' Instant appeal is directed against judgment dated 28-8-1994 passed by Mian Subah Sadiq, Additional Sessions Judge, Faisalabad, whereby he convicted all the three appellants under section 302(b), P.P.C. And sentenced each of them to imprisonment for life and fine of Rs,20,000 each to be paid to the legal heirs of the deceased as compensation or in default thereof R.I. For 6 months each.
2. Briefly stated the facts are that Muhammad Anwar complainant is resident of Chak No,54/RB, whereas his cousins Muhammad Siddique and Pervaiz reside in Chak No,103/RB. During the year 1991 Muhammad Ayub and Mst. Fazlan, son and wife of Gulzar Ahmad were murdered, for which Pervaiz aforementioned and others were challaned and were convicted. A week prior to the day of occurrence i.e, 24-7-1992 Gulzar Ahtnad apparently patched up with Muhammad Siddique and others, accused of murder of Muhammad Ayub and Mst. Fazlan, and fixed the said day i.e, 24-7- 1992 for finalizing the detail of compromise to be submitted in Court. Accordingly on 24-7-1992 the complainant alongwith Zakaryya and Mansaf Ali on a car, while Muhammad Saddique on his motor-cycle made for the house of Gulzar and reached near the land of Sardar Muhammad son of Mehr Ali at about 9.00 a.m. Muhammad Siddique asked the complainant and others to stop on the road and went to call Sardar Muhammad who was ploughing his field. He talked for a few minutes with Sardar Muhammad and while he was returning, he was waylaid by Tahir Mahmood D.B. Gun and Muhammad Tariq and Muhammad Anwar armed with .12 bore guns who had concealed themselves in the sugar-cane field. They fired at Muhammad Siddique, hitting him at his chest who as a result thereof fell down. The accused then approached him (deceased) and fired at him indiscriminately and therefore decamped from there. The incident was witnessed by Mansaf Ali and Sardar Muhammad. The motive behind this occurrence is that accused at the instigation of their father Gulzar had taken revenge of the murder of the brother and mother. Leaving Zakaryya, Mansaf Ali and Sardar Muhammad on the spot to guard over the dead body complainant made for police station to lodge F.I.R., which was recorded by P.W.1 Ghulam Mustafa, Head Constable.
Initially investigation was conducted by P.W.11 Allah Ditta S.I. Who visited the place of occurrence and prepared injury statement of the deceased Exh. PI and inquest report Exh.PJ. He then despatched the dead body through Asghar Ali constable for post-mortem examination to T.H.Q.
Hospital Jaranwala. Muhammad Akram and Muhammad Sadiq accompanied the dead body and also identified the same at the time of post-moretm examination. He collected blood-stained earth from the place of occurrence and made a sealed parcel of the same vide memo. Exh. PH and also prepared rough site plan of the place of occurrence vide memo. Exh.PK. After post-mortem examination, Asghar Ali constable produced last worn clothes of deceased Exhs.P1 to P3 alongwith a sealed phial which he secured vide memo. Exh.PC. On 1-8-1992, he got the site plan Exhs.PG & PG/1 prepared through Patwari and red notes on the said site plan are in his hands. On 8-8-1992, he formally arrested accused Gulzar Ahmad. He handed over parcels of blood-stained earth to Moharrir Head Constable. On 30-8-1992, he arrested the accused Anwar and thereafter the investigation was handed over to Muhammad Nazir S.H.O./Inspector C.I.A. Who on 7-11-1992 arrested the accused Tahir Mahmood and Tariq. On 13-9-1992, the accused Muhammad Anwar Jed to the recovery of a .12 bore gun P7 alongwith two live cartridges P8/1-2 from his residential house which he secured vide memo. Exh.PF and also prepared site-plan of place of recovery vide memo. Exh.PF/1. He also recorded statements of recovery witnesses, namely Muhammad Hussain and Muhammad Sadiq P.Ws. On 14-11-1992, the accused Tariq led to the recovery of gun P4 from his residential house which he secured vide memo. Exh.PD. He also prepared site-plan of place of recovery Exh.PD/1 and recorded statements of recovery witnesses, namely Mansab Ali and Haroon Rashid. On the same day accused Tahir Mahmood also led to the recovery of gun P5 and five live cartridges Exh.P6/1-2 from his residential house which he secured vide memo. Exh.PE. He also prepared site-plan of place of recovery Exh.PE/1 and recorded the statements of recovery witnesses. After completing the investigation, he got the accused challaned.
3. A charge under section 109 read with section 302, P.P.C. Was framed against Gulzar Ahmad accused whereas accused Tahir Mahmood, Muhammad Tariq and Muhammad Anwar were charged under section 302/34, P.P.C., to which all accused pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused, the prosecution examined P.W.1 Ghulam Mustafa Moharrir, Head Constable who is the scriber of the F.I.R. Exh PA. He was also handed over one sealed parcel containing bloodstained earth for safe custody which he handed over to Asghar Ali constable on 30-7-1992 for onward transmission to the office of Chemical Examiner, Lahore. P.W.2.
Dr. Muhammad Imtiaz Rabbani conducted post-mortem examination of Muhammad Siddique son of Muhammad Din on 24-7-1992 and found four wounds of entrance which are as follows.
(1) Fire-arm lac. Wound margin black inverted 4 c.m. x 3 c.m. Making a hole 10 c.m. Below from top of shoulder. The injury was on the front upper and outer part of right chest and directed downwards inwards and to the front.
(2) A fire-arm lac. Wound margin black inverted 4 c.m. x 3 c.m. Making a hole 12 c.m. Below from left Axilla on the interior axillary line and directed to the right and inward.
(3) A fire-arm lac. Wound margin black and inverted 3 c.m. x 2.5 c.m. Making a hole 7 c.m. Below from left nipple. The injury was directed inwards, upwards and to the right.
(4) Fire arm lac. Wound margin black inverted 2.5 c.m. x 2.5 c.m. On front of chest 17 c.m. Below from supra sternal notch and directed backward upwards and to the right.
' He also found four wounds of exit which are as under:
(1) 3 number of lac. Wounds margin everted each 1 c.m. x 1 c.m. On back of left chest lower part in an area of 3 c.m. x 2.5 c.m.
(2) 3 number of lac. Wounds margin everted each 1 c.m. x 1 c.m. On outer side of left abdomen in area of 6 c.m. x 5 c.m.
(3) 9 numbers of lac. Wounds 1 c.m. x 1 c.m. On outer side of right chest lower part in an area of 10 c.m. x 7 c.m.
(4) 3 numbers of lac. Wounds' 1 c.m. x 1 c.m. On the centre of front of chest.
' On dissection and opening the chest, four upper right ribs were fractured, left 5th and 6th ribs were fractured, right lung, left lung and heart were ruptured very badly. Chest cavity contained enough amount of blood. On opening the abdomen 1/4th of the right side liver was ruptured and spleen was also ruptured. Abdominal cavity contained enough amount of blood. 3 numbers of plastic wads and 11 numbers of pallets were recovered from the body. All the injuries were anti- mortem, fatal and had been caused by fire-arm, The death, according to the medical officer, was due to shock and haemorrhage as a result of fire-arm entrance wounds which were four in number and each one was sufficient to cause death in ordinary course of nature. The time between injury and death was immediate whereas the time between death and post-mortem was 3.30 hours approximately. He produced carbon copy of post-mortem report Exh.PB and sketch Exh.PB/1 which bear his signatures. After post-mortem examination, he handed over the dead body alongwith last worn clothes, police papers and a sealed phial containing three wads and 11 pallets to Asghar Ali constable. P.W.3 is Asghar Ali constable who escorted the dead-body on 24-7-1992 from the place of occurrence to T.H.Q. Hospital Jaranwala. After post-mortem examination, he was handed over last worn clothes of the deceased P1 to P3 and a sealed phial which he produced before the Investigating Officer who secured the same vide memo Exh.PC which bears his signatures. On 30-7-1992, he was given a sealed parcel containing blood-stained earth by Mustafa MHC for onward transmission to the office of Chemical Examiner, Lahore which he deposited in the said office intact. P.W.4 Haroon-ur-Rashid has deposed that on 14-11-1992, he alongwith Mansaf Ali joined the investigation and accused Tariq led to the recovery of a .12 bore double barrel gun P4 from a room of his residential house alongwith its license which was secured by the Investigating Officer vide memo Exh.PD which bears their signatures. On the same day Tahir Mahmood accused had also led to the recovery of gun P5 alongwith five live cartridges Exh.P6/1-5 which were secured vide memo. Exh.PE which bears his signatures. P.W.5 Muhammad Hussain is the witness of recovery of gun P7 alongwith two live cartridges P8/1-2 at the instance of Muhammad Anwar accused which were secured vide memo. Exh.PF and which bears their signatures. P.W.6 Muhammad Sadiq has deposed that he had identified the dead body of Muhammad Siddique on 24-7-1992 at the time of post-mortem examination in T.H.Q. Hospital Jaranwala. P.W.7 Mansaf Ali Patwari has deposed that on 1-8-1992, he visited the place of occurrence and on the pointation of P.Ws., and directions of the police had prepared site-plans Exhs.PG and PG/1. All the drawings and notes in black ink are in his hands and bear his signatures. P.W.8 Muhammad Anwar is the complainant and has corroborated his version appearing in the F.I.R. Exh.PA. P.W.9 Zakaryya is the eye-witness of this occurrence who had corroborated the version of P.W.8 Muhammad Anwar. He has further deposed that he had joined the investigation of this case and the police had secured blood-stained earth and made a sealed parcel of the same vide memo. Exh.PH which bears his signatures. He further deposed that the accused had committed the murder of Muhammad Siddique at the instigation of their father Gulzar Ahmad. P.W.10 Muhammad Nazir was posted as Inspector/S.H.O. At Police Station Khurianwala on 30-8-1992. He conducted the investigation of this case and his evidence has already been referred above. P.W.11 Allah Ditta S.I. Was posted at Police Station Khurianwala on 24- 7-1992. On the same day, he was handed over copy of F.I.R. Exh.PA. He further conducted the investigation which has also been referred above. The learned D.D.A. Produced the report of the Chemical Examiner P.L. And that of Serologist Exh.PX and after giving up Muhammad Sharif and Nazir Ali P.Ws., having been won over by the accused, closed the evidence of the prosecution vide his statement dated 29-5-1994.
5. Statements of the accused Tahir Mahmood, Muhammad Tariq and Muhammad Anwar have been recorded under section 342, Cr.P.C. Wherein they denied the prosecution version and stated that none of them has committed murder of Muhammad Siddique deceased and they have been involved in this case falsely. They denied the recovery of guns etc. And stated that the said recoveries have been planted upon them just to strengthen the prosecution case. They did not claim the articles alleged to have been recovered at their instance. They stated that some unknown person fired at the deceased culminating into his death and they have been involved in this case due to their previous enmity. Accused Tahir Mahmood and Muhammad Tariq stated that neither they would produced defence evidence nor would examine themselves under section 340(2), Cr.P.C. However, accused Muhammad Anwar chose to produce evidence in his defence. He examined D.W.1 Abdur Rashid Piracha, D.W.2 Muhammad Azam and recorded his own statement as D.W.3. The accused Gulzar Ahmad also denied the prosecution contention while recording his statement under section 342, Cr.P.C. He reiterated the stand of his co-accused regarding his false involvement and murder of deceased at the hands of some unknown persons. He stated that neither he would record his statement under section 340 (2), Cr.P.C. Nor would like to adduce evidence in his defence.
' Arguments have been heard and record perused.
7. Learned counsel for the appellants had assailed the prosecution evidence on different grounds.
8. Firstly, he has stated that there is delay in lodging the F.I.R., that occurrence took place at 9.00 a.m. Whereas F.I.R. Has been lodged at 10-5 a.m. When the distance between place of occurrence and police station is only six kilometres. Secondly, he had submitted that there is conflict between ocular evidence vis-a-vis medical evidence. While elaborating his contention, he submitted that as per averments contained in the F.I.R., the deceased was fired at by the appellants in the first instance and later on, they also fired indiscriminately on his (deceased) person, that it has been admitted by P.W.8 Muhammad Anwar complainant that each accused-appellant had caused 5/6 fire-shots on the deceased. He argued that if this contention of indiscriminate firing and of causing 5/6 fire-shots by each appellant is accepted, then there must have been 15/20 wounds on the person of deceased, but this contention is not borne out from record, as only four wounds of inlet and four wounds of exit have been found on the person of deceased as per post-mortem report of P.W.2 Dr. Muhammad Imtiaz Rabbani. He next argued that this discrepancy in the number of injuries also makes the very presence of complainant at the spot highly doubtful, that even otherwise it is admitted fact that complainant resided 23/24 miles away from the place of occurrence and there is also no explanation of his being present there. He next argued that as evidence of eye-witnesses is inconsistent with medical evidence, so accused is entitled to benefit of such inconsistency and relied upon Mitho v. The State. 1972 Law Notes 360 (Karachi) as well as Allah Bakhsh and another v. The State (1969 PCr.LJ 251 (Lahore). He further argued that complainant Muhammad Anwar is related to the deceased and this partisan character of the complainant makes his evidence untrustworthy and relied upon Saeed Ahmad and another v. The State (PLD 1972 Lahore 360). He further argued that even the defence evidence produced by Muhammad Anwar accused has not been properly appreciated by the trial Court, that even if it s assumed that there were certain lacunas and defects in the defence evidence, that does not afford a ground for passing an order of conviction, as prosecution has to stand upon its own legs and weakness of defence plea is no ground to pass an order of conviction and relied upon PLD 1972 Lahore 360, that deceased had various enemies as he stood involved in various cases as admitted by P.W.9 and there is every possibility that he (deceased) was done to death by one of his enemies.
He, thus, submitted that prosecution has failed to bring home guilt to the accused/appellants beyond doubt, as such appeal may be accepted and they be acquitted by extending benefit of doubt.
9. On the other hand, judgment under appeal has been supported by learned counsel for the complainant, who has submitted that there is no delay in lodging the F.I.R. As occurrence took place on 24-7-1992 at 9.00 a.m. Whereas F.I.R. Has been lodged on the same day at 10-05 a.m.
When the distance between place of occurrence and police station is six miles that this promptness in lodging the F.I.R. Eliminates any chance of false implication, that substitution is a rare phenomenon and there is nothing on the record to support its assertion, that occurrence having taken place during broad day light further eliminates chances of false involvement. So far as presence of P.W.8 Muhammad Anwar at the place of occurrence is concerned, he submitted that he was present there as he was going alongwith other witnesses to the house of Gulzar Ahmad accused, since acquitted, in connection with the finalization of compromise to be submitted in the Court, that presence of P.W.9 Zakaryya also stands proved from his evidence and he being an independent witness, his evidence requires proper weight, that there are no discrepancies between ocular account of eyewitnesses and medical evidence as the statement of P.W.2 Dr. Muhammad Imtiaz Rabbani clearly shown that he had recovered three wads and 11 pellets from the person of the deceased, which fact clearly proves that the deceased had been caused three fire shots by three different persons. Had the medical officer been unable to collect three wads, there could be some substance in the arguments of other side, he argued. He further submitted that even the time of occurrence stands corroborated from the post-mortem examination report. He submitted that there were no mitigating circumstances for awarding life imprisonment to the appellants, as such, sentence of life imprisonment may be enhanced and the appellants be awarded capital punishment by accepting his revision petition, which is still at motion stage.
10. Learned counsel for the State has adopted the arguments addressed at the Bar by learned counsel for the complainant. However, he submitted that as it could not be ascertained as to whose shot had caused the death of the deceased, so the trial Court was justified in awarding life imprisonment and relied upon Sarfraz and 4 others v. The State (1971 PCr.LJ 205). He further submitted that as it was a broad daylight occurrence, accused have been specifically mentioned in the F.I.R. Which was lodged promptly and which stands fully corroborated by medical evidence, as such, it was not necessary to look for corroboration and order of conviction could be passed on the basis of evidence brought on record and relied upon Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 3 others (PLD 1976 SC 452). He, thus submitted that there is no force in this appeal and the same be dismissed.
11. Now the question is, if prosecution has been able to bring home guilt to the accused or not on the basis of evidence discussed above.
12. A perusal of the F.I.R. Clearly shows that there existed a motive for the commission of this offence on the part of the appellants as their brother Muhammad Ayub and mother Mst. Fazlan had been done to death at the hands of Pervaiz, a relative of the deceased Muhammad Siddique and it was Muhammad Siddique deceased who had been pursuing the case of the accused of that case.
Thus, there was a motive available to the accused for the commission of this offence.
13. All the three accused/appellants have been nominated and assigned a specific role of causing injuries to the deceased in the first instance and firing indiscriminately on the person of the deceased. The version given in the F.I.R. Stands corroborated by P.W.8 Muhammad Anwar as well as P.W.9 Zakaryya. There is no doubt that there are certain discrepancies in the statements of Muhammad Anwar and Zukaryya in so far as the number of fire shots is concerned, but these discrepancies loose their force, when it is admitted by Medical Officer that he recovered three wads from the body of deceased. This admission on his part conclusively proves that there were three assailants and three weapons had been used. Thus, the medical evidence conclusively proves the prosecution version that deceased was done to death as a result of injuries ( caused by three persons who could be none else except the accused/appellants.
14. Again in the instant case, occurrence took place at 9.00 a.m., whereas report was lodged at 10.05 a.m., when the distance between the place of occurrence and police station is 6 miles. The promptness with which F.I.R. Has been lodged and the detail of role assigned to each accused rules out any possibility of false implication and involvement as well as of substitution, which is otherwise a very rare phenomenon.
15. Much stress has also been laid on the ground that prosecution evidence consists of partisan and interested witnesses. This stand is also devoid of force, as P.W.9 Zakaryya is neither related to the complainant nor to the deceased, as such, he cannot be termed as a partisan or an interested witness. There is no doubt that P.W.8 Muhammad Anwar complainant is related to the deceased but mere relationship is no ground to discard his evidence. It is settled law that evidence of an interested witness cannot be discarded unless and until it is proved that he had some malice and animosity for making a false statement against the accused. No such malice has been brought on record in respect of P.W.8, hence his evidence cannot be brushed aside simply on the ground that he is related to the deceased.
16. Learned counsel for the appellants has relied upon 1969 PCr.LJ 251 wherein explanation given for delay was not found to be plausible and hence benefit of doubt was given. In the said authority, occurrence took place on 29-11-1965, a little before sunset, whereas F.I.R. Was lodged on 30-11-1965 at 6.00 a.m. In the instant case, occurrence took place on 24-7-1992 at 9.00 a.m. Whereas F.I.R. Has been lodged on the same day at 10.05 a.m. He also relied upon PLD 1972 Kar. 553 in which occurrence took place on 21-6-1966 at Trephari time whereas F.I.R. Was lodged on the next day at 2.30 p.m. Thus, the authorities relied upon by learned counsel for the appellants are not applicable to the facts in hand, as no such inordinate delay has been caused in lodging the F.I.R. At the instance of P.W.8 Muhammad Anwar. Similarly, authorities relied upon by learned counsel for the appellants regarding partisan character of P.W.8 Muhammad Anwar and P.W.9 Zakaryya are not applicable as P.W.9 Zakaryya is not related to either of the parties and P.W.8 Muhammad Anwar though related to the deceased, had no enmity with the accused party.
17. Learned counsel for the appellants/accused has also relied upon PLD 1972 Lahore 360 wherein it has been held that weakness of defence is no proof of the truthfulness of the prosecution case which must stand or fall on its own legs and should be positively proved against the accused.
There is no doubt that the prosecution case must stand on its own legs and it cannot take any benefit of the weakness of defence plea. In the instant case Muhammad Anwar accused has examined himself as P.W.3 and has also brought on record statements of D.Ws.1 and 2 to prove his presence in the office at the time of alleged incident and his absence at the place of occurrence at the relevant time. The evidence produced by the accused Muhammad Anwar has been fully discussed by the trial Court and it has rightly been disbelieved for reasons recorded therein, as it consisted of loose forms in respect of an attendance register alleged to have been maintained in the said office but replete with discrepancies and interpolations. No cogent and tangible evidence regarding his presence in the office at the relevant time has been brought on record, as such, the defence evidence has rightly been brushed aside. Even otherwise, presence of Muhammad Anwar accused stands proved not only from ocular evidence but even from medical evidence of P.W.2 Dr. Muhammad Imtiaz Rabbani.
18. Learned counsel for the appellant/accused has also objected to the presence of P.W.8 Muhammad Anwar at the relevant time, alleging that how he could be present there being resident of a village 23/24 miles away from the place of occurrence. There is no doubt that P.W.8 Muhammad Anwar resided about 23/24 miles away from the place of occurrence, but he was present over there as he and others were on their way to the house of accused Gulzar Ahmad for finalizing terms of compromise to be filed in the Court. Thus, the presence of the said P.W. Is absolutely natural.
19. The upshot of the above discussion is that appellants/accused have been convicted and sentenced by the trial Court strictly in accordance with law. There " is no force in this appeal and the same is hereby dismissed.