IFTIKHAR HUSSAIN CHAUDHRY, J.- Idrees son of Muhammad Sarwar and Muhammad Basharat son of Muhammad Aslam were convicted for offence under Section 302/34 PPC and Muhammad Idrees appellant was awarded death sentence while Muhammad Basharat appellant, was awarded life imprisonment by judgment dated 20.12.1992 passed by Additional Sessions Judge, Gujrat. Both the convicts were also directed to pay a fine of Rs.20,000/- each. In the event of default the convicts were to undergo two years S.I.
2. The occurrence in this case took place at about 10.30 p.m. On 11.7.1988 in the area of village Ranewal Syedan of Police Station Jalal Pur Jattan, District Gujrat. The prosecution case as described by Yasin, complainant PW-6, was to the effect that at about 10.30 p.m. He alongwith Muhammad Sarwar and Muhammad Yaqoob his deceased brother, were proceeding to their village Thimkey on bicycle after doing their work and when they reached near the road leading to their village, two persons, one armed with 12 bore shot gun while the other armed with a carbine stopped them. The complainant grappled with the accused who was holding carbine. Muhammad Yaqoob deceased and Sarwar, PW, grappled with the accused who was carrying shot gun who find a shot which hit Yaqoob deceased at his chest who fell down. The complainant snatched carbine from the accused and hit that to the head of accused who was carrying shot gun. Both the accused escaped from the spot while leaving behind a pair of chappals, one "Tehband" (loin- cloth), two "parnas" (large scarf), carbine and 12 bore shot gun. Yaqoob deceased succumbed to the injuries at the spot. Muhammad Ashraf S.L, PW-11 met the complainant when he was proceeding to the Police Station and recorded his statement whereafter F.I.R.-EX.PG was registered at Police Station, Jalalpur Jattan, Gujrat.
3. Idrees Anwar and Muhammad Basharat accused were found guilty during the investigation conducted. They were tried in the Special Court for Speedy Trials, Gujranwala and were convicted for the murder of Muhammad Yaqoob but their conviction was set aside on appeal on grounds that the trial Court lacked the jurisdiction to try the case. Thereafter the accused were sent up to face trial in the Court of Additional Sessions Judge, Gujrat where the prosecution examined 13 witnesses to prove its case against the accused.
4. Dr. Sajid Jameel PW-1 conducted post mortem examination on the dead body of Yaqoob son of Ghulam Hussain and noted the following injuries oil the dead body:
1. Oval shaped lacerated wound 4 x 2 1/2 cm bone deep x with inverted margins, with mild tattooing around the wound, situated on medial 1/3 of right clavicle with slight bleeding from the wound.
The injury was ante mortem and caused by fire-arm. The Medical Officer tendered in evidence the post mortem examination report Ex.PB and Ex.PB/I.
5. Khizar Hayat Patwari PW-3 prepared site plan Ex.PD and Ex.PD/I. Muhammad Sadiq PW-4, the cobbler, identified the shoes Ex. P-4/1-2 as belonging to Basharat-accused. Sher Muhammad PW-5 identified Parna P-5, Chaddar P-6, Pair of Chappals P-7/1-2, Parna P-8 and pair of slippers P-4/1-2 as belong to Idrees and Basharat accused as they were wearing the same when they had come to his hotel for taking tea.
6. Muhammad Yasin PW-6 supported the narrative contained in the F.I.R. Sarwar PW-8 corroborated the deposition of Muhammad Yasin, complainant. Muhammad Anwar appeared as PW-9.
7. Farrukh Hussain, Retired Inspector PW-10 partly investigated the. Case and prepared report under Section 173 Cr.P.C.
8.. Muhammad Ashraf S.I. PW-11 testified about the varios steps taken by him during investigation.
9. Muhammad Sardar appeared as PW-12. He identified pair of Chappals Ex. P-7/1-2 as having been purchased by Idrees, accused.
10. Noor Hussain Bhatti, Judicial Magistrate PW-13 conducted identification parade at District Jail, Gujrat in respect of Idrees and Muhammad Basharat, accused. Khadim Hussain, Constable appeared as CW-1. Evidence adduced by Dr. Khalid Ghauri during earlier trial of accused was brought on record is testimony of PW-3.
11. The accused in their examination under Section 342 Cr.P.C, denied the prosecution case against them and pleaded their false involvement due to suspicion.
12. Learned trial Court believed the prosecution case against both the accused and convicted and sentenced them as noted above. The convicts submitted titled appeal. Learned trial Court also referred the matter under Section 374 Cr.P.C, vide Murder Reference No. 38/1993 for confirmation or otherwise of sentence of death awarded to Idrees Anwar, appellant.
13. Learned counsel for the appellants contended that occurrence took place at about 10.30 p.m.
And the complainant and Sarwar the other eye-witnesses did not advance any plausible reason for their presence at the spot alongwith the deceased Muhammad Yaqoob, who was not a man of good character and was done to death in all probability when he had gone to commit some offence. It was submitted that Yasin PW-6 claimed that he knew the accused but in case he did know the assailants he would have named their in the F.I.R, which was not done. It was submitted that occurrence could not have taken place as stated and case of the prosecution that accused left weapons as well as other articles at the spot was not plausible. It was argued that circumstantial evidence did not corroborate the ocular account which otherwise was discrepant and did not inspire any confidence. It was contended that witnesses testified differently in the matter in which the recoveries were effected from the spot or the manner in which the accused were arrested and that showed that case was fabricated against the appellants. It was submitted that medical evidence also contradicted the ocular account as it did not show that victim was find at from a very close range as no blackening or, scorching was noticed on the dead body. It was submitted that case against the appellants was not effectively proved and they were not connected with the commission of offence. It was also argued that the shot gun belonged to Ghulam Qadir who was arrested by the police but was let of later and that recoveries too did not go against the appellants. It was submitted that case against the appellants having gone unproved, the appellants deserved acquittal. Learned counsel for State on the other hand submitted that prosecution had proved its case beyond any reasonable doubt against the accused. Idrees was injured during incident and injury was noticed by the Medical Officer when he was medically examined. It was submitted that the articles left at the spot by the accused were duly identified to be belonging to the accused and that stand of the witnesses was not even controverted by the defence in any manner. It was argued that it was a case of wanton murder and both the appellants were convicted rightly by the trial Court.
14. The witness while testifying at a criminal trial deposes about numerous aspects of the incident.
He may state about the manner he or the victim had proceeded to the spot, explains his presence at the spot, testifies about the motive part of the incident and then provides details of the events having taken place during the occurrence. The witness also testifies about the manner in which he had helped the Investigating Agency and the various steps taken by the Investigating Agency.
Where the prosecution witnesses are divergent or contradict each other qua the reasons for their presence at the spot; with regard to the actual happening of the incident; or the motive part, these contradictions are material contradictions and foundations of the prosecution case are shaken by the contradictory evidence but as far as discrepancies in the statement of various witnesses qua the various steps taken by the Investigating Officer in the course of investigation are concerned, those being not of that importance in view of the witnesses, do not impinge upon the prosecution case. The reason for that is that the traumatic events which take place during incident do have impact on the mind of eye-witness and the witness is bound to remember those events quite vividly but this is not so in the case of events taking place during investigation. The investigation is spread over a long period of time, different witnesses are associated with that investigation on different occasions and certain minor discrepancies do crop up while the witnesses testify at the trial after a passage of time which might be quite considerable (4 1/2 years in the present case). In the case in hand the defence had vehemently argued that occurrence had not taken place as stated by the witnesses as they had not given a plausible explanation for their presence at the spot and their testimony with regard to the actual incident and subsequent steps taken by the Investigating Officer were divergent, and contradictory to one another. According to prosecution Yasin PW-6, Sarwar PW-8 and Yaqoob-deceased, worked at a small establishment owned/run by Mistri Inayat. The prosecution had given a reason explanation for their presence at the spot as according to them they after .Leaving the work place were proceeding to their village. Both the eye-witnesses were not subjected to any worthwhile scrutiny qua the stand taken by them with respect to their employment with Mistri Inayat. Best evidence or the proper course for the defence was to have summoned Mistri Inayat who could have proved that those persons did not work in his factory or were not present on the day of incident in his establishment. This course was not.
Adopted to and even the witnesses were not subjected to any cross-examination in respect of the stand that they had gone to the establishment run by Mistri Inayat and were returning therefrom.
The contention raised by defence in this regard is without any basis. The narrative contained in the F.I.R, is a simple, fair and truthful account of the incident having taken place on that evening.
Neither the complainant nor the eye-witnesses tried to implicate any person in that case. They were returning from their work place, were accosted to by two young men and the complainant, the deceased and the eye-witnesses picked up the courage and resisted the assailants. In the course of struggle, one of the assailants find at the deceased and that assailant was given blow with carbine by the complainant on his head. In the scuffle numerous articles such as loin-cloth of one of the accused who was injured by the complainant, and parna (scarfes), a pair of Peshawari chappals (also called Kohati Chappals) and nylon slippers were left behind by the accused, 12 bore shot gun used in the occurrence and carbine was also snatched by the complainant and the witness and all these facts find mention in the F.I.R, which was recorded shortly after the incident.
Subsequently the slippers were identified by Sadiq PW-4, a cobbler of the village, the pair of chappals were also identified by Muhammad Safdar PW-12 while the other articles were identified by Sher Muhammad PW-5 and all the witnesses stated that articles belonged to the present accused. These articles were recovered by the police and taken into possession immediately after the incident. The manner of collection of articles has been disputed by the defence but is hardly a material circumstance which could affect the evidentiary value of the recovery of articles or the prosecution case.
15. Both the assailants are residents of a village located near the place of occurrence. The witnesses had claimed that they knew them. It has been argued on behalf of defence that in case the accused were known to the complainant, he would have given their names in the F.I.R. It may be observed that people are not known by names alone. They can be identified or pointed out with reference to the village to which they belonged, their tribe/or clan or such other references. The claim of the complainant and Sarwar eye-witness that they knew both the assailants, therefore, does not appear to be preposterous. Both the assailants were identified in the identification parade held for the purpose. Identification parade, by and large, was held in accord with the guide lines prescribed for the purpose. The assailants were picked up in the identification parade. Idrees Anwar, appellant, was further connected with the commission of offence on account of medico legal report Ex.PD. The complainant had categorically mentioned in the F.I.R, that he had given a blow with carbine to head of the person who had find at the deceased. There is sufficient corroboration of the allegation levelled by complainant against Idrees Anwar.
16. None of the prosecution witnesses had any enmity with the present appellants. Neither the complainant nor the eye-witnesses tried to implicate any person falsely in the case and narrative contained in the F.I.R, was a very fair and honest account of the incident. Physical evidence collected by the Investigating Agency shortly after the registration of the case and during investigation effectively connected the appellants with the commission of offence. Presence of complainant and eye-witness at the spot has been found to be plausible and believable and we have not noticed any factor which could be pressed into service to term these witnesses as dishonest or unworthy of credence. The testimony of witnesses has been found to be completely credible. Their integrity or credibility was not shaken in the cross-examination. The medical evidence supports the ocular account fully. Tattooing was observed by the Medical Officer around the wound. Absence of blackening or scorching on the body of the victim was not possible due to body having been drenched in mud as a result of scuffle and struggle between the victim and the assailant. Certain discrepancies in the testimony of Sarwar PW-8 qua the manner in which the Investigating Officer had conducted investigation were noticed but, as observed above, these are not material as far as prosecution case qua actual incident is concerned. The witnesses testified after a passage of 4 1/2 years and such discrepancies are likely to creep in. The prosecution case is not effected by these in any manner.
17. We have weighed the evidence with care and are of the view that prosecution case against the appellants stood proved beyond any shadow of doubt. The appellants were connected with the commission of offence as charged with. They appear to be amateur highwaymen and their foray in this regard went sour and in order to get away from the hands of the complainant, Muhammad Yaqub and the witness one of them find at the deceased who lost his life as a result of the shooting.
The crime committed by the accused was atrocious.
18. The conviction and sentence awarded to appellants by the trial Court is sustained. Criminal appeal find by the appellants is dismissed.
19. Death sentence awarded to Idrees Anwar is affirmed.