1. ' FAIZ MUHAMMAD QURESHI, J.---The aforementioned appeals are being decided by this common judgment arising out of the judgment, dated 6-8-1998 passed by the learned Ilnd Additional Sessions Judge, Nawabshah in Sessions Case No,287 of 1995 (Crime No,10 of 1995) under section 302/34, P.P.C. Registered with Police Station 60 Mile Nawabshah.
2. ' The aforenamed appellants in Criminal Appeals Nos.90 and 91 of 1998 have challenged the impugned judgment whereby they have been found guilty of offence punishable under section 302(b), P.P.C. And sentenced to death by their necks till they are dead and also found them guilty under section 324, P.P.C. Causing injuries to complainant Muhammad Ismail and P.W. Ghulam Nabi and sentenced them each to five years' R.I. And fine of Rs,1,000 each and in default of the fine each to undergo two months' S.I. And to pay "Arsh" (compensation) to injured Rs,10,000 each in lump sum or in installments over a period of three years from the date of judgment or in case of default the appellants/accused should suffer S.I. Until Arsh is paid in full or in installment then they be released on hail if they furnish surety equal to the amount of Rs,20,000 to the satisfaction of the Court.
3. ' The learned trial Court has also filed Confirmation Case No,5 of 1998 before us for confirmation of death sentence and we propose to dispose of both by this common judgment. We also propose to dispose of Criminal Acquittal Appeal No,103 of 1998 arising out of the same judgment whereby respondents Muhammad Ali and Naimat Ali have been acquitted by the learned trial Court and the present Criminal Acquittal Appeal has been preferred against their acquittal by appellant Muhammad Ismail who is complainant also.
4. ' Brief facts of the case are that on 22-6-1995 complainant Muhammad Ismail was returning after offering Fajar prayer (morning) and saw his grandson Asti' Ali who was standing near the door of the house and two dogs belonging to accused Muhammad Ali were trying to bite to said Asif All the complainant threw stone towards the dogs. Then complainant alongwith his sons Muhammad Arshad, Muhammad Irshad and Ghulam Nabi went to the house of accused Muhammad Ali, who came out of the house with hatchet in his hands, complainant told accused Muhammad Ali to tie his dogs accused Muhammad Ali refused meanwhile three sons of accused Muhammad Ali came there, they were Amanat Ali, Naimat Ali and Liaquat Ali. Aamanat All was armed with DBBL gun, Naimat Ali was armed with spade while Liaquat Ali was having SBBL gun. On the instigation of accused Muhammad All accused Amanat Ali and Liaquat Ali fired from their guns which hit Muhammad Irshad and Muhammad Arshad who fell down and P.W. Ghulam Nabi and complainant also received gunshot injuries on their feet. Accused Naimat All caused injuries with spade to injured Muhammad Irshad and accused Muhammad Ali caused hatchet blows to Muhammad Arshad which he received on right ear and head. The complainant raised cries which attracted P.Ws. Shaukat Ali, Mansha, Muhammad Ibrahim and Khushi Muhammad who came running and saw the accused committing the offence. Then accused ran away towards western side. Complainant saw Muhammad Irshad and Muhammad Arshad had received injuries on different parts of their bodies and had expired. The complainant leaving the dead bodies at the place of incident went to Police Station where he lodged report. The accused party were already present at the police station and due to their influence over the police, police refused to lodge the true report and the contents of the report were read over to the complainant. Thereafter the police let off accused Muhammad Ali and Naimat Ali then complainant Muhammad Ismail also lodged the Direct complaint.
5. ' Since the State case bearing Crime No,10 of 1995 which was amalgamated on 25-10-1999 the order passed on Exh.20. By single judgment the learned trial Judge disposed of both the direct complaint and the State case bearing Sessions Cases Nos.287 of 1995 and 287 of 1995 as both the cases pertained to the same subject-matter and between the same parties.
6. ' A formal charge under section 302/34, P.P.C. Was framed against accused Muhammad Ali, Amanat Ali, Naimat All and Liaquat Ali to which they did not plead guilty and claimed to be tried.
7. ' Prosecution in support of its case examined complainant Muhammad Ismail P.W. Ghulam Nabi P.W. Shaukat Ali, P.W. Muhammad Siddiq, A.S.-I. Ghulam Asghar, Dr. Qurban Ali, S.H.O. Minhal Khan, Mr. Aslam Baig, Civil Judge and F.C.M. Thereafter Deputy District Attorney closed the prosecution side.
8. ' Statements of the accused were recorded. Defence witnesses W.H.C. Bashir Ahmed, accused Muhammad Ali, Naimat Ali, Mst. Naziran, Muhammad Nawaz, Dr. Qurban was examined and thereafter the defence side was closed.
9. ' The learned trial Court formulated the points for consideration and after going through the evidence adduced by the prosecution before the trial Court and going through the material available on record passed the judgment in terms as stated above.
10. ' We have heard Mr. Ch. Abdul Rasheed for the appellants in Criminal Appeals Nos.90 and 91 of 1998 namely and respectively Amanat Ali and Liaquat Ali. We have also heard Mr. Ghulam Shabbir Memon learned counsel for the appellant in Criminal Acquittal Appeal No,103 of 1998 for Muhammad Ismail who is complainant/appellant .
11. ' Mr. Ch. Abdul Rasheed before us has argued that the manner in which the incident is being narrated is not convincing one. He has further argued that there are material contradictions in the evidence of the witnesses in State case as well as in direct complaint under sections 200 and 202, Cr.P.C. According to him dead bodies were lying in the 'and of complainant under the tree and the empties have been recovered from there. He has further argued that it is not clear from the evidence as to who was carrying what kind of weapon and what weapon was used in the alleged commission of the offence. He has further submitted that the recovery is doubtful. He has also drawn our attention on the evidence of defence witnesses and finally argued that the prosecution has failed to establish its case against the appellants and prayed that their appeals may be allowed.
12. ' Mr. Ghulam Shabbir Memon who is representing the appellant/complainant in Criminal Acquittal Appeal No,103 of 1998 submitted that the respondents/accused namely and respectively Muhammad Ali and Naimat Ali caused injuries on the deceased and have used spade and hatchet and accused Muhammad Ali instigated the co-accused not to spare the deceased and there are two deceased persons in the case and their case is falling within the vicarious liability and has submitted that the trial Court had erred in acquitting the respondents Muhammad Ali and Naimat Ali.
13. ' On the other hand Mr. Ali Azhar Tunio has supported the impugned judgment with regard to the conviction and sentence of appellants Amanat Ali and Liaquat Ali and has argued that evidence of the witnesses is inspiring confidence and there is no inconsistency between their statements in State case and direct complaint and submitted that the judgment delivered by the trial Court with regard to the conviction and sentence of Amanat Ali and Liaquat Ali is based on sound reasons.
14. Learned A.A.-G. Also supported the contention of Mr. Ghulam Shabbir Memon in Acquittal Appeal No,103 of 1998 and submitted that respondents Muhammad Ali and Naimat Ali have played vital role in the commission of offence and they have caused injuries with spade and hatchet on deceased and other witnesses and instigation is on the part of Muhammad Ali and there are two deceased persons in the case and there is a brutal act of the accused and the learned trial Court has erred in acquitting them as their case is falling within the vicarious liability and they have been wrongly acquitted by the learned trial Court.
15. ' We have gone through the evidence adduced by the prosecution with the assistance of the learned counsel for the parties and we have very carefully examined the material available on record.
16. ' Prosecution has examined complainant Muhammad Ismail at Exh.9, who has fully implicated the appellants and respondents namely Muhammad All and Naimat Ali. Muhammad Ismail has deposed before the trial Court that on the day of incident he, his sons Muhammad Arshad, Muhammad Irshad and Ghulam Nabi were returning to their house after morning prayer and were on their way to home they saw dogs of accused, Muhammad Ali attacking grand son of complainant namely Asif Ali and they threw stones at the dogs to safe Asif Ali and then went to the door of Muhammad All who came out of the house and was carrying hatchet and thereafter Liaquat All and Amanat Ali armed with SBBL and BDDI guns, Naimat Ali armed with spade also came. Muhammad Ali instigated his sons, to attack on the complainant party to which Liaquat All and Amanat All made fires from their respective guns which hit Muhammad Arshad, Muhammad Irshad, Ghulam Nabi and complainant himself and they fell down on the ground which resulted into casualties, Muhammad Arshad and Muhammad Irshad expired on account of injuries whereas Ghulam Nabi and complainant were injured. This witness being complainant has given the entire facts of the case and has also in his statement stated before the trial Court under section 202, Cr.P.C. Very clearly with regard to injuries sustained by two deceased and he has specifically described before the trial Court where the deceased sustained injuries on their parts of body. There is a cross of the defence but nothing has been extracted from the mouth of this witness so that we feel that his evidence has been shaken by the defence. No cogent defence has been set up by the learned counsel for the appellants. The only defence has been set up that the sons of the complainant have been died with the firing of unknown persons. We have also examined the direct complaint filed by the complainant and the very purpose of direct complaint was that two co- accused Muhammad All and Naimat Ali were let off by the police and being disillusioned and dissatisfied by the conduct of police the complainant filed direct complaint so that the let off accused be impleaded in the case. We have also examined the statements of the witnesses in direct complaint under sections 200 and 202, Cr.P.C. And we have not been able to find any inconsistency between the statements of the witnesses in State case and in Direct complaint under sections 200 and 202, Cr.P.C. The complainant is also injured.
17. ' P.W. Ghulam Nabi who is injured in this case has also fully implicated the appellants an respondents namely and respectively Muhammad All and Naimat Ali and he has also implicated all the accused in his statement under sections 200 and 202, Cr.P.C. And nothing has been extracted from his mouth so that we may feel that his evidence has been shaken. Even no such question has been put to this witness by the defence that deceased were killed by unknown persons as this question has been put by the defence to complainant. P.W. Shaukat Ali is also an eye-witness and who has also implicated the appellants and respondents Muhammad Ali and Naimat Ali and his evidence also goes unshaken by the defence. The statement of Shaukat Ali under section 202, Cr.P.C. Is also on the same footings as deposed by him in the trial Court in State case. The statement of Ghulam Nabi under section 202, Cr.P.C. Is also on same footings as he deposed before the trial Court. Prosecution has collected a piece of evidence against the appellants in shape of ocular testimony being furnished by the complainant Muhammad Ismail, statement of Ghulam Nabi and Shaukat Ali and out of them complainant and Ghulam Nabi are injured as discussed supra. They have fully deposed against the appellants and respondents Muhammad Ali and Naimat Ali. Moreover, the evidence of injured persons namely and respectively complainant Muhammad Ismail and Ghulam Nabi is also convincing as they are also injured persons in the case and we have not been able to find out any fallacy in their evidence before the trial Court.
18. ' Under the law the evidence of the injured persons is to be taken into consideration by the Courts as they are more effective witnesses than those who have expired as they are no more in the world but the injured persons are alive and they appear before the Court. They depose before the Court and they point out before the Court that it is such and such accused who fired upon them and deceased and therefore, the evidence of injured persons as prosecution witnesses considered by the Court as inspiring evidence until and unless their evidence is shaken by the defence. In the present case their evidence goes unshaken which we have examined very carefully. We have also examined the medical evidence which is also convincing on the seat of injuries sustained by the two deceased.
19. ' Recovery has been effected from the accused persons on 22-6-1995 and that too has been proved.
20. ' Learned defence counsel has not drawn our attention on the judicial confession of appellants/accused Amanat Ali and Liaquat All and the same has been recorded by the Civil Judge and F.C.M., Nawabshah. In their judicial confessions appellant/accused Amanat All has stated before the 1st Class Magistrate that on 22-6-1995 at 6-00 a.m. He went out from his house and saw complainant Muhammad Ismail and his deceased sons Muhammad Arshad and Muhammad Irshad were present and were maltreating his mother Mst. Naziran and she was injured. On account of such situation he went and brought his father's licensed double barrel gun and fired at Muhammad Ismail and his sons and due to fire-arm injuries by him and his brother Liaquat Ali, Muhammad Ismail, Ghulam Nabi were injured while Muhammad Arshad and Muhammad Irshad died. The incident has occurred due to dogs.
21. ' Appellant Liaquat Ali has adopted same statement before the Magistrate as adopted by his brother Amanat Ali. The startling point is that no< such question has been put to the witnesses by the defence that Muhammad Ismail complainant and his sons were maltreating the mother of appellants Amanat Ali and Liaquat All and therefore, they brought guns and his sons who sustained injuries and also expired. This fact has also been suppressed by the learned counsel for the appellants in Criminal Appeals Nos.90-91 of 1998 and has not been brought to our notice but we have been able to find out during our examination of the entire record and proceedings of the case. This leads to inference that the defence all along has suppressed the material facts and has not come forward with clean hands. Even Mr. Aslam Baig, Civil Judge and F.C.M. Who has been examined by the trial Court on the factum of confessional statements of accused Amanat Ali and Liaquat Ali and his evidence has gone unshaken and nothing has been extracted from his mouth by the defence to cause dent in judicial confession.
22. ' We have also examined very carefully the statements of accused under section 342, Cr.P.C. And nowhere the accused have led the definite defence. They have only stated in their statements under section 342, Cr.P.C. That they are innocent.
23. ' Learned counsel for the appellants in Criminal Appeals Nos.90-91 of 1998 had also drawn our attention on the evidence of defence witnesses examined on behalf of the appellants. We have carefully gone through their evidence, D.W.1 Bashir Ahmad W.H.C. Who had brought record on 23- 6-1995. Entry No,10 was made in the Roznamcha by the complainant and he has not been subjected to cross-examination by the D.D.A. D.W. No,2 is Muhammad All who is himself accused in State case and was let off by the police and then was impleaded as accused in direct complaint and he has deposed before the trial Court that sons of complainant were murdered he and Naimat Ali had gone to attend Khaiirat of Muhammad Rafiq in village 93 Nusrat on the day of incident at 12-00 noon time and on the next day at about 3-00 p.m. Police arrested Muhammad Ali and Naimat Ali from the village of Muhammad Rafiq and they were brought at the place of Wardat and came to know that the wife of Muhammad Ali Mst. Naziran has also received injuries. According to this witness Muhammad Ali he has deposed that he and Naimat Ali were let off in investigation by the police. He and Naimat Ali have not caused any injuries to deceased Muhammad Arshad and Muhammad Irshad. Now this plea taken by Muhammad Ali who is one of the accused that on the day of incident they had gone to attend Khairiat of Muhammad Rafiq in village 98 Nusrat is not convincing one on two-fold grounds (i) that during trial the defence has not put any question to the prosecution witnesses that on the day of incident accused Muhammad Ali and Naimat Ali had gone to attend Khairat of Muhammad Rafiq in his village 93 Nusrat (ii) Muhammad Rafiq has not been examined by the accused during trial and therefore, this plea appears to be not only false but after thought. Naimat Ali defence witness No,3 who is one of the accused in the State case and direct complaint has stated before the trial Court as defence witness that he, complainant Muhammad Ismail reside in the same village and on the day of incident he and his father went to Khairat of Muhammad Rafiq and has adopted the same theory as given by Muhammad Ali as a defence witness. Defence witness No,4 namely Mst. Naziran has also been examined on behalf of the appellants and who has given statement before the trial Court that her husband accused Muhammad Ali on the day of incident was not available in the house. It was morning prayer time she heard the cries coming outside the house. She went outside the house complainant enquired from her about her husband who informed the complainant that her husband and son Naimat Ali have gone to village 93 Nusrat to attend Khairat of Muhammad Rafiq the complainant alongwith eight persons entered the house of the accused Muhammad Ali caused her injuries and also caused injuries to her small children. Accused Amanat Ali and Liaquat Ali were not in the house and they had gone for some work. Two guests Akbar and Nawaz were staying in her house. Firing started and two people fell down in her house and they succumbed to injuries and then police came and visited the place of Wardat. Strange enough that even no question has been put to the prosecution witnesses as being deposed by Mst. Naziran before the trial Court as one of the defence witness and therefore, it is crystal clear that this plea is afterthought plea adopted by the defence witness to save the skin of the accused persons. That after the examination of evidence of defence witnesses by the accused persons we have not been able to find any dent in the version of the prosecution. As discussed by us in supra that the ocular testimony is available with the prosecution followed by the recovery. Medical evidence is also supporting the case of the prosecution. Judicial confession of the two accused persons namely and respectively Amanat Ali and Liaquat Ali are available with record and they have stated before the Magistrate that they have killed two persons namely and respectively Muhammad Arshad and Muhammad Irshad over quarrel of dogs and the evidence of the same Magistrate who recorded the judicial confession has gone unshaken. We have not been able to find out any defect in their judicial confession as both the judicial confessions are voluntarily and true. If all these factors are combined together the prosecution has got sufficient evidence against the appellants and the evidence of the prosecution witnesses has totally gone unshaken. The role ascribed to respondents Muhammad Ali and Naimat Ali by the prosecution witnesses has been established and they also played vital role in the commission of the offence. Then these two respondents have examined themselves as defence witnesses before the trial Court in Sessions case and have taken a different theory on the plea of alibi and that too has not been established by them which is quite obviously after thought plea and no such question has been suggested to the prosecution witnesses that the appellants were available at the behest of Muhammad Rafiq and had gone to attend Khairat and therefore, these two respondents Muhammad Ali and Naimat All have also deposed dishonestly before the trial Court. Reference can be made to cases of Khan Muhammad v. The State reported in 1999 PCr.LJ 668, Muhammad Bahar v. The State reported in 1996 SCM R 1069 and Abdul Ghafoor v. The State reported in 2000 SCM R 919.
24. ' We are of the considered view that prosecution in all fairness has been able to prove its case beyond reasonable doubt against the appellants namely and respectively Amanat Ali, Liaquat Ali and respondents Muhammad Ali and Naimat Ali. We have not been impressed at all by the arguments rendered by the learned defence counsel in Criminal Appeals Nos.90-91 of 1998 and we are not inclined to interfere with the impugned judgment dated 6-8-1998. In result the appeals of appellants in Criminal Appeals Nos.90-91 of 1998 are dismissed and conviction and sentence are maintained. We accept confirmation reference of death sentence of the appellants namely and respectively Amanat All and Liaquat Ali. The Criminal Acquittal Appeal No,103 of 1998 is allowed. The trial Court is directed to make all possible efforts to get arrested the afore-named respondents namely and respectively Muhammad Ali and Naimat Ali and with further direction to restart their case from the stage of 342, Cr.P.C. Statements and after giving full opportunities to both sides pass judgment. Order accordingly.