' FALAK SHER, J.-- A learned Additional Sessions Judge, Sheikhupura having arraigned the appellants Muhammad Rafique (45), Muhammad Ramzan (25), Ghulam Rasool (42) sons of Barkat Ali conjunctively with their brother Muhammad Rashid alias Mattu, Muhammad Hussain, his son Maqbool, Sheeda and his brother Bashir for the double murder of 2 brothers Sakhawat (48) and Niamat (50) and murderously assaulting their brothers Muhammad Arif and Sooba; Niamat deceased's and the latter's son Arshad Ali and Rafaqat respectively and Mst. Sakina Bibi in the case registered vide F.I.R. No,17 of 30-1-1990 Police Station Mananwala recording conviction and sentence under section 302/34, P.P.C. Of appellants Nos.1 and 2 to death and No,3 to life imprisonment with Rs 20,000 fine or in default to suffer one year's R.I. Each (on two counts) in addition to compensation contemplated by section 544-A, Cr.P.C. (omitting the quantum) or to suffer 6 months' R.I. (ought to have been S.I.) each on each count; further the former two under section 307/34, P.P.C. To 7 years' R.I. Each with a fine of Rs,10,000 or 6 months' S.I. (on five counts) acquitted the co-accused's of the charges vide the impugned judgment, dated 4-1-1992 seeking confirmation of the awarded death sentence being subject-matter of Murder Reference No,374 of 1992.
2. Questioning legality whereof the appellants have preferred Criminal Appeal No,106 of 1992 while the complainant has recourse to Criminal Revisions Nos.138 and 139 of the same year tending to seek compensation perceived by section 544-A, Cr.P.C. And grudging against the co-accused's acquittal respectively which are disposed of together herein below.
3. Muhammad Arif injured P.W.10 brother of the deceased on 13-1-1990 at 7-45 a.m. Lodged F.I.R.
Exh.P.U. With Arshad Mahmood, S.-I./S.H.O. P.W.18 at the police station 8 miles away from the venue situated in village Lagar.
4. Alleging that around 8 a.m. Accompanied by his three brothers i.e Niamat, Sakhawat (deceaseds) Sooba injured P.W.12, two paternal-nephews Arshad injured P.W.14 and Rafaqat injured P.W.15 and Sakina Bibi injured P.W.13 on way to their Haveli approaching the rear of Munawar Hussain co-villager's house were exposed to the appellants and the acquitted co-accused equipped with fire armoury and sticks respectively. Muhammad Rafique playing the pioneering role fired two gunshot fires landing on Sakhawat Ali's chest, neck and left shoulder whereupon he collapsed on the ground; where after Muhammad Ramzan caused carbine fire hitting Niamat's chest who too followed the suit; subsequent where to Muhammad Rafique fired another shot causing injuries on Soboba's right thigh, right arm and left upper arm and Rafaqat's head; Ramzan's carbine fire hit Sakina Bibi's right upper arm and Rashad Ali's right shoulder and left upper arm; Muhammad Hussain inflicted stick blow on the complainant's head to whom Bashir supplemented likewise injury on left hand while Ghulam Rasool appellant pursued Ariel rifle firing.
Sakhawat succumbed to the injuries on the spot while the injured were removed to the Civil Hospital Manawala.
5. The alleged motive of the incident was entanglement of Niamat deceased with the assailants over a controversy as to local lane.
6. Arshad Mahmood, S.-I./S.H.O. P.W.18 embarking upon the investigation prepared inquest reports Exhs.P.CC. And P.FF. Injury statements Exhs.P.DD. And P.EE. Of Niamat and Sakhawat deceased respectively; collected blood-stained earth from their respective places vide memos. Exhs.P.F. And P.J. 3 crime-empties of .12 bore gun P.15/1-3 and 3 crime-empties of rifle P.16/1-3 vide memo.
Exh.P.H. Attested by Muhammad Ashiq P.W.9, Khurshid given up and the Investigating Officer; got site plan Exh.P.E. Prepared from Syed Rab Nawaz Shah, Draftsman P.W.8; on 7-2-1990 arrested the acquitted co-accused who the same day led to the recovery of sticks (not stained) from their respective houses, Sheeda P.17, Bashir P.18, Muhammad Husain P.19, Maqbool P.20 and Muhammad Rashid P.21 taken possession of vide memo. Exhs.P.K., P.L.,' P.M., P.N. And P.Q., respectively, on 9-2- 1990 effected the appellants' arrest who likewise led to the recovery of gun P.24, its licenses P.25; carbine P.23 and rifle P.22 from their houses reduced into possession vide memo. Exhs.P.T., P.T./II, P.S. And P.R. Respectively attested by the same witnesses as in P.H.; secured into possession blood- stained clothes of Niamat deceased P.1 to P.5 and that of Sakhawat P.6 to P.10 tendered by Muhammad Boota F.C. P.W.1 and Muhammad laved F .0 . P. W .2.
7. Dr. Abdul Majeed P.W.7 Senior Medical Officer D.H.Q. Hospital Sheikhupura on 31-1-1990 conducted autopsy:-- ' On Niamat's body at 11 a.m. Noticing the following vide post-mortem report Exh.P.C.:--
(1) Eight fire-arm wounds of entry each measuring 1 x 1 c.m. In an area of 8 x 6 c.m. On front of right chest below the right nipple making five wounds of exit, each measuring 1.25 x 1.25 c.m. On back of right chest mid part in 9 x 7 c.m. Area.
(2) An abrasion 3 x 2 c.Rxj. On back of right cheek.
(3) An abrasion 1 x 1 c.m. On back of right hand."
' Stomach empty, injury No,1 of fire-arm origin sufficient to cause death in the ordinary course of nature as well as collectively with injuries ' Nos.2 and 3 of blunt weapon;. All ante-mortem; opined cause of death was cardio pulmonary arrest due to shock and hemorrhage.
(ii) On Sakhawat deceased on 11-30 a.m. Noticing the following vide postmortem report Exh.P.D.:-- ' Multiple fire-arm wound of entry each measuring .3 x .3 c.m. In an area of 37 x 17 c.m. Covering the front and sides of neck, left clavicle and supra clavicle regions, front of mid part of chest, front of right side of chest, right clavicle and supra clavicle regions and front top and the outer aspect right shoulder."
' Stomach empty injury No,1 of fire-arm origin ante-mortem, sufficient to cause death in the ordinary course of nature; opined cause of death was cardio pulmonary arrest due to shock and hemorrhage.
8. Dr. Muhammad Ghafoor Zafar, P.W.17, then Medical Officer, Civil Dispensary Mananwala on 30-1- 1990 from 8-00 a.m. Onwards examining the injured P.Ws. Noticed the following:--
(i) Sooba P.W.12 (M.L.R. Exh.P.r.).
"1. A lacerated wound 1 c.m. x 1 c.m. On upper part of left arm. The edges were burnt, shattered and inverted. Nothing was found from the wound. There was also corresponding marks on the arm of Qamees. Qamees was preserved and handed over to the police (X-Ray advised).
(2) A lacerated wound 1 c.m. x 1 c.m. On the lower 1/3rd of lateral part of right fore-arm. The edges of the wound were shattered, burnt and inverted. A single bullet (pellet) was removed from the wound. There was also corresponding mark on the arm of Qameez. The Qamees and the pellet were preserved and handed over to the police (X-Ray advised).
(3) A lacerated wound 1 c.m. x 1 c.m. On the lateral part of middle right thigh. The edges of the wound were burnt, shattered and inverted. Nothing was found from the wound. On probing 2 c.m.
Track seen and next probe was passed. There were five marks on the Dhoti, two of them were burnt and shattered. The Dhoti preserved and handed over to the police. (X-Ray advised).
(4) A lacerated wound 1 c.m. x 1 c.m. On the later posterior part of right thigh. The edges were shattered and everted. Nothing was found in the wound. On probing 4 c.m. Track found."
' Of one and half-hours' duration; was admitted as indoor patient but left the hospital agianst medical advice on 10-2-1990.
(ii) Arshad Ali P.W.14 (M.L.R. Exh.P.X.)
"(1) A lacerated wound 1/2 c.m. x 1/2 c.m. Just above the right armpit. The edges were shattered, burnt and inverted. Nothing was found from the wound. On probing track was about 2 c.m. The corresponding mark was also seen on the arm of Qameez. Qameez preserved and handed over to the police. (X-Ray advised).
(2) Al acerated wound 1/2 c.m. x 1/2 c.m. On the middle of left arm. The edges of wound shattered, burnt and inverted. A pellet was found in the rm and removed from the opposite side of the injury after giving small incision, the pellet preserved. The corresponding mark was also seen on the arm of Qameez. The pellet and Qameez handed over to the police. (X-Ray advised)." ' of fire-arm origin and 1 to 1-1/2 hours duration.
(iii) Sakina Bibi P.W.13 (M.L.R. Exh.P.Y.).
"A lacerated wound 1 c.m. x 1 c.m. On the upper part of right arm. The track of wound 3 c.m. Found.
The wound is shattered. Edges were burnt and inverted. Nothing was found from the wound. A corresponding mark also seen on the shirt arm. The shirt was preserved and handed over to the police." ' of fire-arm origin and of the same duration.
(iv) Rafaqat P.W.15 (M.L.R. Exh.P.Z.).
"(1) A lacerated wound 2 c.m. x 1 c.m. On the occiput. The edges of the wound were inverted and shattered. Tattooing was present. Nothing was found in the wound.
(2) A lacerated wound 1 c.m. x 1/2 c.m. On the left side of occiput. The edges were shattered and inverted. Tattooing was also seen upon the wound. ' Nothing was found from it." ' of fire-arm origin and of the same duration.
(v) Muhammad Arif P.W.10 (M.L.R. Exh.P.AA.).
"(1) A lacerated wound 1 c.m. x 1/2 c.m. On the middle phalynx of left little finger.
(2) A longitudinal laceration 2 c.m. x 2 c.m. On the scalp on right side." of blunt weapon simple in nature and of the same duration.
9. Dr. Farooq Anwar, P.W.19, Surgeon/Radiologist D.H.Q. Hospital, Sheikhupura affirmed X-Rays Reports of Sooba P.V./2 injury No,2 grievous; Arshad Exh.P.X./2 simple and Mst. Sakina Bibi Exh.P.Y./1 simple.
10. Muhammad Arif complainant P.W.10 testifying the prosecution story explained that the assailants forcibly wanted to carve out a passage through Niamat deceased's land as an access to their Haveli to which he did not concede whose house is situated Killa and a half away from the venue having a Pakka soiling; he has joint Haveli with the injured P. Ws. But separate cultivations; they were surrounded by the assailants leaving no room for their escape; the fire was caused from 4/5 Karms and after transporting the injured to the hospital he went to the police station.
11. He was corroborated on all material particulars by the injured P.Ws. Sooba P.W.12, Sakina Bibi P.W.13, Arshad Ali P.W.14 and Rafaqat P.W.15.
12. Forensic Expert Report Exh.P.KK. Was tendered by the Deputy District Attorney affirming matching of the crime empties received in the laboratory on 4-2-1990 with the appellant's weaponry delivered on 14-2-1990 Viz., Rafique's gun with two crime-empties of .12 bore, Ramzan's carbine with one crime-empty of the alike bore and Ghulam Rasool's rifle with the three bullets.
13. While the appellants as well as the acquitted co-accused's recording their statements contemplated by section 342, Cr.P.C. Entered the plea of denial opting not to depose on oath in terms of section 340(2) (ibid).
14. Whereupon the impugned judgment was delivered legality whereof has been assailed by the learned counsel appearing on behalf of the appellants contending that the F.I.R. Was lodged after preliminary enquiry; the occurrence did not take place at the alleged venue; the spelt out motive is insufficient; the recoveries are doubtful having not been touched by any independent witness; in the alternative being a case of sudden flare up without premeditation awarding of capital punishment to Muhammad Rafique and Muhammad Ramzan appellants is not called for; whereas only ineffective firing has been ascribed to Ghulam Rasool.
15. With which we are not impressed having perused the entire evidence with the assistance of the learned counsel for the appellants because Muhammad Arif complainant P.W.10 having personally suffered fire-arm injuries during the assault transporting the deceased and the injured P.Ws. To the hospital situated within immediate vicinity of the police station undertaking a journey of 8 miles reported the matter to the police at the police station where the F.I.R. Was lodged leaving little room for any maneuvering.
16. Whose deposition stands corroborated by four injured Pd.Ws. Namely Sooba P.W.12, Mst. Sakina P.W.13, Arshad Ali P.W.14 and Rafaqat P.W.15 bearing fire-arm wounds on vital parts of their anatomy, ruling out the possibility of fabrication and admitted lack of any animosity warranting false implication leaving the real culprits go scot free whose confidence inspiring testimonies' despite the searching cross-examination have remained unimpaired.
17. Further, the positive report of the Forensic Expert 'qua the crime-empties recovered from the venue and delivered to the laboratory much prior to the recovery of the weaponry from the appellants has remained impeached.
18. Consequently, the appellants' conviction and sentence is unexceptionable; resultantly, the appeal being devoid of any substance fails and is hereby dismissed.
19. Adverting to the complainant's Criminal Revision No,138 of 1992 tending to seek bifold relief viz., awarding of compensation against the appellant perceived by section 544-A, Cr.P.C. And enhancement of sentence of Ghulam Rasool appellant, the same is allowed qua the former's count awarding compensation of Rs,50,000 against Muhammad Rafique and Muhammad Ramzan on two counts or in default to suffer 6 months' S.I. On each count for the same having escaped the notice of the learned trial Court to spell out.
' However, the same is declined concerning Ghulam Rasool for non-ascription of any injury to the deceased.
20. While Criminal Revision No,139 of 1992 having been recourse grudging against legality of the respondents' acquittal fails for failure of the learned counsel to dislodge the reasons recorded or point out any perversity or material illegality meriting tinkering therewith and is hereby dismissed.
21. As a necessary corollary of the foregoing answering the murder reference in the affirmative the death sentences are confirmed.
22. Before parting, it may be observed that Ghulam Rasool appellant being on bail was around during part of the proceedings, however, towards tail and thereof slipped away, thus, should be treated as a fugitive from law for all intents and purposes and be taken into custody for serving out the remaining sentence.