' ABDUL SAMI KHAN, J.---Through these appeals under section 410, Cr.P.C. Zaka Ullah, Musthaq alias Mustafa, Ahmad Ali, Asif Ali, Imtiaz and Ahmad Yar alias Ami appellants have called in question the judgment dated 24-1-2009 handed down by the learned Additional Sessions Judge, Faisalabad wherein appellants Zaka Ullah, Mushtaq alias Mustafa, Ahmad Ali, Asif Ali and Ahmad Yar alias Ami were convicted and sentenced to death under section 302(b)/149, P.P.C., on three counts, for committing the murder of Shah Nawaz alias Gudoo, Muhammad Arshad and Liaquat Ali, while Imtiaz appellant was convicted and sentenced to life imprisonment under, sections 302(b)/149, P.P.C. All the appellants were directed to pay compensation of Rs,100,000 (Rupees one hundred thousand only) each to the legal heirs of the deceased Shah Nawaz alias Gudoo, Muhammad Arshad and Liaquat Ali under section 544-A Cr.P.C. Failing which they shall undergo simple imprisonment for six months each. The appellants were also convicted under section 148, P.P.C. For making rioting and sentenced to undergo rigorous imprisonment for three years each with fine of Rs,10,000 (Rupees ten thousand only) each. In default of payment thereof they shall further undergo simple imprisonment for three months each and under sections 324/149, P.P.C. For causing injuries upon the person of Seet-ulHaq, injured P.W. And sentenced to rigorous imprisonment for ten years each with fine of Rs,50,000 (Rupees fifty thousand only) each. In default of payment thereof they shall further undergo simple imprisonment for three months each.
' The sentences awarded to convict Imtiaz were ordered to run concurrently. Benefit of section 382- B Cr.P.C. Was extended in favour of the appellant Imtiaz.
2. The appellants have filed these appeals against their convictions and sentences whereas the learned trial court has sent a Reference under section 374, Cr.P.C. For confirmation or otherwise of the death sentence passed against Zaka Ullah, Mushtaq alias Mustafa, Ahmad Ali, Asif Ali and Ahmad Yar which has been numbered as Murder Reference No,140 of 2009. We propose to decide all these matters together through this single judgment.
3. The first information report (Exh.PA/1) of the occurrence which took place on 25-7-2005 was registered on the statement (Exh.PA) of Saif Ullah, which was recorded by Muhammad Ashraf, Inspector/SHO Police Station D-Type Colony, Faisalabad. Brief facts of the case, as disclosed by Saif Ullah, complainant (P.W.11) in FIR (Ex-PA/1) are as under:-- "The (complainant) was resident of Chak No,237/RB and was a cultivator. On 25-7-2005, he along with Zahoor Ahmad, Imtiaz and Rustam boarded in car LZC-6976 and Muhammad Arshad, Shah Nawaz, Liaqat Ali and Seet-ul-Haq boarded in another car No,FDZ-4113 were coming to appear in the Court of Mr. Musharaf Hassan Samra, Additional Sessions Judge, Faisalabad in case FIR No,364/2004 under section 302, P.P.C., registered at Police Station Saddar, Faisalabad.
The car of Muhammad Arshad was ahead whereas the car of the complainant was behind.
When at 09:45 a.m. The complainant party reached near D-Type Bridge, two cars overtook the car of complainant. One car was of green colour bearing No,FDY7626, which was being driven by Ahmad Yar and Ali Zar, Zaka Ullah and Ahmad All accused were sitting in the car along with him, while second car was having black colour and was without number plates. Qasim accused was driving the second car and Akbar, Imtiaz, Asif and Mustafa were sitting in the car along with him.
All these accused were equipped with Kalashnikovs. The accused stopped their cars in front of car of Arshad etc. Alighted from their cars and resorted to firing with their Kalashnikovs. Akbar inflicted fire shots injuries at Shah Nawaz who was sitting on driving seat. Asif inflicted fire shots injuries at Arshad who was sitting behind the driver. Ali Zar inflicted fire shots injuries at Liaqat, who was sitting in front seat. Imtiaz inflicted fire shots injuries at Seet-ul-Haq who was sitting behind Liaqat. Mustafa inflicted fire shots injuries at Shah Nawaz, Zaka Ullah inflicted fire shots injuries at Arshad, Qasim inflicted fire shots injuries at Liaqat, Ahmad Ali inflicted fire shots injuries at Seet-ul-Haq. Ahmad Yar inflicted fire shots injuries to Arshad and Ahmad Ali inflicted fire shots injuries to Liaqat. The complainant and P.Ws. Boarded in second car had stopped their car and hide behind the footpath and witnessed the occurrence. The accused resorted to indiscriminate firing and went away while boarding in their cars. The complainant and his companions went to the injured and saw that Muhammad Arshad, Shah Nawaz and Liaqat Ali had succumbed to the injuries, while Seet-ul-Haq was seriously injured who was shifted to the hospital. The occurrence was committed at the instance and abetment of Muhammad A fzal and Maqbool Hussain (acquitted co-accused).
' The motive behind the occurrence, as stated by the complainant in the FIR (Exh.PY/1) was previous murder enmity between the parties."
4. After registration of the FIR, the investigation of the case was conducted by Muhammad Arshad Had Inspector (CW-1), Zafar Ullah Cheema SI (P.W.17) and Sajjad Ali, Inspector (P.W.18) and after completion of investigation, the report under section 173, Cr .P.C. Was submitted in the learned trial Court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants under sections 302/324/148/149, P.P.C. On 22-4-2008, to which they pleaded not guilty and claimed trial.
5. In order to substantiate its version at trial, the prosecution produced eighteen witnesses before the learned trial Court. Saif Ullah complainant (P.W .10) , Seet-ulHaq alias Abdul Haq injured (P.W.11) and Imtiaz Ahmad eye-witness (P.W.12) are the witnesses of ocular account. Abid (P. W.15) is the witness of recovery of Kalashnikov from the possession of Ahmad Yar alias Ahmi appellant.
Muhammad Arshad Harl Inspector, Zafar Ullah Cheema, SI and Sajjad Ali, Inspector are the Investigating Officers of the case. The statements of Zafar Ullah Cheema, SI and Sajjad Ali, Inspector were recorded by the learned trial Court as P.W.17 and P.W.18, while Muhammad Arshad Harl Inspector was summoned by the learned trial Court as a court witness and his statement was recorded as CW-1.
6. Dr.Altaf Pervaiz Qasim (P.W.4) on 26-7-2005 had conducted postmortem examination on the dead body of Shah Nawaz son of Ghulam Ahmad and found the following injuries:- "I-A. A fire arm wound of inlet 02 cm x 02 cm with inverted margins on right cheeck, above the angle of mandible and 04 cm in front of right ear. The right mandible bone fractured, the projectile traversed through mandible, maxilla and base of skull, crushed the brain matter and made exit through left side of head. The skull bones were shattered and brain matter was lying outside the cranial cavity. Upper jaw, teeth were fractured. The left eyeball was lying out of orbit and right eyeball was crushed.
1-B. A fire arm wound of exit 15 cm x 13 cm with everted margins, irregular in shape over the left side of head above the left ear. The bone of skull including left parietal, temporal, frontal and occipital were fractured into multiple pieces.
2-A A fire arm wound of inlet 1-1/2 x 1-1/2 cm with inverted margins on right parietal area of head at 06 cm above the right ear. The underlying bones of skull badly fractured into pieces and projectile made exit through left parietal and occipital area of head.
2-B A fire arm wound of exit 12 cm x 11 cm with irregular and everted margins on left parietal area of head, brain matter was lying outside through the wound.
3. A fire arm wound of inlet 3 cm x 3 cm with inverted margins on back of head middle part, causing fracture of occipital bone, shattered the brain matter and one deshaped metallic projectile found impacted in the scalp of frontal area, which is sealed and handed over to the police.
4-A Five firearm wounds of inlet over the back outer aspect of right shoulder, just above the axilla, each of size 1-1/2 cm x 1-1/2 cm involving the total area of 11 cm x 09 cm with inverted and irregular margins, surrounded by tattooing covering the back, outer and front of right shoulder.
Corresponding holes were present on Qameez and Bunyan. The metallic projectiles injured the skin, muscles, bones of right side of shoulder, injured the intercostals spaces, pleurae, right lung along with pulmonary vessels traversed through and through the chest cavity injured the heart, aorta, perforated the left lung, fractured the 4th and 5th ribs of left side, fractured the thoracic vertebrae and made exit over back of left chest as injury No,4-B. Corresponding holes present on clothes.
4-B Five, fire arm wounds of exit over the back of left chest and shoulder with irregular and everted margins of different sizes, involving total area of 12 x 11 cm. Corresponding holes present on clothes.
5. A grazing fire arm wound 5 cm x 2 cm over the top of right shoulder, obliquely directed from outside to the medial size, the superficial skin is injured and no bony lesion observed."
7. One metallic projectile was recovered from the scalp and according to the opinion of the doctor, injuries Nos. 1 to 4 caused severe haemorrhage and shock, which resulted in the death of Shah Nawaz. All injuries were ante-mortem in nature and were caused by firearm weapon. Probable time that elapsed between injuries and death was immediate and between death and postmortem was 12 to 14 hours. The post mortem report of Shah Nawaz deceased is Exh.PM.
8. Similarly on the same day, Dr.Altaf Pervaiz Qasim (P.W.4) had conducted postmortem examination on the dead body of Liaqat Ali son of Noor Muhammad and found the following injuries:-- "1-A. A fire arm wound of inlet 1-1/2 cm x 1-1/2 cm with inverted margins on right cheeck, above the angle of mandible and 4 cm in front of right ear. The right mandible bone fractured, the projectile traversed through mandible, maxilla and base of skull, crushed the brain matter and made exit through left side of head. The skull bones were shattered and brain matter was lying outside the cranial cavity. Upper jaw, teeth were fractured. One deshaped projectile found in the skull cavity.
1-B. A fire arm wound of exit 09 cm x 05 cm with everted margins, irregular in shape over the left side of head, 04 cm above the left ear. The bones of skull including left parietal, temporal, frontal and occipital were fractured into multiple pieces.
2-A. A fire arm wound of inlet 1-1/2 X 1-1/2 cm with inverted margins on right check, 3 cm below the injury No, 1-A, the projectile traversed through the maxilla nasal bone, base of skull, brain matter and made exit on back of left side of head through left parietal and occipital area.
2-B A fire arm wound of exit 7 cm x 6 cm with irregular and everted margins on left side of back of head, brain matter was lying outside through the wound.
3-A A fire arm wound of inlet 4 cm x 3 cm with inverted margins on front of right side of head above the right eyebrow, causing fracture of frontal bone, shattered the brain matter and made exit on left parietal area of head.
3-B A fire arm wound of exit 7 x 5 cm with everted margins irregular in shape on the left parietal area of head with multiple fragments of bones.
4-A A fire area wound of inlet 2 x 2, cm with inverted margins on the left cheeck near the angle of mandible, directed inwards and upwards made exit through right temporal area of head.
4-B A fire arm wound of exit 6 x 4 cm with everted margins irregular in shape on the right temporal area of head, with multiple fragments of bones.
5-A. Five firearms wound of inlet with inverted margins over the back of right shoulder involving an area of 12 x 11 cm each of size 1-1/2 x 1-1/2 cm, the projectiles traversed through the scapular area injured the right chest and made exit on front of right chest near axilla. One metallic projectile removed from right lung. Corresponding holes present on clothes.
5-B. Four firearm wounds of exit on the front of right chest near right axilla involving total area of 9 x 9 cm margins of the wounds were everted. Corresponding holes present on clothes.
6-A Four fire arm wounds of inlet with inverted margins on the back of right elbow joint involving an area of 11 x 10 cm causing fracture of Humerus, Radius and ulna made exit on front elbow.
6-B. Four fire arm wounds of exit on the front of right elbow joint, with fracture of underlying bones.
Corresponding holes present on clothes.
7-A firearm wound of inlet 2 x 1-1/2 cm oval in shape with inverted margins on front of right chest, just above the right nipple, directed medially, traversed through the pleurae, perforated right lung, aorta, heart, left lung and found impacted in the soft tissues of left pectoral area.
8. A fire arm wound of inlet 1-1/2 x 1-1/2 cm, circular in shape with inverted margins on the back of right abdomen at 05 cm away from the vertebral column, directed inward and forwards injured the posterior abdominal wall, peritoneum and found impacted in the liver, diaphragm was also injured. Corresponding holes present on clothes.
9. A fire arm wound of inlet 1-1/2 x 1-1/2 cm, circular in shape with inverted margins on the back of right chest, below the scapula, the projectile traversed through the right scapula, intercostals space, injured the right lung and found in the lung tissue. Corresponding holes present on clothes.
10. A fire arm wound of inlet 1-1/2 x 1-1/2 cm, circular in shape with inverted margins on the back of left chest, near the vertebral column but the outer layer of skin was injured only. No bony lesion seen.
11. A grazing firearm wound of size 9 x 2 cm transverse in direction on front of neck lowest part just above the sternal notch.
12. A grazing fire arm wound of size 4 x 2 cm transverse in direction on front of left chest, over the nipple up to the anterior axillary fold.
13. A grazing fire arm wound of size 6 x 1-1/2 cm transverse in direction on back of left chest, lowest part, over the vertebral column. Corresponding holes present on clothes Note: Two metallic projectiles (bullets) and three deshaped metallic projectiles recovered from the dead body and handed over to police.
14. On examining the Cranium and skull were injured as already stated whereas membranes and brain matter were shattered. On examining the chest cavity all the organs were found injured whereas heart was shattered.
15. On examining the abdominal cavity, the walls, peritoneum, diaphragm, liver were found injured whereas rest of the organs were found healthy. One metallic projectile was found in the liver tissues."
9. The death in this case was occurred due to extensive brain damage and hemorrhage and shock resulting from injuries Nos. 1 to 10 inflicted by firearm, which were ante-mortem and sufficient to cause the death in ordinary course of nature collectively as well as individually. Injuries Nos. 11, 12 and 13 were also ante mortem and grazing fire arm wounds. The time between the death and post mortem examination was 12 to 24 hours.
10. Similarly on the same day at 9.30 a.m., Dr. Altaf Pervaiz Qasim (P.W.4) had also conducted postmortem examination on the dead body of Muhammad Arshad son of Ahmad Ali and found the following injuries:-- A fire arm wound of inlet 2 cm x 2 cm with inverted margins on the back of left chest at 03 cm away from vertebral line. The projectile injured the skin, blood vessels and muscles on the back of chest, entered the chest cavity through intercostals space, injured the pleura perforated left lung and one piece of metallic projectile found impacted in the trachea.
2-A. A fire arm wound of inlet 1-1/2 x 2 cm with inverted margins on the back of left arm (elbow) causing the fracture of left humerus, radius and ulna bones injured the left brachial artery.
2-B A firearm wound of exit 6 x 4 cm with everted margins over left elbow joint. There were multiple pieces of fractured bones directed outside through the wound. (corresponding holes present on the clothes).
3. A firearm wound complex 8 x 5 cm with irregular margins on the back of left chest. The metallic projectile injured the skim, muscles, blood vessels and penetrated the back of chest, damage pleura, left lung and made exit through the same wound complex. One piece of metallic projectile found in skin. (Tattooing in an area of 9 x 8 cm surrounded the wound).
4. A firearm wound complex 6 x 4 cm with irregular margins on the back of right chest. The metallic projectile injured the skin, muscles, blood vessels and made exit through the same wound complex without causing any bony lesion. (Corresponding holes present on the clothes).
5-A A firearm wound of inlet 2 x 1 cm oval in shape on the outer aspect of left leg upper part directed inward and made exit to medial side of left leg, causing fracture of tibia and fibula bones and anterior tibial artery was ruptured. (Corresponding holes present on Shalwar).
5-B A firearm wound of exit 6 cm x 4 cm with everted margins on medial side of left leg middle part.
6-A. A fire arm wound of inlet 2 cm x 1 cm oval in shape on the outer aspect of left leg middle part directed inward and made exit to medial side of left leg lower part causing fracture of bone and injured the blood vessels.
6-B. A fire arm wound of exit 5 cm x 3 cm with everted margins on the medial side of left lower part at 11 cm above left ankle joint (Corresponding holes present on Shalwar).
11. According to the opinion of the doctor, the death in this case was occurred due to haemorrhagic shock resulting from injuries Nos. 1 to 6 inflicted by fire-arm which were ante-mortem. The time between injuries and death was immediate whereas between the death and post-mortem examination was 12 to 24 hours.
12. Dr. Fayyaz Ahmad (P.W.6) had examined Seet-ul-Haq, injured P.W. On the same day at 10.25 am and found following injuries on his body:-- 1-A A firearm wound of entry 3 cm x 1 cm on inner side of front side pf right leg lower part.
1-B A firearm wound of exit 01 cm x 1 cm on inner and back side of right leg lower part.
2. A firearm wound of entry 1-1/2 x 1 cm on outer side of left thigh upper part.
' Corresponding holes were present on Shalwar which was blood stained.
' No burning or blackening were present on Shalwar and on the body of the patient/injured
3. An abrasion 1/5 cm x 1/5 cm on middle part of lower lip.
13. According to the opinion or the doctor injury No, 3 fell under Shajjah Khafifa whereas injuries Nos.
1 and 2 were by firearm. Injury No, 3 was by blunt means. The doctor had found the injuries as fresh at the time of arrival of injured victim before him.
14. After tendering in evidence the reports of Serologist Exh.PYA, Exh.PYB, Exh.PYC, Exh.PYD and Exh.PYE and that of Chemical Examiner Lahore Exh.PYF, Exh.PYG and Exh.PYH, the prosecution closed its evidence.
15. The appellants in their statements recorded under section 342, Cr.P.C. Professed their innocence and pleaded their false implication in this case. In reply to a question, "why this case against you and why the P. Ws. Deposed against you" appellant Zaka Ullah stated as under:-- "The P. Ws. Are interested and inimical towards me and my other family members. They are interested inter se and belong to one group. I and my parents and brothers except Muhammad Afzal co-accused are permanently residing for the last 2/2-1/2 years before the instant occurrence at Kaluwal district Gujranwala and that 1 cultivate agricultural land and also keeping buffaloes there. On the alleged day of occurrence i,e, 25-7-2005 I remained in my Haveli at Kaluwal Gujranwala from 8-AM to 4-PM in the company of co-villagers namely Ghulam Ali son of Allah Ditta, Younis Butt son of Muhammad Yousaf, Muhammad Boota son of Noor Muhammad, Abdul Rehman son of Sadiq Bashir, Ahmad, Shabbir and Abdul Hafeez. The prosecution story is false and I have been involved in this case due to enmity. The FIR was registered by the police after deliberations and consultations and with the connivance of the complainant party and it is totally a false story to the extent of my participation and that of my co-accused because I learnt after the registration of this case that first information report of this case was conveyed by one Ahmad Haseeb to police Rescue-15 stating therein that four persons boarding on Toyota Corolla Car black colour bearing number of Islamabad had fired on a Corey Car and the persons sitting in the Corey Car received injuries at the relevant place and relevant date 25-7-2005 and time 9.45 a.m. And one of the prosecution witnesses was present there at the time of occurrence but the concerned police suppressed this fact malafidely and with the connivance of the complainant party. During the investigation nothing was recovered from me. I am innocent and also was declared as such by the 1.0s during the investigation. I and my co-accused have been involved in this case by the complainant party.
' In reply to similar question, appellant Mushtaq alias Mustafa stated as under:-- "The P. Ws. Are interested and inimical towards me and my co-accused and they are related inter se and belong to one group. On the alleged day of occurrence i,e, 25-7-2005 I remained present at the dera of Muhammad Hayat of my village i,e, early morning to discuss the Elections of concerned Union Council in the company of Talib Hussain, Amir Ali, Nawaz and Muhammad Hayat and at about 12:30 noon I heard about the instant occurrence while I was still present along with above said persons at the said dera. It is further stated that prior to the instant occurrence the complainant party got a false case registered at Police Station Dijkot vide FIR No,277/05 under sections 302/109 against me and others in which I was declared innocent by the I.O. And due to this grudge as well as the previous enmity, the complainant party again has involved me in this case falsely. Otherwise 1 am innocent and was also declared as such by the I.O. During the investigation of instant case. Nothing was recovered from me and I was found to be present at the time and place of occurrence rather I was found present at the above said dera for the whole day i,e, from early morning to 12 noon. I learnt after the registration of this case that first information report of this case was conveyed by one Ahmad Haseeb to police Rescue-15 stating therein that four persons boarding on Toyota Corolla Car black colour bearing number of Islamabad had fired on a Corey Car and the persons sitting in the Corey Car received injuries at the relevant place and relevant date 25-7-2005 and time 9.45 a.m. And one of the prosecution witnesses was present there at the time of occurrence but the concerned police suppressed this fact malafidely and with the connivance of the complainant party. During the investigation nothing was recovered from me.
I am innocent and also was declared as such by the 1.0s during the investigation. 1 and my co- accused have been involved in this case by the complainant party."
' In reply to similar question, appellant Ahmad Ali stated as under:- "The P. Ws. Are interested and inimical towards me and my co-accused and they are related inter se and belong to one group. On the day of occurrence my Phophi Zad Zainab had died and guests were coming and going for her condolence and I remained for condolence along with Ahmad Ali, Shahadat, Noor and Sharif my co-villagers in the Baithak from morning till evening on the day of occurrence. Nothing was recovered from me and 1 was not found to be present at the time and place of occurrence rather I was found present at my village from early morning to 12- noon. I learnt after the registration of this case that first information report of this case was conveyed by one Ahmad Haseeb to police Rescue-15 stating therein that four persons boarding on Toyota Corolla Car black colour bearing number of Islamabad had fired on a Corey Car and the persons sitting in the Corey Car received injuries at the relevant place and relevant date 25-7- 2005 and time 9.45 a.m. And one of the prosecution witnesses, was present there at the time of occurrence but the concerned police suppressed this fact malafidely and with the connivance of the complainant party. During the investigation nothing was recovered from me. I am innocent and also was declared as such by the I.Os during the investigation. 1 and my co-accused have been involved in this case by the complainant party."
' In reply to similar question, appellant Asif Ali stated as under:-- "The P. Ws. Are interested and inimical towards me and my co-accused and they are related inter se and belong to one group. 1 had shifted to my uncle Faazal resident of Chak No,4/JB Renala Khurd District Okara prior to the occurrence and started to reside there on the care of his buffaloes. I was informed after 2/3 days of the occurrence by my father regarding the alleged occurrence. Prior to this occurrence I was involved in murder case FIR No,277/05 at Police Station Dijkot by the complainant party and I was declared innocent by the 1.0. And due to this grudge as well as the previous enmity, the complainant party again has involved me in this case falsely.
Otherwise 1 am . Innocent and was also declared as such by the 1.0. During the investigation of instant case. Nothing was recovered from me and 1 was not found to be present at the time and place of occurrence rather I was found present at Chak No,4/JB Renala Khurd for the whole day i,e, from early morning till evening. I learnt after the registration of this case that first information report of this case was conveyed by one Ahmad Haseeb to police Rescue-15 stating therein that four persons boarding on Toyota Corolla Car black colour bearing number of Islamabad had fired on a Corey Car and the persons sitting in the Corey Car received injuries at the relevant place and relevant date 25-7-05 and time 9.45 a.m. And one of the prosecution witnesses was present there at the time of occurrence but the concerned police suppressed this fact malafidely and with the connivance of the complainant party. During the investigation nothing was recovered from me. I am innocent and also was declared as such by the I.Os during the investigation. I and my co- accused have been involved in this case by the complainant party."
' In reply to similar question, appellant Ahmad Yar alias Ami stated as under:-- "The P. Ws. Are interested and inimical towards me and my co-accused and they are related inter se and belong to one group Prior to this occurrence my father was murdered by the complainant prior to this occurrence and due to previous enmity I have been involved in this case falsely."
' In reply to similar question, appellant Imtiaz stated as under:-- "The P. Ws. Are interested and inimical towards me and my co-accused and they are related inter se and belong to one group. I was living along with Muhammad Yousaf son of Sher Muhammad Rajoka about one and half year before this occurrence at Chak No,235/RB and on the alleged day of occurrence i,e, 25-7-2005 1 remained present along with Muhammad Yousaf son of Sher Muhammad and Manzoor son of Zahoor at his dera. Prior to this occurrence I was involved in murder case FIR No,277/05 at Police Station Dijkot by the complainant party and I was declared innocent by the I.O. And due to this grudge as well as the previous enmity, the complainant party again has involved me in this case falsely. Otherwise I am innocent and was also declared as such by the I.O. During the investigation of instant case. Nothing was recovered from me and I was found to be present at the time and place of occurrence rather I was found present at the above said dera for the whole day i,e, from early morning to 12-noon. I learnt after the registration of this case that first information report of this case was conveyed by one Ahmad Haseeb to police Rescue-15 stating therein that four persons boarding on Toyota Corolla Car black colour bearing number of Islamabad had fired on a Corey Car and the persons sitting in the Corey Car received injuries at the relevant place and relevant date 25-7-2005 and time 9.45 a.m. And one of the prosecution witnesses was present there at the time of occurrence but the concerned police suppressed this fact malafidely and with the connivance of the complainant party. During the investigation nothing was recovered from me. I am innocent and also was declared as such by the 1.0s during the investigation. I and my co-accused have been involved in this case by the complainant party."
16. The appellants neither opted to record their statements under section 340(2), Cr.P.C. In disproof of allegations leveled against them by the prosecution nor opted to produce evidence in their defence except Zaka Ullah appellant who produced evidence in his defence in the shape of DW-1 to DW-4.
17. Upon completion of trial, after hearing learned counsel for the parties, learned trial Court vide judgment dated 24-1-2009, acquitted co-accused of the appellants namely Muhammad Afzal and Maqbool Hussain and proceeded to convict, and sentence the appellants as mentioned in paragraph No,1 above.
18. Learned counsel for the appellants contends that the impugned judgment is against law and facts of the case. The appellants are innocent and they have been falsely involved in this case by the complainant on the basis of previous enmity. The complainant has spread the net wide and entangled as many as eleven accused persons in this case. There is a delay of nineteen and a half hours in conducting the post-mortem examination of the deceased which factum shows that the matter had firstly been consulted with legal experts and then the complaint was prepared at the spot so as to be reported otherwise there was no reason for the prosecution to get the post- mortem examination of the deceased person conducted with such an inordinate delay. The appellants were not present at the place of occurrence at the relevant time. Even otherwise during investigation the appellants were found innocent by the investigating officer CW-1. As a matter of fact the complainant party had several enemies and criminal litigation against different persons and the deceased had been murdered by any opponents with whom they had developed enmity of murder cases. The eye-witnesses are related, chance and inimical witnesses and their testimony is not above-board. They have made dishonest improvements in the prosecution case which speaks volume of falsity on their part. The matter was not reported to the police by the complainant or any other eye-witness as has been admitted by them in their statements recorded by the learned trial court, rather it was reported to the police by one Ahmad Habib who informed the Rescue-15 telephonically about the occurrence, which also creates doubt in the prosecution story.. The eye-witnesses were not present at the time of occurrence at the relevant time because as per investigation the injured P.W.11 Seet-ul-Haq was already shifted to the hospital by the complainant party and not by the investigating officer, as alleged by the complainant party. The MLR submitted by the 'prosecution relating to Seet-ul-Haq injured P.W.11 is manipulated and fabricated and is a bogus document. Co-accused of the >appellants Muhammad Afzal and Maqbool Hussain Who were charged under section 109, P.P.C. Have been acquitted by the learned trial court so the story of abetment carved out by the complainant has been disbelieved by the learned trial court which creates doubt in the Story of occurrence put forth by the complainant in the FIR. There are glaring contradictions between the medical evidence and the ocular account.
The statements of the prosecution witnesses are full of contradictions and discrepancies which are fatal to the prosecution's case. The motive as set up by the prosecution in the FIR is not proved. The recovery of kalashinkov allegedly effected from Ahmad Yar alias Ami appellant is inconsequential as there is no report of the Forensic Science Laboratory regarding the matching of empties P13/1-3 allegedly taken into possession by the investigating officer from the place of occurrence. The prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. The learned counsel prays for acquittal of the appellants from the charge.
19. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that the matter was reported to the police with sufficient promptitude and there is no element of consultations and deliberations. The appellants are named in the FIR with specific roles of firing with their respective weapons attributed to them. The roles attributed to the appellants are borne out from the post-mortem examination report of the deceased persons and Medicolegal Certificate of Seet-ul-Haq injured P.W. There is no delay in conducting the postmortem examination of the deceased as the complainant could, not force the doctor to- conduct the postmortem of the deceased expeditiously. The parties are known to each other so the false implication of the appellants in this case by the complainant or their substitution in lieu of real culprits is a rare phenomenon. Relation inter se is no ground to disbelieve the confidence inspiring evidence of the prosecution witnesses. The opinion of the police is not binding upon the court of law. Even otherwise, the defence has not produced any evidence in order to corroborate their plea of alibi in respect of appellants namely Zaka Ullah, Mushtaq alias Mustafa, Ahmad Ali, Asif Ali and Imtiaz Ahmad. The eyewitnesses were present at the place of occurrence at the relevant time and they have proved their presence while recording their statements before the learned trial court. The injured P.W. Seet-ul-Haq also sustained injuries during the occurrence which also shows his presence at the place of occurrence at the relevant time. Earlier the accused party murdered cousin of the complainant Zulfiqar and trial of said case was being conducted in the court of Additional Sessions Judge Faisalabad, which was fixed for recording prosecution evidence on the day of occurrence and they being witnesses in the said case were going to the court. All the prosecution witnesses are consistent on each and every material point. There are some minor contradictions which cropped up due to passage of time and are not fatal to the prosecution's case. The empties P13/1-3 taken into possession by the investigating officer from the place of occurrence and recovery of weapon of offence i,e, Kalashinkov from the appellant Ahmad Yar alias Ami have been proved through reliable and trustworthy witnesses. Car No,7626-FDV which was used by the appellants during the occurrence was also taken into possession by the investigating officer from the house of co-accused Muhammad Afzal vide recovery memo Exh.PX. The medical evidence is in line with the ocular account. The prosecution has successfully proved its case against the appellants and the learned trial court has rightly convicted and sentenced them.
Learned counsel for the complainant prays that the convictions and sentences of the appellants be maintained to meet the ends of justice.
20. We have considered the arguments advanced by learned counsel for the appellants, learned Deputy. Prosecutor General and learned counsel for the complainant and have also gone through the entire record with their valuable assistance.
21. Perusal of the record would reveal that the sad incident in this case took place on 25-7-2005 at 09:45 a.m. In the area of "Sumundari" road near "Titli chowk", within the territorial jurisdiction of Police Station D-Type Colony, Faisalabad, whereas the matter was reported by the complainant Saif Ullah (P.W.11) to Muhammad Ashraf Inspector/the then SHO, who recorded his statement Exh.PA and sent the same to Police Station for registration of formal FIR. The FIR (Exh.PA/1) was recorded by Muhammad Anwar HC/DO (P.W.6) on the same day at 10:40 a.m., whereas the distance between the place of occurrence and police station is about one furlong. Considering the time of incident, the place of occurrence and its distance from the police station, we are of the view that there was no delay in reporting the matter to the police and it is a case of promptly lodged FIR, which rules out any chance of consultation and false implication of the appellant in this case. It is pertinent to mention here that co-accused of the appellants namely Akbar and Qasim, who had been attributed specific role in the commission of this occurrence, have already lost their lives in police encounter before the pronouncement of judgment dated 24-1-2009.
22. The case of the prosecution mainly hinges upon the ocular account furnished by the prosecution in the shape of statements of P.W.10 Saif Ullah complainant, P.W.11 Seif-ul-Haq alias Abdul Haq injured and P.W.12 Imtiaz Ahmad eye-witness, medical evidence furnished by Dr.Altaf Pervaiz Qasim (P.W.4) and Dr.Fayyaz Ahmad (P.W.6), recovery of weapon of offence i,e, Kalashnikov (P-12) from Ahmad Yar appellant and lastly the evidence of motive. At first, we would like to discuss the ocular account furnished by the prosecution in this case. It has been observed by us that while appearing before the learned trial Court as P.W.10, Saif Ullah complainant has reiterated the same facts and leveled the same allegations against the appellants in a mode and manner as he had mentioned in his statement Exh.PA before the police on the basis whereof FIR Exh.PA/1 was chalked out. The remaining P.Ws. i,e, Seet-ul-Haq alias Abdul Haq injured (P.W.11) and Imtiaz Ahmad eye- witness (P.W.12) had also supported the stance taken by Saif Ullah complainant in the FIR (Exh.PA/1) as well as in his statement recorded before the learned trial Court as P.W.10. All three eye-witnesses have made consistent statements regarding involvement of the appellants in the present case. It has been established on record that on the day of occurrence, Saif Ullah complainant (P.W.10) along with other eye-witnesses and the deceased persons was proceeding to District Courts Faisalabad to attend the hearing of case FIR No,364/04 under section 302, P.P.C. Registered at Police Station Saddar, Faisalabad, which was fixed for the recording of prosecution evidence against the appellants side and this fact is sufficient to believe that the eye-witnesses were present at the spot at the relevant time of occurrence. Even otherwise, one of the eye-witnesses namely Seet-ul-Haq alias Abdul Haq had received two firearm injuries during this unfortunate incident, so his presence at the spot at the time of occurrence was quite natural and under the given circumstances, the testimony of eye-witnesses cannot be discarded merely on the ground that there was previous enmity between the parties. Admittedly P.W.11 Seet-ul-Haq alias Abdul Haq remained conscious after he received firearm injuries, which fact is also evident from his MLC as well as the statement of Dr.Fayyaz Ahmad (P.W.6). This fact proves that he had seen the occurrence. Admittedly, this is not a case of hit and run rather the occurrence lasted for some time, which gave sufficient time to P.W.11 and other eye-witnesses to identify the appellants and the role played by them at the spot. The occurrence had taken place in broad daylight and all the eye- witnesses have given plausible explanation for their presence at the spot. The appellants were previously known to them. They have made consistent statements regarding presence of the appellants and the manner in which they along with co-accused, after forming unlawful assembly by sharing common intention had brutally murdered three innocent persons and injured Seet-ul- Haq alias Abdul Haq (P.W.11). In spite of the fact that they had been subjected to lengthy cross- examination, but the defence had failed to shatter their credibility qua the involvement of appellants in this case. Although some contradictions in the statements of the eye-witnesses during the cross-examination were found but those contradictions do not cause any damage in the prosecution case as the eye-witnesses have made consistent statements regarding involvement of the appellants and role played by them in this case, hence, we do not find any reason to discard the testimony of the eye-witnesses. They had corroborated each other on all material aspects of the case and their evidence is not only straightforward, but the same also inspired our confidence. Even otherwise, law does not permit us to choose few sentences from the evidence and base our decision in favour of defence while reading only those sentences in isolation to the remaining evidence available on the record.
23. The medical evidence of the prosecution was furnished by Dr. Altaf Pervaiz Qasim (P.W.4) and Dr.Fayyaz Ahmad (P.W.6). We have observed that the medical evidence had fully supported the ocular account furnished by the prosecution in the shape of statements of P.W.10 Saif Ullah complainant, P.W.11 Seet-ul-Haq alias Abdul Haq injured and P.W.12 Imtiaz Ahmad eye-witness.
According to the FIR, the deceased persons and Seet-ul-Haq injured (P.W.11) had received number of firearm injuries on their bodies at the hands D of the appellants and their accomplice, thus, after taking into consideration the whole prosecution evidence, we have come to the conclusion that ocular account of the prosecution is in line with the medical evidence furnished by Dr. Altaf Pervaiz Qasim (P.W.4) and Dr.Fayyaz Ahmad (P.W.6). The ocular evidence of the prosecution about the kind of weapons used during the occurrence and the time of incident as narrated by the eye-witnesses of the occurrence has fully tallied with the medical evidence .
24. As far as the recovery of Kalashnikov (P-12) from Ahmad Yar appellant is concerned, although crime empties were recovered by the investigating officer from the place of occurrence but neither crime empties nor the weapon of offence i,e, Kalashnikov (P-12) were ever sent to the Forensic Science Laboratory and there is no report of Forensic Science Laboratory in this regard, so the recovery of weapon of offence in this case has become insignificant and the same is of no help to the case of prosecution. So far as vehement arguments of learned counsel for the appellants that no weapon of offence was recovered from the remaining appellant is concerned, in this regard we may observe here that the recovery of weapon of offence is merely a corroborative piece of evidence and it alone does not smash the prosecution case against the appellant especially when it is supported by the surrounding circumstances. Guidance can be sought from the case of "Mukhtar Ahmed v. The State", reported as 2004 SCM R 220, wherein Hon'ble Supreme Court of Pakistan has held that non-recovery of weapon of offence was not fatal to the prosecution case, as the ocular account given by the witnesses was such which could be sufficient to bring home guilt to the convict.
25. Now adverting to the evidence of motive, which as per FIR (Exh.PA/1) was previous murder enmity, we have observed that the complainant Saif Ullah (P.W.10), injured Seet-ul-Haq alias Abdul Haq and (P.W.11) and eye-witness Imtiaz Ahmad (P.W.12) have consistently spoken about the existence of previous murder enmity between the parties and they have also mentioned the numbers of FIRs, which the complainant party had lodged against the appellants. Even otherwise, previous enmity between the parties is not denied by the appellants rather during their statements recorded by the learned trial Court under section 342, Cr.P.C. They have admitted the existence of previous enmity between the parties.
26. After having considered the facts and circumstances of the case from all angles, we have come to a definite view that the prosecution has successfully proved its case against the appellants through the above mentioned confidence inspiring and reliable evidence. Although the prosecution case could not find corroboration from the recovery of weapon of offence, yet there is sufficient incriminating evidence available on the record against the appellants to convict them. As discussed earlier, the prosecution has fully proved its case through the evidence of eye-witnesses namely Saif Ullah complainant (P.W.10), Seet-ul-Haq alias Abdul Haq (P.W.11) and Imtiaz Ahmad eye-witness (P.W.12). They stood the test of lengthy cross-examination but their evidence could not be shaken. Their evidence is duly supported by the medical evidence furnished by Dr. Altaf Pervaiz Qasim (P.W.4) and Dr.Fayyaz Ahmad (P.W.6) as well as by the evidence of motive, therefore, we have sufficient reasons to hold that the prosecution has proved its case against the appellants, who had done to death three innocent persons and injured Seet-ul-Haq alias Abdul Haq (P.W.11) after sharing common intention, beyond the shadow of any doubt and as such the judgment recorded by the learned trial Court to the extent of conviction of the appellants does not call for any interference by this Court and therefore, the conviction of the appellants is hereby maintained.
27. Now coming to the quantum of sentence of the appellants, no doubt the sentence of death on the charge of murder is normal penalty, but in appropriate cases, where some extenuating circumstances exist in favour of the accused, the Courts have the prerogative to award lesser punishment to them. In this case, we have observed that the complainant and eye-witnesses in their statements under sections 154 and 161, Cr.P.C. And those recorded before the learned trial Court have not specifically disclosed as to which injury has been caused by which of the appellants during the occurrence and the deceased persons lost their lives as a collective result of injuries sustained by them at the hands of the appellants and their co-accused, so while taking this aspect of the case as mitigating circumstance in favour of the appellants, we are not persuaded to maintain the sentence of death awarded by the learned trial Court to Zaka Ullah, Mushtaq alias Mustafa, Ahmad Ali, Asif Ali and Ahmad Yar alias Ami appellant and the same is hereby converted into life imprisonment on three counts each under section 302(b), P.P.C. Read with section 149, P.P.C.
The sentence of life imprisonment awarded to Imtiaz. Ahmad appellant and sentence of compensation as ordered by the learned trial Court are, however, maintained. The sentences of appellants awarded under sections 148, P.P.C. And 324, P.P.C. i,e, under section 148, P.P.C. To undergo rigorous imprisonment for three years each with fine of Rs,10,000 (Rupees ten thousand only) each and in default of payment thereof to further undergo simple imprisonment for three months each and under sections 324/149, P.P.C. For causing injuries upon the person of Seet-ulHaq, injured P.W.
To rigorous imprisonment for ten years each with fine of Rs,50,000 (Rupees fifty thousand only) each, in default whereof to further undergo simple imprisonment for three months each are also maintained. All the sentences awarded to the appellants are directed to be run concurrently and the benefit of section 382-B Cr.P.C. Will also be available to them. With the above modifications in the quantum of sentences of appellants, except Imtiaz appellant, Criminal Appeal No,101 of 2009 and Criminal Appeal No,94-J of 2013 are dismissed.
28. Imtiaz appellant was released on bail vide order dated 26-9-2012. Since appeal to his extent has been dismissed by this Court, so the learned trial Court is directed to take necessary steps for the arrest of Imtiaz appellant to serve out the sentence of imprisonment as ordered above in accordance with law. Copy of this judgment be sent to the learned trial Court for compliance.
29. Murder Reference (M.R. No,140 of 2009) is answered in the negative and death sentence of Zaka Ullah, Mushtaq alias Mustafa, Ahmad Ali, Asif Ali and Ahmad Yar @ Ami is not confirmed.