ASJAD JAVAID GHURAL, J.---Through this appeal, appellants Muhammad Yousaf, Ghulam Shabbir, Zafar Iqbal and Munir Ahmad have challenged the vires of judgment dated 30.04.2014 passed by the learned Additional Sessions Judge, Kabirwala in case FIR No,225 dated 22.07.2007, in respect of offences under Sections 302/449/148/149, P.P.C., registered at Police Station, Sarai Sidhu Kabirwala whereby they were convicted and sentenced as under:-- Under Section 302(b) read with Section 149, P.P.C.
Imprisonment for life each with the fine of Rs,100,000/- each for committing the murder of Muhammad Nawaz deceased, which shall be recoverable as Land Revenue.
Under Section 302(b) read with Section 149, P.P.C.
Imprisonment for life each with the fine of Rs,100,000/- each for committing the murder of Talib Hussain deceased, which shall be recoverable as Land. Revenue.
They were held entitled to the benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as narrated in FIR (Ex. PI) registered on the complaint of Muhammad Iqbal (PW-5) are that on 22.07.2009 at 1 O'clock (midnight), he along with Muhammad Ajmal and Noor Muhammad was busy in conversation on the roof of his house whereas Muhammad Nawaz, father and Talib Hussain, paternal uncle of the complainant .Were sleeping in the courtyard of the house when suddenly Umar Daraz armed with rifle .444-bore, Muhammad Yousaf armed with gun .12- bore, Muhammad Nawaz armed with rilfe .444-bore, Ali Sher armed with gun .12-bore, Ghulam Jafar armed with repeater 12-bore, Zafar armed with repeater .12-bore, Munir and Kalu armed with repeaters and Nazar armed with hatchet trespassed by scaling over the wall into the house of the complainant. Umar Daraz and Muhammad Yousaf raised Lalkara to teach them a lesson for committing the murder of Nazar Muhammad alias Naji. The complainant along with Noor Muhammad and Muhammad Ajmal saw the appellants and their co-accused in the courtyard in the light of gas. In their view the fire shots of Umar Daraz and Ghulam Jafar landed on the left foot, the fire shot of Muhammad Yousaf landed on the left arm, the fire shot of Muhammad Nawaz landed on the left thigh, the fire shot of Ali Sher landed on left side of abdomen, the fire shot of Zafar on buttock, the fire shots of Munir and Kalu landed on the right calf and right foot of Muhammad Nawaz, father of the complainant. The fire shots of Muhammad Nawaz hit on the abdomen and left thigh, the fire shots of Ghulam Jafar landed on the left calf and right thigh of Talib Hussain, paternal uncle of the complainant. The complainant as well as the witnesses kept on lying on the roof owing to fear. On report of firing, people of the vicinity gathered there whereupon all the accused persons fled away from the spot. They attended Muhammad Nawaz and Talib Hussain, who had succumbed to the injuries at the spot.
Motive behind the occurrence was that the complainant party had a long standing enmity of murder and dispute over a piece of land with the accused persons.
3. Firstly the charge was framed against appellants Muhammad Yousaf and Ghulam Shabbir alias Kaloo on 17.12.2008. On the arrest of appellant Zafar, the charge was framed afresh against said three appellants on 28.07.2009 and three prosecution witnesses were examined. In the meanwhile on the arrest of appellant Munir, all the four appellants were charged jointly on 08.02.2011.
4. To prove the guilt of the appellants, the prosecution had produced 14-witnesses. Dr. Muhammad Maqbool (PW-4) conducted the post-mortem examination on the dead bodies of deceased Muhammad Nawaz and Talib Hussain and observed 9-fire arm injuries on the dead body of Muhammad Nawaz and four fire arm injuries on the dead body of Talib Hussain.
5. Muhammad Iqbal (PW-5) and Muhammad Ajmal (PW-6) furnished the ocular account. Ahmed Yar, Inspector (PW-9) and Iftikhar Ahmed, S.I. (PW-10) had conducted the investigation. Remaining witnesses are more or less formal in nature.
6. On completion of prosecution evidence, statements of the appellants were recorded under Section 342, Cr.P.C., wherein the entire prosecution evidence was put to them to which they denied the charges leveled against them and professed their innocence. The appellants neither opted to appear under Section 340(2), Cr.P.C. In their own defence nor produced any witness in their defence.
7. The trial Court, after hearing learned counsel for the parties convicted and sentenced the appellants supra vide impugned judgment dated 05.04.2011. Hence, this appeal.
8. Learned counsel for the appellants has submitted that it was a night occurrence and no one had seen the same with his own eyes being blind murder; that in the crime report Ex.PI, nine accused persons had been nominated with their respective roles, which could not be possible to specify the accused along with their respective weapons and the role assigned to them at odd hours of night; that four accused persons are still at large whereas Muhammad Yousaf one of the appellants was declared innocent during course of investigation, which cast doubt in the veracity of prosecution witnesses; that the eye-witnesses are closely related inter se and being interested one had the reason to falsely implicate the appellants in the alleged offence; that the weapons of offence, which were shown to be recovered from the appellants Ghulam Shabbir, Munir and Zafar were found not wedded with the crime empties secured from the place of occurrence and in this regard no positive report of ballistic expert is available on record, even otherwise, the recoveries were effected after more than one year of the alleged occurrence, which are inconsequential. Lastly, learned counsel prayed for the acceptance of instant appeal and acquittal of the appellants.
9. In contra, Deputy District Public Prosecutor appearing for the State assisted by learned counsel for the complainant had vehemently opposed the contention's raised by learned counsel for the appellants with the submissions that the appellants along-with their co-accused (since P.Os) trespassed into the house of deceased, assaulted upon them and committed the murder of Muhammad Nawaz and Talib Hussain; that the prosecution witnesses PW-5 & PW-6 are quite natural and consistent in their depositions with regard to the injuries specifically attributed to the appellants and their co-accused (since P.O.$) and the whole occurrence had been seen by them in the light of gas lamp, which had lit there. He further adds that the motive has specifically been attributed to the appellants and recoveries of respective weapons of offence have been effected on their instance, which lends support to the prosecution version; it could not be expected from a real son to let off the real culprits in the murder of his father and uncle and to implicate innocent person at their place; the evidence of the prosecution is consistent and the occurrence has been proved beyond any reasonable doubt. In the end, they requested for dismissal of instant appeal.
10. I have heard learned counsel for the appellants, learned Deputy District Public Prosecutor appearing for the State assisted by learned counsel for the complainant and have perused the record.
11. The prosecution case is based on the eye-witness account furnished by Muhammad Iqbal (PW- 5) and Muhammad Ajmal (PW-6), medical evidence furnished by Dr. Muhammad Maqbool (PW- 4), motive and the recovery of weapons of offence from the appellants.
OCULAR ACCOUNT
12. The ocular account has been furnished by Muhammad Iqbal (PW-5), who deposed that he along-with Muhammad Ajmal (PW-6) was sitting on the roof of his house and they were busy in talking whereas Muhammad Nawaz, his father and Talib Hussain, his uncle were sleeping in the courtyard of the house. All of a sudden, the appellants along-with their co-accused trespassed into their house and assaulted upon Muhammad Nawaz and Talib Hussain. He specifically attributed firearm injuries i,e, Muhammad Yousaf (appellant) fired with his 12 bore gun, which hit on right arm of Muhammad Nawaz (deceased). Zafar Iqbal (appellant) fired with his repeater, which landed on left lumber region of Muhammad Nawaz. Munir and Ghulam Shabbir alias Kaloo (appellants) fired with their respective weapons, which landed on left leg, claf and right foot of Muhammad Nawaz whereas Muhammad Nawaz and Ghulam Jafar (since P.Os.) made fire shots upon Talib Hussain (deceased). On their hue and cry, people of the vicinity attracted at the place of occurrence. The appellants with their co-accused fled 'away from the scene of occurrence with their respective weapons. Both Muhammad Nawaz and Talib Hussain had succumbed to the injuries at the spot. Muhammad Ajmal (PW-6) deposed exactly in line and corroborated the stance taken by PW-5. They remained consistent on all material particulars with regard to the time, place, mode and manner of occurrence committed by the appellants with their co-accused. They had explained each and every limb of occurrence. They remained consistent on the point that they had seen the occurrence in the light of gas, lit at the venue of occurrence. This fact finds support from site plan Ex.PB where the source of light was mentioned at Point No,7. They had faced lengthy cross-examination but the defence could not extract anything favourable to the appellants.
Learned defence counsel specifically questioned the residence of the complainant (PW-5), upon which he clarified that he resided in a house adjacent to the house of Muhammad Nawaz (his father). He further stated that though they have separate houses yet their roofs were adjacent to each other. Muhammad Ajmal (PW-6) was also cross-examined on this fact, who deposed that he was residing at a distance of fifteen feet away from the house of complainant towards western side. He described that at the relevant time 35 to 40 persons from surroundings reached at the place of occurrence in a short span of time. During cross-examination, the witnesses were not cross-examined qua the role of appellants and seat of injuries. Both the parties were admittedly known to each other and there was no question of misidentification of the assailants at the venue of occurrence. After lengthy cross-examination, the defence has totally failed to shatter the credibility of both the eye-witnesses. The prosecution has successfully proved the ocular account as to time, place of occurrence and the names of accused persons with their respective roles in minute detail. The prosecution successfully proved the charge against the appellants though confidence inspiring and reliable evidence, the same is believed to be truthful.
MEDICAL
13. Dr. Muhammad Maqbool (PW-3) conducted postmortem examination of both the deceased.
Muhammad Nawaz had sustained nine whereas Talib Hussain deceased had sustained four firearm injuries. The specific attribution to the appellants with regard to the seat of injuries is corroborated with the deposition of medical expert and all the injuries attributed to the appellants are available in the post mortem examination reports. It was opined by the doctor that "all the injuries were collectively sufficient to cause the death due to hemorrhage and shock", which proves that the injuries caused by the appellants were contributory to the other injuries caused by their companions and all the injuries were collectively sufficient to cause death of the deceased. The medical evidence is in line with the ocular account.
MOTIVE
14. Motive as set up by the prosecution in the crime report was that earlier there was enmity of murder and dispute over land amongst complainant and the accused party. To prove the same prosecution has produced Muhammad Iqbal (PW-5) and this fact has also been admitted by the defence while having cross-examined PW-5 on the score that Nazar Hussain alias Najji was murdered, who was real maternal uncle of appellants Munir and Ghulam Shabbir and brother of appellant Munir Ahmad. It is an admitted fact that case FIR No,104/2007 in respect of an offence under Section 302, P.P.C. Registered at Sarai-Sidhu against two sons of Muhammad Nawaz deceased, who were facing the trial in the days of occurrence. Wive of the occurrence has successfully been proved by the prosecution; rather it has been admitted in so many words by the defence.
RECOVERY
15. During the course of investigation, .12-bore gun was recovered from Ghulam Shabbir alias Kaloo, by Ahmad Yar, SI (PW-9) .12-bore pump action from appellant Munir and a repeater .12-bore from appellant Zafar by Abdul Haye, SI (PW-8). All the weapons were taken into possession by the Investigating Officer vide recovery memos Ex.P-J. Ex.P-K and Ex.PA, which were proved by the prosecution through unshattered confidence inspiring evidence. It has been observed that the crime weapons were not wedded with crime empties and no positive report is available to that effect, which could be connected to be used in the instant occurrence. The recovery of weapons of offence from the appellants has become inconsequential in the circumstances and could not lend support to the prosecution version. It is observed that no recovery had been effected from appellant Muhammad Yousaf, who was found to be not involved in the alleged occurrence during course of investigation by the Investigating Officer. Moreover, that being so, the recovery of weapon of offence and positive report thereof is always considered to be a supporting evidence and its negation could not discard the veracity of evidence adduced in support of prosecution.
CONCLUSION 16.Having scanned the entire prosecution evidence, I am of the considered view that the prosecution has successfully proved the charge levelled against the appellants. Though Muhammad Yousaf appellant was been found to be not involved in the alleged occurrence by the Investigating Officer, yet ipse dixit of police opinion is not binding upon the Court, if otherwise offence is proved through cogent and reliable evidence produced by the prosecution. Both the witnesses were resident of same street especially Muhammad Iqbal PW-5, who was resident of the adjacent house and was busy in talking, at the roof top, with Muhammad Amjad (PW-6) and Noor Muhammad (since given up PW) having their residence at a few paces from the place of occurrence and was present on the roof of deceased Muhammad Nawaz (father of the complainant) in the month of July, which are quite usual in the month of July in rural areas, when the appellants along-with co-accused (since P.Os) trespassed into the house of Muhammad Nawaz by scaling over the wall in furtherance of their common intention and committed the murder of Muhammad Nawaz and Talib Hussain (real brothers) mercilessly and the role assigned to the appellants has specifically been attributed to them while viewing the science of occurrence in the light of gas lamp. It is to be noted that none of the appellants caused injury to Talib Hussain deceased but even then they are equally liable for the murder of both the deceased in furtherance of their common object as well. Though the said lamp has not been taken into possession by the Investigating Officer even then from the day one, it was a stance of the prosecution that the occurrence had taken place in the light of gas lamp. No one could entangle any innocent persons in place of real culprit in the murder of his real father and uncle. Motive behind the occurrence has been established and due to said motive, the appellants had committed the murder of both the deceased. The occurrence has been proved by the prosecution through consistent, reliable and confidence inspiring evidence.
17. Nutshell of above discussion is that the appeal of the appellants Muhammad Yousaf, Ghulam Shabbir, Zafar Iqbal and Munir Ahmad is without any merit, the same stands dismissed.