' RAJA SHAHID MEHMOOD ABBASI, J.---Through this single judgment, we intend to dispose of Criminal Appeal No,67-J of 2011 filed by appellant Muhammad Akhtar against his conviction' and sentence as well as Murder Reference No, 71 of 2011 transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to appellant/accused being originated from the same judgment dated 30-09-2011 passed by the learned Sessions Judge, Rawalpindi in case FIR No, 96 of 2011 dated 09-02-2011, under sections 302/324, P.P.C., registered at Police Station Westridge, Rawalpindi, whereby the appellant was convicted and sentenced as under:-- ' Muhammad Akhtar was convicted under section 302(b), P.P.C. And sentenced to death on two counts. He shall also pay compensation of Rs,00,000/- (sic) on two counts under section 544-A, Cr.P.C. To the legal heirs of deceased Abid Mughal and Shakeel Ahmad. In case of default thereof to further undergo six months' S.I. On each count.
' He was also convicted under Section 324, P.P.C. And sentenced to rigorous imprisonment for ten years with fine of Rs,50,000/- and in default thereof to further undergo for one year.
' He was further convicted under section 337-L(2), P.P.C. And sentenced to imprisonment for two years on four counts. All the punishment shall run concurrently. The convict was also extended benefit of section 382-B, Cr.P.C.
2. Briefly stated the facts of the case as gleaned out from the statement, Ex.PD/1 of Shaukat Mehmood, complainant (PW.13) are that on 09-02-2011, he along with his brother Abid Mughal (deceased), Babar Shehzad, Fayyaz Mehmood, Yasir Mehboob and Munir Akhtar went to the office of Chaudary Property, Main Road near PSO, Pump, Dhoke Gujran in connection with purchase/sale of plot. Shakeel Ahmad, deceased also came there. Mazhar alias Shah came out of his property office. Shakeel, deceased sat in the driving seat, Mazhar alias Shah in the front seat while Abid, deceased brother of complainant, sat in Suzuki Mehran car standing outside the office and started conversation with each other. Complainant along with Babar Shehzad and Fayyaz kept on standing nearby the office while Yasir Mehboob and Munir Akhtar were standing at some distance.
As there was a dispute of plot with Muhammad Akhtar, appellant/accused, therefore, they were waiting for him. At about 10.30 am, Muhammad Akhtar, appellant/accused came there on his yellow cab taxi stepped down and came to Shakeel (deceased), Mazhar, and Abid (deceased), who were sitting in Suzuki Mehran. Abruptly, he took out pistol from his Dab and started firing upon Abid, Shakeel and Mazhar, who were sitting in the vehicle and remained raising Lalkara that he was going to teach a lesson to them for sale and purchase of plot. Shakeel and Abid succumbed to the injuries at the spot while Mazhar alias Shah sustained injuries.
' The motive behind this occurrence was a dispute of plot between them.
3. Jahangir Khan, S.I. (PW. 14) on 09-02-2011 after receipt of information reached at the spot and recorded the statements of Shaukat Mehmood, complainant, (PW.13), Ex.PD/1 and sent the same for registration of case. Thereafter, he prepared the injury statement of injured Mazhar vide memo Ex.PP and got the injured medically examined through Doctor Mehr Ali Awan, (PW-11) thereafter, he prepared the injury statement of deceased Abid Mughal vide memo Ex.PQ, his inquest report Ex.PN; injury statement of Shakeel Ahmad, deceased Ex. PR and an inquest report Ex. PO and dispatched the dead bodies for their post mortem examination which was conducted by Doctor Irfan Khilji, DMS, (PW.3) on 09-02-2011. The dead body of Abid Mughal, deceased was examined at 2.30 pm and the doctor observed two firearm injuries and both the injuries were ante mortem in nature and were sufficient to cause death in ordinary course of nature. Whereas post mortem examination of the dead body of Shakeel Ahmad was performed at 3.15 pm and eleven firearm injuries were found on the dead body of the deceased. According to the doctor all the injuries were ante mortem in nature and could cause death in ordinary course of nature.
' Said Jahangir Khan; SI (PW.14) also took into possession the blood stained earth from the place of murder of Shakeel vide memo Ex.PH and from the place of murder of Abid Mughal vide memo Ex.PJ, eight empties of 30 bore were taken into possession vide memo Ex.PK. He also took into possession Suzuki Mehran, P.11, vide memo Ex.PL and car Alto vide memo Ex.PM, he prepared rough site plan Ex.PS. He recorded the statement of Mazhar Mehmood, injured in medical board THQ, Hospital, Rawalpindi. On 02-03-2011, Muhammad Akhtar, appellant/accused was arrested. On his personal search pistol 30 bore, P.8 with live, rounds P.9/1-5 were recovered, which was taken into possession vide memo Ex.PF. Recovery memo was attested by Muhammad Azeem (PW.10) and Naseer Ahmad, PW constables.
4. After completion of the investigation report under Section 173, Cr.P.C. Was submitted in the trial court. The statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898 was recorded wherein he refuted the allegations leveled against him and professed his innocence.
In reply to a question that as to "Why this case against you and why the witnesses have deposed against you?", the appellant/accused replied as under:- "I have been involved in this case falsely. My brother Mazhar Mehmood had sold his share of land and now 'he wanted to grab my share of land and thus has falsely involved me in this case. All the PWs are closely related and deposed falsely against me on the asking of Mazhar PW. No independent or impartial person has supported the false version of Mazhar Mehmood and other PWs."
5. The appellant has opted not to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations leveled against him but tendered copy of plaint of suit for permanent injunction titled "Muhammad Akhtar v. Shakeel Khan and others" Ex.DB, petition under Order XXXIX, Rules 1 and 2 Civil Procedure Code, 1908 (Act V of 1908) Ex.DC, affidavit Ex.DD, written statement Ex.DE, reply to application Ex.DF, petition to set aside ex parte proceedings Ex.DG, affidavit Ex.DH, order dated 29-05-2010 Ex.DJ passed by Civil Judge 1st Class, in his evidence.
6. Upon completion of the trial, the learned trial court found the case against the appellant to have been proved beyond any shadow of doubt and thus convicted and sentenced him as mentioned above. Hence, instant, appeal before the Court.
7. Shaukat Mehmood, complainant was examined as (PW.13), he supported the version of the FIR and also narrated the motive of occurrence. Mazhar Mehmood, (PW.12) was injured witness of the occurrence; he is real brother of the appellant Muhammad Akhtar. He was examined as (PW.12), who supported the prosecution case as narrated by the complainant and his statement is also in line with the testimony of the complainant. Jahangir Khan, SI (PW.14) had investigated the case and narrated all the steps taken by him during the investigation. The prosecution was closed by tendering in evidence report of Chemical Examiner Ex . PU , Ex . PV , Serologist Report Ex. PW and Forensic Science Laboratory Ex.PX.
8. It is contended by learned counsel for the appellant that the eye-witnesses of the incident complainant Shaukat Mehmood (PW.13) and Mazhar Mehmood, injured (PW.12) are neither interested but they are also inimical and their testimonies cannot be relied for the purposes of conviction; that the injuries on the person of Mazhar Mehmood, (PW.12) of not stamp of his being truthful witness; that the medical evidence is in conflict with ocular account; that recovery is planted one; that the prosecution has failed to prove the motive against the appellant; that the prosecution has failed to prove its case against the appellant beyond shadow of any reasonable doubt; that sufficient extenuating circumstances are existed in favour of appellant and his sentence may be reduced in the interest of justice; that this appeal may be accepted and the appellant/accused may be acquitted of the charge and murder reference may be answered in negative.
9. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this appeal on the grounds that the appellant is nominated in the FIR with specific role of causing injuries on the person of deceased as well as injured PW; that the prosecution has proved its case against the appellant beyond any shadow of reasonable doubt by producing cogent and reliable evidence; that the parties are known to each other, therefore, there is no misidentification or substitution; that this appeal may be dismissed and murder reference may graciously be answered in affirmative.
10. We have heard the learned counsel for the appellant; learned Deputy Prosecutor General assisted by learned counsel for the complainant and also scanned the record with their assistance and we felt no hesitation in concluding that prosecution has indeed succeeded in proving its case against the appellant beyond reasonable doubt. It was a daylight occurrence and the FIR had been lodged with sufficient promptitude wherein the appellant, who is real brother of Mazhar Mehmood, injured (PW.12) had been nominated as the sole perpetrator of the offence in question.
The injuries sustained by this witness stamps his presence at the place of occurrence due to his close and sensitive relationship with the appellant he was not likely to implicate the appellant falsely in a case involving the murder of his business partner. Likewise, Shaukat Mehmood, complainant (PW.13) is real brother of Abid Mughal, deceased and he had also no reason to falsely implicate the appellant in an offence of this nature. Both the eye-witnesses were subjected to lengthy cross-examination but they remained stuck to their stance taken by them on the day of occurrence in their statements recorded under Sections 154 and 161 of the Code of Criminal Procedure, 1898 respectively without any noticeable or material deviation. Nothing beneficial to the appellant could be surfaced. No material discrepancies or improbabilities in their statements to the extent of role of the appellant could be hinted at by the learned counsel for the appellant during the arguments. The said eye-witnesses had also found ample corroboration from the motive, which is admitted by the defence and exhibited the civil dispute regarding the property in shape of Ex.DB and the evidence of recovery of weapon of crime and positive report of Forensic Science Laboratory Ex.PX. The medical evidence had also proved full support to the ocular account.
Thus, we are confident enough that the prosecution has proved the ocular account through sound, motivating, trustworthy, reliable and confidence inspiring eye-witness account.
11. So far as the contentions of the learned counsel that extenuating circumstances are available for consideration to the question of sentence to be passed against the appellant. In this context, we have noticed that appellant has mercilessly murdered two innocent persons and has not even spared his own real brother and fired four shots with his pistol targeting different parts of his body.
We have taken serious note of the fact that despite such close relationship the appellant has not so far been forgiven by his own brother. This shows that the murder of deceased and an attempt on the life of his real brother by the appellant is an unforgiveable even by his own blood relation.
We have also failed to agree with the arguments of the learned counsel for the appellant that the prosecution has failed to prove the motive set up in this case and infact he was substituted by actual killer. The motive in this case was stated by the complainant and real brother of the appellant, who were in best position to state about the same due to the close relationship with the deceased and the appellant. The motive is not only set up by the prosecution that a dispute was over a plot but the appellant/accused himself relied on a copy of plaint Ex.PB in his defence reflecting that he himself instituted civil suit against Shakeel Ahmad, deceased, Abdul Mughal, deceased, Mazhar Mehmood, injured (PW.12) and others. As regard the false implication it can never be expected from the complainant Shaukat Mehmood, (PW.13) that he would let off the actual culprits and would involve an innocent person. In this unfortunate occurrence, real brother Mazhar Mehmood, (PW.12) deposed against appellant/accused. It is also observed that a criminal case involving a capital charge cannot be decided on mere hypothetical possibilities which are devoid of any proof of substance, thus, finding no extenuating circumstances in this case warranting reduction of the sentence passed against the appellant by the learned trial court.
12 We have also given our anxious consideration to the question of sentence is to be passed against the appellant for offences under Sections 324/337-L(2), P.P.C. In this context, we are mindful of the aspect that appellant has acted in a cruel and brutal manner in quenching his thirst of vengeance against innocent persons. He did not even spare his own brother. According to the medical evidence available in this case, the appellant caused injuries with firearm weapon on the person of Mazhar Mehmood (PW.12). We, therefore, uphold and maintained the conviction and sentence under section 324/337-L(2), P.P.C. Passed by learned trial court. The sentences shall run concurrently and he shall be entitled to the benefit under section 382-B, Cr.P.C. In this regard.
13. For what has been discussed above, we are of the considered view that prosecution, by producing cogent, concrete, and consistent and trust worthy evidence, able to establish that appellant, Muhammad Akhtar has committed brutal and merciless Murder of two innocent persons and even he did not spare his own brother. Therefore, head of charge under section 302b) of Pakistan Penal Code, 1860, for Qatl-i-Amd of Shakeel Ahmad and Abid Mughal (deceased) is proved against the appellant.
14. For the foregoing reasons, Criminal Appeal No, 67-J of 2011 filed by Muhammad Akhtar, appellant is dismissed, his conviction for an offence under section 302(b), P.P.C. Is upheld and the sentence of death as well as the order of payment of compensation passed against him by the learned trial court is maintained.
15. As the sentence of death passed by the learned trial court against Muhammad Akhar, appellant has been confirmed by us, therefore, Murder Reference No, 71 of 2011 is hereby answered in the