' GHULAM SARWAR SHEIKH, J.--- This judgment will dispose of murder reference as well as appeal under section 25 of Anti-Terrorism Act, 1997 against judgment, dated 5-11-1997 passed by learned Judge, Special Court, Bahawalpur, constituted under said Act, whereby appellants were convicted under section 302/34, P.P.C. And sentenced to death while their co-accused Ghulam Sarwar was acquitted.
2. Facts, as unfolded in F.I.R. Exh.P.B./1 formally drawn upon statement Exh.P.B., reaffirmed at trial, by P.W.2 Haji Mark complainant, father of Rasool Bakhsh deceased, in brief, are that few days prior to the occurrence, Noor Muhammad appellant exposed his suspicion about Rasool Baldish's illicit intimacy, relations and liaison with his wife namely, Gul Khatoondaughter of Taj Muhammad. Haji Mark accosted Noor Muhammad appellant to vouch for the innocence of his son. But sceptic husband did not agree. Then father of concerned woman was approached. He, too, refused to listen and rather proclaimed revenge.
3. On 24-9-1990, at 10 a.m., the fateful day, complainant and his son Rasool Bakhsh deceased while going towards "Basti" from their house were ambushed, near the house of Dost Ali Chacher, from behind a Jal (Peelu) tree by Noor Muhammad and his brother Saeed Ahmad, while armed with pistols. A motorcycle was also there.
4. Both the appellants resorted to firing aiming at Rasool Bakhsh. A shot fired by Noor Muhammad hit him at his back, whereas, one fired by Saeed Ahmad injured his right arm. Noor Muhammad repeated the shot, which, hit front left side of hand of victim. Ghulam Sarwar, their co-accused standing nearby exhorted them not to let Rasool Bakhsh escape alive. Besides the complainant, occurrence was witnessed by Muhammad Shafi P.W.3, Muhammad Ismail P.W.4 and Allah Dad, who, when threatened by appellants, did not dare to intervene.
5. However, in the meantime, Mst. Shazia aged 11/12 years, a cousin sister of deceased, hearing alarm, rushed to the scene, threw herself on the injured and received fire-arm injuries and later on succumbed to the same, in the hospital. Alongwith their weapons Saeed Ahmad and Noor Muhammad accused fled away on motorcycle whereas Ghulam Sarwar accused decamped towards Sem Nala. Rasool Bakhsh expired at the spot.
6. Leaving eye-witnesses with dead body of Rasool Bakhsh and injured Shazia, complainant proceeded towards police station to report the matter. On the way, he met Muhammad Yousaf Inspector/S.H.O., Police Sadar Station Rahimyar Khan at the bridge of a Canal, where his statement Exh.P.B. Was recorded.
7. P.W.12 Ch. Muhammad Yousaf, Inspector Police visited the place of occurrence, inspected the spot, collected blood-stained earth therefrom, made it into a sealed parcel and took the same in to possession vide memo. Exh.P.E. Empties P.4 and P.5 were secured from the spot, and taken into possession by means of memo. Exh.P.F. After the same were made into sealed parcel. After preparing inquest report Exh.P.I./2 of Rasool Bakhsh deceased and injury statement Exh.P.H./1 of Mst.
Shazia injured, the Investigating Officer despatched dead body to morgue for autopsy under the escort of Muhammad Riaz, Constable (P.W.13) and sent injured Shazia to hospital for her examination and treatment. After reaching hospital, he made an application Exh.P.L. To the doctor on duty and sought necessary permission for recording her statement, which, was taken down after she was declared fit to make it. On 26-9-1990, she, breathed her last in the hospital and post- mortem examination upon her dead body was performed by Dr. Abdul Wahid (P.W.10). Last-worn clothes of Mst. Shazia and of Rasool Bakhsh were taken into possession by virtue of memos. Exh.P.G.
And Exh.P.K. Respectively. Sealed parcels were duly deposited with Moharrir for safe custody.
8. Noor Muhammad and Saeed Ahmad appellants were arrested on 4-10-1990 and motorcycle was recovered at the instance of Saeed Ahmad. On 7-10-1990, while in Police custody, aforesaid Saeed Ahmad led to the recovery of pistol P.6 and live cartridge P.7 from his house. Same were taken into possession vide memo. Exh.P.C. On same day. Noor Muhammad appellant also led Police to the recovery of pistol P.8 and two live cartridges P.9 and P.10 from his house. Same were also taken into possession through memo. Exh.P.D. Site plan Exh.P.J. And Exh.P.J./1, were got prepared from Peeran Ditta, Patwari P.W.11. On completion of investigation, report as envisaged by section 173, Cr.P.C. Was submitted.
9. Accused including appellants, pleaded not guilty to the charge and claimed trial.
10. Prosecution examined as many as 15 witnesses to prove its case. Haji Mark P.W.2, the complainant, Muhammad Sharif P.W.3 and Muhammad Ismail P.W.4 testified in Court as eye- witnesses, whereas medical account was furnished by Dr. Gul Iftikhar-ul-Hassan P.W.1, Dr. Abdul Wahid P.W.10 and Lady Dr. Tasneem Kamran P.W.9 out of whom first two conducted postmortem upon dead bodies of Rasool Bakhsh and Shazia respectively, whereas the third one had examined Shazia when alive, for her injuries. Blackening around the wounds of both the deceased was observed by the doctors. Recoveries of weapons of offence were proved by Karim Bakhsh P.W.5, Khalil Ahmad P.W.6 and Lal Bakhsh P.W.7. P.W.12 Muhammad Yousaf, Inspector/S.H.O. Deposed about several steps of investigation carried out by him. Mushtaq Ahmad, father of Shazia deceased deposed as Court-witness to explain as to how the statement of Shazia was recorded.
Rest of evidence is of formal nature.
11. When examined under section 342, Cr.P.C. Appellant Saeed Ahmad and Ghulam Sarwar (acquitted accused) denied all the incriminating circumstances figuring against them in the prosecution evidence, professed innocence and alleged false implication due to their relationship with Noor Muhammad accused, who, however, took the plea as under:-- "Mst. Gul Khatoon is my wife and I have four sons and 5 daughters from this wed-lock. On the day of occurrence my wife was not present in my house. I searched for her and going to the house of Dost Ali Chacher, when I reached near abandoned poultry farm, I saw my wife and Rasool Bakhsh deceased was in compromising position. I entered in that poultry farm but both of them made their escape. I chased them and fired at Rasool Bakhsh, which, hit on his hand he also fired at me but his fire hit Mst. Shazia, who received injury. Then I again fired at him as a result he died at the spot. My wife made her escape good. I myself appeared before the Police and produced the pistol Exh.P.3 weapon of offence to the Police. Alleged recovery of weapon of offence was planted by the Police with the connivance of complainant later on."
12. None of them, however, opted to appear as his own witness to disprove the allegations as envisaged by section 340(2), Cr.P.C. No evidence was led in defence either.
13. Out of two versions advanced at the trial, learned trial Court believed the prosecution evidence, adjudged both the appellants as guilty, proceeded to convict and sentence them as indicated and noted above. Ghulam Sarwar accused was, however, given benefit of doubt and thus, acquitted.
14. Learned counsel representing the appellants has lambasted the verdict by pointing out that same is rife and replete with legal and technical snags and infirmities, which, unfortunately escaped notice of learned Trial Court and conversely the prosecution was allowed to reap benefit thereof. Main attack, inter alia, rests upon the grounds; i,e, the witnesses are inimical, interested and closely related to the deceased. F.I.R. Was recorded after spot inspection, due deliberations and consultation with active opponents of appellants; presence of alleged eye-witnesses at the spot is not proved or at least is not believable; presence of Haji Mark complainant at the spot is excluded not only by so-called dying declaration of Mst. Shazia but also, by testimony of P.W.3 Muhammad Shafi and P.W.4, Muhammad Ismail; alleged eye-witnesses have improved their version, and thus, impaired the prosecution case beyond repair; learned Trial Court has proceeded to convict the appellants upon far-fetched presumptions and probabilities keeping out of consideration golden principles laid down by august superior Courts; learned Trial Court has failed to appreciate the data and material on record, of course, in its true perspective and rather counter-version has irregularly been used to fill in lacunae of prosecution case, evidence of recovery of pistols is not free from doubt, only two empties against three shots allegedly fired were recovered medical evidence cannot be taken to be in line with the prosecution version and that statement of C.W.1 should have served as impartial, unbiased and clear version of the incident. Also it has been impressed that statement of Shazia was not recorded truly, honestly and in accordance with law inasmuch as the doctor attending Shazia, the injured, was not associated in the process and as such statement by no stretch of imagination can be used as dying declaration and is of little help to the cause of prosecution.
15. Various factors have been highlighted to remark, conversely, that the appellants being responsible for gruesome and cold blooded murders are liable to be awarded extreme penalty.
16. Arguments have been considered in light of record perused with able assistance of learned counsel for the parties. It is a broad daylight occurrence. An owner of lands adjacent to the place of occurrence Muhammad Shafi P.W.3 was working there when attracted to the scene on cacophony.
Neither his ownership to the lands adjacent to the venue of occurrence has been disputed nor any animosity or rancour towards accused has been suggested to him. Thus, he is natural and independent witness, who saw the assailants perpetrating double murder, convincingly testified in Court and successfully withstood gruelling cross-examination. Haji Mark, the complainant eye- witness not only reiterated the account of the occurrence as detailed by him in F.I.R. But also gave the reason of his being with Rasool Bakhsh his son at the time of incident as both of them were going to "Basti" to visit his daughter, sister of Rasool Bakhsh. Even this witness has no previous enmity with the accused/appellants. Muhammad Shafi and Muhammad Ismail P.Ws. Are resident of the vicinity where the occurrence had taken place. Mere relationship with the complainant does not make them interested witnesses. Ocular account is fully corroborated by medical evidence.
Blackening around the injuries of both deceased proves to the hilt that shots at them were fired from very close range as deposed by P.Ws. During cross-examination P.W.1 Dr. Gul Iftikhar-ul- Hassan confirmed that the shots might have been fired within a yard.
17. Statement under section 161, Cr.P.C. Of Mst. Shazia reproduced by Muhammad Yousaf P.W.12 and which for all intents and purposes can be taken' to be almost dying declaration not only fully implicates the appellants but also' belies the defence version altogether. It is pertinent to note that Mst. Shazia is related to accused in nearer degree than the deceased as conceded by her father Mushtaq Ahmad C.W. 1 .
18. Plea of Noor Muhammad accused of having seen his wife Mst. Gul Khatoon in compromising position with Rasool Bakhsh deceased, is rendered to be an afterthought affair and figment of imagination on the bare aspect that neither Mst. Gul Khatoon received any injury nor such a picture was painted or even hinted at by Mst. Shazia. As a necessary corollary, version advanced by the prosecution is not only proved beyond any manner of doubt by statement of Mst. Shazia ocular evidence, medical evidence, recoveries and motive, but also, when put and placed in juxtaposition with the story advanced by Noor Muhammad appellant is seemingly plausible and sounds to reason. We, therefore, hold that the occurrence had taken place in the manner as set up by the prosecution, same stands conceded by appellant Noor Muhammad, time and venue thereof have not been disputed either. Appellants, accordingly, were rightly adjudged to be guilty for having caused injuries to both the deceased in furtherance of their common intention.
19. Noor Muhammad appellant responsible for double murder was rightly convicted under section 302/34, P.P.C. For committing Qatl-e-Amd of two persons and sentenced to death, to be hanged by his neck till he be dead on each count. However, keeping in view the role ascribed to appellant Saeed Ahmad, injuries suffered at palm by Rasool Bakhsh deceased at his hands, and absence of direct motive with him, call for, lesser penalty to him on account of mitigating circumstances enumerated above. As such, death sentence awarded to Noor Muhammad appellant is Confirmed while that of Saeed Ahmad appellant is altered from death to imprisonment for life. Benefit of provisions of section 382, Cr.P.C. Shall also be extended while computing the period of sentence.
20. With this modification instant appeal merits dismissal and is hereby dismissed. Murder Reference is answered accordingly.