' SAJJAD ALI SHAH, C.J.---This appeal is directed against the judgment of the Lahore High Court whereby appeal of 3 appellants named above is dismissed and their convection and sentences recorded for offence under sections 302, 307/34, P.P.C. Are upheld and sentence of death awarded to Safdar Ali and Yaseen is confirmed. Appellant Nawaz is sentenced to life imprisonment. By the same judgment four other co-accuseds have been acquitted. In fact seven accused persons were put on trial for offences under sections 302, 307, 148, 149, P.P.C. For having committed double murder and causing injuries to complainant Mumtaz in the result of shooting. High Court has disposed of the appeal partly allowing and partly dismissing the same as stated above with modification of altering the conviction from section 149 to 34, P.P.C. And recording acquittal under section 148, P.P.C. On account of reduction of number of assailants from seven to three.
2. Trial Court convicted all the seven accused for offence under sections 302/307/148/149, P.P.C.
And sentenced each to R.I. For 3 years and fine of Rs,500 or in default R.I. For six months under section 148, Safdar Ali was sentenced to death and fine of Rs,10,000 and in default R.I. For four years and compensation of Rs,10,000 to be paid to the legal heirs of deceased Jalal Din or in default R.I.
For six months. He was convicted for offence under section 307/149, P.P.C. And sentenced to R.I. For five years and fine of Rs,2,000 or in default R.I. For one year. Yaseen was sentenced to dealt for causing murder of Mst. Manzooran and fine of Rs,10,000 or in default R.I. For four years and compensation of Rs,10,000 to be paid to the legal heirs of Mst. Manzooran or in default R.I. For six months. He was convicted under section 307/149, P.P.C. And sentenced to R.I. For five years with fine of Rs, 2,000 or in default R.I. For one year. Trial Court convicted and sentenced Arif, Kaley Khan, Nawaz, lqbal and Riaz for offence wider section 302/149, P.P.C. And sentenced each to life imprisonment and fine of Rs, 10,000 or in default R.I. For four years and compensation of Rs,10,000 or in default R.I. For six months. Iqbal and Riaz were convicted under section 307/149, P.P.C. And sentenced each to R.I. For 10 years and fine of Rs,5,000 or in default R.I. For two years. Arif, Kaley Khan and Nawaz were convicted for offence under section 307, P.P.C. And sentenced each to R.I. For five years and fine of Rs,2,000 or in default R.I. For one year. Trial Court further directed that all the sentences awarded shall run concurrently. Reference was made to the High Court for confirmation of death sentence in respect of two as mentioned above.
3. Briefly stated the relevant facts in the background are that incident took place on 20-6-1987 at 10-00 a.m. When complainant Mumtaz, who was student of 10th class was returning to village alongwith his uncles Jalal Din and Muhammad Din, sister-in-law Mst. Manzooran and cousin Bagh Ali and when they reached opposite Dhari of Chiragh Din on Kucha Path, all of a sudden seven persons came out from reed bushes of watercourse, Arif and Kaley Khan were armed with rifles while Safdar, Nawaz, Riaz Iqbal and Yaseen had guns. Kaley Khan fired with gun at Mst. Manzooran which hit her on left arm and she started running back. Nawaz and Yaseen stopped her and Yaseen fired at her chest. Nawaz fired a shot which hit her on her left hand. Arif fired from his rifle at Jalal Din, who was hit on left leg. Safdar also fired at Jalal Din, who was hit on the face. Riaz and Iqbal fired and shot of Iqbal hit complainant on his abdomen and shot of Riaz hit on his right wrist.
Thereafter accused persons ran away brandishing their weapons and raising Lalkaras. On reaching near, complainant found Mst. Manzooran and Jalal Din lying dead having succumbed to their injuries. Incident was seen by Bagh Ali and Muhammad Din. Motive is stated in F.I.R. That three years prior to the incident, brother of Arif was murdered and in that case father of complainant and his uncle deceased Jalal Din and Bagh Ali and Liaqat Ali were put on trial but were-acquitted by the Sessions Court and for that reason accused persons felt aggrieved and committed murders. It appears from the contents of F.I.R. That statement of complainant was recorded by S.H.O. Iftikhar Ahmed Punoo, who had reached the spot after the incident and brought with him appellants namely Safdar, Yaseen and Nawaz, who were apprehended by S.H.O. On the way while they were running away from the spot after the incident. Weapons of the appellants were also recovered.
4. S.H.O. Iftikhar Ahmed Punoo deposed before the Trial Court as P.W.9 that on the day of incident he was posted at Police Station Hujra Shah Moqeem and during the patrol duty alongwith other constables when he reached Chak Kambo, he heard reports of fire arms. He saw three persons running alongwith weapons and he alongwith Police party chased them and caught them. He recovered weapons from them which he handed over to a constable and brought them to the spot, where he recorded statement of complainant, Mumtaz, who was in injured condition. He sent the statement to police station for registration of formal F.I.R. He sent complainant to hospital for medical examination and treatment. He secured dead bodies of Jalal Din and Mst. Manzooran and sent them for post-mortem examination. He put into sealed parcels ' fire-arms recovered from three accused persons, who were apprehended while running away from the spot. He took blood- stained earth and put it into sealed parcels. He recovered eight crime empties from the spot from which three were of 7 M.M. And five of .12 bore which were put into sealed parcel. Kaley Khan and lqbal were arrested on 21-6-1987 and thereafter Riaz and Arif were also arrested on other dates.
After completion of investigation, challan was presented in the Court.
5. In the Trial Court prosecution examined nine witnesses in support of its case. P.W.1 is Noor Muhammad, F.C. Who delivered seven sealed parcels to Chemical Examiner and Forensic Science Laboratory. P.W.2 Muhammad Sardar escorted dead bodies to hospital for post-mortem examination and brought clothes of deceased. P.W.3 is Patwari Zahoor Ahmed Shah, who prepared site plans. P.W.4 is Dr. Zakar Hussain, who examined injuries of complainant Mumtaz Ahmed and conducted post-mortem examination of dead bodies of Jalal Din and'Mst. Manzooran. P.W.5 is A.S.- I. Ahmad Ali, who registered formal F.I.R. At Police Station Hujra. He also received sealed parcels which he kept in Malkhana and handed over them to Noor Ahmad, F.C. For onward transmission to the Laboratories. P.W.6 complainant Mumtaz Ahmed and P.W.7 Bagh Ali are the eyewitnesses from whom former was injured during the incident. P.W.8 Liaqat Ali is recovery witness in whose presence three appellants were apprehended and their weapons were recovered. P.W.9 is S.H.O.
Iftilchar Ahmad Punoo who has investigated the case as mentioned above. Prosecution produced reports of Chemical Examiner and Serologist and that of fire arm expert. Trial Court recorded statements of accused persons under section 342, Cr.P.C. In which prosecution allegations are denied and claim is made that they have been implicated in the case falsely by prosecution witnesses. Most of them declined to give evidence as witnesses under section 340(2), Cr.P.C.
However, record shows that two witnesses were examined in the Trial Court as defence witnesses.
D.W.1 is Dr. Zakar Hussain, who was previously examined by prosecution as P.W.4 and was subjected to cross-examination. Counsel Incharge objected to the examination of this doctor as defiance witness on the ground that he could not be examined as defiance witness and the Trial Court deferred consideration of this objection till the stage of arguments and observed that if the objection was sustained, consideration of evidence of this witness as defense witness would be excluded. One question was put to him in examination-in-chief as D.W. To the effect whether a person after receiving injury on the chest from fire-arm could run away and he replied that he could not do so if the heart was punctured. D.W.2 is Dr. Mumtaz Ali, who deposed that he examined appellant Safdar Ali and found that his right leg was amputated with stump at thigh, which incapacitated his walking movements which could be ,"-clone with support.
7. On appeal, High Court has acquitted Arif Ali, Kaley Khan, Iqbal and Riaz mainly for the reasons that there was enmity between the parties and both eye-witnesses were interested and their testimony required independent corroboration qua each accused which was not available in respect of them, and recovery evidence against them was defective. As per F.I.R. Kaley Khan and Arif were armed with rifles but this version was changed by eye-witnesses in the Trial Court when it was found that injuries allegedly caused by Kaley Khan to Mst. Manzooran, were pellet injuries. High Court was not impressed by the evidence of eye-witness Bagh Ali for the reasons that he was named as accused and put on trial in previous murder case of Warns and was acquitted and had he been present at the spot he would have been killed as his wife Mst. Manzooran was killed.
Secondly his explanation that he had gone to the house of goldsmith for getting a ring. His name is Peeran, who was not available at his residence. The goldsmith was not examined as witness in support of claim. High Court accepted, evidence of complainant Mumtaz Ahmad in spite of the fact that he is an interested witness because his testimony received corroboration in respect of three appellants before us, whose appeal was dismissed. Such corroboration is available firstly in the shape of circumstantial evidence that the three appellants were arrested after the occurrence while they were running away from the spot and their weapons were recovered. Secondly crime empties recovered from the spot were sent alongwith weapons recovered from three appellants before us and according to report of ballistic expert, two crime empties matched with gun of Safdar and three matched with rifle of Yaseen. In connection with recovery evidence of S.H.O. Has been relied upon as sufficient. Thirdly there is background of enmity as revenge was taken on account 'of acquittal of deceased Jalal Din and others in the. Murder case of Warfis, brother of Safdar Ali.
8. It was argued before us by the learned counsel for the appellants that so far appellant Yaseen is concerned, as per F.I.R. He was armed with gun but at the time of arrest rifle was recovered from him and on that point there was change in the version of eye-witnesses in the Trial Court who claimed that Yaseen was armed with rifle hence evidence on that point arid report of positive finding of ballistic expert in respect of weapons of Yaseen should not be relied upon. Even if there is some doubt with regard to this effect whether Yaseen was armed with gun or rifle and there was change of version in that respect in the Trial Court by eye-witnesses, but the fact remains that these three appellants were apprehended immediately after the occurrence while they were running away from the spot along with their weapons which were recovered and there is nothing in the evidence to cast doubt on this piece of circumstantial evidence. When confronted with the situation, learned counsel for the appellants submitted before us that factum of arrest as claimed by the prosecution has been seriously disputed by the defense and according to the appellants they were arrested on the following day from their houses and weapons were foisted upon them. It appears that in the statements under section 342, Cr.P.C. No such plea was taken by the appellants that they were not arrested as claimed by the prosecution but from their houses on the following day of incident. Had this plea been correct they would have stated so specifically and categorically in their 342, Cr.P.C. Statements and would have suggested this plea to the eye-witnesses and S.H.O.
Suggestive question was put to S.H.O. At the end of cross-examination that accused persons were not present at the time of occurrence but defiance plea as such that three appellants were not apprehended after the incident while running away from the spot but were arrested from their houses on the following day was not put to S.H.O. Of course it is the duty of the prosecution to prove the case against accused beyond doubt but there was nothing to prevent the appellants from producing witnesses in support of defiance plea that they were arrested from their houses on the following day of incident but it was not done.
9. On the point of arrest and recovery of weapons from appellants some contradictions were pointed out in the evidence of witness Liaqat Ali and S.H.O. As according to Liaqat accused persons stopped running when asked by the police to stop but according to S.H.O. They chased the appellants and then succeeded in apprehending them. We see no reason to disbelieve the testimony of S.H.O. On this point particularly when there is no enmity alleged by the appellants against S.H.O., who apprehended them and appellants have been unable to show that this claim was factually incorrect. It was argued that Safdar Ali was lame and his leg was cut off from thigh henbe it was not probable that he could have participated in the alleged crime and could have run and been apprehended after chase by police. Argument is of hypothetical nature and cannot be considered in the light of physical facts that Safdar Ali was seen running away with the help of crutch (Basakhi) and S.H.O. Has stated so specifically in his evidence. Amputation of leg could not prevent the appellant from firing with his hands as is claimed by the prosecution. It was contended that hard stool was found in the intestines of both deceased persons as per postmortem report from which it appears that murders were committed in the early hours of morning and appellants were falsely implicated due to enmity. It appears that doctor who conducted post-mortem examination was not cross-examined on this point in spite of the fact that he was examined on two occasions once as P.W. And second time as D.W. It may be pointed out that Mst. Manzooran first received gunshot injury on her arm and then she ran and sustained second fire-arm injury on her chest, hence examination of doctor against on that point was not necessary because she ran after first injury on the arm and injury on chest was after she was stopped and second time shot was fired at her which resulted in the injury on the chest.
10. Learned counsel for the appellants has informed this Court that appellant Yaseen died in Jail before the hearing of this appeal. In such circumstances appeal of this appellant stands abated.
We find no reason to interfere with the impugned judgment and in the result the appeal is dismissed as without merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.