IFTIKHAR HUSSAIN CHAUDHRY, J.- Mukhtar Ahmad son of Sher Muhammad armed with 12 bore shot- gun and Mukhtar Ahmad son of Ghulam Muhammad armed with a rifle, climbed a Police and then went to the roof-top of "Baithak" of Muhammad Riaz Shahid in village Thhakar Kalan at 2.00 a.m. On 20.8.1990 and then Mukhtar Ahmad son of Sher Muhammad shot dead Muhammad Akram, brother of complainant due to suspected illicit liaison of deceased with Mst. Bibi daughter of Sher Muhammad. Muhammad Riaz Shahid, complainant-PW-7, alleged that the accused had committed the murder at the instance of Nawaz, accused who had conspired to commit the murder Case: F.I.R. No. 277 dated 20.8.1990-Exhibit PD was registered at 6.00 a.m. On the same day at Police Station Qadir Abad located 30 KM away from the village at the instance of Muhammad Riaz, PW-7.
2. Safdar Inayat, Inspector/S.H.O. Police Station Qadirabad recorded statement Ex.PD of Muhammad Riaz, sent the same to Police Station for registration of FIR proceeded to the spot, prepared injury statement Exh. PH, inquest report Exh. PJ of Muhammad Akram and sent the dead- body under escort of Muhammad Sharif, PW-2 to Civil Hospital Phalia, recovered blood-stained earth from the spot and secured the same vide memo. Ex. PK. He got prepared site plans Exhs. PC & PC/1 from draughtsman-PW-4. He arrested Mukhtar Ahmad son of Sher Muhammad and Mukhtar son of Ghulam Muhammad accused on 28.8.1990. Mukhtar accused led to recovery of shotgun P.5 vide memo. Exh. PG. Mukhtar son of Ghulam Muhammad led to recovery of Rifle P.3 alongwith torch P.4 which were secured vide memo. PF. He also recorded statements of witnesses and thereafter, challaned the accused to Court.
3. Prosecution examined 13 witnesses at the trial.
4. Dr. Shahid Hassan Chatha, PW-1 conducted post-mortem examination on the dead-body of Muhammad Akram aged 18 years' at 3.30 p.m. On 20.8.1990. He noticed the following injury on his body: (1). Lacerated wound 3.75 x 2.75 cm going deep into chest in the left infra-clavicular area about mid clavicular line having an abraded collar. The direction is oblique from above downward and left to right. Surrounding area was tattooed.
According to witness the time that had elapsed between death and post-mortem examination was 10-20 hours and the deceased was find at from a distance of 1-2 yards, In cross-examination, the witness said that the shot was find from a higher level and the deceased would have taken his last meal about six hours before the occurrence.
5. The draughtsman Mian Muhammad Siddique appeared as PW-5. The witness had prepared site plans Exhs. PC and PC/1. In cross-examination the witness said that the place of occurrence was situated inside the village abadi.
6. Muhammad Riaz, complainant appeared as PW-7 He affirmed the prosecution story as given in FIR Exh. PD. He denied that the case was registered at the instance of Mukhtar son of Inayat. He denied the suggestion that the deceased was of bad character. He stated that he came to know about two days before the occurrence about the illicit relations of Mst. Bibi with the deceased. He denied that deceased was done to death when he was asleep all alone. Muhammad Khan younger brother of deceased and of complainant appeared as PW-8. He denied the suggestion that he and Riaz were called from Bharowal and were made false witnesses or that the occurrence was an unwitnessed one.1 Muhammad Hanif appeared as PW-9. He claimed that he was sleeping at the "Tharra" of his shop and had seen the accused-convicts while carrying gun and rifle descending from the house of Sharif, father of deceased. Muhammad Riaz PW-10 is witness of conspiracy. Recovery of blood-stained earth was proved by Muhammad Ashraf PW-13. He also deposed about hatching of conspiracy. Muhammad Arif had witnessed recovery of gun P.5 having been effected at the instance of Mukhtar son of Shera and of rifle P.3 and torch P.4 having been got recovered by Mukhtar son of Ghulam Muhammad.
7. Safdar Inayat, Inspector/SHO appeared as PW-12, He took various steps during investigation and had challaned the accused to Court.
8. The accused in their examination under Section 342 Cr.P.C, professed innocence and claimed false implication at the instance of one Inayat due to enmity.
9. The learned Additional Sessions Judge Gujrat believed the-prosecution case to the extent of Mukhtar Ahmad son of Sher Muhammad and Mukhtar son of Ghulam Muhammad and convicted them under Sections 302/34 P.P.C, and vide judgment dated 14.3.1991, sentenced them as under: Mukhtar son of Sher Muhammad. Death sentence and a fine of Rs. 25,000/-, in default of payment of which to undergo R.I for three years. The Convict was directed to pay a sum of Rs. 25000/- as compensation to legal heirs of the deceased. In case of default, the convict was to undergo 3 years' S.I. Mukhtar son of Ghulam Muhammad: Imprisonment for life: Fine of Rs. 25,000/- and compensation of same amount to be paid to legal heirs of deceased.
Nawaz, co-accused of Mukhtars was, however, acquitted.
10. The convict submitted criminal appeal No. 326/1991, against the conviction and sentence awarded to him. Cr. Revision Petition No. 248/91 was find by the complainant seeking setting aside acquittal of co-accused of the convicts. Matter has also been referred vide M.R. 141/1991 by the Trial Court for confirmation of the sentence of death imposed on Mukhtar. Learned counsel for the parties have been heard.
11. Learned counsel for the appellant submitted that the prosecution case was that Nawaz son of Shera suspected that the deceased had illicit relations with Mst. Bibi his sister and Nawaz had it was no where alleged that Mukhtar appellant had such a grievance and that the case of prosecution to the extent of conspiracy had failed and the appellant was thus not connected the commission of the offence Because of severing of the link provided by the conspiracy. It was further argued that Mukhtar son of Ghulam Muhammad did nothing overt and had no motive to have done away with the deceased, It was further contended that the prosecution had made improvements at the trial and had shown availability of source of light which fact was not mentioned in the FIR.. It was further submitted that the complainant had admitted that he had remained at the spot for two hours and then had gone to the Police Station which was indicative of fact that case was registered after preliminary investigation. It was claimed that it was an unwitnessed incident and the appellants were implicated due to enmity. Learned counsel for the State and complainant supported the impugned judgment. It was submitted that it was not required of the complainant to have specifically alleged motive against each of the accused.
Mukhtar son of Shera was brother of Nawaz and Mst. Bibi was his sister as well and it could not be said that he did not have motive to commit the offence, it was submitted that the benefit of doubt given to accused of conspiracy could be availed of only by that accused who had been acquitted but the prosecution case to the extent of appellants was not effected in any manner. It was argued that F.I.R, is not supposed to contain the minutest details and mentioning of lantern therefore, was not a material improvement. It was submitted that the prosecution case was fully proved by the witnesses who were naturally present and their testimony was supported by other evidence and since it was pre-planned, cold blooded murder, the convicts did not deserve any leniency.
12. Conspiracy is an intrigue or scheme which germinates in the dark alleys of sinister minds and comes to light only when its external results are known. Direct evidence for hatching of conspiracy is hard to come by and it is proved by indirect evidence which can falter and may not result in conviction of the conspirators. But it would be seen that happening of an event or existence of a state of affairs is one thing and proving, at a subsequent stage the particular manner in which it had happened or had prevailed, are altogether different things. Non proving of conspiracy through sufficient evidence of acceptable legal standard would never mean that such an event had not taken place. In this case Nawaz brother of the convict a school teacher got arrested in a case under Arms Ordinance and came out of lock-up after the occurrence, the choice of time and manner in which the design was accomplished do allude to the fact that the occurrence was not simply the prank of an individual. Therefore, the argument advanced on behalf of the convict in this regard may have some semantic value, but is of no legal consequence. The complainant was not required to explicitly assign motive to each of the accused mentioned in the F.I.R. He had assigned the motive to a group of people and for all practical purposes, he had ascribed the motive to the individuals who formed that group. Mukhtar son of Sher Muhammad was real brother of Nawaz and obviously had the same motive as Mst. Bibi was his real sister as well. The failure of the conspiracy theory and acquittal of a co-accused of the convicts, therefore, does not have any bearing on the case of the present appellants.
13. It was argued by the learned counsel for the appellants that the complainant himself admitted that he remained at the spot for two hours and then had gone to the Police Station which was indicative of preliminary investigation having been conducted prior to formal registration of the case. It would be seen that occurrence took place at 2.00 a.m. (which time has been endorsed by the medical evidence as well) and it would not have been possible for the complainant to have made a be-line for the Police Station straightaway when prowling armed murderers would be around. The matter was reported to police very early in the morning and in the facts and circumstances of the case was a very promptly lodged FIR.
14. It was suggested to the complainant that case was registered at the instance of one Inayat.
Said Inayat has not been shown as having any special influence over the complainant party or the local police or that he was capable of influencing the course of entire investigation. The defence version that the complainant was prevailed upon by said Inayat, who was inimical towards the accused, to have coined a story to frame them in the case is not supported by any aspect of the case or material on record.
15. The occurrence in this case had taken place inside the house of the complainant where he was present. Muhammad Khan a 15 years old by was also present there. It has not been shown that the eye-witnesses were not present in their own house but were living elsewhere. The complainant and PW-8 were naturally present in their own house and as is customary during hot summer days, were asleep on the roof top of their house. (The village was not electrified till then.) The correctness of site-plan Exh. PC has not been challenged. The memo, of recovery of blood-stained earth Exh. PK was admitted in evidence without any objection Similarly the Investigating Officer was not accused of having changed the spot of occurrence. The witnesses were present at the spot, occurrence took place at about 2.0 a.m. In August. The Medical Officer also supported this aspect of the case and his opinion in this regard was not assailed. The deceased had find at the deceased from a short distance and had gone right upto the cot of deceased therefore his detection or establishment of his identity were not at all questionable when he was fully known to the witnesses. It has been seen that in cases of suspected illicit liaison, only the individual subject of such suspicion is targeted and in this case only Muhammad Akram was to be eliminated and the accused must have spent some time in locating the target and this would have provided enough opportunity to have identified the assailant. The testimony of PW-7 & PW-8 was unequivocal and straight forward. Their conduct at the time of occurrence was natural and later they testified at the trial with confidence which is exuded by truthful witnesses only. Mukhtar Ahmad son of Shera and his family had no enmity with the complainant party. It has not been shown as why he was picked out of the crowd to be branded as murderer of Muhammad Akram.
16. We have meticulously examined the record in the light of submission made at the bar and are of the view that the prosecution had successfully proved its case against Mukhtar son of Shera on this basis of evidence led at the trial in the form of ocular account the motive, the medical evidence, and the evidence of recoveries. It was a savage and cold-blooded murder committed on the supposed insult caused to the family. Mukhtar son of Sher Muhammad, was rightly convicted for the murder of Muhammad Akram who was just 18 years' old. And sentence awarded to him was well-warranted.
As far as Mukhtar son of Ghulam Muhammad is concerned he had no direct motive to have committed the offence and therefore, by way of abundant caution, we extend benefit of doubt to him and acquit him from the case.
17. The Criminal Appeal No. .326, of 1991 is, consequently, partly allowed to the extent of Mukhtar son of Ghulam and is dismissed to the extent of Mukhtar son of Sher Muhammad. Conviction and sentence awarded to him by the Trial Court are maintained.
18. The criminal revision petition 248 of 1991 is considered to be without much substance and is dismissed.
19. Murder reference is answered in the affirmative. Mukhtar Ahmad son of Sher Muhammad armed with 12 bore shot-gun and Mukhtar Ahmad son of Ghulam Muhammad Armed with a nifle, climbed a Police and then went to the roof-top of "baithak" of Muhammad Riaz Shahid in village Thhakar Kalan at 2.00 AM on 20.89.1990 and then Mukhtar Ahmad son of Sher Muhammad shot dead Muhammad Akram, brother of complainant due to suspected illicit liaison of deceased with Mst Bibi daughter of Sher Muhammad. Muhammad Riaz Shahid, complainant-PW-7, alleged that the accused had committed the murder at the instance of Nawaz, accused who had conspired to commit the murder Case: F.I.R. No. 277 dated 20.8.1990-Exhibit PD was registered at 6.00 AM on the day at Police Station Qadir Abad located 30 KM away from the village at the instance of Muhammad Riaz, PW-7.
2. Safdar Inayat, Inspector/S.H.O. Police Station Qadirabad recorded . Statement Ex.PD of Muhammad Riaz, sent the same to Police Station for registration of FIR proceeded to the spot, prepared injury statement Exh. PH, inquest report Exh. PJ of Muhammad Akram and sent the dead- body under escort of Muhammad Sharif, C. PW-2 to Civil Hospital Phalia, recovered blood-stained earth from the spot and secured the same vide memo. Ex. PK. He got prepared site plans Exh. PC & PC/1 from draughtsman-PW-4. He arrested Mukhtar Ahmad son of Sher Muhammad and Mukhtar son of Ghulam Muhammad Accused on 28.8.1990. Mukhtar accused led to recovery of shotgun P.5 vide memo. Exh. PG. Mukhtar son of Ghulam Muhammad led to recovery of Rifle P.3 alongwith torch P.4 which were secured vide memo. PF. He also recorded statements of witnesses and thereafter, chalained the accused to Court.
3. Prosecution examined 13 witnesses at the trial.
4. Dr. Shahid Hassan Chatha, PW-1 conducted post-mortem examination on the dead-body of Muhammad Akram aged 18 years' at 3.30 p.m. On 20.8.1990. He noticed the following injury on his body:
1. Lacerated wound 3.75 x 2.75 cm going deep into chest in the left infra-clavicular area about mid clavicular line having an abraded collar. The direction is oblique from above downward and left to right. Surrounding area was tattooed.
According to witness the time that had elapsed between death and post-mortem examination was 10.20 hours and the deceased was find at from a distance of 1.2 yards. In cross-examination, the witness said that the shot was find from a higher level and the deceased would have taken his last meal about six hours before the occurrence.
5. The draughtsman Mian Muhammad Siddique appeared as PW-5. The witness had prepared site plans Ex. PC and PC/1. In cross-examination the witness said that the place of occurrence was situated inside the village abadi.
6. Muhammad Riaz, complainant appeared as PW-7 He affirmed the prosecution story as given in FIR Exh. PD. He denied that the case was registered at the instance of Mukhtar son of Inayat. He denied the suggestion that the deceased was of bad character. He stated that he came to know about two days before the occurrence about the illicit relations of Mst. Bibi with the deceased. He denied that deceased was done to death when he was asleep all alone. Muhammad Khan younger brother of deceased and of complainant appeared as PW-8. He denied the suggestion that he and Riaz were called from Bharowal and were made false witnesses or that the occurrence was an unwitnessed one. Muhammad Hanif appeared as PW-9. He claimed that he was sleeping at the "Tharra" of his shop and had seen the accused-convicts while carrying gun and rifle descending from the house of Sharif, father of deceased. Muhammad Riaz PW-10 is witness of conspiracy. Recovery of blood-stained earth was proved by Muhammad Ashraf PW-13. He also deposed about thatching of conspiracy. Muhammad Arif had witnesses recovery of gun P % having been effected at the instance of Mukhtar son of Shera and of rifle P.3 and torch P.4 having been got recovered by Mukhtar son of Ghulam Muhammad.
7. Safdar Inayat, Inspector SHO appeared as PW-12, He took various steps during investigation and had challaned the accused to Court.
8. The accused in their examination under Section 342 Cr.P.C, professed innocence and claimed false implication at he instance of one Inayat due to enmity.
9. The learned Additional Sessions Judge Gujrat believed the prosecution case to the extent of Mukhtar Ahmad son of Sher Muhammad and Mukhtar son of Ghulam Muhammad and convicted them under Sections 302/34 P.P.C, and vide judgment dated 14.3.1991 sentenced them as under: Mukhtar son of Sher Muhammad Death sentence and a fine of Rs. 25,000/= in default of payment of which to undergo R1 for three years. The convict was directed to pay a sum of Rs. 25000/= as compensation to legal heirs of the deceased. In case of default, the convict was to undergo 3 years' S.I. Mukhtar son of Ghulam Muhammad: Imprisonment for life. Fine of Rs. 25,000/= and compensation of same amount to be paid to legal heirs of deceased.
Nawaz, co-accused of Mukhtars was, however, acquitted.
10. The convict submitted criminal appeal No. 326/1991 against the conviction and sentence awarded to him. Cr. Revision Petition No. 248/91 was find by the complainant seeking setting aside acquittal of co-accused of the convicts. Matter has also been referred vide M.R. 141/1991 by the Trial Court for confirmation of the sentence of death imposed on Mukhtar. Learned counsel for the parties have been heard.
11. Learned counsel for the appellant submitted that the prosecution case was that Nawaz son of Shera suspect that the deceased had illicit relations with Mst. Bibi his sister and Nawas had it was no where alleged that Mukhtar appellant had such a grievance and that the case of prosecution to the -extent of conspiracy had failed and the appellant was thus not connected the commission of the offence because of severing of the link provided by the conspiracy. It was further argued that Mukhtar son of Ghulam Muhammad did nothing overt and had no motive to have done away with the deceased. It was further contended that the prosecution had made improvements at the trial and had shown availability of source of light which- fact was not mentioned in the FIR. It was further submitted that the complainant had admitted that the had remained at the spot for two hours and then had gone to the Police Station which was indicative of fact that case was registered after preliminary investigation. It was claimed that it was an unwitnessed incident and the appellants were implicated due to enmity. Learned counsel for the state and complainant supported the impugned judgment. It was submitted that it was not required of the complainant to have specifically alleged motive against each of the accused. Mukhtar son of Shera was brother of Nawaz and Mst Bibi was his sister as well and it could not be said that he did not have motive to commit the offence. It was submitted that the benefit of doubt given to accused of conspiracy could be availed of only by that accused who had (been acquitted bu the prosecution case to the extent of appellants was not effected in any manner. It was argued that F.I.R, is not supposed to contain the minutest details and mentioning of lantern therefore, was not a material improvement.
It was submitted that the prosecution case was fully proved by the witnesses who were naturally present and their testimony was supported by other evidence and since it was pre-planned, cold blooded murder, the convicts did not deserve any leniency.
12. Conspiracy is an intrigue or scheme which germinates in the dark alleys of sinister minds and comes to light only when its external results are known. Direct evidence for thatching of conspiracy is hard to come by and it is proved by indirect evidence which can falter and may not result in conviction of the conspirators. But it would be seen that happening of an event or existence of a state of affairs is one thing and proving, at a subsequent stage the particular manner in which it had happened or had prevailed, are altogether different things. Non proving of conspiracy through sufficient evidence of acceptable legal standard would never mean that such an even had not taken place. In this case Nawaz brother of the convict a school teacher got arrested in a case under Arms ordinance and came out of lock-up after the occurrence, the choice of time and manner in which the design was accomplished do allude to the fact that the occurrence was not simply the prank of an individual. Therefore, the argument advanced on behalf of the convict in this regard may have some semantic value but is of no legal consequence. The complainant was not required to explicitly assign motive to each of the accused mentioned in the F.I.R. He had assigned the motive to a group of people and for all practical purposes, he had ascribed the motive to the individuals who formed that group. Mukhtar son of Sher Muhammad was real brother of Nawaz and obviously had the same motive as Mst Bibi was his real sister as well. The failure of the conspiracy theory and acquittal of a co accused of the convicts, therefore, does not have any bearing on the case of-the present appellants.
13. It was argued by the learned counsel for the appellants that the complainant himself admitted that he remained at the spot for two hours and then had gone to the Police Station which was indicative of preliminary investigation having been conducted prior to formal registration of the case. It would be seen that occurrence took place at 2*00 AM (which time, has been endorsed by the medical evidence as well) and it would not have been possible for the complainant to have made a be-line for the Police Station straightaway when prowling armed murderers would be around. The matter was reported to Police very early in the morning and in the facts and circumstances of the case was a very promptly lodged FIR.
14. It was suggested to the complainant that case was registered at the instance of one Inayat.
Said Inayat has not been shown as having any special influence over the complainant party or the local Police or that he was capable of influencing the course of entire investigation. The defence version that the complainant was prevailed upon by said Inayat, who was inimical towards the accused, to have coined a story to frame them in the case is not supported by any aspect of the case or material on record.
15. The occurrence in this case had taken place inside the house of the complainant where he was present. Muhammad Khan a 15 year old by was also present there. It has not been shown that the eyewitness were not present in their own house but were living elsewhere. The complainant and PW-8 were naturally present in their own house and as is customary during hot summer days, were asleep on the roof top of their house. (The village was not electrified till then.) The correctness; of site-plan Exh. PC has not been challenged. The memo, of recovery of blood-: rained earth Exh. PK was admitted in evidence without any objection Similarly the Investigating Officer was not accused of having changed the spot of occurrence, the witnesses were present at the spot. Occurrence took place at about 2.0 AM in August. The Medical Officer also supported this aspect of the case and his opinion in this regard was not assailed. The deceased had find at the deceased from a short distance and had gone right upto the cot of deceased therefore his detection or establishment of his identity were not at all questionable when he was fully known to the witnesses. It has been seen that in cases of suspected illicit liaison, only the individual subject of such suspicion is targeted and in this case only Muhammad Akram was to be eliminated and the accused must have spent some time in locating the target and this would have provided enough opportunity to have identified the assailant. The testimony of PW-7 & PW-8 was unequivocal and straight forward. Their conduct at the time of occurrence was natural and later they testified at the trial with confidence which is exuded by truthful witnesses only. Mukhtar Ahmad son of Shera and his family had no enmity with the complainant party. It has not been shown as why he was picked out of the crowd to be branded as murderer of Muhammad Akram.
16. We have meticulously examined the record in the light of submission made at the bar and are of the view that the prosecution had successfully proved its case against Mukhtar son of Shera on this basis of evidence led at the trial in the form of ocular account the motive, the medical evidence, and the evidence of recoveries. It was a savage and cold-blooded murder committed on the supposed insult caused to the family. Mukhtar son of Sher Muhammad was rightly convicted for the murder of Muhammad Akram who was just 18 years' old. And sentence awarded to him was well-warranted. As far as Mukhtar son of Ghulam Muhammad is concerned he had no direct motive to have committed the offence and therefore, by way of abundant caution, we extend benefit of doubt to him and acquit him from the case.
17. The Criminal Appeal No. 326 of 1991 is, consequently, partly allowed to the extent -of Mukhtar son of Ghulam and is dismissed to the extent of Mukhtar son of Sher Muhammad. Conviction and sentence awarded to him by the Trial Court are maintained.
18. The Criminal Revision Petition 248 of 1991 is considered to be without much substance and is dismissed.
19. Murder reference is answered in the affirmative.