' QALANDAR ALI KHAN, J.---Having been charged and tried in the Court of Sessions Judge, Kohistan, under sections 302/324/337/427/148/149, P.P.C. In case registered against them in Police Station Palas, District Kohistan, vide FIR No,46 dated 02.09.2011, the appellants were convicted and sentenced vide impugned judgment dated 17.04.2013 of the learned trial Court/Sessions Judge, Kohistan, as follows;
(i) Nizam-ud-Din was convicted for the murder of deceased Mohib-ur-Rehman under Section 302(b), P.P.C. And sentenced to death as Tazir with compensation of Rs,500000/- under Section 544-A, Cr.P.C. The convict/ appellant was ordered to be hanged by neck till declared dead, and in case of default in payment of compensation to suffer six months' S.I. The amount of compensation, if realized, to be paid to LRs of deceased Mohib-ur-Rehman
(ii) Jehanzeb was awarded the sentence of seven years' R. I. Under Section 324, P.P.C. With compensation of Rs,50,000/- and in default thereof to suffer two months' S.I. He was further convicted under second part of Section 324 read with section 337- A(ii), P.P.C. And sentenced to three years imprisonment as Tazir, besides Arsh which shall be 5 % of the amount of diyat. He was to remain in jail till the amount of arsh was paid to the victim/complainant.
(iii) Accused Shams-ud-Din alias Sakhoo and Salah-ud-Din alias Billy were convicted under section 427, P.P.C. And sentenced to one year R.I. With fine of Rs,20,000 each and in default of payment of fine they were to suffer one month S.I.
' While extending benefit of section 382-B, Cr.P.C. To all the above mentioned convicts/ appellants, co-accused Abdal Gul was declared P.O. And perpetual warrant of arrest was issued against him vide the same impugned order dated 17.04.2013.
2. The case was registered on the report of Habib-ur-Rehman, complainant, who reported to the police in injured condition in the emergency ward of RHC Pattan at 1330 hours on 02.09.2011 to the effect that on the eventful day he along with his brother, Ibad-ur-Rehman, Mohib-urRehman son .
Of Gulfaraz, Mehboob-urRehman son of Dr. Wali Qureshi and Sadiqur-ur-Rehman son of Sarfaraz were returning to their house from Pattan in Motor car No,1015/HR being driven by his brother Ibad- ur-Rehman and when reached near Juseer road crossing on Palas road at 1.00 P.M, their car was intercepted by a white colour Mehran Motorcar of Abdal Gul and Jehanzeb sons of Sirbiland, Nizamud-Din Sakhoo and Billi sons of Khangeer residents of Sharakot and while they were coming down of their vehicle the said five persons started pelting stones and in the meantime Abdal Gul and Nizam-ud-Din who were armed with Kalashnikovs opened fire. The firing of Abdal Gul hit Ibad- ur Rehman on his head and left arm thereby causing his death, and with firing of Nizam-ud-Din, Mohib-ur-Rehman sustained injuries at his face and head and succumbed to the injuries when reached the hospital. The complainant further alleged that he also sustained three injuries on his head owing to hammer blows by Jehanzeb and was also hit by stone blows of others. According to the complainant, the accused made good their escape towards Pattan in the motorcar. The occurrence was shown to have also been witnessed by companions of the complainant namely Sadiq-ur-Rehman and Mehboob-ur-Rehman, and motive for the occurrence was cited as quarrel between children 2/3 years ago. The report of the complainant was incorporated in Murasila, wherein the convicts/appellants including absconding co-accused Abdal Gul were charged for the Qatl-i-Amd of Ibad-urRehman and Mohib-ur-Rehman and also for causing injuries to the complainant.
3. During investigation, the scene of occurrence was inspected by the I.O. Who recovered five plus three empty shells of 7.62 bore from near the places assigned to P.O. Abdal Gul and convict/appellant Nizam-ud-Din, respectively, besides recovering broken glass pieces and stones from the car of the deceased Bearing No,1015/HR. The I.O. Also secured some blood stained pebbles, earth and sand from the places assigned in the site plan to both the deceased. The motorcar used in the commission of the offence by the accused was also recovered by the I.O., and its search led to the recovery of two hammers used as weapon of offence along with Telephone diary and few cards in the name of Proprietor of Rent-a-Car namely Azhar Awan and Hikmat.
4. Both the deceased namely Ibad-ur-Rehman and Mohib-ur-Rehman were subjected only to external Postmortem examination and the injured complainant was medically examined, with following reports of the Medical Officer, Dr. Muhammad Geer, about the deceased and the injured complainant.
' On 02.09.2011 at 14:00 hours dead body of Ibad-ur-Rehman son of Saif-urRehman aged about 20 years resident of Pallas Tehsil Palas District Kohistan was examined by the M.O. Who found as under:?
' "External Post Mortem:
(1) Entry wound is present on the left temporal region of the head. No bleeding from the wound. The edges of the wound are inverted and about 1-cm roughly.
(2) Exit wound is present on the right side of the face severe bleeding from the mouth. The edges of the wound are averted and about 5-cm.
(3) Entry wound is present on the lateral border of the forearm. No bleeding and about 1-cm.
(4) Exit wound is present on the medial surface of left forearm. No bleeding occurred and about 3- cm.
' Clothes of the dead body handed over to the police. Nature of injuries fire arm. Probable duration of injuries 30-minutes."
' Similarly, on the same date at 1.25 hours he examined the dead body of, Mohibur-Rehman son of Gul Faraz aged about 22/23 years resident of Pallas , Tehsil Pallas, District Kohistan and found as under;-- ' "Entry wound is present on the base of the left side nose. No bleeding. The edges of the wound are inverted and about 1-1/2 c.m. (roughly).
' Exit wound is present on the right temporal side. Severe bleeding occurred. The edges of the wound are averted. Right eye removed and about 10-cm.
Clothes of the dead body handed over to the police. Nature of to injury FAI. Probable duration 30- minutes. On the same date at 13:40 hours he examined injured complainant Habib-ur-Rehman son of Saif-ur-Rehman aged about 16/17 years resident of pallas and found as under:- "1- Blunt wound is present on the occipital region. No bleeding (roughly 3-c.m).
2- A blunt wound is present on the left temporal region 4-cm (roughly). No bleeding occurred.
3- 'A blunt wound is present on the top of the head. No bleeding (roughly 2-C.M).
Patient is conscious in time and place and is referred to DHQ for Xray and opinion."
On 04.09.2011 at 11:25, hours the M.O. Examined injured Muhre-ur-Rehman on of Dr. Wali aged about 17/18 years resident of Pallas and found the following:- 1- Chronic lacerated wound is present on left temporal region.
2- Lacerated wound is present, on the left knee joint. Nature of injury laceration and simple."
5. The I.O. Got recorded statement of owner of the car used in the commission of the offence by the accused, namely, Muhammad Azhar under Section 164, Cr.P.C. The accused remained at large and were therefore, proceeded against under sections 204 and 87, Cr.PC, where-after challan was submitted against all the five absconding accused under Section 512, Cr.P.C. after recording evidence in absentia, the accused were declared proclaimed offenders and perpetual warants of arrest were issued against them vide order of the learned judicial magistrate/Illaqa Qazi Pattan, Kohistan, dated 23-02-2012
6. After arrest of accused Jehanzeb Shams-ud-Din, Salah-ud-Din on 12.02.2012 and accused Nizam-ud-Din on 08.03.2012, supplementary challans were submitted against them and they were sent up to face trial in the Court of Session Judge/Zilla Qazi, Kohistan, where ther were charged under the aforementioned sections of law, to which they pleaded not guilty and claimed trial, therefore, prosecution produced as many as 11 witnesses, detail whereof is as under: * Khurshid Ahmad (PW.1) registered FIR on the receipt of murasila from Sarwar Khan SHO when he was posted as MHC P.S palas. * Amjad ASI (PW.2) was posted as HC Chakkai Check Post and produced the relevant register showing entry of motorcar No.QJ-354 with three occupants at 1250 hours on the night between 01/02/-09.2011. * Aurangzeb DFC (PW.3) executed warrants under section 204 Cr.P.C. and proclamations under section 87 Cr.P.C. * Muhammad Azhar (PW.4) is Taxi Driver and owner of Motorcar No. QJ-354 used in the commission of offence by the accused. * Habib-ur-Rehman (PW5) in the injured complainant. * Mehboob-ur Rehman (PW.6) is the eye-witness. * Gulfaraz (PW7) is marginal witness to recovery memos EXPW7/1 and EXPW7/2. * Abdul Samad IHC (PW.8) is marginal witness to recovery memos EXPW8/1 to EXPW.8/4" * Dr. Muhammad Geer (PW.9) is the Medical Officer of RHC Pattan who conducted P.M Examination of the deceased as well as medical examination of the injured complainant. * Muhammad Sarwar SHO (PW.10) recorded report of the complainant Habib-ur-Rehman in the shape of murasila EXPA/1 and alos prepared the injury sheets and inquest report of both the deceased as well as injury sheet of injured complainant, besides taking into possession car No.Q.J- 354 in commission of offence, along with two hammers, telephone diary and visiting cards. * Nazir Ahmad S.I./OII (PW.11) conducted investigation in the case.
7. After prosecution closed its evidence, statements of the accused were recorded under section 342, Cr.P.C. wherein they refuted allegations of the prosecution, but declined to be examined on oath or produce defence evidence. After hearing arguments of learned counsel for the parties, the learned Sessions Judge/Zilla Qazi, Kohistan, rendered the impugned judgment dated 17.04.2013 whereby the appellants were convicted and sentenced as mentioned herein-above. The appellants have assailed their conviction through Cr.A. No, 70-A/2013, whereas the complainant lodged Cr.R. No,16-A/2013, and the learned trial Court made murder reference for confirmation of the death sentence, which are proposed to be disposed of through this single judgment.
8. Arguments of learned counsel for the convict/appellants and learned additional advocate General assisted by learned counsel for the complainant beard, and record perused.
9. Haji Muhammad Parvez Swati advocate, learned counsel for the convicts/appellants, argued that the police Station was situated at a very short distance from the place of occurrence but instead of lodging report in the Police Station, report was lodged in the hospital. The learned counsel pointed out that both the dead bodies were brought to the hospital at 1.20 p.m. and the dead body of Mohib-ur-Rehman was examined by the Medical Officer at 1.25 p.m. while report was lodged at 1.30 p.m. i.e. after examination of the dead body of deceased Mohib-ur-Rehman. The learned Counsel urged that the deceased, complainant and eye-witnesses were closely related to each other, therefore, the complainant and eye-witnesses were interested witnesses and their testimony was not worthy of credence in the absence of independent and confidence inspiring evidence. The learned counsel also pointed out that the Medical Officer conducted only external P.M without conducting internal examination of the dead bodies, therefore, the P.M reports could not lend my support to the ocular evidence. The learned counsel contended that there were improvements in the case in respect of damage to the vehicle of the complainant and his companions and injuries to PW Mehboob-ur-Rehman with stone blows, which were introduced later on, as no such allegations were levelled in the FIR. The learned counsel concluded that the case of the prosecution against the appellants was replete with contradictions and inconsistencies, thus making case against them doubtful, and rendering them entitled to acquittal.
10. Mr. Muhammad Naeem Abbasi, learned Additional Advocate General, assisted by Mr. Ghulam Mustafa Khan Swati, Advocate, learned counsel for the complainant, on the other hand, vehemently argued that convict/appellants were directly charged in the promptly lodged FIR by the injured complainant while assigning specific roles to each of the accused. They further argued that the offences were committed in broad day light with no question of mistaken identity. They pointed out that there was motive of quarrel between children some time back, which led to brutal murder of two young students who had come to the village for celebrating Eid. It was pointed out that according to the custom in vogue in the area, the people of the area did not allow Postmortem examination of the dead bodies of their relatives but in this case the Medical Officer was able to conduct external Postmortem, which corroborated the coherent and confidence inspiring evidence of the injured complainant and also injured eye-witness who were present with the deceased at the time of the occurrence. They stressed that recoveries of the incriminating articles and other corroborative evidence collected during investigation by the I.O. Connected the appellants with the commission of the offence, therefore, they were rightly held guilty of the commission of the offences by the learned Trial Court.
11. The perusal of record in the light of submissions of learned counsel for the parties would show that, undoubtedly, the appellants were directly charged in the promptly lodged FIR within 30 minutes of the occurrence by the injured complainant in RHC Pattan. The role of Qatl-i-Amd of Mohib-ur-Rehman deceased with firing of klashinkov was specifically assigned to convict/appellant Nizam-ud-Din in the FIR wherein co-accused and P.O Abdal Gul was attributed the role of firing with Klashinkov at deceased Ibad-ur-Rehman and causing his death. The complainant also specifically charged convict/appellant Jehanzeb for hammer blows on his head.
The external Postmortem reports of the deceased confirmed fire arm injuries on the specified parts of their bodies besides confirmation of hammer blows on the complainant, thereby fully supporting version given by the complainant in the FIR. The recovery of crime empties from the places assigned to the said accused in the site plan, securing of blood from the places where the dead bodies were found, together with positive report of FSL with regard to the blood stained pebbles, earth and sand and blood stained garments of the deceased and recovery of two hammers from the car used in the commission of offence by the appellants go a long way to connect the appellants with the commission of the offence when seen in the light of ocular account furnished by the injured complainant and the eye-witness, which also received corroboration from the evidence of owner of the car used in the commission of the offence by the appellants and statement of Incharge of Chakkai Check Post where the vehicle was checked at the relevant time.
The unexplained absconsion of the appellants further augmented case of the prosecution against them. One of the accused named in the FIR, Abdal Gul, charged for the Qatl-i-Amd of Ibad-ur- Rehman deceased is still absconding and was declared P.O along with the appellants by the learned Civil Judge/Judicial Magistrate, pattan, Kohistan vide order dated 23-02-2012. The overwhelming evidence adduced by the prosecution left no room for doubting version of the prosecution, especially when the appellants declined to be examined on oath or produce defence.
12. The non-reporting of the occurrence at the Police Station, omission on the part of Medical Officer to conduct internal Postmortem of the deceased, non mentioning of damage to the car and injuries to PW Mehboob-ur-Rehman in the FIR do not tend to dislodge case of the prosecution against the appellants to the extent of Qatl-i-Amd of deceased Mohib-ur-Rehman by the appellant Nizam-ud-Din and that of deceased Ibad-ur-Rehman by the P.O. Abdal Gul and also hammer injuries to the complainant by appellant Jehanzeb, which are even otherwise supported by coherent and confidence inspiring evidence of the prosecution, particularly ocular account furnished by the complainant and the eye-witness, who, though closely related to the deceased, had no motive, as nothing has been alleged on that account by the defence, to either falsely implicate the appellants or substitute them for the actual culprits. Moreover, the ocular account furnished by the complainant and the eyewitness also gets corroboration from the circumstantial evidence including testimony of owner of the car used in the commission of the offence by the appellants and also Incharge of Chakkai Check Post. As such, the edifice built by the prosecution on the version given by the complainant in the FIR could not be shattered or even a dent created in the prosecution case by the defence despite searching cross-examination on the prosecution witnesses nor a version as the appellants declined to be examined on oath or produce defence.
13. Adverting to the quantum of punishment awarded to appellant Nizam-ud-din i.e. death penalty, it may be pointed out that though the offence of Qatl-i-Amd of Mohib-ur-Rehman was proved against him, yet the nature of motive cited for the offence and facts of the case did not warrant the imposition of death penalty. It may not be out of place to refer to the motive for the offence cited in the FIR in this connection, which was mentioned as quarrel of children 2/3 years before, which by no means could be termed so grave to cause murder of two young persons. Likewise, the fact that the accused started pelting stones on the complainant and his other companions as they were coming down of their car after the same was intercepted by the car occupied by the accused would indicate that there is something more than meets the eye. Needless to say that even absence of motive would not affect outcome of a proved case of Qatl-i-Amd, but uncertainty surrounding a motive cited by the prosecution cannot be overlooked at the same time. In the circumstances, the punishment of death awarded to accused Nizam-ud-Din would not be sustainable, therefore, the death penalty is commuted to imprisonment for life as Tazir under Section 302(b), P.P.C., with compensation of Rs,500000/- under Section 544-A, Cr.P.C. And in case of default in payment of compensation to six months S.I. The amount of compensation, when realized shall be paid to the legal heirs of deceased Mohib-urRehman.
14. As regards conviction of appellant Jehanzeb under section 324, P.P.C. And sentence of imprisonment for seven years R.I with compensation of Rs,50,000/- and in default thereof to two months' S.I awarded to him for causing injuries on the head of complainant Habib-ur-Rehman, suffice it to say that there was neither any allegation of attempt at the life of complainant in the FIR nor proof of offence of attempt at the life of complainant is discernable from the record as the hammer blows on head of the complainant caused him wounds without bleeding or making him unconscious and further that appellant Jehanzeb was also awarded the punishment of three years imprisonment as Tazir under section 337A(ii), P.P.C. And payment of arsh which shall be five percent of the amount of diyat. Therefore, while considering three years imprisonment as Tazir and arsh under section 337-A(ii), P.P.C. Adequate punishment awarded to appellant Jehanzeb for causing injuries on - the head of complainant Habib-ur-Rehman with hammer blows, the rest of the penalties awarded by the learned trial Court to appellant Jehanzeb under section 324 P.P.C. Are set aside for want of proof of attempt at the life of the complainant.
15. The conviction of remaining two appellants namely Shams-ud-Din alias Sakhoo and Salah-ud- Din alias Billi under section 427, P.P.C. For pelting stones and, causing' damage to the vehicle of complainant and the sentence of one year R.I. With fine of Rs,20,000/- each and in default of payment of fine to suffer one month S.I. Is not sustainable for the simple reason that neither they were charged for the offence of pelting stones and causing damage to the car of the complainant in the FIR nor the subsequent allegation, if any, to the said effect was substantiated against, the said appellants through cogent evidence. Therefore,, conviction and sentence of appellant Shams- ud-Din alias Sakhoo and Salah-ud-Din alias Billi under section 427, P.P.C. Is set aside, and they are, consequently, acquitted of the charges.
16. The benefit of section 382-B Cr.P.C. Shall be available to convicted appellants.
17. Resultantly, the Criminal Appeal No,70-A/2013 of the convict appellants is disposed of in the above terms, Criminal Revision No,16-A/2013 is dismissed, and murder reference answered accordingly in the negative.