TASSADUQ HUSSAIN JILANI, J.--- This judgment shall dispose of Criminal Appeal No,49 of 1994 (filed by the appellants-convicts), Criminal Appeal No,56/J of 1994 (filed by the appellants-convicts from jail) and Murder Reference No, 29 of 1994 which arise out of the same judgment, dated 29-5-1994 passed by the learned Additional Sessions Judge II, Bahawalnagar (in case F.I.R. No,56/93, dated 2- 4-1993 registered under section 302/34, P.P.C. At Police Station Sadar, Bahawalnagar) whereby he convicted Muhammad Bashir, Muhammad Sharif and Nazir Ahmad under section 302/34, P.P.C. For the murder of Muhammad Riaz and while sentencing Muhammad Bashir to death, sentenced Muhammad Sharif and Nazir Ahmad to life imprisonment.
2. The prosecution story as given in the F.I.R. (Exh.P.H.) lodged by Muhammad Hassan (P.W.7), a brother of the deceased recorded by Aftab Hussain, A.S.I. (P.W.10) is that complainant's brother Muhammad Riaz (deceased) had filed a suit against Abdul Ghafoor (brother of Bashir appellant) for the recovery of money. This suit was decreed in his favour. Muhammad Riaz filed an execution petition whereupon Abdul Ghafoor and Muhammad Bashir (appellant-convict) threatened Muhammad Riaz (deceased) to give up the execution proceedings otherwise he would be killed.
' In the forenoon of 2-4-1993, Muhammad Riaz brought a bailiff of the Civil Court and got Abdul Ghafoor arrested. On the same day at about 1-00 p.m. Muhammad Riaz left his house for going to his fields. As he reached in front of the Ihata of Muhammad Shall, Muhammad Bashir armed with a .12 bore double-barrel gun, Nazir Ahmad armed with a .12 bore double-barrel gun and Muhammad Sharif empty-handed, appeared. Muhammad Sharif raised a Lalkara that Muhammad Riaz be taught a lesson. Hearing the Lalkara, the complainant, Mst. Zikran, Muhammad Ashraf and Muhammad Ishaq rushed towards the place of occurrence. Nazir Ahmad and Muhammad Bashir fired at Muhammad Riaz. He received injuries at his jaw and left temporal, left arm and chest. He attempted to run away towards the Ihata of Muhammad Shafi but fell down on the way and succumbed to the injuries after a short while. Having completed their mission, the accused decamped from the spot.
3. After recording the F.I.R., Aftab Hussain, A.S.I. (P.W.10) went to the spot and secured the blood- stained earth vide memo. Exh.P.D. Three .12 bore empties (P.4/1-3) were taken into possession vide memo. Exh.P.E. On 15-4-1993 he arrested Muhammad Bashir appellant who in police custody led to the recovery of .12 bore gun (P.5) which was taken into possession vide memb. Exh.P.F. On 24-5- 1993, he arrested Nazir Ahmad and Muhammad Sharif accused. On 30-5-1993, Nazir got recovered a .12 bore licensed gun (P.7) which was taken into possession vide memo. Exh.P.G. The crime empties and the guns were sent to the Forensic Science Laboratory and the report received is Exh.P.O. Which is positive.
4. During trial, the prosecution produced thirteen witnesses including the doctor and the Investigating Officer. Muhammad Ashraf (P.W.8) is an eyewitness who corroborated the statement of P.W.7 Muhammad Hassan. This witness is brother-in-law of the deceased. (His sister was married to the deceased). Mst. Zikran Bibi appeared as P.W.9. She is the wife of Muhammad Riaz deceased. Her statement was consistent with the statements of Muhammad Hassan (P.W.7) and Muhammad Ashraf (P.W.8) on all material particulars.
' Dr. Muhammad Iqbal appeared as P.W.11. He conducted the postmortem examination of Muhammad Riaz deceased and found the following injuries on his person:-- "(1) An oval shaped wound 3 x 1.05 c.m. Over left temporal area. Margins of the wound blackened and tattooed.
(2) Irregular wound 1 x 6 c.m. At left jaw causing multiple fracture of jaw. It is of exit injury No,1.
(3) An oval shaped wound .5 x .5 c.m. Over medial cantus of left eye.
(4) Bleeding from ,left ear.
(5) An oval shaped wound .5 x .5 c.m. Situated 4 c.m. Below and mid of left clavicle.
(6) A rounded wound 2 c.m. x 2 c.m. Over left side of sternum. Parallel to nipple line. Margins blackened and tattooed.
(7) 4 oval shaped wounds measuring each .5 x .5 c.m. Situated below left nipple.
(8) Two oval shaped wounds .5 x .5 c.m. Over sternal area.
(9) Oval shaped wound .5 x .5 c.m. Lower end of sternum.
(10) Rounded shaped wound 2 x 2 c.m. With surrounding multiple apertures over lateral surface of left arm, causing fracture. Margins blackened.
(11) An irregular wound 6 x 4 c.m. Over medial surface of left arm. It is exit wound of injury No,10.
(12) 4 rounded wound 0.5 x 0.5 c.m. Over left lateral chest below exilla.
(13) Three oval shaped wounds .05 c.m. x .05 c.m. Over anterior aspect of right thigh."
5. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity. He also produced Muhammad Shafi (D.W.1) who stated that Riaz Ahmad deceased was murdered in his Ihata by a man who had muffled his face.
6. The learned counsel for the appellants, in support of his appeal, has urged the following points:--
(i) That a bare reading of the statements of P.W.7 and P.W.8, who claims themselves to be the eye- witnesses reveal that it was a unwitnessed occurrence. The ocular account is to the effect that the accused fired from one side whereas the locale of injuries indicates that the firing was reported to from different directions;
(ii) that the statements of P.Ws.7, 8 and 9 are contradictory which further make the prosecution story doubtful; and
(iii) that the statement of D.W.1 Muhammad Shafi demolishes the prosecution story as the occurrence in question allegedly took place in his Ihata and he gives an entirely different story.
According to him, Muhammad Riaz deceased was done to death by an assailant who had muffled his face."
7. The learned counsel for the State has defined the impugned judgment by submitting that it was a broad daylight occurrence there was no question of mistaken identity, motive has been established, ocular account consists of natural witnesses whose testimony has been corroborated by the medical evidence and the factum of recoveries. The prosecution according to the learned counsel, has proved its case beyond a shadow of doubt and there is no mitigating circumstance to warrant lesser sentence either.
8. We have heard the learned counsel for the parties and have gone through the evidence.
9. This' is a broad daylight occurrence where the F.I.R. Was lodged promptly and specific roles were assigned to the accused. There could be no question of mistaken identity. The ocular account have been furnished by the natural witnesses whose testimony is consistent on material particulars. The motive has not only been proved by P.Ws.7 and 8 but also by an independent witness i,e, Muhammad Sharif (P.W.12) who is a bailiff in the Civil Court. His statement is to the effect that in execution of the warrants of the Civil Court, he arrested the judgment-debtor Abdul Ghafoor in execution of the decree and brought him to the police station. This statement of the bailiff remains unrebutted and stand admitted as this was not challenged through cross-examination. Even otherwise P.W.7, P.W.8 and P.W.9 had no motive to falsely implicate the accused.
10. The learned counsel for the appellants made an abortive attempt to bring out some contradictions between ocular account and medical evidence by saying that Muhammad Riaz deceased received shots from all sides whereas ocular account suggests that he was fired at from one side. A perusal of the statement of P.W.11 Dr. Muhammad lqbal would show that almost all the injuries were on the left side and the seat Qf injuries Nos.8, 9 and 13 would also indicate that the same could have been the result of a fire-arm from the left side. The report of the Forensic Science Laboratory (Exh.P.O.) is to the effect that the empties recovered from the spot were fired from P.5 which is a licensed gun of Muhammad Bashir appellant.
11. The statement of D.W.1 Muhammad Shafi cannot be given much credence for the reason that he is a close relation of Bashir appellant and that he did not appear before the police during investigation to make a statement in defence of the accused.
12. The prosecution case in so far as Muhammad Bashir appellant is concerned, has been proved beyond a shadow of doubt and he has been rightly convicted by the learned trial Court under section 302, P.P.C. And sentenced to death.
13. So far as Muhammad Sharif and Nazir Ahmad appellants are concerned, their case is distinguishable and their involvement in the alleged offence is not free from doubt for following reasons:--
(i) Both Muhammad Sharif and Nazir Ahmad are not connected with the motive part of the prosecution story;
(ii) Muhammad Sharif admittedly came to the spot empty-handed;
(iii) that no specific injury is attributed to Nazir Ahmad appellant;
(iv) that gun (P.7) recovered from Nazir Ahmad appellant was not sent to the Forensic Science Laboratory. In absence of any report from there, the said gun cannot be connected with the commission of alleged offence;
(v) that it is in evidence that during investigation, the matter was referred to a respectable of the locality and he declared Muhammad Sharif and Nazir Ahmad (appellants) to be innocent; and
(vi) that in the initial investigation, Muhammad Sharif and Nazir Ahmad (appellants) were found not to be involved in the alleged occurrence.
14. For what has been discussed above, we are of the considered view that the prosecution has failed to prove the case against Muhammad Sharif and Nazir Ahmad beyond a shadow of doubt.
They are given the benefit of doubt and acquitted.
15. While convicting and sentencing Muhammad Bashir appellant, the learned trial Court did not award any compensation which is a mandatory provision enshrined in section 544-A, Cr.P.C.
Appellant was given notice as to why compensation in terms of the afore-referred provision may not be awarded. Learned counsel for the appellant accepted notice on behalf of the appellant.
Having heard the learned counsel on this point, while maintaining the conviction and sentence of death awarded to Muhammad Bashir appellant, we are inclined to award Rs,1,00,000 (Rupees one lac only) as compensation in default whereof he shall undergo further S.I. For six months. The money if so realised shall be given to the legal heirs of Muhammad Riaz deceased.
16. Criminal Appeal No,49 of 1994, Criminal Appeal No,56/J of 1994 and Murder Reference No,29 of 1994 are disposed of in the above-noted terms.
' Death sentence is confirmed.