SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No, 1678 of 2009 filed by Imran Khan alias Mana (against his conviction) and C.S.R. No,33-T of 2009 sent by the learned trial court for confirmation of the death sentence of appellant Imran Khan alias Mana or otherwise as both the matters have arisen out of the same judgment dated 08.10.2009 passed by learned Special Judge, Anti-Terrorism Court No,1, Gujranwala according to which the present appellant was convicted and sentenced as under:-- "Imran Khan alias Mana was convicted under section 302(b), P.P.C. and under section 7(a) of ATA 1997 and sentenced to 'death' on two counts for committing the murders of Muhammad Rashid and Muhammad Ameen deceased along-with compensation Rs,2,00,000/- payable to each of the legal heirs of the deceased and in default thereof further undergo one year S.I on two counts.
' He was also convicted under section 324, P. P. C. and under section 7(c) of ATA 1997 for committing the murderous assault on Waheed Ahmad PW-7 and sentenced, to life imprisonment along with fine Rs,50,000/- and in default thereof further undergo six months' S. I. ' Whereas his co-accused namely Nazir Khan and Muhammad Boota were acquitted by the trial court in private complaint under sections 109/302/148/149, 324, P.P.C. and under sections 21(I)/7(a) and 7(c) of ATA 1997 Police Station, Shah Ghareeb, District Narowal arising out of FIR No, 43 dated 4.4.2008.
2. The facts of the case has been stated by Irshad Muhammad complainant/ PW-6 real father of Muhammad Rashid (deceased) in his private complaint arising out of FIR No, 43 dated 4.4.2008 (Ex.CW2/2) are the same as narrated by him in his statement before the learned trial court, so the statement of Irshad Ahmad complainant PW-6 is hereby reproduced for narration of the facts:-- "I am complainant of this case. Muhammad Rashid one of the deceased of this case was my son.
On 4.4.2008 at about 08:00 pm, 1 along with Muhammad Ameen Zargar son of Allah Rakha (deceased), Muhammad Siddique (injured PW) and my brother Shamshad was sitting on Thara of the embroidery shop of my real brother Shamshad Ahmad, situated in main Bazar Kanjroor. My son Muhammad Rashid deceased was standing near a sweet shop in the same Bazaar at that time and the confectioner Waheed Ahmad injured PW was also present at the sweet shop.
Meanwhile, accused Imran Khan alias Mana present in the court armed with rifle, Zahid alias Zada Tidda (since P.0) armed with rifle, reached there with intention to murder. They were accompanied by three unknown accused persons, armed with rifles. I can identify them, if I see them again.
Accused Imran Khan raised lalkara that Rashid be murdered as he did not give up pursuing Riaz murder case. Immediately, upon his own lalkara, Imran Khan opened direct firing and sprayed bullets with his rifle upon my son Rashid who on receiving firearm injuries fell down, in injured condition. The shopkeeper Waheed was also hit by reckless firing of Imran accused. We on witnessing the scene, raised alarm. The accused Imran and Zahid alias Zada Tidda moved towards us while making firing. We all sitting on Thara rushed inside the shop to save ourselves.
The accused Imran Khan and Zahid alias Zada Tiodda came in front of the embroidery shop and made straight firing upon us hitting Muhammad Ameen deceased and Muhammad Siddique injured on different part of body injured. The unknown accused persons also started firing which caused terror and fear in the bazaar and it wore deserted look at once. The people ran in panic to save their lives in chaos and there was stampede in the bazaar. All the above accused continued indiscriminate firing in the Bazaar for a long period to cause further panic and fear before they fled away. One passerby Shanawar Masih son of Mahindar Masih also got injured by the firing of the accused persons. The occurrence was witnessed by my brother Shamshad Ahmed, Bashir Ahmed son of Allah Rakha besides me in the light of lit electric bulbs installed inside and outside the two shops of the occurrence and in bazaar. The motive behind the bazaar. occurrence was that Imran Khan accused present in the court and his brothers had committed the brutal murder of my other son Muhammad Riaz on 25.9.2007. Rashid deceased was thecomplainant of the Riaz murder case. Imran Khan accused was a Proclaimed Offender in the said murder case. He used to send threats for compelling us to make compromise in Riaz murder case. Similarly, his brother who were in jail, also sent us threats of the same kind from the jail. As we refused to succumb under their pressure, so they committed the above terrorist act".
3. After filing of the private complaint learned trial court recorded the cursory evidence produced by the complainant and summoned the accused to face the trial.
4. Thereafter, accused summoned were appeared and learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 13.11.2008 against the present appellant/convict Imran Khan alias Mana under sections 302, 324,148/149, 109, P.P.C. read with sections 7(a) and 7(c) of ATA 1997 to which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Adrian as PW-1, Muhammad Sajid PW-2, Shafique Ahmad PW-3, Dr. Muhammad Amjad Irshad PW-4, Dr. Muhammad Latif Afzal PW-5, Irshad Muhammad PW-6, Waheed Ahmad PW-7, Muhammad Siddique PW-8, Shamshad Ahmad PW-9 and Zaka Ullah as CW-1, Muhammad Aslam Inspector CW-2, Azad Bakhat CW-3, Abdul Ghafoor H.0 CW-4, Muhammad Munir S.! CW-5, Ejaz Khan Constable CW-6, Muhammad Ashraf Inspector CW-7, Muhammad Faiz, SI CW-8, Tahir Tasleem Draftsman CW-9 whereas PW namely Shehzad Ahmed was given up by the prosecution being unnecessary and tendered in evidence recovery memo of last worn clothes of the deceased as Ex.PA along with sealed bottle and Ex.PB, post mortem reports Ex.PF to Ex.PG/1, copy of order dated 29.7.2008 Ex.PJ, recovery memo of blood stained cotton, Ex. PL to Ex. PM, recovery memo of 23 empty bullets Ex.PN, reports of Chemical Examiner Ex.PO to Ex.PP, reports of Numerologists Ex.PQ to Ex.PR, report of FSL Ex.PS, FIR CW2/2, recovery memo of rifle.
Kalashnikov Ex.CW4/1, proclamation and report Ex.CW4/2, warrant of arrest and report Ex.CW4/3, rough site plan Ex.CW5/1, injury statement Ex.CW7/1 to Ex.CW7/2, death reports Ex.CW7/3 to Ex.CW7/4, application for postmortem Ex.CW7/5 to Ex.CW7/6, scaled site plan Ex.Ex.CW7/8, warrant of arrest 'Mark-A', proclamation `Mark-B' and closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Muhammad Latif Afzal PW-5 who stated that on 05.4.2008 at 08:50 a.m he conducted the postmortem examination on the dead body of Rashid deceased detail of which is as under:-- "EXTERNAL APPEARANCE:- It was a dead body of youngman aged about 30/35 years with paler face. Mouth and eyes were closed wearing skin colour qameez and Shalwar and white colour bunian. Signs hypostasis and rigor mortis were present.
EXTERNAL INJURIES:
1. Lacerated wound 0.75 x 0.75 cm on the medial aspect of left thigh 7 cm from the gluteal region.
Margins were inverted. Blackening around the margins were not present (entry wound).
2. A lacerated wound 5 cm x 1 cm on the front of left thigh 5 cm from the knee joint. Margins were everted. It was an exit wound.
3. A lacerated wound 1 cm x .1 cm on the back of right lumber region. Margins were inverted.
Blackening around the margins was not present. Wound was 7 cm from the right iliac crest. It was an entry wound.
4. A lacerated wound 3 cm x 2.5 cm on the lower part of front of abdomen. Margins were everted.
Blackening around the margins was not present. It was exit wound.
5. A lacerated wound 1 cm x 1 cm on the back of right lumber region. Margins were inverted blackening around the margins was not present. It was entry wound.
6. A lacerated wound 3 cm x 3 cm on the front of left side of abdomen 8 cm from the umbilicus.
Margins were everted. It was exit wound.
7. A lacerated wound 1 cm x 1 cm on the back side of right side of the chest. Margins were inverted.
Blackening around the margins was not present. It was an entry wound.
8. A lacerated wound 2 cm x 2 cm on the right side of neck. Margins were everted. Blackening around the margins was not present. It was an exit wound.
9. A lacerated wound 1.5 cm x 1.5 cm on the left side of neck in between the neck and shoulder.
Margins were inverted. Blackening around the margins was not present. It was entry wound.
10.A lacerated wound 2 cm x 2 cm on the left arm 25 cm from the shoulder. Margins were everted (exit wound). DISSECTION OF THE THORAX. horax was open about two liter clotted blood was present in the chest cavity. Heart and both lungs were ruptured. Other organs in the chest cavity were healthy.
ABDOMEN: Abdominal wall was opened, liver and different parts of small and large intestines were ruptured.
About half liter of clotted blood was present in the abdominal cavity. A small piece of bullet was found from the abdominal cavity. It was sealed and other organs were healthy.
OPINION: In my opinion, all the injuries were ante-mortem in nature and were caused by firearm weapon and cause of death was due to haemorrhage and shock. Injury Nos.3, 5, 7 and 9 were sufficient to cause death in an ordinary course of life. Probable time that elapsed between injury and death was within one hour and between death and ' postmortem was within 20 hours"
' He further stated that on the same day at 08:00 am he conducted the postmortem examination on the dead body of Muhammad Amin deceased and observed as under:-- External appearance ' It was a dead of a healthy man with paler face, eyes and mouth were closed. Clothes were blood stained. Signs of hypostasis and rigor mortis were present.
External injuries
1. A lacerated wound 05x05 cm on the back of right gluteal region. Margins were inverted.
Blackening around the margins was not present. It was an entry wound.
2. A lacerated wound 0.75 x 1 cm on the left thigh three cm from the left knee joint margins were everted. Blackening around the margin was not present.
Corresponding holes on the shalwar was present.
' Dissection of thorax.
' Chest cavity open. All organ in the chest cavity were healthy.
' Abdomen.
' Abdomen was open. All the organs in the abdominal cavity were healthy.
' Opinion.
' In my opinion both the injuries were ante mortem in nature and caused by firearm weapon and injury No,1 was sufficient to cause death in ordinary course of life. Cause of death was due to haemorrhage and shock. Probable -time that elapsed between death and injuries was within six hours and between death and postmortem was 20 hours" ' Dr. Muhammad Amjad Irshad PW-4 stated that 04.04.2008 he conducted medical examination of Waheed Ahmad PW-7 and found following injuries on his person:- "1. A circular wound 1 cm x 1 cm with collar of abrasion on left flank parallel to umbilicus. Depth not proved.
2. A circular wound 1 cm x 1 cm depth not proved on back of left side of chest.
3. Two abrasion 1 cm x 05 cm on the left side of chest.
The kind of weapon used was firearm. The injured was referred to the Mayo Hospital, Lahore.
Exh.PC is correct carbon copy of MLR No,232/08 which is in my hand and bears my signatures"
' The said Doctor Muhammad Amjad Irshad PW-4 further stated that on the same day he also conducted medical examination of Muhammad Siddique injured PW-8 and found following injuries on his person:- "1. A circular wound 0.8 cm x 0.8 cm on front of upper part of left thigh.
2. A circular wound 1 cm x 1 cm on left buttock at its middle.
' The kind of weapon used was firearm. The injured was referred to the Mayo Hospital, Lahore.
' Exh.PD is correct carbon copy of MLR No,232/08 which is in my hand and bears my signatures"
' Likewise, on the same day, he conducted medical examination of ' Shanawar Masih and found following injuries on his person:- "1. A circular wound 1.5 cm x 1.5 cm on left buttock.
2. Four circular wound 0.5 cm x 0.5 cm around the injury No,1..
' All the injuries were kept under observations for X-ray and expert opinion from surgeon"
7. On the other hand, statement of present appellant Imran Khan alias Mana was recorded under section 342, Cr.P.0 who refuted the allegations so leveled against him and has not opted to appear as a witness under section 340(2), Cr.P.0 and also did not produced any defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the appellant Imran Khan alias Mana replied as under:-- ' "I have been falsely involved in this case. The complainant party has enmity in village Kanjroor.
Some unknown enemies of the complainant party has committed the occurrence. I and my co- accused have no concern with this alleged occurrence. I have been falsely roped in this case due to previous enmity and litigation with the complainant party. All the PWs are inter se related and party men of the complainant who have deposed falsely".
8. After conclusion of the trial, learned trial court while acquitting Muhammad Boota and Nazir Khan co-accused of the present appellant convicted the present appellant Imran Khan alias Mana with above stated sentences through judgment dated 08.10.2009. Hence this appeal.
9. Learned, counsel for the appellant contended that:--
(i) the judgment of the trial court dated 08.10.2009 is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against present appellant as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellant on the basis of surmises and conjectures; (iii)it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law; (iv)lastly submitted that appeal may be accepted and the judgement of the trial court dated 08.10.2009 may kindly be set aside and appellant may be acquitted.
10. On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that:--
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as given by Irshad Muhammad complainant/ ' PW-6 real father of Muhammad Rashid deceased has already been given in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
13.Muhammad Amin and Muhammad Rashid are deceased of this case. Waheed Ahmad PW-7 and Muhammad Siddique PW-8 are injured of this case. Shanawar Masih injured has not appeared before the trial court.
14.Occurrence took place on 4.4.2008 at 08:00 p.m. whereas FIR Ex.CW2/2 was A registered on the same day on 4.4.2008 at 08:30 p.m.
15.Occurrence took place on the road in main bazar in front of the shop of Waheed Ahmad injured PW-7. PW-6 Irshad Muhammad complainant stated in the FIR Ex.CW2/2 and in private complaint Ex.PK that electric bulbs were on, installed in front of the shops in the bazar. We have also perused scaled site plan of place of recovery Ex.CW7/8 in which specifically mentioned as under:-- {{URDU TEXT}} 16.Irshad Muhammad complainant PW-6, Waheed Ahmad injured PW-7 and Muhammad Siddique PW-8 claim themselves to be the eye-witnesses of the occurrence. These three eye- witnesses stated in their statements that electric bulbs installed outside the shops in the bazar were on at the time of occurrence at the place of occurrence. So, sufficient light was available at the time of occurrence and there is no question of mis-identity of the accused.
17. Irshad Muhammad PW-6 complainant stated that at the time of occurrence he was present along, with his brother Shamshad on "Thara" of his embroidery shop at the time of occurrence whereas Waheed Ahmad PW-7 and Muhammad Siddique PW-8 received injuries in the present occurrence and they were shopkeepers and were present at their shops at the place of occurrence. They stated that on 4.4.2008 at 08:00 p.m. Imran Khan alias Mana present appellant made firing with his rifle upon Rashid deceased as a result of which he received firearm injuries and fell down. Waheed Ahmad injured PW-7 also received firearm injuries at the hands of Imran Khan alias Mana present appellant. They further stated that lmran Khan alias Mana present appellant and Zahid alias Zahid Tida (since P.0) also made firing upon Muhammad Amin deceased and Muhammad Siddique injured PW-8 as a result of which Muhammad Amin deceased and Muhammad Siddique injured PW-8 received firearm injuries. One passerby Shanawar Masih (not produced as a witness) also received firearm injuries in the occurrence.
Rashid and Muhammad Amin both succumbed to the injuries at the spot thereafter. Therefore, the presence of these three eyewitnesses at the time of occurrence at the place of occurrence cannot be considered as improbable or unnatural. Both the parties are known to each other. There was sufficient, light at the time of occurrence at the place of occurrence as mentioned in scaled site plan Ex.CW7/8 discussed in para No,15 of this judgment so there is no question of mis-identity of the accused. I Even otherwise substitution is a rare phenomenon and it is not expected from father to let loose the real culprit and involve the present appellant in this case. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material c aspects of the case. Their evidence is straightforward, trust worthy and confidence inspiring.
18. Medical evidence was furnished by Dr. Muhammad Amjad Irshad PW-4 who stated that on 4.4.2008 he conducted medical examination of Waheed Ahmad injured PW-7 detail of which is mentioned in para No,6 of this judgment. He further stated that he also conducted medical examination of Muhammad Siddique injured PW-8 detail of which is also mentioned in para No,6 of this judgment. He also conducted medical examination of Shanawar Masih detail of which is mentioned in para No,6 of this judgment. Dr. Muhammad Latif Afzal PW-5 stated that on 5.4.2008 at 08:50 a.m. he conducted postmortem examination on the dead body of Rashid deceased detail of which is mentioned in para No,6 of this judgment. He further stated that all the injuries on the person of Rashid deceased were ante-mortem in nature and were caused with firearm weapon and cause of death was due to hemorrhage and shock. Injuries Nos. 3, 5, 7 and 9 were sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was within one hour whereas between death and postmortem was within 20 hours. He further stated that on the same day at about 08:00 a.m. he conducted postmortem examination on the dead body of Muhammad Amin deceased detail of which is mentioned in para No, 6 of this judgment. In his opinion injuries on the person of Muhammad Amin deceased were ante-mortem in nature and were caused with firearm weapon and were sufficient to ' cause death in ordinary course of nature. Time that elapsed between death and injuries was within six hours whereas between death and postmortem was 20 hours.
19.In view of the above, medical evidence has supported the ocular account furnished by Irshad Muhammad complainant PW-6, Waheed Ahmad injured PW-7 and Muhammad Siddique injured PW-8.
20.Irshad Muhammad complainant PW-6 stated in the FIR Ex.CW2/1 regarding motive of the occurrence as under:- {{URDU TEXT}} 21.The above stated motive has not specifically been denied by the present appellant. Rashid deceased was pursuing the murder case of the real brother Riaz khan alias Mana. Considering above, prosecution has proved motive of the occurrence against the present appellant.
22.Muhammad Ashraf Inspector CW-7 I.O. of this case stated that on 4.4.2008, during spot inspection he collected 23 crime empties of rifle P-6/1-23 which were taken into possession through recovery memo Ex. PM attested by Shamshad Ahmad PW-9.
23.Muhammad Munir SI CW-5 I.O. of this case stated that on 24.6.2008 he arrested Imran Khan alias Mana present appellant in the case and on 1.7.2008 during interrogation, he discolded and led with 10 live bullets C2/1-10 from the residential room ft. his house. Parcels in this regard were prepared and were taken into possession through recovery memo ex.CW4/1 attested by Abdul Ghafoor H.C CW-4.
24.
24. We found no discrepancy in the statements of recovery witnesses. Further according to FSL report Ex.PS crime empties stated above were received in the office on 22.4.2008 much prior to the arrest of the present appellant i.e, on 24.6.2008 whereas Kalashnikov Ex.C1 was received in the office of FSL on 15.8.2008 and report to the extent. of the present appellant is positive. Positive report showing that crime empties Marked as Cl, C8, C9, C10, C14, C17, C19, C20, C21 and C23 had been fired from the rifle of 7.6 2mm bore recovered from the possession of Imran Khan alias Mana present appellant.
25. In view of the above, prosecution has proved recovery of the Kalashnikov Ex.C1 which is considered as corroborative piece of evidence in this case.
26.In view of the above discussion, we are of the opinion that prosecution has proved its case beyond shadow of doubt against present appellant Imran Khan alias Mana through ocular account furnished by G Irshad Muhammad complainant PW-6, Waheed Ahmad injured PW-7 and Muhammad Siddique injured PW-8 supported by medial evidence, motive and recovery of Kalashnikov Ex.C1.
27.Adverting to the defence plea Imran Khan alias Mana appellant/convict, he stated in his statement under section 342 Cr.P.0 in reply to question "why this case against you and why the PWs deposed against you?" the appellant Imran Khan alias Mana replied as under:-- "I have been falsely involved in this case. The complainant party has enmity in village Kanjroor.
Some unknown enemies of the complainant party has committed the occurrence. 1 and my co- accused have no concern with this alleged occurrence. 1 have been falsely roped in this case due to previous enmity and litigations with the complainant party. All the PWs are inter se related and party men of the complainant who have deposed falsely".
' But he did not appear under section 340(2), Cr.P.C. and also did not produce any oral defense as well as documentary evidence.
28.In view of the above, the defence plea of the present appellant is nothing except denial which is not believable and the same is hereby discarded.
29.Having considered all the pros and cons of this case, the irresistible conclusion drawn by this Court is that the prosecution has proved its case against present appellant Imran Khan alias Mann through the aforementioned confidence inspiring and reliable evidence. The present appellant Imran Khan alias Mana has committed the murders of Muhammad Rashid and Muhammad Amin deceased by inflicting repeated firearm injuries on their persons. There are five firearm entry wounds on the person of Muhammad Rashid deceased exclusively caused by present appellant Imran Khan alias Mana with repeated fires. We are unable to find out any mitigating circumstance in favour of the present appellant. He has committed shocking and callous murders of Rashid and Muhammad Amin deceased and caused injuries to Waheed Ahmad PW-7 and Muhammad Siddique PW-8. Therefore, he does not deserveany leniency. Inthe circumstances, we are of the considered view that there is no extenuating circumstances available in favour of the appellant for extending him any benefit regarding his sentence.
30.For the foregoing reasons, his conviction and sentence under 302(b), P.P.C. read with section 7(a) of ATA 1997 is maintained. Learned trial court while convicting present appellant under section 324, P.P.C. read with section 7(c) of ATA 1997 sentenced him with life imprisonment which is not provided under section 324, P.P.C. and maximum sentence of imprisonment provided under section 324, P.P.C. is ten years. Hence, j conviction under section 324, P.P.C. read with section 7(c) of ATA 1997 is maintained. However, his sentence of imprisonment under section 324, P.P.C. read with section 7(c) of ATA 1997 is altered from life to ten years on two counts. Compensation, fine and sentences in default thereof awarded by the trial court are maintained. Reluctantly, Criminal Appeal No, 1678 of 2009 filed by Imran Khan alias Mana is dismissed and death sentence K awarded to Imran Khan alias Mana present appellant on two counts is CONFIRMED. C.S.R No, 33-T of 2009 is answered in AFFIRMATIVE.