' MUHAMMAD ASIF JAN,Sarfraz alias Sappi aged about 17 years, Abdul Rashid aged about 36 years and his brother Muhammad Ashraf aged about 39 years were convicted under section 302/34 of the Pakistan Penal Code by Mian Muhammad Sikandar Hayat, Judge, Special Court No,III Suppression of Terrorist Activities, Lahore Division, Lahore, vide judgment/ order, dated the 28th of November, 1995.
' Sarfraz alias Sappi and Abdul Rashid were sentenced to death alongwith a fine/compensation of Rupees one lac each, and, in case of default in the payment of fine, further imprisonment for six months each.
' Muhammad Ashraf was sentenced to imprisonment for life alongwith fine/compensation of Rs,50,000, and in case of default in the payment of fine/compensation, further imprisonment for six months.
' Sarfraz alias Sappi, Abdul Rashid and Muhammad Ashraf appellants have appealed against their conviction and sentence by way of Criminal Appeal No,799 of 1995.
2. Co-accused Muhammad Amin who is a brother of Abdul Rashid and Muhammad Ashraf appellants and co-accused Muhammad Afzal were acquitted by the learned trial Judge. Their acquittal has been challenged by Ahmad Khan (P.W.2) complainant and the unfortunate father of Muhammad Azam deceased by way of Criminal Appeal No,134 of 1996.
3. Complainant Ahmad Khan has also brought a petition under section 435/439 of Code of Criminal Procedure against Sarfraz alias Sappi, Abdur Rashid and Muhammad Ashraf praying inter alia for enhancement of sentence awarded to Muhammad Ashraf and also for enhancement of compensation awarded under section 544-A, Cr.P.C. To the legal heirs of Muhammad Azam deceased.
4. By this judgment/order we propose to decide all these three matters together.
5. The occurrence took place on the 4th of June, 1993 at about 7 p.m. In the area of Ratti Tibbi which is about 5 kilometers from Police Station Safdarabad of District Sheikhupura. The occurrence was reported by Ahmad Khan (P.W.2), the unfortunate father of Muhammad Azam deceased on the 4th of June, 1993 at 8-30 p.m. In the area of Ratti Tibbi and his statement (Exh.P.C.) was recorded by S.- I. Ghulam Asghar (P.W.10), who was the Station House Officer of Police Station Safdarabad.
' The formal F.I.R. (Exh.P.C./1) was drawn on the same day at 8-50 p.m. At Police Station Safdarabad of District Sheikhupura by Moharrir Head Constable Muhammad Khurshid (P.W.5).
6. The case of the prosecution is to the following effect:-- During general elections held in the year 1990, Muhammad Latif son of Sultan, a resident of Ratti Tibbi was murdered. Muhammad Azam deceased son of complainant Ahmad Khan (P.W.2) was amongst the accused persons in the murder case of the said Muhammad Latif. As a result of a compromise effected between the parties, the complainant's son Muhammad Azam deceased was acquitted by the Court. Although, the matter was compromised but the brothers of Muhammad Latif nontheless bore a grudge in their hearts and minds. On the day of occurrence at about 7 p.m., complainant Ahmad Khan alongwith Intsar Haider (not produced) and Sakhawat Hussain (P.W.3), both residents of Ratti Tibbi were going to the house of Murtaza also a resident of the same area. When the complainant alongwith his two companions reached near the house of the said Murtaza, Muhammad Azam deceased met them near the house of one Mustafa. At that point of time, suddenly, Sarfraz alias Sappi and Abdul Rashid both armed with .12 bore guns; Muhammad Ashraf armed with a 222 rifle; Muhammad Amin armed with a klashnikov and Muhammad Afzal armed with 8 m.m. Rifle arrived at the spot. Co-accused Muhammad Afzal told Sarfraz alias Sappi to murder Muhammad Azam deceased, because he was the murderer of his father. On being, thus, encouraged, Sarfraz alias Sappi who was armed with a .12 bore gun fired at Muhammad Azam deceased and hit him on the right, side of the shoulder on the rear and also on the back side of the chest near the neck. Co-accused Muhammad Ashraf and Muhammad Amin took positions with their respective weapons and threatened to kill anyone who would try to come to the rescue of the victims. The second shot was fired by Abdul Rashid with his .12 bore gun which hit the complainant's son Muhammad Azam deceased on the neck and on the left inside of the shoulder on the backside. Muhammad Azam deceased fell down and died at the spot.
' The accused persons avenged the killing of Muhammad Latif, father of Sarfraz alias Sappi by murdering Muhammad Azam deceased..
' This occurrence was witnessed by complainant Ahmad Khan (P.W.2), Intsar Haider (not produced) and Sakhawat Hussain (P.W.3).
' Leaving behind the dead body of his son Muhammad Azam deceased in the custody of Instar Haider and Sakhawat Hussain, complainant, Ahmad Khan (P.W.2) was proceeding towards the police station to report the matter when he met S.-I. Ghulam Asghar S.H.O. (P.W.10) in the area of Ratti Tibbi and made his statement (Exh.P.C.) on the 4th of June, 1993, which was recorded at 8-30 p.m. By S.-I. Ghulam Asghar (P.W.10).
' The formal F.I.R. (Exh.P.C./1) was drawn on the same day at 8-50 p.m. At Police Station Safdarabad of District Sheikhupura by Moharrir Head Constable Muhammad Khurshid (P.W.5).
7. S.-I. Ghulam Asghar (P.W.10) conducted the investigation of this case.
' After recording the statement of complainant Ahmad Khan (P.W.2), he proceeded to the place of occurrence and collected blood-stained earth from the place of occurrence on the 4th of June, 1993, vide recovery memo. Exh.P.A., in the presence of Niaz Ali (not produced) and Muhammad Iqbal (P.W.1).
' S.-I. Ghulam Asghar (P.W.10) arrested Sarfraz alias Sappi alongwith co-accused Muhammad Ashraf on the 19th of June, 1993.
' Sarfraz alias Sappi appellant, led to the recovery of double-barrel gun Exh.P.1 from his house on the 28th of June, 1993, which was recovered and taken into possession vide recovery memo. Exh.P.B. By S.-I. Ghulam Asghar (P.W.10) in the presence of Muhammad Iqbal (P.W.1) and Tasawar Hussain (not produced).
8. The earth which was recovered from the place of occurrence by the Investigating Officer was sent to the Chemical Examiner on the 16th of June, 1993 and was received by him on the 17th of June, 1993. The earth in question was found to be stained with blood by the Chemical Examiner 'whdge report Exh.P.K. Pieces from the said earth were sent to the Serologist for purposes of analysis on the 19th of June, 1993 and were received by the Serologist on the same day. The result of the analysis was that the pieces in question were found to be stained with human blood by the Serologist whose report is Exh.P.L.
9. Dr. Muhammad Modassar (P.W.4), who was posted as Medical Officer D.H.Q. Hospital Sheikhupura performed the autopsy on the dead body of Muhammad Azam deceased who was aged about 25 years on the 5th of June, 1993 at 4 p.m. And found the following injuries on his dead body:--
(1) 3 penetrating wounds with blackening and tattooing around the wound margin measuring 1 c.m. x 1 c.m. At the left side of the neck mid-part close and below of the left chin in an area of 3 c.m. x 3 c.m.
(2) Wound of exit at the right side of the neck mid-part.
(3) 3 penetrating wounds on the back of the chest right side each measuring 1 c.m. Diameter. 1st penetrating wound at upper of back of right chest, 3 c.m. From the mid-line to the right 2nd penetrating wound 2 c.m. Below the 1st one. 3rd penetrating wound at the back of right mid chest 4 c.m. From the 2nd one.
(4) Wound of exit at the tops front of the right upper chest at the end above the clavicle.
(5) 3 penetrating wounds on the front and outer and back of the left shoulder joint.
' In the opinion of the doctor, the injuries on the neck by the fire-arm weapon had disrupted the vascular channels leading to hypovolemic shock, neurologic shock. The injuries on the back of the chest had punctured the right lung and left lung punctured by the injuries at the left shoulder made the lungs infarcation through the track. Whole of the injuries collectively were sufficient to cause haemorrhage shock cardio vascular compromise leading to cardio vascular and respiratory failure leading to death. All the injuries were of antemortem in nature and were inflicted by fire- arms. Probable time between injuries and death was immediate and between death and post- mortem was 18-20 hours.
10. The accused persons pleaded total denial and false implication due to enmity. Nor did any of the accused persons chose to make a statement on oath under section 340(2), Cr.P.C. In order to disprove the case of the prosecution. However, copies of different F.I.Rs, were placed on record in order to show that there was enmity between the parties and also that the deceased was involved in various cases.
' Sharafat Ali Moharrir Head Constable appeared as D.W.1 in order to prove that Muhammad Azam deceased son of the complainant Ahmad Khan (P.W.2) was an accused person in F.I.R. No,81 of 1993, dated the 13th February, 1993, recorded at Police Station "B" Division Sheikhupura, under section 302/324/148/149/188 of the Pakistan Penal Code (Exh.D.W.I/A).
' A.S.-I. Jafar Hussain appeared as D.W.2 and produced daily diary Register of Police Station Sadar Farooqabad containing Report No,15, dated the 4th of June, 1993 which was placed on record as D.W.2/A and Report No,23, dated 5-6-1993 D.W.2/B.
' A.S.-I. Muhammad Nawaz appeared as D.W.3 and gave evidence regarding the alibi of co- accused Muhammad Amin Police Constable who has been acquitted by the learned trial Court.
' Moharrir Head Constable Saifullah appeared as D.W.4 and brought different F.I.Rs, which were placed on the record as Exhs.D.W.4/A, B, C, D and E.
' February, 1985 but was subsequently dismissed from service on the .10th of September, 1991.
The entire defence evidence does not advance anybody's case. Thee- no denial of the admitted position that there was bitter enmity between the parties. The fact that Muhammad Azam deceased was dismissed from service did not and could not give a licence to the accused persons to kill him.
11. The occurrence took place at 7 p.m. On the 4th of June, 1993 in the Bazar near the houses of Murtaza and Mustafa in the area of Ratti Tibbi which is about 5 kilometers from Police Station Safdarabad of District Sheikhupura, where the formal F.I.R. Exh.P.C./1 was drawn on the same day at 8-50 p.m. On the basis of the statement Exh.P.C. Of complainant Ahmad Khan (P.W.2), which was recorded at 8-30 p.m. By S.-I. Ghulam Asghar (P.W.10). Thus, the matter was reported within an hour and half. It is in evidence that complainant Ahmad Khan did not have any transport at his disposal and proceeded on foot tole report the matter. We are quite clear in our minds that the report was lodged promptly and without any pre-meditation or delay.
' Complainant Ahmad Khan (P.W.2) saw his young son Muhammad Azam deceased being shot to death and stood by helplessly. Homicide is almost always a crime with multiple victims. There is the dead person himself, and those who loved him. There is no pain to compare to burying a murdered son; no rage so impotent as that of a father who failed, through no fauit of his own, in the elementary duty to protect his child's life. Parents who have experienced the loss that time cannot heal to demand justice. We are quite clear in our minds, that the complainant Ahmad Khan (P.W.2), the unfortunate father of Muhammad Azam deceased would not substitute the real killers of his son with somebody else. The other eye-witness of the occurrence namely Sakhawat Hussain (P.W.3) is not related to the deceased neither is he inimical towards the accused persons. In other words, Sakhawat Hussain (P.W.3) is a completely independent eye-witness.
' Both Ahmad Khan complainant (P.W.2) and Sakhawat Hussain (P.W.3) D have given a straightforward; truthful and consistent narration of the occurrence which is in line with the medical evidence.
' The prosecution has succeeded in proving its case beyond all reasonable doubts.
12. Resultantly, Criminal Appeal No,799 of 1995 brought by Sarfraz alias Sappi, Abdul Rashid and Muhammad Ashraf against their conviction and sentence is dismissed.
' Criminal Appeal No,134 of 1994 brought by Ahmad Khan complainant (P.W.2) against the acquittal of co-accused Muhammad Amin and Muhammad Afzal is also dismissed, and, so is Criminal Revision No,49 of 1996.