.
20. Insofar as the ocular evidence is concerned, in absence of any serious flaw or discrepancy in the testimonies of P.W.8 and P.W.9 the same cannot be disbelieved or discarded simply due to the relationship of the eye-witnesses with the deceased persons of this case. The matter was reported to the police with utmost promptitude, in fact, within about two hours. One of the eye-witnesses, Wajid Abbasi, P.W.9 is an injured witness, so his presence at the place of occurrence cannot be questioned or ruled out. Even the learned defence counsel has not disputed his presence at the spot, at the relevant time rather, he argued that he along with his companions Muhammad Shaukat and Muhammad Liaqat, being armed with different weapons had trespassed into his house, caused injuries to Ghalib appellant-accused, his wife and his mother-in-law so he, in order to save the life, honour and chastity of the family, held a chhuri from the kitchen of his house and single handedly stabbed it into their bodies one after the other; who, on receiving the injuries ran away from his house and stumbled to fall down at some distance from his house where they were spotted after about half an hour by the P.Ws. Who shifted them to the hospital but due to excessive loss of blood, two of them Muhammad Liaqat and Muhammad Shaukat died on way to the hospital.
21. The complainant P.W.8 had not been having speaking terms with Muhammad Ghalib for a period of about 4/5 years who quarrelled with him on a number of occasions. It was on 26-7-2002 that Muhammad Rafaqat complainant was engaged in a brawl with Muhammad Ghalio accused, firstly in the early hours of the morning and then at 8-00 p.m. At the shop of Miskeen but on both the occasions the people present there, intervened and separated them. The occurrence at 8-00 p.m., prior to the main occurrence was graver than the one, having taken place in the morning as all the appellants-accused in cahoots of their acquitted co-accused had pounced upon Muhammad Rafaqat but he was lucky to be saved again by the people around. This was the stage when it was decided by the complainant and his real brothers, joined by Wajid Abbasi, their cousin, to report the matter to Aurangzeb, their behnoi and a brother of Muhammad Ghalib appellant. It was a wise decision on their part as they had compound relationship inter se as real sister of Muhammad Ghalib appellant was the wife of Muhammad Liaqat deceased and at the same moment, Aurangzeb, the brother of Muhammad Ghalib appellant was the, husband of the real sister of the deceased. After lodging a complaint with. Aurangzeb, the ill-fated party was returning to their house, when they reached the place of occurrence, the appellants and their acquitted co- accused caught them by surprise, as they being armed with lethal weapons, ambushed them at about 9-00 p.m.., emerging from the hedges and authored terminal injuries on the bodies of Muhammad Shaukat and Muhammad Liaqat deceased, whereas, they caused an injury on the abdomen of Wajid Abbasi, P.W.9 besides other injuries, which caused bulging out of small intestine from the wound. Muhammad Rafaqat P.W.8 has endorsed his previous version as contained in his complaint Exh.PA and deposed about the occurrence in a manner, which is truly corroborated by the testimony of Wajid Abbasi, P.W.9.
22. The hallmark of the statement of P.W.9 is that he has given the detail of the occurrence in minutest term and has burdened the appellants with the specific role of authoring injuries not only on the bodies of the deceased persons but also on his body. The terminal injuries stand attributed to Muhammad Ghalib and. Waheed Ahmad appellants accused with precision and he has also mentioned about the infliction of injuries on his person by Haneef alias Pappu appellant and Muhammad Ghalib appellant-accused. Wajid Abbasi, P.W.9 has perfectly corroborated his previous stance before the police, as contained in his statement under section 161, Cr.P.C., wherein he has been very specific not only about the injuries of both the deceased but also that of his own, caused by the appellants-accused. Despite lengthy cross-examination, on these P.Ws., the defence badly failed to gain anything.
23. The defence plea, introduced by Muhammad Ghalib appellant-accused is fantastic and unbelievable. It looks ridiculous and bizarre that Muhammad Shaukat, Muhammad Liaqat, deceased and Wajid Abbasi being armed allegedly committed aggression by launching an attack on the house of Muhammad Ghalib accused and ended up with two dead bodies and the third almost killed without causing any injury to the persons allegedly attacked upon by them. Though, it has been contended in his defence plea by Muhammad Ghalib appellant that he had gone to a hospital at Islamabad (PIMS) for his medical examination but he was taken into custody by the police and that was why he could not get himself medically examined or fetch some document from a medical officer in support of his plea of self-defence, yet, his plea does not ring true or sound plausible as his wife and mother-in-law who too according to him had been injured in the occurrence, were neither taken into custody by the police nor they had been debarred by any one from the complainant side to approach a medical officer/doctor for their medical examination. In fact, the plea raised by the appellant Muhammad Ghalib is nothing but a farce. We again do not find any reasonableness in his contention that the deceased etc. Had covered a distance of about 1 kilometer to attack him and that they had been stabbed and injured by him inside his house at the shop of Aurangzeb, where the deceased and others had gone to lodge a complaint was not miles away from the house of the appellant-accused Muhammad Ghalib but its distance from his house was so meagre that it has been mentioned by the P.Ws. In feet. Had it been so that the house of the said appellant-accused not fallen on way to the shop of Aurangzeb, there might have been some substance in the defence plea of the accused.
24. The witnesses of ocular account have given a clean breast of the occurrence without contradicting each other on any aspect of the case and they appear to have rendered naturally believable evidence. No extra argument is required to establish the presence of Wajid Abbasi, P.W.9 at the place of occurrence as he has irremovable imprint of his presence at the- place of occurrence which is directly substantiated through medical evidence. The small distance between the house of Muhammad Ghalib appellant from the place of the occurrence cannot belie the, version of the eye-witnesses as we do not find any weakness, feebleness or fragility in their testimonies. The ocular account has been furnished by the truthful witnesses and the 'statement of these P.Ws. Has affixed a seal of truth, believability and authenticity qua the veracity of the prosecution case. There may be some contradictions in their statements but those have been found to be minor in nature and cannot be regarded as of such nature which can become a ground for discarding the ocular account. Therefore, we conclude that the ocular evidence is duly supported by the medical evidence, the evidence of the recovery of the crime weapons, the motive and by, the other attending circumstances which have led us believe that the ocular account is trustworthy credible and worth reliance against the appellants-accused. Therefore, we confirm their conviction as recorded by the learned trial Court.
25. So far as the defence plea, agitated by Muhammad Ghalib appellant in his statement under section 342, Cr.P.C. Is concerned it has been discussed a little bit in the preceding paragraphs of this judgment. He however, has contended that Muhammad Liaqat (deceased), Muhammad Shaukat (deceased) and Wajid had trespassed into his house on the day of the occurrence, after covering a distance of 1 kilometer and caused injuries to him, his wife and mother-in-law due to the previous altercations between him and Rafaqat alias Bagga, complainant P.W.B. He has further contended that he by exercising his right of private defence took out a chhuri from his kitchen and gave a few blows to the assailants who after receiving the injuries ran out of his house and fell in injured condition near the house of Najmul-Hassan and Zarwaiz whereas, Wajid Abbasi fled away from the said place. He has further contended that both the deflated injured remained alive for about half an hour and died subsequently. He further contends that he along with his injured family members went to Poly Clinic Hospital for treatment where he was arrested and that he too had lodged a complaint with the police but his version/report had not been recorded by the police as they were hands in gloves with the complainant party. He used his full energy to orally submit that he alone had stabbed the deceased and the injured P.W. And that none of his co-accused had taken part in the incident and that the allegations levelled by the prosecution against him and his co-accused were concocted. It was incumbent upon the appellant-accused Muhammad Ghalib to discharge the onus to prove his exceptional plea as per requirement of Art. 121 of the Oanun-e- Shahadat but he neither appeared himself as his own witness under section 340(2), Cr.P.C. Nor he showed valor and confidence to adduce any defence evidence. Reliance is placed on a recent judgment passed by the august Supreme Court of Pakistan in the case titled Anwar Shameem and another v. The State (2010 SCM R 1791). The defence plea, as introduced by Muhammad Ghalib, appellant is worth rejection in more than one way, being unnatural, preposterous and fantastic. It does not appeal to reason that three youthful persons would travel to the house of the appellant- accused from a distance of 1 kilometer being armed, and would surrender meekly to be clubbed and stabbed time and again by the lone appellant accused who could not show even a single scratch on his person nor on the person of his wife or mother-in-law. The attending circumstances, as mentioned hereinbefore clearly show that the deceased party had been caught by surprise, ambushed and wounded by the appellants who sat in wait for the returning deceased party from the shop of Aurangzeb and this is how they sustained the casualties. The defence plea is bound to be rejected both on the facts and the law.
26. For what has been discussed above and 'in the circumstances mentioned hereinbefore we uphold and confirm the conviction and sentence of the appellants accused as recorded by the learned trial Court in the impugned judgment. Resultantly, the appeal (Criminal Appeal No,79 of 2004) filed by Muhammad Ghalib, Nasir Mahmood, Muhammad Hanif and Waheed Ahmad appellants-accused is dismissed.
27. The Criminal Revision No,112 of 2004 filed by the complainant, for the reasons discussed hereinabove dismissed.
28. The Murder Reference No,299 of 2004 qua Muhammad Chalib and Waheed Ahmad appellants is answered in the affirmative.