1. BASHIR A. MUJAHID, J.---Hamed son of Nazra was tried alongwith his acquitted co-accused namely Shabbir, Sarwar, Asghar, Muhammad Nawaz, Mst. Sardaran and Falak Sher by learned Sessions Judge, Hafizabad under sections 302/324/148/149/109, P.P.C. In case F.I.R. No. 195 dated 3- 9-1992 registered at Police Station Sukheke for commission of murder of Mst. Bashiran Bibi and causing injuries to Mst. Fatima alias Phaphi and an infant Janat Bibi and Mostooran Bibi and was convicted vide impugned judgment dated 27-2-1996 and sentenced to death under section 302, P.P.C. And to make payment of Rs.15,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default of payment of compensation to further undergo six months' R.I.
2. Briefly facts of this prosecution case narrated in F.I.R. Exh.PF got registered by Lall Khan P.W.7 recorded by Ghulam Abbas Khan Inspector/S.H.O. P.W.8 at 3 a.m. On 3-9-1992 at Police Station Sukheki are that Manak real brother of the complainant was murdered by Nazra son of Mahand and Amanat son of Ghulam about 30/32 years ago, After two years of the said occurrence the accused were acquitted from the case. Two years thereafter Nazra was murdered by the complainant alongwith his brothers Mughla and Khushhal. His dead body was cut into pieces and thrown in Jhang Canal Branch and was not found. All the three brothers were challaned but were acquitted. About 10/12 years before a compromise was effected between the parties due to intervention of the respectables of the area but Shabbir and other had kept grudge in mind. On previous night the complainant alongwith his real brother Khushhal were sleeping at the roof of their residential house. His wife alongwith his daughters-in-law and children were sleeping in the courtyard. At about 12-30 in the night Shabbir accused armed with D.B. Gun Hamed accused also armed with guns, Nazra, Asghar and Sarwar sons of Baghaila armed with guns, Nawaz alias Majhi son of Sohawa armed with rifle and Falak Sher alias Falku son of Boota armed with gun came at the place of occurrence and by standing by the northern wall of the house in order to murder the complainant thinking him as sleeping in the courtyard opened fire with their respective weapons.
3. First fire of Shabbir accused hit Fatima alias Phaphi wife of Ashiq on her left buttock. On hearing the gun fire all the family members woke up. Bashiran Bibi wife of Khalid Hussain, daughter-in-law of the complainant to escape took her infant Janat Bibi aged six months and rushed towards residential room when Shabbir and Harried accused fired one after the other with their guns hitting at her back, who fell down. One of the pellets also hit lanat Bibi the infant at her belly, then all the accused resorted to indiscriminate firing. One pellet also hit Mastooran Bibi wife of Khushhal. All the inmates went in the room due to fear of firing. The complainant and other in-retaliation also fired at the accused. They ran away from the place of occurrence. Mst. Bashiran Bibi succumbed to the injuries at the spot. The occurrence took place at the instigation of Mst. Sardaran Bibi wife of Ahmed because 10/15 days before the occurrence the accused had sent away their female members and were residing with said Sardaran Bibi. The occurrence was also witnessed by Khushhal and Ghulam Haider sons of Manak. The accused were identified in the light of electric bulb.
4. Ghulam Abbas Khan Inspector/S.H.O. P.W.8 after registration F. I. R. Exh.PF arrived at the place of occurrence. He took the dead body of Bashiran Bibi into possession, prepared injury statement vide memo. Exh.PG and inquest report Exh.PH and despatched the dead body for post-mortem examination through application Exh.PJ in the company of Zakar Hussain and Muhammad Ashraf Constables. He also prepared injury statement of Janat minor vide memo. Exh.PL and of Mastooran Bibi vide memo. Exh.PM. They were also got medically examined. He collected the blood--stained earth from the place of murder of Mst. Bashiran Bibi which was taken into possession vide memo.
5. Exh.PC. He also took into possession 5 crime empties of .12 bore gun and two crime empties of 7 mm rifle vide memo. Exh.PD.
6. On 4-10-1992 he arrested Harried accused and others but no weapon of offence was recovered and were sent in judicial lock-up. He recorded the statements of witnesses, completed the investigation and challaned the accused.
7. The accused denied the allegation and claimed the trial.
8. During the trial prosecution examined as many as 10 witnesses to prove the guilt of the accused. Dr. Capt. Khalid Farooq P.W.6 conducted the post-mortem examination on the dead body of Mst.
9. Bashiran Bibi on 3-9-1992 and found the following injuries:- (1)Fire-arm wounds of entry 4 in number each about 3/4 x 3/4 c.m. In an area of 13 x 6 c.m. On the back of right chest, 8 c.m. From midline towards right and up to the mid axillary line on outer most part of the chest, horizontaly and 10 c.m. Below the interior margin of scapula. Edges were inverted and margins were tattooed.
10. (2)Fire-arm wounds of entry 5 in number, each about 3/4 M 3/4 c.m. In an area of 9 x 6 c.m. On the back of chest in midline and also on the right side of chest, just outer to the midline in the lower most part. Edges were inverted and margins were tattooed.
11. (3)Fire-arm wounds of exit 6 in number each about 1 x 1/c.m. In an area of 20x23 c.m. On the 'front of left part of chest, 6om the interior axillery line up to the mid line of the chest horizontally and from the upper margin of the left areola up to the last rib on left side vertically. Edges were everted.
12. Lall Khan alias Lallu complainant was examined as P.W.7. He supported the version of the F.I.R. And the prosecution case as an eye--witness of the occurrence. He also narrated the motive for the alleged occurrence. Fatima Bibi was examined as P.W.5.I/She was an injured eye-witness of the occurrence, her statement is also in line with the complainant. Zahoor Ahmed P. W .4 was examined as recovery witness of the articles taken into possession by the Investigating officer from the place of occurrence, Ghulam Abbas Khan, Inspector was examined as P.W.8, who investigated to case and arrested the accused. Riaz Ahmed Cheema, DSP was examined s P.W.10 who had also partly investigated the case and found Falak Sher accused as innocent. The prosecution evidence was closed by tendering in evidence the report of Chemical Examiner as Exh. P.O and that of Serologist Towards the end of the trial statements of the accused were recorded under section 342, Cr.P.C.
13. They denied the allegation and claimed, their innocence and false involvement due to previous enmity.
14. The trial culminated into conviction of the appellant as mentioned above who has filed the instant Criminal Appeal No. 149 of 1996 against his conviction and sentence while the trial Court has sent up Murder Reference No. 61 of 1996 under section 374, Cr.P.C. For confirmation of death sentence both. The matters are being decided by this single judgment. Criminal Appeal No. 231 of 1996 filed by the complainant against acquittal was dismissed for non-prosecution on 20-10-1999.
15. Learned counsel for the appellant has argued that it was night unwitnessed occurrence; that the prosecution witnesses are closely related inter se and to the deceased, therefore, they are interested and inimical as the enmity is admitted between the parties. Their testimony has not been corroborated from any other independent source; that on the basis of same evidence the other accused have been acquitted, therefore, it is not safe to maintain the conviction qua the appellant.
16. Conversely the appeal has been opposed by the learned State Counsel who as supported the impugned judgment.
17. Hear Record perused.
18. The appellant was nominated in the promptly recorded --F.I.R. The occurrence took place just after mid-night and the F.I.R was recorded at Police Station at 3-00 p.m. Which is at a distance of 6 k.m.
19. The accused/appellant was previously known to the complainant and other prosecution witnesses.
20. There is no reason for his false implication/mistaken identity. The electric bulb was on at the time of occurrence. The witnesses have not been cross-examined on this score. The appellant was attributed fatal injury at the deceased. The other accused except Shabbir were not attributed any injury to the deceased. The witnesses except Fatima P .W.5 who received injuries t the hands of the acquitted co-accused were not examined during the trial therefore, the case of appellant is distinguishable from the others. Shabir, accused was although attributed injury at the deceased as well as on Fatima Bibi P.W. But the learned trial Judge has given detailed reasons for his acquittal in para.32 of the judgment as medico-legal certificate of Fatima Bibi was not brought on record.
21. Injuries Nos. l and 2 on Mst. Bashiran Bibi deceased are attributed to Harried accused, therefore, benefit of doubt was rightly given to him, and grain has been sifted from the chaff by the trial Court.
22. As far as the case of Harried is concerned, the prosecution has established its case against him by ocular account narrated by complainant p, P.W.7 and Fatima Bibi alias Phaphi injured witness P.W.5, both of them stood the test of lengthy cross-examination, their statements are confidence -- inspiring. Mere relationship with the deceased is not enough to discredit their testimony when otherwise they were material and truthful witnesses. Their evidence has been corroborated by medical evidence as well as the motive of the occurrence.
23. After deep reappraisal of the evidence we do not find any reason to interfere in the conviction recorded against the appellant Harried and sentence awarded to him by the trial Court. Hence his appeal is dismissed having no force. The conviction and sentence is maintained. The death sentence against Hameed appellant is confirmed.
24. The murder reference is answered in affirmative.
25. H.B.T./H-41/L