JUDGMENT KH. MUHAMMAD SHARIF, CJ. - This judgment will dispose of Criminal Appeal No. 146 of 2005, Criminal Appeal 147 of 2005. Criminal Revision No. 145 of 2006 and Murder Reference No. 255 of 2005.
2. Both the appellants were tried by the learned , Addl. Sessions Judge, Attock who vide his judgment dated 11.04.2005 convicted the appellants under Section 302(b)/34, P.P.C, and awarded death sentence and compensation of Rs. 1,00,000/-, each which will be paid to the legal heirs of the deceased Shakil Ahmad and in default of payment of compensation, they shall further undergo for six months' S.I. They were also convicted under Section 460, P.P.C, and sentenced to life imprisonment each in a case bearing F.I.R. No. 157, dated 12.06.2004 registered under Sections 302, 460, 34, P.P.C, at Police Station Fatehjang.
3. The convicts have filed the appeals while learned Addl. Sessions Judge has also sent a Reference to this Court under Section 374, Cr.P.C, for confirmation cor otherwise of death sentences.
4. Brief facts of the case as given by the complainant Mst. Ghulam Sakina (P.W.10) in the F.I.R Exh.PJ are that her husband had died two years prior and she has four daughters and one son namely Shakeel. Her daughters are married. One daughter namely Mst. Noor Bharri was married in Dhoke Ganga Wali but she was divorced by her husband 7/8 years ago and she is also living with her. Her son Shakeel Ahmed was married with Mst. Mukhtar Bibi resident of Taja Bara for the last about three years. Mst. Nur Bharri has a daughter namely Hifza Batool aged about seven years and that minor also reside with her. Her daughter-in-law Mst. Mukhtar Bibi is living in her parent's house for the last one year after quarreling with her husband. Her grand-daughter namely Hifiza Batool is suffering from chicken pox. Due to this reason her another son-in-law Arif son of Shoa-ud-Din no Fatehjang was also present in her house. They after taking the dinner laid down on their cots lying in the courtyard, In the Courtyard light was on. She and her daughter Mst. Nur Bharri were awoke due to illness of her grand-daughter Hafiza Batool. It was at about 3.00 a.m. Fateh Khan son of Ghulam Haider armed with .12 bore gun, Muhammad Nazir son of 'Sultan armed with 30 bore pistol no Lund suddenly entered into their haveli. Fateh Khan fired with .12 bore gun at her son Shakil Ahmed, while he was sleeping on a cot in the courtyard, which hit him on chest and left 'dola'. On seeing the occurrence, she tried to rescue Shakil Ahmed and fell down on him, Fateh Khan and Nazir Ahmed pushed her aside and Nazir Ahmed fired with pistol which hit Shakil Ahmed on his chest. She raised hue and cry on which her daughter Nur Bharri and Muhammad Arif reached there while seeing the occurrence. Fateh Khan and Nazir Ahmad after opening the door of haveli ran away. Shakil Ahmed succumbed to the injuries.
5. The motive behind this occurrence as stated by the complainant was that the Nazir Ahmed had suspicion that Shakil Ahmed had illicit relations with his sister namely Mst. Gahar Bano and due to this reason Nazir Ahmed and Fateh Khan in furtherance of their common intention murdered Shakil Ahmed.
6. After completion of the investigation, challan was submitted before the learned Trial Court.
Charge was framed to which, appellants pleaded not guilty and claimed to be tried, In order to prove its case, prosecution produced as many as thirteen (13) PWs during the trial.
7. PW-1 Dr. Arshad Mehmood, conducted the post-mortem examination of the dead-body of Shakeel Ahmad deceased on 12.06.2004 at 11.00 a.m. And found ten injuries on he person.
He^opined that all the injuries were anti-mortem in nature and injuries No. 1 to 8 are sufficient to cause death in ordinary course of nature. The duration between injuries and death was immediate and the death and post-mortem was about 6 to 10 hours.
8. The investigation was conducted by two different police, officials. Firstly the investigation was conducted by Muhammad Afzal, ASI PW12 and thereafter the investigation was entrusted to Ch. Riaz Hussain, S.H.O. (P.W.13). P.W-13 the I.O. Arrested the appellants on 23.06.2004 and also recovered the gun .12 bore and .30 bore on the Plantation of the appellants vide recovery memo.
Exh.PH. After completion of the investigation, he submitted the challan in the Court against the present appellants for trial.
9. The appellants were examined under Section 342, Cr.P.C, and he did not opt to appear and deposed on oath as required under Section 340(2), Cr.P.C.
10. The learned counsel for the appellants in support of appeals submits that the occurrence had taken place in the odd hours of the night; that it is a case of mistaken identity; that the appellants have been falsely implicated in this case; that though there is mention of light at the time of occurrence but no point regarding the light has been mentioned either in the rough site plan prepared by the I.O. Or the Draftsma n Further submits that there is no corroboration between the ocular account and the medical evidence, In the instant case there is no matching report regarding the empties of 30 bore pistol recovered from the spot on the day of occurrence . Further submits that as far as the case of Nazir Ahmad is concerned, his case is of acquittal and so far the case of Fateh Khan, his case is of single fire shot and he has no motive to kill the deceased, hence his case is of lesser punishment.
11. On the other hand, the learned counsel for the complainant assisted by learned D.P.G, submits that both the accused have common intention; that Fateh Khan is maternal nephew of Muhammad Nazir; that they trespassed into the house of the complainant who is a widow and Shakil Ahmad deceased was her only son and both of them caused injuries on the person of Shakil, which resulted into his death. They further submit that as far as the non-matching of crime empties of 30 bore pistol recovered on the Plantation of Muhammad Nazir is concerned, the said crime empty of .30 bore mark C-1 is perforated and identifiable data is not available. Therefore, nothing could be opined as to whether or not the crime empty of .30 bore marked as C had been fired from the pistol .30 bore body signed. They further submit that it was mentioned in the first information report that the electricity was on as the grand- daughter of the complainant was suffering from small pox and she was in trouble at that time. They further submit that injuries No. 1 to 8 are with one weapon while injuries No. 9 & 10 are with different weapon and the ocular account is corroborated by the medical evidence. The motive is also attributed to Muhammad Nazir in this occurrence. That there was no mitigating circumstances in favour of the appellants. That substitution is a real phenomena. They relied upon 2007 S.C.M.R. 1014, PLJ 2005 S.C. 64, 2007 YLR 608, PLJ 2008 S.C. 694 and PLD 2005 S.C. 40 to substantiate their submissions.
12. We have heard learned counsel for the parties and have gone through the record with their able assistance.
13. In the instant case the occurrence had taken place on 12.06.2004 at 3.30 a.m. In the house of Mst.
Ghulam Sakina widow of Mian Ahmad within the area of Village Lund Police Station Fateh Jang District Attack, 22 K.M. Towards South. The motive in this case as mentioned in the First Information Report was that Muhammad Nazir appellant had suspicion that Shakil had established illicit relations with his sister Gahar Bano and due to that, he alongwith his co-accused Fateh Khan who is near relation in furtherance of their common intention committed the murder. Non-mentioning of nature of electricity whether it was an electric bulb or electric tube in the rough site plan prepared by the Draftsman through scale is inefficiency on the part of the I.O., the benefit of which cannot be given to the accused. Both appellants were armed with deadly weapon; they were specifically named in the F.I.R.; specific injuries were attributed to them; motive was also attributed to Muhammad Nazir while Fateh Khan is his maternal nephew. Shakil deceased was the only son of the widow complainant and there is no reason for her to involve these two accused persons in a false case, In this case, we are of the opinion that both the eye-witnesses Ghulam Sakina complainant and Noor Bharri PW-11 who are inmates of the house are the most natural witnesses.
Noor Bharri is daughter of Ghulam Sakina and she was divorced by her husband and she was living with her mother in her house. Dr. Arshad Mahmood, was examined as PW-1 and he stated that he conducted the post-mortem examination of the dead-body of the deceased on 12.06.2004 at about 11.00 a.m. According to him the time between the injuries and death was immediate whereas between death and post-mortem was probably 6 to 10 hours which fits in with the time of occurrence. The Doctor in his statement has stated as under:- "It is correct that injuries No. 9 and 10 suggest that these both injuries were not caused with the similar missile or with the same missile which caused injuries No. 1 to 8. Injuries No. 9 to 10 might be the result of different weapon then injuries No. 1 to 8."
We have gone through the dimensions of injuries No. 1 to 8 as 1.5 c.m. x 1.5 c.m., injury No. 9 as 2.5 c.m. x 2.5 c.m. & injury No. 10 is 3 c.m. x 1 c.m. So we are of the considered opinion that injuries No. 1 to 8 are with different crime weapon while injuries No. 9 & 10 are with different crime weapon, hence it appears that two weapons have been used in the occurrence, It is the case of the complainant herself that first of all Fateh Khan had caused injury with 12 bore gun upon the deceased which hit on chest and left arm and on seeing this the complainant ran in order to save her son, she fall herself upon Shakil deceased but Fateh Khan and Muhammad Nazir both appellants dragged her and Nazir Ahmad fired with his pistol, which hit Shakil on his chest. We are fully convinced that both the appellants had entered into the house of the complainant in the odd hours of the night and in furtherance of their common intention have committed the murder of the deceased. Two types of empties were recovered from the spot i.e. One of 30 bore and the other of 12 bore. The appellants were arrested on 23.06.2004. Muhammad Nazir led to recovery of 30 bore on 27.06.2004 and Fateh Khan led to the recovery of 12 bore on the same day. In the report of Forensic Science Laboratory, it has categorically been sated by the Fire-Arms Experts that the empties recovered duly match with the gun recovered on the Plantation of Fateh Khan. The crime empty of .30 bore mark- C-1 is perforated and identifiable data is not available. Therefore, nothing could be opined as to whether or not the crime empty of .30 bore marked as C had been fired from the pistol .30 bore body signed. Moreover, there is no mitigating circumstance in this case. The appellants had trespassed into the house of the complainant in the odd hours of the night in furtherance of their common intention have committed the murder of the deceased. After having analyzed the entire prosecution evidence and attending to the submissions made by learned counsel for the appellants, we are fully convinced that the prosecution has proved its case against the appellants beyond any shadow of doubt. We are also satisfied in our mind that there exists no extenuating circumstances for lesser sentence.
Resultantly Criminal appeal filed by the convict appellants is dismissed, the conviction and sentence recorded against them by the Trial Court vide the impugned judgment" is maintained in toto; the death sentence is CONFIRMED and Murder Reference1 is answered in the AFFIRMATIVE.
However, the Criminal Revision No. 145 of 2006 filed by the complainant Ghulam Sakina for enhancement of compensation and sentence having no force is dismissed accordingly.