' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,628 of 1994 filed by Khalid mehmood, Abid Hussain and Zahid alias Javaid lqbal, who were convicted and sentenced by learned Judge, Special Court for speedy trial No,1, Lahore on 22-4-1993, to undergo death sentence on three counts under section 302-B, P.P.C. With further direction to pay Rs, 50,000 as fine cash, in default two years R.I. Fine if recovered was ordered to be paid to the legal heirs of the deceased as compensation according to their legal shares, for the murder of Mubarak Ali and his two sons namely Muhammad Yousaf and Muhammad Ajmal. Criminal Appeal No,620-A of 1994 filed by the. State against the acquittal of Muhammad Ashraf, Zubair, Aurangzeb alias Ranga, Nasir Ahmad and Munir Ahmad will also be disposed by this judgment.
2. The occurrence in this case took place on 28-8-1991 near Behal Q.B. Link Canal, Mehraj Colony, Jamalpur situated within the area of Police Station Mandi Faiz Abad, District Sheikhupura while F.I.R.
Was recorded on the same day in the police station by Suba (P,W.8) the real brother of Mubarak Ali deceased at 6 a.m. Which is Exh. P.J./1 and was recorded by Muhammad Yaqub, S.I. (C.W.7). Before giving the facts of the case we may mention l'ere that being aggrieved from the attitude of the local police, the complainant filed a complaint which is Exh.P.Q. Against the appellants and their acquitted co-accused namely Muhammad Ashraf, Muhammad Zubair, Aurganzeb, Nasir Ahmad and Munir Ahmad.
3. Brief facts of the case narrated by Suba P.W.8 are that Khalid Mehmood and Abid Hussain alias Mohabba are brothers. Nasir and Munir accused are brothers inter se. The mothers of Nasir and Khalid Mehmood are real sisters. Ranga accused is alsd the son of the mother's sister of Khalid Mehmood. Ashraf and Zubair accused are the real paternal uncle of Khalid Mahmood accused.
Zahid alias Javaid Iqbal is on family terms with Khalid Mehmood and Ranga accused. Mubarak Ali deceased was his brother while Muhammad Yousaf and Muhammad Ajmal deceased were his sons.
' Nasir Ali P.W. Is the son of his first cousin, while Muhammad Hussain, P.W. Is his brother.
' About one year and eight months ago Ahmad brother of Ranga accused was murdered and on this account Mubarak Ali deceased, Yousuf deceased and Ajmal deceased, Ali Akbar, Suba himself, Nasir P.W. Muhammad Hussain, P.W. And Murtaza were nominated as the culprits in the F.I.R. All of them applied for grant of pre-arrest bail in the Court of the learned Additional Sessions Judge, Nankana Sahib. They were granted ad interim pre-arrest bail by the said Court. Their application was fixed for 28-8-1991. This application which is Exh.P.H. Was submitted by Suba, Ali Akbar and three others while application Exh.P.D. Was on behalf of Nasir and Hussain etc. On 28-8-1991 their bail applications for pre-arrest bail were fixed for confirmation and for that purpose they left their village at 5.00 a.m. To attend the hearing. Bus stop of Q.B. Link Canal of Miraj Colony is situated at a distance of 2 miles. They proceeded to go to the bus stop on foot. Mubarak Ali, Yousuf and Muhammad Ajmal deceased were walking ahead at a distance of 30/35 karams while Suba, Muhammad Hussain and Nasir P.W. Were following them. They reached the bus stop Miraj Colony at about 5-30 a.m. Or 5-45 a.m. A wagon came at the bus stop from the side of Lahore for proceeding towards Jaranwala. It was signaled to stop by the deceased persons. When they boarded the wagon they were at a distance of about 30 karams behind. In the meantime the eight accused persons present in Court namely Khalid, Muhabba armed with rifle and gun respectively, Ashraf armed with a gun, Zubair accused armed with gun, Munir armed with a gun, Ranga accused armed with a rifle, Nasir Ahmad and Zahid alias Javaid Iqbal armed with carbines came out from behind the Khokhas where they were sitting in ambush. They came near the wagon and stopped the same. Zahid accused dragged out driver of the wagon from the driver seat. Zahid accused entered the wagon from the driver's window while Khalid and Mohabba entered the wagon from the entry gate of the wagon. The other passengers of the wagon and the driver and conductor of the wagon came out of the wagon and ran away. All the accused including the appellants fired shots with their fire-arms upon the deceased persons who were sitting in the wagon. After firing upon the deceased persons, the accused ran towards the east. They witnessed the occurrence behind the Khokhas. After the escape of the accused on the spot they went forward to the wagon and found that Mubarak and Yousaf had died while Muhammad Ajmal was alive in an injured condition. After a few minutes they stopped a wagon and Ajmal deceased was sent to Civil Hospital Nanakana Sahib for treatment. Nasir P.W. Accompanied him. Leaving Muhammad Hussain, P.W. Near the dead bodies, Suba went to the Police Station Mandi Faizabad. He met Malik Muhammad Yaqoob, S.I., who was present at the Police Station. He lodged F.I.R. Exh.P.J./1 which was recorded by Muhammad Yaqoob at his dictation.
4. The prosecution in order to prove its case produced 9 witnesses in all and, thereafter, statement of 8 C.Ws. Were recorded, Muhammad Akram F.C. (D.W.1) was produced by the appellants. Three eyewitnesses namely, Suba P.W.8, brother of Mubarak deceased, Nasir Ahmad P.W.9 son of cousin of Mubarak Ali deceased and Muhammad Javed Conductor of the Wagon examined as C.W.5 were produced during the trial. Muhammad Hussain real brother of the complainant was not produced as being given up.
5. The Investigating Officer after reaching the spot took into possession Wagon bearing No,FDL-3611 which is Exh.P.12 from the place of occurrence vide memo. Exh.P.N. In which the deceased persons were travelling. He also took into possession blood-stained piece of cover of the seat after cutting the same and sealed the same into parcel and took into possession vide memo Exh.P.M. Where Mubarak deceased was murdered. He also took into possession two pieces of blood-stained 'rubar' mat lying on the floor of the wagon where Yousaf deceased was lying murdered vide memo.
Exh.P.M./1. Blood-stained piece of plastic was also taken into possession from where Muhammad Ajmal deceased was injured and sealed the same into a parcel vide memo. Exh.P.M./2. He also took into possession four empty cartridges which are Exh.P.13/A/1-4 and one empty of 7-mm Exh.P.14 from inside the Wagon and sealed the same into a parcel and took them into possession vide memo. Exh.P.N. He also recorded the statements of P.Ws. Khalid Mehmood and Zahid alias Javed Iqbal appellants were arrested on 29-8-1991 by Muhammad Ashiq A.S.I., of Police Station Sharqpur Sharif (examined as C.W.2) and he also got recovered .12 bore gun from Zahid appellant, which is Exh.P.13 on the same day alongwith 27 live cartridges which are P.14/1-27 and were taken into possession vide memo. Exh.PP. He got recovered 7-mm rifle P.15 alongwith 15 live bullets which are Exh.P.16/1-15 which were taken into possession vide memo. Exh.P.R. He handed over the said two appellants namely Khalid Mehmood, Zahid alias Javaid Iqbal to Syed Munir Hussain Sherazi S.I.
(P.W.8) who showed their arrest on 30-8-1991. No recovery was effected from Abid Hussain appellant. According to the report of the Fire-arm Expert which is Exh.PAA, one empty cartridge matched with the gun of Zahid alias Javaid Iqbal appellant while one of the empty of 7-mm rifle matched with 7-mm rifle of Khalid Mehmood appellant.
6. Learned counsel for the appellants has read before us the prosecution evidence, statements of C.Ws. Statements of the appellants and that of D.W. After doing this exercise he submits that the eye-witnesses namely Suba and Nasir Ahmad are close relatives of the deceased. They are interested and inimical and so no reliance can be placed on their testimony. He further submits that on the same evidence 5 co-accused of the appellants have been acquitted by the Trial Court.
He also submits that in fact it was an unwitnessed occurrence and the appellants have been falsely implicated in the instant case. He further submits that criminal litigation was pending between the parties and no independent person has come forward to depose against the appellants in order to corroborate the testimony of these two interested eye-witnesses. He also submits that had the eye-witnesses been present at the spot they must have been killed by the assailants of the three deceased persons. He submits that all the empties were recovered from inside the wagon and not a single empty was recovered from outside the wagon although, the assailants had encircled the wagon in which deceased were present. He also submits that the eye- witnesses did not adopt a shot-ter route to go to the Court but adopted a longer one. He submits that these eye-witnesses are totally undependable. He also submits that Abid Hussain appellant was also got discharged by the police. He further submits that the two weapons recovered from Khalid Mehmood and Zahid alias Javaid Iqbal were not sealed and made into a parcel. He also submits that empties were sent to the fire-arm expert on 31-8-1991 but the weapons allegedly recovered from the two appellants were sent to the fire-arm Expert on 3-9-1991. Lastly he submits that it is not a case of capital punishment for the reason that no specific injury is attributed to any of the appellant and they are entitled to lesser sentence as provided under section 302-B, P.P.0 .
7. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that the statement of P.W.8 and P.W.9 is corroborated by the statement of Muhammad Javaid C.W.5 Wagon Driver. They both submit that empties recovered from wagon matched with the weapons recovered from two of the appellants namely Khalid Mehmood and Zahid alias Javaid Iqbal. They also submit that it was a case of promptly lodged F.I.R., wherein the names of the eye-witnesses, name of the appellants and their role have been specifically mentioned. They submit that it was a broad daylight occurrence and there was no question of mistaken identity. They also submit that motive in the present case is very strong. They also submit that the police was in league with the appellants and their co-accused and from the very beginning they were siding with the complainant party because the M.P.A. Of the area was helping the appellants party.
8. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the Trial Court in the instant case. It may be mentioned here that on 26-3-1991 i,e,, 5 months prior to the present occurrence Sakhi Muhammad father of Abid and Khalid Mehmood was murdered and on 7-6-1991 one Ahmad Ali was murdered who was real brother of Aurangzeb acquitted co-accused of the appellant and in that case Mubarak Ali, Muhammad Yousaf, Muhammad Ajmal, Suba Nasir Ahmad, Muhammad Hussain and Ali Akbar were cited as accused persons. In our view Abid Hussain and Khalid Mehmood had a strong motive to kill the deceased persons because in the murder of Sakhi Muhammad the father of both these appellants Allah Yar son of Mubarak deceased was an accused alongwith his cousins Shehbaz and Nawaz. They in order to take the revenge of their father after joining hands with Zahid alias Javaid Iqbal appellant had committed murder of three deceased persons. It may also be noted here that on the day of occurrence three deceased persons were in the wagon while the P.Ws. Suba and Nasir had also to attend the Court of learned Sessions Judge in the above said murder case, where their application for bail before arrest was pending, so the presence of the eye-witnesses at the spot is also natural one. The occurrence in this case took place at 5-30 a.m. On 28-8-1991 and the matter was reported to the police on the same day at 6-00 a.m. In the Police Station. The P.Ws. Had stated during the cross-examination that they did not raise alarm at the time of occurrence for the reason that had they raised alarm they must have also been killed by the assailants of the three deceased persons so no damage could be caused to their lives. It may also be noted here that statements of P.W.8 and P.W.9 namely Suba and Nasir is corroborated by Muhammad Javaid examined as C.W.5, who is conductor of the wagon in which the deceased persons were present. Although, he did not identify the three appellants before the Trial Court but he categorically sated that in fact there were three assailants of the deceased persons. The reason for not identifying the accused persons, in our view is that he did not want to get animosity of the appellants and their party men but the number of the accused, the place of occurrence, the time of occurrence has been corroborated by this Muhammad Javaid C.W. Even otherwise it was Muhammad Nasir P.W. Who took Muhammad Ajmal deceased to the Hospital in an injured condition and his presence at the spot is also natural.
The present appellants knew on the day of occurrence that it was the day when the deceased persons had to attend the Court of the learned Additional Sessions Judge, Nankana Sahib their application for bail before arrest was pending, so finding a golden opportunity they waylaid the deceased persons and killed them. The five other co-accused persons who have been acquitted by the Trial Court were found to be innocent by the Investigating Agencies. They were also got discharged. There was no corroborative evidence against them and they were rightly acquitted by the learned Trial Court. It has now been held by the superior Courts that in such-like cases the grain has to be shifted from the chaff and that has already been done so by the learned Trial Court. Suggestions have also been put by the learned counsel for the complainant to the C.W.S. That Manzoor Ahmad Gill, the Local M.P.A. Was siding with the appellants' party from the very beginning and he has been helping them although, these suggestions have been repelled by the Investigating Officer but in our society we daily see that M.N.As. And M.P.As. Use their influence on the local police from one side or the other. In the instant case being aggrieved by the attitude of the police the complainant had to file a complaint Exh.P.Q., against the present appellants. As far as recovery of weapons is concerned, although it was not mentioned in the recovery memos that weapons were sealed into parcel because two appellants namely Khalid Mehmood and Zahid alias Javaid Iqbal were not arrested by the Investigating Officer in this case but were initially arrested by Muhammad Ashiq A.S.I., C.W.2 and it can be a lapse on his part which cannot throw out the prosecution case. Moreover, the report of the fire-arm expert is corroborated by the ocular account because weapons recovered from Khalid Mehmood and Zahid alias Javaid Iqbal matched. With empties recovered from the wagon. We may also mention here that the eye-witnesses had no grudge against Zahid alias Javaid Iqbal appellant, because the eye-witnesses and said Zahid alias Javaid Iqbal had no previous enmity so there was no question of his false implication. In our view the prosecution has proved its case against the appellants beyond any shadow of doubt. They have murdered three innocent persons namely Mubarak Ali and his two sons namely Muhammad Yousaf and Muhammad Ajmal by causing them fire-arm injuries in prosecution of their common intention and they deserve no leniency. Even no leniency can be granted to the appellants for the reason that no specific injuries were attributed to them. It was held in case titled Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others, Nisar Ahmad v. The State, Muhammad Faqir v.
The State and Muhammad Latif v. The State (PLD 1976 SC 452), that in the present law and order situation when the Court comes to the conclusion that some criminal have committed murder no laboured on pretext should be used for converting the death sentence into life-imprisonment.
Relying on that judgment we do not think that any leniency can be shown to the present appellants. In this view of the matter the appeal of the appellants is dismissed and sentence of death on three counts awarded to the appellants is hereby maintained. However, sentence of Rs,50,000 as fine is set aside, because it is against the provision of section 302-B, P.P.C., but we award Rs,50,000 (fifty thousand) each on three counts to the appellants as compensation as required under section 544-A, Cr.P.C., which shall be paid to the legal heirs of the deceased according to their legal shares, in default thereof six months S.I.
' Death sentence awarded to the appellants by the learned trial Court is confirmed.