' This judgment will dispose of Criminal Appeal No,455 of 1994 filed by Saif Ullah and Ahmad Ali appellants, Criminal Appeal No,101 of 1995 filed by State against the acquittal of four accused, namely, Muhammad Riaz, Muhammad Sadiq, Muhammad Saleem ant Khan, Criminal Revision No,386 of 1994 filed by Gehla, complainant for the enhancement of compensation against Saif Ullah and Ahmad Ali accused and Criminal Revision No,452 of 1994 filed by Gehla against the acquittal of 4 accused who are also respondents in Criminal Appeal No,101 of 1995 filed by the State and Mulder Reference No,205 of 1994 shall also be disposed of through this single judgment.
2. Saifullah and Ahmad Ali appellants in Criminal Appeal No,455 of 1994 were convicted under section 302 (2)/34, P.P.C. And sentenced to death each with a compensation of Rs,10,000 each to be paid to the legal heirs of the deceased Muhammad Khan under section 544-A, Cr.P.C, or in default six months' R.I. Each. Rest of the accused namely Muhammad Riaz, Muhammad Sadiq, Muhammad Saleem and Khan were acquitted from the charge by the learned Additional Sessions Judge, Faisalabad vide his judgment, dated 1-9-1994.
3. Occurrence in this case had taken place at 6-45 a.m on 21-6-1993 within the revenue estate of Chak No,67/RB at a distance of eight miles away from Police Station, Khurianwala while the matter was reported to the police by Gehla P.W.4 through complaint Exh. P.D at 7-40 a.m. On the same day and the formal F.I.R. Exh.P.B/1 was recorded by Atta Muhammad. H.C., P.W.2, at 8-20 a.m.
4. Brief facts of the case as disclosed in the complaint Exh.P.D. Were that on the fateful day, that is 21-6-1993 Muhammad Khan, maternal nephew of the complainant (now deceased) got ready to go to Chak No,62/RB for getting the air filled in the tyre of his tractor. Falak Sher sat on the driver seat while Muhammad Khan and Gehla complainant sat on the "Mudguard" of the tractor and left for aforesaid Chak. When at 6-45 a.m they reached slightly ahead of the fish form, Ahmad Ali, Sadiq, Saif Ullah and Muhammad Riaz armed with .12 bore guns while Muhammad Saleem. And Khan armed with . "Datars", suddenly emerged raising Lalkaras. Falak Sher stopped tractor and Ahmad Ali fired at Muhammad Khan hitting on the right side of his chest. Muhammad Khan fell down towards the back side of the tractor. Second fire was shot by Saif Ullah which also hit Muhammad Khan on his mouth. Then a shot was fired by Muhammad Riaz hitting Muhammad Khan on his forehead. Similarly, the shot fired by Sadiq hit on the face of the deceased. Muhammad Saleem and Khan gave repeated "Datars" blows on the right side of neck, shoulder and chest of Muhammad Khan. Muhammad Khan succumbed to the injuries at the spot and the accused while raising "Calkaras" ran away from the spot.
5. Motive behind the occurrence was that 5/6 years prior to the present occurrence Ashiq son of Siddique was murdered for which a criminal case was registered against Muhammad Khan etc. Due to this grudge, Ahmad Ali etc. Had murdered Muhammad Khan.
6. After registration of the formal F.I.R. Exh.P.D/1 Muhammad Ayub, 5.-I. P.W.14 proceeded to the place of occurrence. He examined the dead body of Muhammad Khan, prepared injury statement Exh.P.0 inquest report Exh.PB and dispatched the dead body for post-mortem examination. He also took into possession blood-stained earth vide memo. Exh.P.H. The tractor P.1 was taken into possession vide memo. Exh.P.I. Investigating Officer arrested Saif Ullah, Muhammad Riaz and Sadiq on 7-3-1993. The gun P.9 along with live five cartridges recovered from Riaz was taken into possession vide memo. Exh. P.J. And the gun P.11 recovered from Saif Ullah along with three live cartridges was also taken into possession vide memo. Exh.P.K. Similarly, gun P-13 along with six live cartridges recovered from Sadiq was taken into possession vide memo. Exh.P.L. Khan, Saleem and Ahmad Ali accused were arrested on 5-7-1993. On the potation of Saleem and Khan, "Datars" P.15 and P.16 were taken into possession vide memo. Exh. P.M and Exh.P.N respectively on 9-7-1993. On the same day, Ahmad Ali accused led to the recovery of gun P.17, which was taken into possession vide memo. Exh.P.O. The "Datars" were stained with blood. After completion of the investigation all the six accused challenged to face the trial.
7. Prosecution in order to prove its case produced 14 witnesses in all, out of whom, Gehla P.W.4 and Falak Shah P.W.5 were the eye-witnesses. Dr. Muhammad Imtiaz Rabani, who conducted the post- mortem examination on the dead body of the deceased was examined as P.W.1. Reports of the Chemical Examiner regarding blood-stained earth and also the two "Datars" recovered from Khan and Muhammad Saleem being stained with human blood were Exh.P.Q and Exh.P.R. While that of the Serologist were Exh.P.S and Exh.P.T. Thereafter, the prosecution case was closed and statements of the appellants and the acquitted co-accused were recorded under section 342, Cr.P.C., in which they pleaded innocence. After conclusion of the trial, the learned Additional Sessions Judge, Faisalabad convicted and sentenced the appellants, namely, Saif Ullah and Ahmad as mentioned above and acquitted the remaining four accused.
8. After reading the prosecution evidence and other material available on record, learned counsel for Saif Ullah and Ahmad Ali appellants in Criminal Appeal No,455 of 1994 and two acquitted co- accused namely Riaz and Sadiq, respondents in Criminal Appeal No,101 of 1995 filed by the State submits that in fact it was an witnessed occurrence, that occurrence had taken place before the "Fajar Prayer", had the witnesses been present at the spot they would have also received injuries and their clothes would have been blood-stained, that witnesses are not signatories of the inquest report, according to post-mortem examination, semisolid digested food was present in his stomach and the bladder was full of urine and that Yasin Fauji from whose shop the deceased and the eye-witnesses had gone to fill the air in the tractor was not produced. Learned counsel further submits that Ahmad Ali, Saleem and Khan accused were found innocent by the A.S.P, and benefit of that innocence should be extended to them. Adds that Muhammad Khan deceased had got many other enemies and that Ahmad Ali who is head of the family was falsely implicated. Learned counsel in support of his submissions placed reliance on NLR 1996 Criminal Cases 544, 1990 PCr.L.J 1607, PLD 1994 Federal Shariat Court, 34, PLD 2000 Lah.216 and PU 1980 Criminal Cases 372. He lastly submits that the recoveries having been disbelieved by the learned trial Court, all the accused should have been acquitted.
9. Major Akhtar Shah, Advocate, learned counsel for acquitted respondents Nos.3 and 4, namely, Muhammad Saleem and Khan in Criminal Appeal No,101 of 1994 submits that ocular account in this case is not corroborated by medical evidence respondents Nos.3 and 4 were placed in column No,2 of the challan so no case is made out against them.
10. Sardar Khurram Latif Khan Khosa, Advocate, learned counsel for Gehla complainant, who had filed Criminal Revisions Nos.386 and 452 of 1994 assisted by learned counsel for the State submits that in the instant case, F.I.R. Was lodged promptly, specific role was attributed to all the accused, motive has been proved, declaration of Saleem and Khan accused as innocent after submission of the challan was mala fide act on the part of the police and that the time between the death and post-mortem coincide with each other. He supports the judgment of the learned trial Court to the extent of Ahmad Ali and Saif Ullah and submits that Saleem, Khan, Riaz and Sadiq respondents in State Appeal No,101 of 1995 have been wrongly acquitted by the learned trial Court.
11. We have heard learned counsel for the parties and have also gone through the record and other material available on record with their assistance. In the instant case, the occurrence took place at 6-40 a.m _on 21-6-1993 and the matter was reported to police at Police Post, Balochni vide Exh.P.D at 7-40 a.m. On the same day and the formal F.I.R. Exh.P.D/1 was registered in the Police Station at 8-20 a.m so it was a case of promptly lodged F.I.R. Without any consultation and deliberation. For the just decision of this case, statement of Dr. Muhammad Imtiaz Rabbani, P.W.1, who conducted post-mortem examination on the dead body of Muhammad Khan very important which is reproduced below: "On 21-6-1993 I was Medial Officer at D.H.Q., Jaranwala. On the aforesaid date, Rehmat Ali, Constable brought the dead body of ' Muhammad Khan deceased I conducted the post-mortem examination at 2-30 p.m On examination of the dead, body I found the following injuries on his person:
(1) An incised wound 12 c.m. x 2 c.m. x bone cut on right ear and right mandible.
(2) An incised wound 5 c.m. x 1 c.m. x 3 c.m. Deep muscle incising on right side of neck middle part.
(3) An incised wound 8 c.m. x 2 c.m. Bone cut on back of right ear.
(4) An incised wound 15 c.m. x 2 c.m. Bone cut on right side of head 4 c.m. Back from ear.
(5) A gap wound 20 c.m. x 15 c.m. Margin lacerated and black bones were fractured from the margin and absent from the wound, on right cheek, interior of the skull was visible and brain matter was absent from the skull.
(6) A gap wound 14 c.m. x 12 c.m. Margin red lacerated bones fractured from the margin and absent from the wound on the left cheek.
(7) A fire-arm wound 3 c.m. x 3 c.m. Margin black on lower part of left side of neck, the wound was marking hallow directed downwards, outwards and backwards, the injury had injured left ploura and lung and fractured 2nd and 3rd ribs and left scapula making exit wound 4 c.m. x 3 c.m. From the back of left chest upper part, two number of pellets were recovered from underneath the skin, one wad was also recovered from the wound.
' Two number of fire-arm abrasions each measuring 1.5 c.m. x 1 c.m. On front of chest upper part.
' An incised wound 3 c.m. x 1.5 c.m. x 2 c.m. Deep on right side of the neck lower part.
' An incised wound 5 c.m. x 3 c.m. x bone cut (3 c.m. Deep) on the top of right shoulder.
' An incised wound 4 c.m. x 1/2 c.m. x skin deep on top and outer part of right shoulder.
' An incised wound 6 c.m. x 1/3 c.m. x skin deep on other side of right arm upper part.
' An incised 'wound 3 c.m. x '1/2 c.m. x bone deep on the back of left ear.
' An incised wound 4 c.m. x 1 c.m. On lower part of left ear, which was cut.
' A fire-arm wound 2/3 c.m. x 2/3 c.m. Margin dark red 4 c.m. Above from right nipple.
' A fire-arm wound 2/3 c.m. x 2/3 c.m. Margin dark red half c.m. Below from right nipple.
' A fire-arm wound 2/3 c.m. x 2/3 c.m. Margin dark red 5 c.m. Below from right nipple.
' A fire-arm wound 2/3 c.m. x 2/3 c.m. Margin dark red 3.5 c.m. From outer side of right nipple.
' On opening the abdomen, I found that the stomach was half filled with semisolid food. The bladder was healthy and full of urine.
' The probable time that elapsed between injuries and death in my opinion was immediate and between death and post-mortem was seven hours and 45 minutes."
' The above said statement of the doctor shows that there were 18 injuries in all on the person of the deceased. Amongst them, six entry wounds were with fire-arm while injury No,6 was exit wound of injury No,5 with fire-arm. There are 11 injuries with sharp-edged weapon on different parts of body of the deceased and even his skull was fractured at various places and the brain matter was absent. All the injuries were on upper parts of body of the deceased.
' According to the prosecution case, the occurrence took place at 6-45 a.m. And the post-mortem examination of the dead body was conducted on the same day at 2-30 p.m. The duration given by the doctor between death and post-mortem was 7 hours and 45 minutes. According to cross- examination of the doctor, it could be extended from 1-1/2 hours to 2 hours. The time of the occurrence coincides with the time of post-mortem examination and it proves that occurrence had taken place at the time which was stated by the prosecution witnesses. Furthermore, the occurrence took place at 6-45 a.m. On 21-6-1993 and in the month of June, Fajar prayer is offered at 4-30 a.m. And in the villages, normally people take the breakfast after saying the Fajar prayer, so availability of semi-solid digested food in the stomach and urine in bladder was natural as such the ocular account is corroborated by the medical evidence and coincides with time given by prosecution. The number of injuries on the person of the deceased also match with A the number of accused persons.
' Although it has not specifically come on record that what relation, deceased Ashiq son of Siddique had got with the present appellants who was murdered by Muhammad Khan, deceased of the present case alongwith others. 5/6 years prior to the occurrence, yet from the perusal of record of the case, we have found that Saifullah, appellant in Criminal Appeal No,455 of 1994 and Riaz acquitted accused were first cousin of Ashiq, deceased and the remaining accused are also related to him inter se.
No doubt it has come on record that there was enmity between the parties but it can cut both ways. For taking revenge of murder of Ashiq son of Siddique which was allegedly committed by Muhammad Khan deceased and his companions, appellants had committed the murder of Muhammad Khan deceased. Both the eye-witnesses namely Falak Sher and Gehla were put to the lest of lengthy cross-examination. During the cross-examination of Gehla it has come on record that Muhammad Khan was head of the Family and being a political figure, accused have the motive and reason to kill him as he was also involved in a murder case of Ashiq, a near relation of the accused. Submission of the learned counsel for the appellants Saif Ullah and Ahmad Ali that Yasin Fauji to whom the deceased and the eye-witnesses had gone to fill air in the tractor was not produced has no substance because as there was no necessity of producing him. Moreover, when the parties are already locked-up in criminal litigation, no person would dare to become a witness and buy the enmity. Similarly, submission of learned counsel that Ahmad Ali, Saleem and Khan were declared to be innocent and placed in Column No,2 of the challan is of no help because neither the SP, who declared them innocent was summoned as C.W. Or D.W. By making an application before the learned trial Court on behalf of the accused. No defence evidence was produced by the accused to prove that these three accused were not present at the time of occurrence and found innocent. It is also interesting to note here that when examination-in-chief of the complainant was going on, one of the learned counsel for defence intervened and stated before the Court that proceedings be stopped as supplementary challan had been prepared and it should be awaited. It means that the opinion 'of innocence was got by the accused in connivance with the A.S.P. After submission of the challan. This practice of submission of supplementary challan when the evidence is being recorded has been deprecated by the superior Courts of the country, so that a fair opportunity is given to the learned trial Court to decide the case on merits.
' Ocular account in this case as mentioned above is corroborated by medical evidence as there are fire-arm injuries and sharp-edged weapon injuries on the person of deceased so we are unable to pursuade ourselves with the reasons given by the learned trial Court for acquitting respondents Muhammad Saleem and Khan. According to prosecution evidence, they were armed with "Datars" and caused injuries on the person of the deceased. There were eleven sharp-edged weapon injuries on the person of the deceased, so, as far as Muhammad Saleem and Khan are concerned, we do not see eye to eye with the findings of learned trial Court in acquitting them. The "Datars" recovered on their potation were found to be stained with human blood, as such the prosecution had proved its case against Muhammad Saleem and Khan also beyond any shadow of doubt. Their acquittal recorded by the learned trial Court is set aside and they are convicted under section 302(b)/34, P.P.C. And sentenced to death. They are also sentenced to pay Rs,50,000 (fifty thousand) as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased and in default thereof to further undergo six months' S.I.
As far as, respondents Muhammad Riaz and Sadiq in Criminal Appeal No,101 of 1995 are concerned, injuries attributed to them were not present on the dead body of the deceased. Moreover, Sadiq son of Ahmad Ali was not named by Falak Sher P.W. In his examination-in-chief, so to their extent Criminal Appeal No,101 of 1995 filed by the State is dismissed.
' So far as, conviction and sentence of Saif Ullah and Ahmad Ali appellants in Criminal Appeal No,455 of 1994 are concerned, as discussed above, prosecution had proved its case against them beyond any shadow of doubt. Their appeal is also dismissed. Conviction and sentence awarded to them by the learned trial Court is maintained. Their death sentence is confirmed and the murder reference is answered in the affirmative.
' So far as, Criminal Revision No,386 of 1994 with regard to enhancement of compensation in respect of Saif Ullah and Ahmad Ali appellants is concerned, after giving notice to their learned counsel we have enhanced the compensation from Rs,10,000 to Rs,50,000 each to be paid to the legal heirs of the deceased and in default thereof six months' S.I.
' As to Criminal Revision No,452 of 1994 filed by Gehla complainant against acquittal of Muhammad Riaz, Sadiq.
' Muhammad Saleem and Khan son of Majha is concerned, that has become infructuous in view of the order passed in Criminal Appeal No,101 of 1995.