' MUHAMMAD TARIQ ABBASI, J.---This single judgment is intended to decide the above-captioned Murder Reference No.117/Rwp of 2009 and Criminal Appeal No.76-J of 2009, as both have emanated from the single judgment dated 23-10-2009, passed by the learned Addl. Sessions Judge, Jhelum.
2. Through the abovementioned impugned judgment, Nisar Ahmad alias Saru, appellant, has been convicted under section 302(b) of P.P.C., on two counts, for commission of Qatl-e-amd of Farhat Hussain and Mst. Parveen Akhtar and sentenced to death, with compensation of Rs.50,000 each under section 544-A of Cr.P.C, payable to the legal heirs of the above-named deceased, otherwise to undergo S.I for six months each.
3. The facts are that Babar Hussain complainant (P.W.12), had reported the matter to the police through statement (Exh.P.G) with the contention that he was resident of village Alang; that his elder brother namely Nasir Hussain, was having a bus Registration No.1398/CHF, which was being plied from Jhelum to Nara route; that his elder brother Farhat Hussain (deceased) was conductor in the said bus, whereas Ghulam Mehdi was the driver; that on the day of occurrence, the bus proceeded from Jhelum for Nara at about 1.40 p.m. And when reached at Alang Bus stop, the complainant and his mother Mst. Parvin Akhtar (P.W.13) to get the medicine, also boarded in the bus and sat at the front side; that at about 3.30 p.m., the bus stop at Chak Muhamada and his brother Farhat Hussain (deceased) de-boarded from the bus and stood at the front of the hotel of Ghulam Rasool, while facing towards east; that in the meanwhile, Nisar Ahmad alias Saru, (appellant) armed with Kalashnikov emerged from the small street and from the backside, fired a burst at Farhat Hussain (deceased), which landed at his back and he fell down; that from the window of the bus, Mst.
Parveen Akhtar, (deceased) came down and when she was standing in front of Farhat Hussain (deceased), she also sustained bullets of burst at right side of her chest and she also fell down; that Shahid Raza, who was coming down from the bus also sustained fire-shots at his right (shin) and he became injured; that Farhat Hussain and Mst. Parvin Akhtar succumbed to the injuries at the spot; that the occurrence was witnessed by the complainant (P.W.12), his mother Mst. Parveen Akhtar (P.W.13) and the passengers of the bus; that the motive of the occurrence was demand of money by Nisar Ahmad alias Saru (appellant) from Farhat Hussain (deceased) about a week earlier, which was not paid to him by the deceased, due to which the appellant had committed the murder of Farhat Hussain and Mst. Parvin Akhtar without any fault and also caused injury to Shahid Raza.
4. On the basis of abovementioned complaint, F.I.R. No.263 (Exh.PG/1), dated 13-12-2008 under sections 302/324 P.P.C. Was registered at Police Station, Chhotala, District Jhelum The investigation of the case was carried on and the appellant was challaned to the court.
5. The learned . Trial Court, had conducted the preliminary proceedings and formally charge- sheeted the appellant on 18-6-2009. He pleaded not guilty and claimed trial hence the prosecution witnesses were summoned and recorded.
' P.W.1, Dr. Shahid Baig, had conducted the post-mortem examination of the dead-body of Farhat Hussain (deceased) on 13-12-2008 vide the report (Exh.PA) and diagrams (Exh.PA/1 and Exh.PA/2).
During the said examination, three, firearm entry wounds at the back side of the chest at the level of sixth vertebra, eight thoracic vertebra and eleventh vertebra whereas three exit wounds were observed on the body. As per the doctor, the injuries were ante-mortem in nature which were sufficient to cause death in ordinary course of nature and that within few minutes of the receipt of the injuries, the deceased had lost his life. This witness had also examined Shahid Raza injured through MLR (Exh.PB), when a firearm entry and exit wound at his right leg was observed.
' P.W.2, Ghulam Abbas, Constable had transmitted a sealed parcel allegedly containing Kalashnikov from the police to the office of FSL, Lahore, intact.
' P.W.3 Talat Sabir, Constable had got conducted the post-mortem examination of the dead body of Parveen. Akhtar and also attested the memo Exh.PC, through which the last worn cloths and ornaments of the deceased (P-1, P-2, P-3, P-4, P-5, P-6, P-7, P-8, P-9, P-10 & P-11) were taken into possession by the Investigating. Officer.
' P.W.4, Shafaqat Ahmad, Head Constable had kept a Kalashnikov along with 15 live bullets in the Malkhana on 23-2-2009 and the parcel of which was prepare on 27-2-2009 was handed over by him to Ghulam Abbas Constable on 4-3-2009 for its dispatch in the office of FSL, Lahore, intact.
' P.W.5, Muhammad Siddique S.I, had taken into possession, the last worn clothes of the Farhat Hussain, (deceased) (P-12, P-13, P-14 and P-15), through memo Exh.PT, attested by Khizar Hayat Constable (P.W.6). This witness had also secured the last worn clothes of Mst. Parveen Akhtar (deceased) (P-1 to P-11) through memo Exh. PC, attested by Talat Sabir, Constable (P.W.3).
' P.W.6, Khizar Hayat Constable, had got conducted the post-mortem examination of the dead- body of Farhat Hussain (deceased) and also attested the memo Exh.PD through which the abovementioned last worn clothes of the deceased were taken into possession by the Investigating Officer.
' P.W.7, Muhammad Khalil Patwari, had drafted the scale-site plans of the spot, Exh.PE, Exh. PE/1, Exh.PE/2 and handed over the same to the Investigating Officer.
' P.W.8, Sajid Hussain Cqnstable had transmitted three parcels relating to this case, one containing empties, the other blood-stained earth and the third not remember to him to the FSL, Lahore.
' P.W.9 Naqeeb Sultan, Constable, had made the report Exh.PE/1 on the non-bailable warrant of arrest Exh.PE, issued against the appellant. He had also conducted service of proclamation Exh.PF, issued for appearance of the appellant and made the report Exh.PF/1.
' P.W.10, Muhammad Nawaz, had chalked out the formal F.I.R., Exh.PG.
' P.W.11, Lady Dr. Adeela Kanwal, had carried on the post- mortem examination of the dead-body of Mst. Parveen Akhtar and prepared the report Exh.PF and diagrams Exh.PF/1 and Exh.PF/2. During the said examination, a firearm entry wound at the right side of her breast and an entry wound at outer of the right breast, whereas an abrasion in the left lumber-region of the deceased were noticed. As per doctor, the abovementioned firearm injuries were sufficient to cause death in ordinary course of nature and that immediately on receipt of the injuries, the death of the lady had occurred.
' P.W.12 Babar Hussain, the complainant and an eye-witness of the occurrence, had narrated the same facts as were stated by him in his statement before the police (Exh.PG). He had also attested the memos Exh.PH, Exh.PK, through which parcels of blood-stained earth and two empties of Kalashnikov collected from the spot were respectively taken by the Investigating Officer into possession. This witness had also attested the memo Exh.PK, through which a sealed parcel of the Kalashnikov was secured by the Investigating Officer.
' P.W.13 Mst. Parveen Akhtar, the mother of the deceased and also an eyewitness of the occurrence, during her statement had supported and corroborated the version of the P.W.12 in all its four corners.
' P. W . 14, Muhammad Aslam, had identified the dead-body of Farhat Hussain at the time of its post-mortem examination.
' P.W.15, Mashooq Hussain, had attested the memo Exh.PJ, through which, the sealed parcel allegedly containing the cotton swa bs through which the blood from the place of murder of Mst.
Parveen Akhtar was taken into possession by the Investigating Officer. This witness had also identified the dead-body of the above-named deceased at the time of its postmortem examination.
' P.W.16, Malik Ghulam Abbas. Inspector had conducted the investigation of the case, through which he carried on proceedings fully narrated in his statement.
' P.W.17, Muhammad Saleem, S.I had also investigated the case and conducted the proceedings described in his statement.
' P.W.18, Nisar Ahmad, S.I had also conducted the proceedings towards issuance, execution and service of the warrant and proclamations issued for appearance of the appellant. He had also formally arrested the appellant, in this case on 23-2-2009, when the appellant was already in custody in case F.I.R. No.37/09, under sections 324/353 and 186 of P.P.C. Registered at Police Chotala and taken into possession Kalashnikov (P-17) after making a sealed parcel thereof through memo Exh.PK, attested by the P.W. This witness had also got transmitted the parcel of the Kalashnikov to the office of FSL, Lahore.
6. After got examining the above-named witnesses, the learned Prosecutor had tendered in evidence the reports of Chemical Examiner, Serologist and FSL as Exh . PT, Exh . PU, Exh. PV , Exh. P. W .
And Exh.PX respectively and closed the case for the prosecution.
7. After conclusion of the prosecution evidence and closure of the case, the statement of the appellant as required under section 342 of Cr.P.0 was recorded, during which the question arising out of the prosecution evidence were put to him and he denied almost all such questions. In reply to question, "why this case against you and why the P.Ws. Have deposed against you", the appellant had made the following statement:-- "I am innocent. Ghulam Abbas SHO/Inspector has registered a false case against me in connivance with the complainant of this case due to the fact that Ghulam Abbas SHO has a personal grudge against me. Actually the relatives of Mst. Parveen Akhtar have committed the murder of Farhat Hussain and Parveen Akhtar after finding them in objectionable condition and due to Ghairat and injured Shahid Raza as passerby. All the P.Ws are related inter se. They are interested witnesses. They were not present at the time of occurrence."
8. At that time, the appellant had opted to lead evidence in his defence and refused to make statement under section 340(2) of Cr. P.C, but had not led any evidence in his defence.
9. After completing all the abovementioned proceedings, the learned trial Court had pronounced the impugned judgment dated 23-10-2009, whereby the appellant was convicted and sentenced in the abovementioned terms. Consequently, the murder reference and the appeal in hand.
10. The learned counsel for the appellant has argued that the appellant is innocent and has falsely been involved in the case with mala fide despite the fact that neither he was available at the spot nor taken any part in the occurrence; that the appellant has been made an scape-goat due to his grudge with the SHO; that the medical evidence has negated the oeular account; that dimension of the injuries indicates that same were not caused by Kalashnikov, but caused with some weapons of different bore; that the statements of the prosecution witnesses are full of material contradictions, almost on all material particulars; that the alleged recoveries could not be proved; that the alleged motive could not be established and has made whole of the prosecution version highly doubtful; that the eye-witnesses were not available at the spot, but introduced subsequently; that independent and natural witnesses were not associated into the proceedings, hence the presumption is that they were not supporting the prosecution version; that the deceased when were seen by the relatives of the lady deceased in an objectionable condition, were done to death by them, but the appellant was falsely substituted; that charge against the appellant was not proved but the learned trial Court had erred in passing the impugned judgment and convicting the appellant, hence the appellant deserves acquittal.
11. The learned D.P.G. Assisted by learned counsel for the complainant while supporting the impugned judgment to be passed on correct appreciation and evaluation of the evidence and the material available on the record have vehemently opposed the appeal.
12. Arguments of all the sides have been heard and record has been perused.
13. It was a broad-daylight occurrence, which was taken place at the roadside. The matter was immediately reported to the police, hence no chance of any deliberation or consultation as alleged by the defence.
14. The complainant (P.W.12) in the complaint (Exh.PG) has narrated the specific motive that the appellant demanded the amount from the deceased, which was not paid to him, hence the appellant had fired at the deceased, which not only had resulted into his death but also of Mst. Parveen Akhtar and injuries to Shahid Raza. During evidence, the complainant (P.W.12) as well as Mst. Parveen Akhtar (P.W.13), the brother and mother of Farhat Hussain (deceased), had explained the abovementioned motive that the demand of amount by the appellant was "Jagga", which was not paid by Farhat Hussain (deceased). The defence had failed to contradict the above-named witnesses towards abovementioned motive; hence it can rightly be believed that the appellant was a desperate criminal.
15. Babar Hussain, complainant (P.W.12) and Mst. Parveen Akhtar (P.W.13) had justified their presence and availability in the bus that they had boarded in it to get medicine. During cross- examination, an explanation had come on the record that the medicine was to be obtained by them from the "Hakeem". Therefore, the presence and availability of both the above-named witnesses in the bus and at the spot could not be held objectionable, as alleged by the defence.
16. Although, Babar Hussain, complainant (P.W.12) being real brother and Mst. Parven Akhtar (P.W.13) being real mother of Farhat Hussain, deceased are closely related to each other and the said deceased but during whole of the evidence, the defence has failed to suggest their any enmity or grudge with the appellant, hence due to mere relationship, their evidence could not be discarded, which otherwise, is trustworthy and confidence-inspiring. In this regard, reliance may be placed on the case-law reported as (2003 SCM R 747) titled Saeed and 2 others v. The State and another Judgment of Apex Court reported as Haji v. The State (2010 SCM R 650). The ID relevant portion whereof reads as under:-- "Both the ocular witnesses undoubtedly are inter se related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident."
17. During medical examination of the deceased, the injuries have been found to be of the same description and location as narrated in the complaint the F.I.R. And the statements of the above- named eye- witnesses (P.W.12 and P.W.13), hence the defence version that the medical evidence and ocular account contradict each other has no weight.
18. It has been brought on the record that the empties of the Kalashnikov were recovered from the spot which were made into a sealed parcel and then sent to the Laboratory. After recovery of the Kalashnikov from the appellant, it was also made into a sealed parcel and sent to the Laboratory for the purpose of matching. The report of the FSL, Exh.PX, is positive, meaning thereby that the empties collected from the spot were fired from the Kalashnikov recovered from the appellant.
19. It has been brought on the record that after commission of the occurrence, the appellant fled away and despite adoption of all the legal modes, did not turn up and declared a proclaimed offender. Thereafter, he was arrested in this case, on 23-2-2009 i.e. After two months and ten days that too when he was under arrest in a police encounter case vide F.I.R. No.37/09 registered under sections 324, 353, 186, P.P.C. At the time of arrest in the above said case, a Kalashnikov was recovered from him; which later on was taken into possession in the instant case, made into a sealed parcel and then sent to the Laboratory for analysis, from where the abovementioned report was made. Therefore, taking the Kalashnikov into possession in the instant case, although recovered in the abovementioned police encounter case, could not be termed to be a strange and as such the defence objection in this regard is not valid.
20. As stated above, it was a daylight occurrence, which was witnessed by the above-named witnesses, who had established their presence at the spot, to whom no enmity or grudge with the appellant had even been suggested, hence it is not believable and expectable that actual and real culprit had been let off and the appellant had been substituted without any reason or cause.
21. The statements of the prosecution witnesses, especially eye-witnesses, are concurrent, corroborative and confidence-inspiring. No material contradiction in the statements of the witnesses could be pointed out or observed. The minor discrepancies being casual in nature and sign of natural deposition are ignorable. Reliance in this regard is respectfully placed upon the judgments reported as FAROOQ SHAH v. THE STATE (2013 PCr.LJ 688).
22. The appellant/accused, had taken a defence of his alleged grudge with the S.H.O., but has failed to establish the same despite due opportunity. If Shahid Raza, due to fear of the appellant had not joined into the investigation, then due to said sole reason, whole of the prosecution story could not be brushed aside.
23. It is very strange that on one hand, the defence had alleged that the deceased when were seen in an objectionable condition, by the relatives of the Mst. Parveen Akhtar, (deceased), were done to death by them, but on the other hand, by putting the suggestion to the P.W.12 and P.W.13, had admitted the time.And place of occurrence as stated by the prosecution to be of broad daylight and at the roadside. Therefore, the defence itself had discarded its abovementioned alleged version.
24. In a number of judgments the Hon'ble Supreme Court of Pakistan has held that normal sentence of Qatl-e-Amd is death and in the absence of any mitigating or extenuating circumstances the sentence of death cannot be converted into life imprisonment. Reliance is respectfully placed upon MUHAMMAD ASLAM and others v. THE STATE and another (PLD 2009 SC 777) MUHAMMAD JAVAID v. THE STATE (2007 SCM R 324) and KHURRAM MALIK AND OTHERS v. THE STATE AND OTHERS (PLD 2006 SC 354).
25. The Hon'ble Supreme Court of Pakistan in the case titled "MUHAMMAD AHMAD (MAHMOOD AHMED) and another v. THE STATE (2010 SCM R 660) at page 676 observed as under:- "34. Mr. Muhammad Akram Sheikh, the learned Senior Advocate Supreme Court, finally prayed, in the alternative, for reduction in the quantum of punishment awarded to the said eight appellants.
35. This prayed of the learned counsel, to say the least, comes as a surprise to us. The lesser of the two penalties prescribed for qatl-eamd, is meant only for situations where the circumstances which had led to a murder or the manner in which such a crime had got committed invoked some sympathy for the convict. The present occurrence, however, was a barbaric, a brutal and a savage display of a reckless disregard for human lives where the perpetrators of the crime did not deserve any mercy or leniency."
26. As a result for what has been discussed above, we are of the confirmed view that the impugned judgment does not suffer from any legal infirmity, hence Warrants no interference. The abovementioned desperate behavior and act of the appellant which resulted into death of two innocent persons without any fault, does not entitle him for any leniency or concession in the sentence. Consequently, Criminal Appeal No.76-J of 2009 is dismissed, M.R. No.117/RWP of 2009 is answered in positive and death sentence awarded to Nisar Ahmad alias Saru is confirmed.