TASSADUQ HUSSAIN JILANI, J.---Criminal Appeal No. 43 of 1993, Criminal Appeal No. 46 of 1993 and Murder Reference No. 22 of 1993-BWP arise out of the same judgment, dated 26-4-1993 passed by learned Additional Sessions Judge-I, Bahawalnagar, whereby he convicted the appellant under section 302, P.P.C. (in case F.I.R. No. 60 of 1991 of Police Station Faqirwali, District Bahawalnagar, registered under section 302, P.P.C.) for the murders of Mukhtar Hussain and Muhammad Nawaz and sentenced him (on two counts) to death and Rs.20,000 as fine (on two counts) in default of which to undergo further R.I for two years. The fine, if realised, was directed to be paid to the legal heirs of both the deceased in equal share as compensation.
2. The prosecution story as narrated by the complainant Irshad Ahmad Hawaldar (P.W.6) (Incharge of Rangers Post No.155/1) is that on 2-4-1991 at 11/12(noon) he was present with other officials when Mukhtar Hussain and Muhammad Nawaz deceased and Abbad Khan appellant quarrelled with each other over cutting joke. Both the deceased abused the appellant who left the place but in the evening the Company Commandar succeeded in effecting a compromise among them. The next day i.e. On 3-4-1991 at about 9-00 a.m. Mukhtar Hussain deceased was standing in the office of the Muharrir Muhammad Iqbal when Abbad Khan appellant opened fire at him in consequence of which he died at the spot. On hearing fire shots Muhammad Nawaz deceased came out of his barrack and the appellant also fired at him and he too succumbed to the injuries at the spot. After recording the statement of complainant (P.W.6), Abdul Majeed, A.S.I. (P.W.9) registered the formal F.I.R. (Exh.P.C/1) and proceeded to the spot. He recovered blood-stained earth which was taken into possession vide memo. Exh.P.H. From the place where Mukhtar Hussain deceased was killed and the blood-stained earth from the place where Muhammad Nawaz died was also taken into possession vide memo. Exh.P.J. Five crime empties (P.6/1-5) were taken into possession vide memo.
Exh.P.K. These empties were lying near the place where Mukhtar Hussain deceased died.' He also collected four empties (P.7/1-4) vide memo Exh.PL from the place where Muhammad Nawaz had succumbed to the injuries. The afore-referred recoveries were effected in the presence of Amjad A.I and Azhar Iqbal P. Ws. They were, however, not produced in Court and the only witness of these recoveries produced before the Court was Abdul Majid Chishti, A.S.I. (P.W.9) Rifle (P.8) was produced by the appellant himself in the presence of Muhammad Amjad A.I who was not produced during the trial. The rifle (P.8) and the crime empties were sent to the Forensic Science Laboratory and the report Exh.PQ is to the effect that the said crime empties were found to have been fired from the said rifle.
3. On 6-4-1991, the appellant was produced before the learned Ilaqa Magistrate for recording his statement under section 164, Cr.P.C. And the said statement has been placed on record as Exh.PQ/1.
4. During trial, the prosecution examined nine witnesses including doctor and the Investigating Officer. Syed Intizar Hussain Shah, MIC who recorded the confessional statement of the appellant was summoned as a Court witness.
5. P. W.6 Irshad Ahmad narrated the prosecution story which was consistent with the prosecution case as stated in F.I.R. Exh.P.C./1. His statement was corroborated by P.W.7 Muhammad Iqbal who too is a constable in Rangers. Muhammad Amjad and Azhar Iqbal who were cited as eye-witness were given up as unnecessary. The ocular account was corroborated by the medical evidence, the evidence of recovery of rifle (P.8), the crime empties and the report of the Forensic Science Laboratory which is Exh.PQ.
6. The accused when examined under section 342, Cr.P.C. Denied the prosecution story but could not give any reason as to why he had been implicated. He, however, admitted that on the fateful day and time he heard fire and when he went to the spot, he found Mukhtar Hussain and Muhammad Nawaz dead. As Exh.PQ, the confessional statement of the appellant, was not part of the police file, the same was exhibited as Exh.PQ/1 by summoning Syed Intizar Hussain, MIC whose statement was recorded on 21-4-1993. After recording of his statement, rifle (P.8) and report of the Forensic Science Laboratory (Exh.PQ) were placed on record and the appellant was again examined under section 342 of the Cr.P.C. To put these pieces of evidence to him.
7. The learned counsel for the appellant has raised the following pleas in support of his appeal:---
(i) That P.Ws. 6 and 7 were not present as the medical evidence belies the ocular account;
(ii) In the F.I.R. P.W.6 stated after hearing firing which killed Mukhtar Hussain, Muhammad Nawaz deceased came out from his barrack and there Abbad Khan fired at him. However, in his statement in Court P.W.6 had taken a different position by stating that Muhammad Nawaz deceased was sitting in another room alongwith Amjad and Asghar sepoys and that the appellant fired at him through the window of the said room;
(iii) It is in evidence that the weapon of offence (P.8) does not belong to the appellant and that P.W.6 admits having issued weapons to Afzal and Riaz only; and
(iv) That the appellant never made a confessional statement under section 164, Cr.P.C. And the said statement cannot be used against him.
8. The learned counsel for the State, on the other hand, has supported the impugned judgment by submitting that the motive stands proved; that the ocular account consists of natural and independent witnesses; that the ocular account has been fully corroborated by the medical evidence and the same is further strengthened by the evidence of recovery and the report of the Forensic Science Laboratory connecting the rifle (P.8) and empties with the offence alleged.
9. We have heard the learned counsel for the parties and have also given our anxious thoughts to the points raised before us.
10. The F.I.R. In the instant case was lodged promptly. The complainant (P.W.6) is a Hawaldar in the Desert Rangers and is not related to either of the deceased. No enmity has been attributed to him by the appellant. His statement inspires confidence as the same is consistent with his earlier version given in the F.I.R. The minor discrepancy qua the spot where Muhammad Nawaz deceased was fired at would not make his testimony unworthy of credit as the same is consistent on all material particulars. Muhammad Iqbal (P.W.7) is yet another constable who has fully corroborated Irshad Ahmad (P.W.6). He too is an independent eye-witness. No enmity has been attributed to him by the defence.
11. The medical evidence which is furnished by Dr. Fayyaz Anwar (P.W.8) has lent support to the ocular account as it is corroborative of the same qua the seat, number and the nature of the bullet injuries.
12. It is also in evidence that P.W.9 Abdul Majid Chishti, A.S.I. Had immediately proceeded to the spot.
He recovered the crime empties, made them into a sealed parcel and sent them to the Forensic Science Laboratory alongwith the rifle (P.8). The sealed parcel of blood-stained earth, crime empties and rifle (P.8) were delivered in the offices of the Chemical Examiner and Forensic Science Laboratory by Constable Muhammad Munir (P.W.3) who appeared in Court to confirm this.
13. The prosecution case has been further solidified by the judicial confession made by the appellant which is Exh.PQ/1 and the same has been proved by the statement of Syed Intizar Hussain, MIC who appeared as CW1. An abortive attempt was made by the learned counsel for the appellant to disown this statement but the record is of no help to him. In answer to Q. No. 1, on 21-4- 1994 before the learned trial Court, the appellant stated that on 6-4-1991, he was taken to the house of Syed Intizar Hussain, MIC and there one Captain Idrees got recorded his statement which was neither explained to the appellant nor read over to him. He, however, admitted that his thumb- impressions were obtained but added that it was without explaining the contents of the statement purported to have been made by him.
14. This Court would not doubt the veracity of the judicial proceedings merely on the assertion of the appellant who was facing trial on a capital charge. Moreso when he has not attributed any mala fides or ill-will to the Magistrate who recorded the confessional statement of the appellant.
The statement of the appellant that he was taken to the house of Syed Intizar Hussain, MIC is belied by the fact that 6-4-1991 was a Saturday and the appellant could not have been taken to the house of the said MIC. His statement was recorded in Court and the mandatory requirements of section 164, Cr.P.C. Were fully complied with as is borne out from the perusal of Exh.PQ/1.
15. The foregoing analysis of the prosecution evidence, the defence plea taken by the appellant and the statement of the Court-witness leads to an irresistible conclusion that the prosecution has proved its case beyond a shadow of doubt and the finding of conviction of the appellant on two counts by the learned trial Court does not call for interference. However, we are of the view that the fine of Rs.20,000 on each count is not tenable in law as the law had undergone a change at the time when the occurrence took place and sentence of fine is not provided under the amended section 302, P.P.C.
16. Resultantly, we are inclined to set aside the sentence of fine and instead we award Rs.20,000 as compensation on each count which, if realised, shall be given to the legal heirs of Mukhtar Hussain and Muhammad Nawaz deceased in equal proportion.
17. For what has been discussed Criminal Appeal No. 43 of 1993 and Criminal Appeal No. 46 of 1993 are dismissed with the afore-referred modification with regard to the sentence of fine.