' JUSTICE RAJA AFRASIAB KHAN (MEMBER).---Lal Din alias Lalu (30) and Rehmat Ali alias Rehmoo
(26) ( both hereinafter shall be called as Lal Din and Rehmat Ali, respectively), were convicted under section 302(b)/34, P.P.C. By the learned Judge Special Court for Speedy Trials, Multan, on 26- 10-1993. Lal Din was sentenced to death while Rehmat Ali was sentenced to imprisonment, for life, for the 'murder of Saleh Muhammad (30). Mushtaq Ahmad and Muhammad Tufail, co-accused, were, however, acquitted by the learned Judge vide the same judgment by giving them the benefit of doubt. The convicts have challenged their conviction and sentence by filing this appeal before this Court. It shall be decided through this judgment.
2. The necessary facts are that on 8-2-1993 at 9-00 a.m., the complainant, Muhammad Malik, his son Saleh Muhammad (deceased) and their relatives Muhammad Boota, Maqbool Ahmad, Muhammad Siddique and Mst. Parveen alias Peeno, came to District Courts to attend a case which was fixed before the learned Sessions Judge, Pakpattan Shard. The said case was registered against Saleh Muhammad and Mst. Parveen under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. At about 10-30 a.m. When the case was not yet called out for its hearing, Saleh Muhammad went to stand near the cause list on a metalled road in front of the Court-room. The complainant and his companions were also standing nearby and waiting for the turn of the case. All of a sudden, Lal Din, Rehmat Ali (armed with .12 bore pistols alongwith bandoliers hanging on their shoulders) and Muhammad Tufail (armed with Rifle 7-MM) emerged at the scene. Muhammad Tufail shouted that they had come to take revenge of the murder of brother of Mushtaq Dogar and also exhorted his companions that Saleh Muhammad should no more be left alive. Lal Din fired which hit Saleh Muhammad on the right side of his back. Second shot was fired by Rehmat Ali at Saleh Muhammad but in the meantime, he had fallen on the ground and as such it luckily missed the target. The complainant party tried to apprehend the accused but they ran away with their weapons. Muhammad Malik and Maqbool Ahmad stayed back to take care of the injured while Muhammad Siddique, Muhammad Boota and police officials Ghulam Muhammad 53/C-11, Muhammad Najeeb C-93, and Mumtaz Hussain C-251, hotly chased the assailants. In turn, the accused fired at the police party but they remained unhurt. Lal Din and Rehmat Ali were apprehended alongwith their weapons immediately after the incident at a short distance from the place of occurrence. Muhammad Tufail, however, succeeded in running away with his weapon.
' The motive is that about 6/7 years ago, Muhammad Iqbal, a brother of Mushtaq Dogar was murdered in which case, as a result thereof, Muhammad Jafar, a brother of Saleh Muhammad, had already been undergoing sentence in Sahiwal Jail. About 4/5 years ago, Saleh Muhammad too was injured by the relatives of Mushtaq Dogar and due to their fear, he left his village and settled in Chak No,35/SP. Mushtaq Dogar, in order to take revenge of the murder of his brother, Muhammad Iqbal, had pre-planned and in consequence thereof the murder of Saleh Muhammad took place.
3. Qasim Ali Shah S.I. (P.W.9), investigated the case. On 8-2-1993, he went to the spot after receiving information about the incident. Saleh Muhammad injured had already been shifted to the hospital before his arrival. He recorded the statement of the complainant. Ghulam Muhammad, Najeeb and Mumtaz F.Cs., Boota and Siddique, in the meantime, apprehended Lal Din and Rehmat accused and produced them before the Police Officer. The accused were holding their weapons and the bandoliers at the time of their arrest. The bandolier of Lal Din contained 7 cartridges while that of Rehmat Ali contained 6 cartridges. The weapons (P8) and (P9), bandoliers (P25) and (P26) and the cartridges (P12 to P18 and P19 to P24), respectively, recovered from Lal Din and Rehmat Ali, were taken into possession vide memos. Exh.PH and Exh.PN. Two empties (P10 and P11) were picked up from the spot and kept into a sealed parcel. Blood-stained earth was collected by the investigator vide memo. Exh.PM. The inquest report (Exh.PE) and injury statement (Exh.PO) were prepared. The last worn clothes of the deceased, Shalwar (P1), Shirt (P2) and Vest (P3), were taken into possession vide memo. Exh.PK. A phial containing pellets was taken into possession by the police. Site plan (Exh.PC) and its duplicates Exh.PC/1 and Exh.PC/2), were prepared by Farooq Ahmad, Draftsman P.W.2 on instructions of the investigator.
' The reports of the Chemical Examiner (Exh.PT) and that of Forensic Science Laboratory (Exh.PU), were opined to be positive.
4. Dr. Faqir Muhammad who conducted the post-mortem examination upon Saleh Muhammad had left for America and as such Saeed Ahmad, a dispenser (P.W.3) appeared and deposed that he personally knew his signatures and handwriting and that the certificate (Exh.PD) and the postmortem report (Exh.PF) were written by him. They were also signed by the said Doctor.
5. Eye-witness account was furnished by Muhammad Malik (P.W.4) and Muhammad Siddique (P.W.5). Lal Din appellant denied the allegations in his statement under section 342, Cr.P.C. He stated that he had been implicated due to suspicion and that he was innocent. He claimed that he was apprehended and brought from his village and that he was falsely shown to have been arrested from the spot with his weapon. A similar statement was made by Rehmat Ali.
6. The learned trial Judge believed the motive, ocular account and the recovery of crime weapons and, therefore, convicted and sentenced the appellants as already detailed above.
7. It is forcefully contended by the learned counsel that the evidence of Dr. Fakir Muhammad was not proved in accordance with law inasmuch as it was not shown that the doctor had gone out of Pakistan and that he was not available to give evidence. According to him, the process-server should have been produced to prove that service upon the said doctor was not possible because he had already left for abroad. He, therefore, requests for setting aside the conviction and sentence and remanding the case to the learned trial Judge for proceeding further with it according to law.
This is what was argued by the learned counsel, in all. Learned counsel had, however, conceded and stated that he was unable to show anything from the record that the appellants were not arrested from the spot soon after the occurrence. The learned Law Officer argues that the F.I.R. Was lodged promptly and that there was overwhelming evidence to justify the conviction and sentence, in the given facts and . Circumstances of this case.
8. We have heard the learned counsel for the parties at some length and have also read the whole record with their assistance. Muhammad Malik P.W.4 is father of the deceased. Saleh Muhammad (deceased) was accused in a Hudood case and as such Muhammad Malik being father and Muhammad Saddique, being a close friend of the family, were naturally present within the premises of District Courts Pakpattan Shareef on the day of occurrence to render him support in the criminal case. This being so, the presence of P.W.4 and P.W.5 in a case like this, is nothing but natural at the spot. It is common that close relatives and fast friends do accompany the people who are engaged in such-like criminal litigation in our social set-up. We, therefore, hold that the P.Ws. Were present and saw the occurrence. Both of them deposed that it was Lal Din who fired and injured Saleh Muhammad. Similarly, they stated that Rehmat Ali fired from his weapon which luckily missed the target. Their evidence inspires confidence. The most important aspect of the case is that both the appellants were apprehended with their weapons soon after the murder by witnesses from near the place of occurrence. The empties recovered from the spot were opined by the expert to have been fired from the weapons so recovered from the appellants. The recovery of the weapons from the appellants was proved beyond doubt. As a matter of fact, it was also not challenged by the learned counsel. It may be important to observe that Mumtaz Head Constable (P.W.6) was posted and working as a Naib Court in the Court of learned Sessions Judge. According to his evidence, he heard the sound of firing and immediately came out. He saw Saleh Muhammad lying in an injured condition in front of the Court-room while the accused were running from the spot with their weapons. He testified that he alongwith P.Ws. Chased and apprehended the accused almost at the spot. His evidence also being natural does inspire confidence. The eye- witness account stood corroborated by the recovery of weapons from the appellants. The objection that the medical evidence was not proved in accordance with law is misconceived because Saeed Ahmad, Dispenser (P.W.3) testified that it was in his personal knowledge that Dr. Faqir Muhammad had left for America and was not available in Pakistan to give evidence. This witness had been working with Dr. Faqir Muhammad and as such fully knew his writings. He accordingly identified the handwriting and signatures of the doctor on the medical certificates. We are inclined to believe the evidence of abovesaid dispenser in the peculiar facts and circumstances of this case. The objection thus fails and hereby turned down.
9. It is a case of broad daylight occurrence having taken place right in front of temple of justice. No case for award of lesser sentence to Lal Din has been made out. He undoubtedly acted in a dare devil way and as such deserves no leniency at all.
10. the upshot of the above discussion would be that the appellants were convicted and sentenced appropriately. There is thus, no substance in the appeal which is hereby dismissed.