' KH. MUHAMMAD SHARIF, J.--- Through this judgment we would like to dispose of Criminal Appeal No,178 of 1996 filed by Muhammad Iqbal appellant, Criminal Appeal No,176 of 1996 filed by Sultan alias Fauji appellant and Criminal Appeal No,177 of 1996 filed by Mehfooz appellant while there is also Criminal Appeal No,217 of 1996 against the acquittal of Abdul Shakoor, Abdul Hafeez and Sami alias Nanah which has been filed by the complainant Fazal Karim Khan. They were convicted and sentenced by Special Judge Suppression of Terrorist Activities constituted under Act, 1975 on 28-2- 1996 for the murder of Nisar Ahmad to undergo as follows:-- ' Muhammad Iqbal appellant was convicted under section 302-A, P.P.C. And was awarded death sentence.
' Sultan alias Fauji appellant was convicted under section 302, P.P.C. To undergo life imprisonment.
' Mehfooz appellant was convicted under section 336, P.P.C. And was sentenced to undergo 7 years'
R.I with further direction to pay an amount of ' Arsh' amounting to Rs,50,000 (fifty thousand) to the legal heirs of Nisar Ahmed deceased.
' Three co-accused of the appellants were acquitted through the same judgment by the learned trial Court.
2. The occurrence in this case took place on 5-6-1990 at about 5/6 p.m in front of the house of Fazal Karim Khan, complainant situated in Mohallah Melhotran, Tehsil Chunian which falls within the jurisdiction of Police Station Chunian and was situated at a distance of 3 furlongs from the said Police Station. The matter was reported to the police by Fazal Karim Khan (P.W.) the father of Nisar Ahmad deceased through report Exh.P.E which was recorded by Muhammad Aslam S.-I. On the same day at 6-10 p.m at the spot while formal F.I.R. Was registered on the same day at police station at 6-30 p.m by Muhammad Ashraf Moharrer H.0 (P.W.8).
3. Briefly the allegation against the appellants and their co-accused were that on 5-6-1990 at about 5/6-00 p.m in the area of Mohallah Melhoteran, Chunian, District Kasur, that Abdul Hafeez and Muhammad Iqbal accused were armed with guns, Abdul Shakoor and Mehfooz armed with Chhuris, Sami accused armed with hatchet and Sultan armed with Kalashnikov, in prosecution of their common object made unlawful assembly and inflicted injuries with their respective weapons on Nisar Ahmad deceased, which resulted in his death. It is further alleged that all the abovementioned accused on the same day, time and place, in prosecution of common object, made murderous assault upon Fazal Karim, P.W.7 with such knowledge and intention and under such circumstances, that if by that act his death had been caused, they would have been guilty of his Qatle-eAmad. It is further alleged that on the same day, time and place and in prosecution of their common object they committed mischief by setting the house of Fazal Karim (P.W.) at fire by sprinkling kerosine oil (product of mineral oil) intending to cause or knowing it to be likely that they will thereby cause destruction of the above house.
4. The Investigating Officer after the registration of the F.I.R. Reached the spot and took into possession blood-stained earth vide memo. Exh.P. Muhammad Iqbal appellant after his arrest got recovered 12 bore gun P.4 which was taken into possession vide memo. Exh.P.C. Mehfooz appellant while in police custody got recovered Chhuri P.6 from his house lying under a cot which was stained with blood. It was taken into possession vide memo. Exh . P. H .
5. The prosecution in order to prove its case produced 17 witnesses in all. Thereafter, the statement of the appellants under section 342, Cr.P.C. Was recorded. They claimed false implication and thereafter, the above said judgment was announced. There were four eye-witnesses in the F.I.R., two of them namely Fazal. Karim Khan, father of the deceased and Abdul Jabbar were examined as P.W.7 and P.W.9 respectively, while two eye-witnesses namely, Muhammad Rafique and Javaid Iqbal were given up as having been won over. Doctor Saleem-ur-Rehman, who conducted the post-mortem examination, appeared as P.W.10, Statement of the Doctor given before the trial Court is mentioned below: ' Dr. Saleem-ur-Rehman M.O. D.H.Q., Hospital Kasur conducted autopsy on the dead body of Nisar Ahmad Khan son of Fazal Karim Khan on 6-6-1990 and made the following observations:-- ' External appearance: ' There was no mark of ligature on neck.
' Dead body was of a young aged person, wearing blue coloured Shalwar, Qameez, clothes were torn from many places and were stained with blood; eyes and mouth were closed. P.M. Staining and rigor mortis were present. Blood was coming out from nose.
' Following injuries were found on his dead body:--
(1) A lacerated wound 5 x 5 c.m. On right side of forehead bone visible through the wound.
(2) A wound of entrance of fire-arm in front of right shoulder region just below the clavicle.
(3) 5 wounds of exit present on the back of right shoulder region.
(4) Two incised wounds 3 x 1/2 c.m. Each cutting both tendons of clacantus of both legs.
(5) An incised wound scalp-deep 2 x 1/2 c.m. On the top of head.
(6) An incised wound 1 x 1/2 c.m. On the occipital region of head.
' On dissection of injury No,1, he found frontal bone fractured from many parts; clotted blood was present inside the cranial cavity; injury No,2 first 3 ribs were fractured Scapula also fractured, blood vessels i,e, (subclevian) were also damaged, upper lobe of the right lung was also damaged.
' In his opinion, the death occurred due to shock and haemorrhage which was due to injury No,1 head injury and injury No,2 chest injury, caused by fire-arm and these injuries collectively were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem.
Probable time between injury and death was about one hour and between death and post- mortem about 18 hours.
6. The report of Chemical Examiner about the blood-stained earth is Exh.P.Q while that of blood- stained 'Chhuri' recovered from Mehfooz appellant is Exh.P.R. Then the report of Serologist regarding blood-stained earth is Exh.P.Q/1 and that of Chhuri/knife Exh.P.Q./2.
7. Learned counsel for the appellants have read before us the prosecution evidence, statements of the appellants and submit that F.I.R. Was lodged by the complainant after due deliberation and consultation and also after getting legal advice in order to falsely implicate the present appellants.
Learned counsel for Muhammad Iqbal appellant submits that the appellant Muhammad Iqbal was complainant in F.I.R. No,255 of 1990 which is Exh.D.D. On the record, registered under section 307,- P.P.C. In which 5 persons were injured. According to him in that F.I.R. Sultan and Mehfooz appellants were witnesses against the accused persons mentioned therein who were closely related to the complainant party. He has also referred Exh.D.C. Which is F.I.R. No,161 in which Abdul Ghafoor father of Abdul Shakoor (acquitted co-accused of the appellants) was complainant and the same was registered against 10 persons which according to him are close relatives of the complainant party.
Then he has also referred to Exh.D.B. Which is F.I.R. No,265 registered on 5-6-1990 at 5-30 p.m in which Noor Hassan a close relative of the appellant was murdered and in that case the near relatives of the complainant Fazal Karim Khan were involved. According to him in the said F.I.R.
(Exh.D.B.) and Ali Hassan was complainant of that F.I.R. Which also mentioned about the death of Nisar Ahmad Khan son of Fazal Karim Khan complainant. Learned counsel for the appellants submit that occurrence has not taken place in front of the house of the complainant but had taken place 300 feet away from the house of the complainant near Madni Mosque and according to them the complainant and his witnesses could not have seen the occurrence. He further submits that according to the prosecution case the deceased was dragged from his house to the place from where the blood-stained earth was taken by the police but between these two places there was no trail of blood and also there were no dragging marks on the body of the deceased. He also submits that the broken door of the house of the complainant was taken into possession by the Investigating Officer. They also submit that no crime empty was recovered from the spot nor any burnt article was taken from the house of the complainant. Learned counsel also submit that if the appellant had tried the legs of the deceased with rope then there should have been marks of rope on his legs. They submit that there was long-standing enmity between the parties and they were locked-up inter se in many criminal cases of different nature. They further submit that both the witnesses produced by the prosecution are interested one being the close relatives of the deceased Nisar Ahmad Khan and inimical towards the appellants. They further submit that both the parties belonged to different Bradries (brotherhood) and they were at dagger drawn. They also submit that in fact the murder of Nisar Ahmad Khan was committed by a mob who had gathered there after the death of one Noor Hassan belonging to the appellant party. Learned counsel for the appellant Sultan submit that according to the F.I.R. Sultan appellant was armed with Kalashnikov but he did not use the same but allegedly gave a butt blow on the head of the deceased.
According to him Sultan appellant is a poor man and he is retired army personel and the fact that he did not use the Kalashnikov falsifies the prosecution story. Learned counsel for Sultan appellant submits that Abdul Sami alias Nanah (acquitted co-accused) of the appellant was stated to be armed with Chhuri and was attributed role of causing injuries on the head of the deceased was acquitted by the learned trial Court and the case of Sultan appellant is on better footing than that of Abdul Sami the acquitted co-accused. Learned counsel for Mehfooz appellant submits that on the same evidence Abdul Shakoor co-accused of the appellant who was assigned the similar role was acquitted by the trial Court and the case of Mehfooz is on the similar footing to that of Abdul Shakoor. Learned counsel for Mehfooz appellant submits that the learned trial Court was not competent to try this case as offence under section 336, P.P.C. Was not a scheduled offence. All the learned counsel for the appellants unanimously submit that no reliance can be placed on the prosecution witnesses and the appellants are entitled to acquittal.
8. On the other hand, learned State Counsel submits that appellants are named in the F.I.R., they were also named by the prosecution witnesses before the trial Court on oath, that specific roles are attributed to them; that it was a broad daylight occurrence and it was a case of promptly lodged F.I.R. He submits that the offence committed by the appellants is of heinous nature and their appeals should be dismissed.
9. We have heard the learned counsel for the parties at a great length and have also gone through the evidence recorded by the learned trial Court. In the instant case the occurrence had taken place in front of the house of complainant Fazal Karim Khan at about 5/6 p.m. Matter was reported to the police at 6-10 p.m. At the spot. Not only his son was murdered by the appellants but his house was also burnt. If one goes through the site plan Exh.P.A. Which is at page 262 of the paper book, point 'b' is a place which is situated in front of the house of complainant where his son Nisar Ahmad Khan was murdered. Point 'c' is the place where Sultan appellant gave a butt blow on the head of deceased Nisar Ahmad Khan. Point 'd' is the place from where Muhammad Iqbal appellant fired at the deceased Nisar Ahmad Khan. Point 'e' and point ' f' are the places from where Mehfooz appellant alongwith his acquitted co-accused Abdul Shakoor gave knife/Chhuri blows to the deceased. It was also the case of the prosecution that deceased was dragged from his house by the appellants and his acquitted co-accused to point 'j', although, there are no dragging marks on his body which can be an exaggeration on the part of the complainant and his witnesses but merely on this ground prosecution version cannot be brushed aside. Complainant is the natural witness of the occurrence as the occurrence had started from his house while Abdul Jabbar P.W.
Resides at point 'h' according to site plan Exh.P.A. Which is at a distance of 12 feet from the house of the complainant. He is also a natural witness. Mere relationship of witnesses with the deceased is no criterion to discredit their testimony. In our view both the eye-witnesses are natural witnesses.
Appellants were named in the promptly lodged F.I.R. With their roles. They remained fugitive from law and were arrested two months after the occurrence which also shows their guilty mind and the prosecution story also gets corroboration from this fact also. Muhammad Tufail A.S.-I. P.W.16 had appeared before the trial Court and had stated about the warrants of arrest of the appellants and their co-accused and also about the proclamation published against them which he pasted at the residences of the appellants and their co-accused. Muhammad Tufail (P.W.) also made a statement in this regard on 20-6-1990. The F.I.Rs, which have been produced in defence by the appellants are Exhs.D.B., D.C., D.D. And D.E. Respectively. In these F.I.Rs, neither the deceased nor the present eye-witnesses are accused in any case. The accused mentioned in those F.I.Rs, are very distantly related to the present complainant party. As far as Muhammad Iqbal appellant is concerned, he was armed with double barrel gun and he caused injuries on the person of deceased Nisar Ahmad Khan which hit him on the right shoulder. As far as Mehfooz appellant is concerned, he was armed with a knife/Chhuri and he caused an injury on the ankle of the leg of the deceased. As far as appellant Sultan is concerned, he gave an injury on the right side of forehead of the deceased due to which the frontal bone of the deceased was fractured in many pieces. All these injuries were collectively sufficient to cause death in the ordinary course of nature. The time of death also coincise with the time of occurrence. As far as acquittal of Abdul Shakoor is concerned, he was given benefit of doubt by the trial Court being an old man of 73 years. He was also found innocent by the police during the course of investigation and was placed in column No,2 of the challan. As far as case of Mehfooz appellant is concerned it is totally different from that 'of Abdul Shakoor. As far as Abdul Hafeez and Sami appellants were concerned, according to the F.I.R.
Sami was armed with hatched but no role was attributed to him therein. Later on the complainant improved his statement and attributed him two injuries i,e, injuries Nos.5 and 6 in the post-mortem report. The learned trial Court had given him the benefit of doubt because these injuries were not mentioned in the F.I.R. Moreover, no specific injury was attributed to Sami appellant. Same is the case of Abdul Hafeez as according to the F.I.R., he was armed with .12 bore gun but no injury whatsoever was attributed to him, so he was also given benefit of doubt. It may be noted here that Fazal Karim Khan, complainant had filed Criminal Appeal No,217 of 1996 against the acquittal of Abdul Shakoor, Abdul Hafeez and Sami alias Nanah (acquitted co-accused of the appellants) but nobody has come forward to persue this appeal. The reports of the Chemical Examiner and that of Serologist are positive in nature as regards blood-stained Chhuri which was recovered from Mehfooz appellant. Sultan appellant remained absconder, no recovery could be effected from him.
As far as recovery of gun from Muhammad Iqbal appellant is concerned that is of no consequence to the prosecution because no empty was recovered from the spot. Ocular account in this case is corroborated by medical evidence. In our view prosecution has proved its case against the appellants beyond any shadow of doubt. However, the sentence of death awarded to Muhammad Iqbal appellant calls for our attention. The injury attributed to the appellant Muhammad Iqbal was not on the vital part of his body. It was not also individually sufficient to cause the death of deceased as per post-mortem report. Moreover, in our view the motive given in the F.I.R. Was not that which is mentioned therein and that was some days prior to the present occurrence. Young men belonging to both the parties had a quarrel with each other in which Muhammad Aslam father of Abdul Shakoor (acquitted co-accused) was injured and there was a suspicion in the mind of the accused appellants that deceased was supporting/helping the other party. In our view the motive in fact was that on the same day one Noor Hussain was killed and F.I.R. Exh.D.B. Was registered under section 302/148/149, P.P.C. On the statement of one Ali Hassan. The said Noor Hassan belonged to the appellants party and just after that occurrence in order to take revenge for the murder of Noor Hassan the appellants committed the murder of Nisar Ahmad Khan. So, the motive given in the present case either in the F.I.R. Or during the trial before the trial Court is not believable. In this view of the matter the sentence of Muhammad Iqbal appellant is converted from section 302-A, P.P.C. To section 302-B, P.P.C. And his death sentence is altered to life imprisonment.
An objection was raised by the learned counsel for that appellant Mehfooz that section 336 was not a scheduled offence and the learned trial Court was not competent to try the same. This objection is totally misconceived because learned trial Court had tried the appellants under section 302/148/149, P.P.C. But convicted the appellant Mehfooz under section 336, P.P.C. It was minor/lesser offence than section 302, P.P.C. And convicted him to undergo 7 years' R.I. Etc. The appeals of Sultan and Mehfooz appellants are hereby dismissed in toto but all the appellants including Muhammad Iqbal are given benefit of section 382-B, Cr.P.C.
' With the above modification all these appeals are disposed of.