' NAEEM ULLAH KHAN SHERWANI, J.--- Jawad Ahmad, Abid Iftikhar sons of Iftikhar Ahmad, Manzoor Ahmad son of Ghulam, Noor Ahmad son of Noor and Muhammad Younas son of Hand were tried by a learned Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Multan Division, Multan for offences under section 302/452/380/364/411/149 read with section 148, P.P.C. Through his judgment, dated 27-8-1996, the said learned Judge acquitted Muhammad Younas of the said charge, but found Jawad Ahmad, Abid Iftikhar, Manzoor Ahmad and Noor Ahmad guilty of the offences, convicted and sentenced them as under:--
(I) Under section 302, P.P.C.
' Jawad Ahmad and Abid Iftikhar were punished with death for committing murder of Jahangir Mahmood, whereas Manzoor Ahmad and Noor Ahmad were sentenced to imprisonment for life. All the four convicts were directed to pay a fine of Rs,1,00,000 each or in default thereof to further undergo rigorous imprisonment for two years each. They were also ordered to pay a sum of Rs,1,00,000 each by way of compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
(II) Under section 364, P.P.C.
' All the four convicts were sentenced to rigorous imprisonment for ten years each with a fine of Rs,1,00,000 each or in default thereof to further undergo R.I. For two years each for committing abduction of Jahangir Mahmood deceased from his house before his murder.
(III) Under section 380, P.P.C.
' Noor Ahmad convict was sentenced to rigorous imprisonment for two years.
' Benefit of section 382-B, Cr.P.C. Was, however, extended to them.
2. All the convicts have approached this Court with Criminal Appeal No,265 of 1996 impugning the above noticed convictions and punishments recorded against them. Nasar Mahmood complainant filed Criminal Revision No,118 of 1996 against Manzoor Ahmad and Noor Ahmad for enhancement of their sentence to the maximum provided under the law. Both these matters are being disposed of together through this single judgment.
3. Occurrence of the alleged incident had taken place on 9-3-1995 at about 5-15 p.m. In the area of Chak No,101/6-AR, about six kilometers away from Police Station Harapa, District Sahiwal and the matter had been reported by Lt.-Col. (Retd.) Nasar Mahmood (P.W.7), brother of the deceased. F.I.R.
(Exh.P.M.) was . Recorded by Ghulam Rasool, S.-I. (P.W.15).
4. Narrating the occurrence and the background leading thereto, Nasar Mahmood complainant put the matter succinctly by stating that Jawad Ahmad and Abid Ahmad sons of Iftikhar Ahmad Waraich were sons of his paternal cousin and were residing adjacent to his house. Due to an old land dispute, relation in between the two sides had become strained. Jawad Ahmad and others used to invite bad characters at their Dera to wish them maximum harm. Jahangir Mahmood used to take it ill. On the fateful day, at 9/10-00 a.m., Jawad Ahmad and Abid Ahmad alongwith certain bad characters arrived at their own Dera by means of a jeep. This Dera of theirs is located in front of complainant's house. As those persons appeared to be of dubious character, so Jahangir Mahmood reprimanded Jawad Ahmad and Abid Ahmad, who felt considerably aggrieved of this attitude of Jahangir Mahmood. They took it as their personal insult. This led to exchange of abuses in between the two sides. The complainant was attracted to the spot and brought back Jahangir Mahmood for imparting piece of advice. Jawad Ahmad and Abid Ahmad left the spot in the company of their compatriots.
' At about 5-15 p.m., the same day, the complainant was present near the Dera and after hearing noise of Shehar Yar alias Sheri son of the deceased rushed towards his house and saw that his brother Jahangir Mahmood was being forcibly dragged by Jawad Ahmad, Abid Ahmad, Noor Ahmad and Manzoor Ahmad, while armed with rifles. They were taking him to their own house. They openly pronounced that they would teach him a lesson for the land in dispute and to avenge their insult, they would not let him go alive. Muhammad Shafi, servant of the complainant, and Perwaiz son of Ch. Nazir Ahmad P.Ws. Were already there and were shouting for help. All the three stepped forward to rescue Jahangir Mahmood from the clutches of the accused, but all the accused deterred them by aiming their rifles towards them and telling them once for all that if anybody drew near he would be killed. They, in a state of helplessness, followed them and reached near the outer door of the house of Jawad Ahmad and others. Due to fear, they could not advance further. In their presence and view, all the four accused resorted to firing with their rifles at Jahangir Mahmood, who was seriously wounded. All the accused while wielding their respective weapons, came out of their house and levanted from the spot by boarding a blue coloured jeep, which was parked outside their house. Muhammad Younas (since acquitted) throughout this period stood by the side of jeep. The complainant alongwith Muhammad Shafi and Perwaiz drew near Jahangir Mahmood, who succumbed to his injuries instantaneously at the spot. According to the complainant, all the accused after having counseled with each other committed brutal murder of Jahangir Mahmood. Muhammad Shah P.W., informed the complainant that the accused had taken alongwith them licensed rifle of the deceased, when he was forcibly dragged from his bed room towards their house. Nasar Mahmood left Perwaiz and Muhammad Shafi by the side of the dead body and proceeded towards the police station for laying information of the occurrence to the police. That is how the complainant had set the State functionaries into motion by getting case F.I.R. (Exh.P.M.) registered with the abovesaid police station against the accused.
5. Preceding registration of case, investigation into the crime commenced. Ghulam Rasool, S.-1.
(P.W.15) assumed the role of an investigator. He left for the spot with due haste. As the dead body of Jahangir Mahmood was available at the spot, so he inspected it. He prepared inquest report (Exh.P.S.) and injury statement (Exh.P.T.) of the deceased and delivered the dead body to Nazar Mahboob; constable (P.W.4) for its post-mortem examination, who performed his duties carefully as such. The Investigating Officer examined not only eye-witnesses, but also other witnesses, who were available at the spot. He carried out spot inspection on 10-3-1995 and prepared rough site plan (Exh.P.U.) of the place of occurrence. He secured blood-stained soil from the spot and converted the same into a sealed parcel. Seizure memo. Exh.P.N. Was also prepared, which was duly attested by the witnesses, namely, Ahmad Salem (P.W.10) and Javed (not produced). During the course of spot inspection, he also secured empties of rifle 222, ten in number (P.19/1-10) missed bullets of rifle 8 mm six in number (P.20/1-6). One charger of rifle 8 mm (P.21) and prepared seizure memo. Exh.P.O., in lieu of the abovesaid recoveries Nazar Mahboob constable (P.W.4) produced last-worn blood-stained clothes of the deceased i.e,, Shalwar (P.1), shirt (P.2) and one sealed phial (P.3) before him, which were taken into possession through recovery memo. Exh.P.F. Duly attested by the witnesses. The Investigating Officer also took into possession jeep (P.22), which was allegedly used by the accused for decamping from the spot after accomplishing their ignoble design through memo. Exh.P.V., Statements of all the relevant witnesses, who were associated in the Investigation were also recorded by him. He deputed Mirza Ashfaq 'Baig, Draftsman (P.W.11) to inspect the spot and prepare site plan thereof according to the pointation of the prosecution witnesses. Accordingly he prepared site plans in triplicate (Exhs.P.Q., P.Q./1 and P.Q./2). The statement of draftsman was also recorded by him.
' The next most important piece of work to be done by him was apprehension of the accused. He endeavoured his best to do so. He continued searching the accused from 9-3-1995 to 20-3-1995, - but they were not traceable. On 28-3-1995, he made an application before the Illaqa Magistrate to obtain non-bailable warrants of their arrest. He deputed Zulfiqar Ahmad, H.C. (P.W.3) to execute these warrants. On 11-4-1995, the proclamations (Exhs.P.A., P.B., P.C. P.D. And P.E.) were obtained from the Court of Illaqa Magistrate against Muhammad Younas, Abid Iftikhar, Jawad Ahmad, Manzoor Ahmad and Noor Ahmad, respectively. Statement of Zulfiqar Ahmad, H.C. Was also recorded by him. It was, however, on 13-5-1995 that the Investigating Officer was able to apprehend all the accused. Personal search of Jawad Ahmad was conducted at the time of his arrest. One key (P.23), and one ring (P.24) were taken into possession by him vide recovery memo.
Exh.P.W. On 14-5-1995, Muhammad Younas was sent to the judicial lock-up, whereas physical remand of others was obtained. The uphill task of remaining investigation was taken over by Javed Haider Shah, Inspector (P.W.14), who was posted as S.H.O. Of the police station. File of this case was delivered by him to the S.H.O. Intact for further investigation.
6. Javed Haider Shah, Inspector (P. W.14) interrogated Noor Ahmad on 27-5-1995, who had shown his willingness to get recovered rifle 222 belonging to the deceased along a magazine from his residential house. Accordingly he led to the recovery of 222 rifle (P.4) and a magazine (P.5) contained in an iron box lying in his residential house. The rifle was converted into a sealed parcel and taken into possession vide recovery memo. Exh.P.G. Rough site plan of the place of recovery (Exh.P.G./1) was also prepared by him. Manzoor Ahmad also got recovered unlicensed 8 mm rifle (P.6) and eight live bullets (P.8/1-8) contained in the charger. One empty (P.7) was also found in the charger of the rifle. It belonged to Abid Iftikhar accused. It was made into a sealed parcel and taken into possession through recovery memo. Exh.P.H. Rough site plan of the place of recovery was also prepared by him. Likewise, on the same day, Jawad Ahmad while in police custody got recovered .222 bore licensed rifle (P.9) from residential Kotha of Fatima Bibi alongwith two magazines (P.10/1- 2), nine live bullets (P.11/1-9) and a copy of the licence (P.12). In lieu of the abovesaid recoveries memo. Exh.P.J., was prepared. Abid Iftikhar also got recovered licence (P.13) of 8 mm rifle, which was taken into possession through recovery memo. Exh.P.K., Jawad Ahmad accused led to the recovery of one copy of licence (P.14) of pistol alongwith 17 live bullets (P.15/1-17), one .12 bore gun (P.16), 20 live cartridges (P.17/1-20) and one copy of licence (P.18). Recovery memo. Exh.P.L., was prepared by him in that regard. All the recovery memos. Were duly attested by Muhammad Sarwar (P.W.6) and Muhammad Iqbal P.W., (not produced). Their statements to that effect were recorded by him. The case property was passed on by the Investigating Officer to the duty officer of police station to be kept in safe custody in the police station Malkhana and further to be dealt with in accordance with rules and regulations relating to the incriminating articles. He finalized investigation and submitted challan for trial of the accused in accordance with law.
7. Consequently, on receipt of challan learned trial Judge perused all the documents and found it a fit case for trial by him. After observing all the legal formalities, he proceeded to commence trial. As the accused after denying correctness of the charges had claimed to be tried, it was thereafter that the prosecution was called upon to produce evidence available at their end to substantiate charges levelled against them. In compliance thereto, prosecution ventured to produce as many as 15 witnesses to achieve success in the. Trial.
8. To begin with, prosecution took a dashing start by producing Manzoor Ahmad, H.C., as P.W.1, who on 27-5-1995 received three parcels pertaining to this case from the Investigating Officer, which he kept safely in the Malkhhana. Thereafter, on 11-6-1995, he handed over these parcels to Maqbool Hussain, constable (P.W.2) for their onward transmission to the office of the Forensic Science Laboratory, Lahore in tact, who did so.
' Zulfiqar Ahmad, H.C. (P.W.3) proved the factum of abscondance of the accused in its entirety.
Reference to the evidence of P.W.4 Nazar Mahboob, constable has already been made.
Muhammad Yousaf (P.W.5) had identified dead body of Jahangir Mahmood deceased at the time of autopsy before the doctor. P.W.6 Muhammad Sarwar proved recoveries at the instance of Noor Ahmad, Manzoor alias Mali, Jawad Ahmad and Abid Iftikhar. He admitted having attested relevant recovery memos.
' The most prominent of all the witnesses are Nasar Mahmood complainant (P.W.7), Muhammad Shafi (P.W.8) and Perwaiz Iqbal (P.W.9), who claimed to be eye-witnesses of the alleged incident and deposed about all the facts perceived through their senses and within their knowledge. They virtually left no stone unturned to establish prosecution version.
' Ahmad Saleem (P.W.10) was associated with the investigation of this case by the Investigating Officer at the spot. He proved recovery of blood-stained soil from the place of occurrence and empties etc., and admitted having attested the memos. Relevant thereto. Statement of P. W.11 Mirza Ashfaq Baig, Draftsman has already been brought under discussion so it need not be discussed here once again.
' The statement of Dr. Nasar Mahmood (P.W.12) is of great significance in this case. While posted as Medical Officer in the District Headquarters Hospital at Sahiwal, he performed autopsy upon dead body of Jahangir Mahmood on police request. He set at post-mortem examination of the dead body on .10-3-1995 after its identification was fully established through Muhammad Yousaf (P.W.5) and Said Ali P.W., (not produced). He not only carried out external examination of the dead body, but also internal examination thereof by undertaking its dissection to ascertain cause of death and causative weapon of violence. He observed following injuries on the person of Jahangir Mahmood deceased.
"(1) A fire-arm lacerated wound 1 c.m. x 1-1/2 c.m. Into deep going with inverted margins on outer part of front middle of right arm (entry wound).
(2) A fire-arm lacerated wound 10 c.m. x 5 c.m. Into deep going with everted margin and a fractured end of the bone was protruding out and was present on the inner and back of middle of right arm (exit wound).
(3) A fire-arm lacerated wound 1 c.m. x 1 c.m. Into deep going with inverted margins on the outer side of right chest, 7 c.m. Below and outer to the right nipple.
(4) A fire-arm lacerated wound 3 c.m. x 1 c.m. Into deep going with everted margins on the outer part of lower half of right chest 6 c.m. Outer to injury No,3 (exit wound of injury No,1).
(5) A fire-arm lacerated wound 4 c.m. x 1 c.m. Into deep going with everted margins on the outer side of right chest 4.5 c.m. Above the injury No,4 (exit wound of injury No,6).
(6) A fire-arm lacerated wound 1.5 c.m. x 1 c.m. Into deep going with inverted margins on the inner lower part of back of right chest.
(7) A fire-arm lacerated wound 2.5 c.m. x 1.5 c.m. Into deep going with everted margins on the outer side of left chest in lower part of mid axillary line (exit wound of injury No,3).
(8) A fire-arm lacerated wound 1 c.m. x 1/2 c.m. Into deep going with inverted margin on the outer side of left side 3.5 c.m. Below injury No,7.
(9) A fire-arm lacerated wound 5 c.m. x 4 c.m. Into deep going with inverted margins and on the outer side of upper front part of right thigh.
(10) A fire-arm lacerated wound 2 c.m. x 1 c.m. Into deep going with everted margins on the perineal area, 7 c.m. Outer anus (exit wound of injury No,9).
(11) A lacerated wound (fire-arm) 5 c.m. x 4 c.m. Into deep going with everted margins on the inner side of front of lower part of right thigh, just above the right knee (exit wound of injury No,12).
(12) A fire-arm lacerated wound 2.5 c.m. x 2 c.m. Deep going with inverted margins on the upper front part of right leg just below the right knee.
(13) Abrasion 2 c.m. x 1.5 c.m. On lower front part of left knee.
(14) Abrasion 2 c.m. x 1.5 c.m. On lower front part of left knee just inner to injury No,13.
(15) Graze abrasions 3 c.m. x 2.5 c.m. On the back of right elbow.
(16) Graze abrasions 2.5 c.m. x 1.5 c.m. On the back of left elbow. Dissection ' Under injuries Nos.1 and 2 right humerous was fractured at upper half and major vessels of the right arm were also injured. Under injuries Nos.5 and 6 right lung was injured. Under injuries Nos.3, 4, 7 and 8 right 6th, 7th ribs were fractured, right lung was injured, liver was injured, both sides of diaphragm were injured plaeur was injured peritoneum, stomach and left lung were also injured.
Under injuries Nos.10 and 11, right femur was fractured in upper half major vessels were also injured.
Under injuries Nos.12 and 13 lower end of right femur injured, fractured and major vessels of right popleteal fossa were injured. Skull was opened but no abnormality was found. Two bullets were found from the clothes of the deceased which were sealed and handed over to the police.
' The stomach contained semi-digested food about 4, 5 oz. Small intestine contained juices. Large intestine contained gases and faeces. The bladder contained about 150 ml. Of urine. All other organs except mentioned above were healthy."
' According to the opinion of doctor, cause of death in this case was injuries Nos.3, 4, 5, 6, 7 and 8 causing damage to.The lungs, liver leading to haemorrhage, shock and respiratory failure, and were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem.
Injuries Nos.1 to 12 were caused by fire-arms and injuries Nos.13 to 16 were caused by blunt weapons. Time that elapsed between injuries and death was immediate, whereas that elapsed between death and post-mortem was about 24 hours. After post-mortem examination, the doctor delivered the dead body alongwith copy of post-mortem examination report, the police papers (Exhs. P.S. And P.T.), the last-worn clothes of the deceased and a sealed phial containing two led bullets to Nazar Mahboob, constable (P.W.4), Correct carbon copy of the post-mortem report and pictorial diagram showing the locale of injuries are Exhs.P.R., P.R./1 and P.R./2, respectively, which bear signatures of the doctor.
' Evidence of P.W.13 Allah Yar H.C. Is of formal character. He kept two parcels delivered to him by the Investigating Officer in the police station subsequently on the same day passed on to Nazar Mahboob, constable (P.W.4) for their onward transmission to the concerned forum.
' Evidence of P.Ws.14 and 15 Javed Haider Shah, Inspector and Ghulam Rasool, S.-I. Has been exhaustively discussed in the earlier part of the judgment, so it need not be reiterated because that would not serve any useful purpose.
9. The learned prosecutor had given up Shahar Yar, Javed, Aish Muhammad, Muhammad Iqbal, Said Ali and Ejaz P.Ws. Being unnecessary and after tendering into evidence reports of Chemical Examiner, Serologist and Forensic Science Laboratory as Exhs.P.X., P.Y. And P.Z. Respectively, declared the prosecution case close.
10. Now the next most important phase of the trial proceedings had set in, which relates to the examination of the accused under section 342, Cr.P.C. All the incriminating evidence was put to the accused, so that they may be in a position to offer the best explanation with regard to the imputed crime.
' Manzoor Ahmad and Noor Ahmad appellants attributed their involvement in the case to enmity and being opponents of the deceased in his electioneering campaign. They alleged that the witnesses had deposed falsely against them because of relationship or being servant of the complainant side.
' Abid Iftikhar appellant assigned his false involvement in the case due to transfer of land of his grandfather Faiz Ahmad in their favour. He pleaded alibi by alleging specifically that he was at Wazirabad at the relevant time of occurrence. Muhammad Younas (since, acquitted) also pleaded innocence in the matter.
' Jawad Ahmad appellant in an answer to Questions Nos.14 and 15, "why this case against you and why the P.Ws., have deposed against you?" and "Have you anything else to say?", made a statement, which is reproduced here in extenso:-- ' "The P.Ws. Have deposed falsely and have concocted a false story against me. They were not present at the spot. The prosecution story is false and fabricated.
' The deceased grudged for transfer of land of my grandfather Faiz Ahmad, Advocate deceased in favour of his legal heirs. The deceased was in cultivating possession of some of this land of some of the heirs. This was given to him by Faiz Ahmad for only cultivation purposes. Grandmother Rabia Bibi transferred 11. Acres of land of her inherited share in my name on 6-12-1993. The complainant party was unhappy over the transfers. They wanted to grab the land of Faiz Ahmad deceased.
' On 9-3-1995 at evening time, I was all alone in my house. My brother Abid had gone to Wazirabad.
Jahangir deceased armed with his 222 rifle criminally trespassed into my house. He fired twice shots with his rifle through the door of the gallery of my house. Upon this I apprehending danger took my 222 rifle and came out. On seeing me, Jahangir deceased was just to fire at me, I was left with no other alternative and in order to save my life in the state of continuing danger, I fired few shots with my rifle, which hit the deceased. None of the P.Ws. Was present at the spot. Also none of the co-accused was present at the time of occurrence. They have been falsely involved in the case on the basis of false and concocted story. Deceased Wanted to kill me due to transfer of land of Faiz Ahmad deceased to his heirs. I and Abid are also his heirs. The complainant and his brother Jahangir deceased did not own any land in the Chak. I was looking after the terms of the other heirs also. I left my rifle in my house and left the house. I am illiterate. I was puzzled over the incident. Complainant party managed to get a false case registered against me and the co- accused. The F.I.R. Was prepared on the next day on the arrival of Nasar Mahmood from Lahore. The police did not investigate the case fairly and honestly and my version was not investigated. Police favoured the complainant party. Proof of firing by deceased was not secured. I was arrested by the police much earlier than shown. After the occurrence the complainant party with connivance of the police demolished the outer wall of my house and the stories on the wall of which the fire of the deceased had hit. The complainant has occupied my house and the lands as well as of other legal heirs."
' The accused did not opt to make their statements on oath as provided under section 340(2), Cr.P.C., in disproof of the accusations brought against them Jawad Ahmad appellant tendered in evidence certified copies of civil suit titled Nasar Mahmood v. Rabia Bibi and others (Exh.D.E.)
Mutation No,339 (Exh.D.F.), Mutation No,689 (Exh.D.G.) Mutation (Exh.D.H.) and Mutation No,704 (Exh.D.J.) and closed his defence.
11. After conclusion of the trial the learned trial Judge pronounced the verdict of guilt against the appellant, convicted and sentenced them as aforementioned.
12. Learned counsel for the appellants too strongly argued this appeal and raised following points for our consideration:-
(i) That complainant Nasar Mahmood (P.W.7) is real brother of the deceased, whereas Perwaiz Iqbal (P.W.9) is his first cousin, residing at Sahiwal and Muhammad Shafi (P.W.9) was their servant.
These witnesses were neither present at the spot nor had seen the occurrence. They have given false evidence against the accused out of animosity;
(ii) That statements of the eye-witness are corroborated by some additional conviction piece of evidence;
(iii) That the prosecution story was unnatural and not worthy of credence and was fabricated after preliminary investigation;
(iv) That defence version put forth by Jawad Ahmad appellant is nearer to the truth and reliable one. He had acted in the exercise of right of private defence and that Abid Iftikhar's innocence in the matter was well-indicated through statement of the Investigating Officer and that in any case the sentence is severe.
13. Conversely, learned counsel for the complainant assisted by learned State Counsel argued that defence version is unnatural and improbable one and not supported by any evidence and that there was definite motive with the accused to commit crime in question and an immediate cause of grievance was also available on the file. It has also been argued that presence of all the witnesses is natural, which is amply proved through promptly lodged F.I.R. And their examination by the Investigating Officer under section 161, Cr.P.C. At the spot soon after the occurrence. According to the learned State Counsel, the appellants stood rightly convicted.
' Learned counsel for the complainant, however, did not seriously contest the revision petition for enhancement of sentence of Manzoor Ahmad and Noor Ahmad appellants.
14. We have heard respective arguments addressed at the bar by both the sides with our utmost devotion, care and caution and perused the record with the able assistance rendered by learned counsel for the parties
15. First of all we would like to comment upon registration of case against the appellants. The occurrence took place on 9-3-1995 at 5-15 p.m. In the area of Chak No,10176/AR, situated at a distance of six kilometers from Police Station Harapa and the crime report was made by Nasar Mahmood (P.W.7) at the police station at 6-10 p.m. The first information report stood recorded at the police station within an hour of the occurrence, which establishes beyond any shadow of doubt presence of the complainant at the spot, who without fail approached the police and dictated his statement. The F.I.R., in this case is prompt and straightforward. The complainant and the witnesses did not consume a little bit of time to enter into deliberations, consultations and conference with each other to build up a story brick by brick to implicate the appellants falsely in this case. First information report contains full particulars of the accused, weapons which they were carrying at the relevant time of occurrence and various parts played by them during the course of occurrence.
Names of the eye-witnesses also figure in the F.I.R. There is no such circumstance from which it may be deduced that first information report was not recorded at the stipulated time given in column No,1 of the F.I.R., and that it was recorded else where. It may additionally be noticed that there was absolutely no need for counseling with each other owing to the fact that the accused were known and all they did at the spot was personally observed by all the witnesses. Nasar Mahmood (P.W.7), a retired Lieutenant Colonel of Pakistan Army being real brother of the deceased and also a close relative of Jawad Ahmad as well as Abid Iftikhar appellants, had no earthly reason at his end to impute the crime in question wrongly. The mere fact that the post-mortem examination was conducted with some delay cannot be held as a sufficient ground to believe that either eye-witnesses were not available at the spot or the F.I.R. Had not been registered. Nazar Mahboob, constable (P.W.1) has explained this aspect of the matter by stating that firstly he escorted the dead body to the Medical Officer at Harapa, who was not available and for that reason he had to take the dead body to the District Headquarter, Hospital at Sahiwal for postmortem examination. The case F.I.R., number is available in the inquest report which also shows that first information report was recorded first and the inquest report was drawn later. This brings us to hold that the first information report is genuine and not a fabricated piece of evidence and as such, maximum legal sanctity is to be attached to it.
16. Presence of eye-witnesses at the place of occurrence is amply proved. They are by all means natural witnesses of the occurrence. Mere relationship of witnesses with the deceased in this case would not affect veracity of the prosecution version. The eye-witnesses of the occurrence being natural and probable ones have offered a straightforward and confidence inspiring testimony.
They had no such grudge or grouse with the accused to rope them falsely in this case. They have not offered a distorted version of the occurrence. Facts are facts and are very difficult things. The defence has virtually failed to break up hard facts furnished by the eyewitnesses. The case has been got registered by the complainant in the real premises and all that has been said in the F.I.R., appears to be reasonable and true. All the eye-witnesses have made consistent statements wholeheartedly supporting the prosecution version, although subjected to a very lengthy cross- examination yet, testimony of the complainant remained unshaken. There are no defects or flaws in their statements, which may ultimately result in the annihilation of their evidentiary value. Minor discrepancies or some improvements to further explain certain circumstances cannot be considered as a ground for rejection of testimony of the eyewitnesses.
17. The evidence of eye-witnesses has also been assailed on the ground that they did not intervene or intercept during the course of occurrence and their this conduct runs counter to the natural probabilities. We think it was in the wider interest of the witnesses for not making an attempt to reason negotiate or argue with the furious mactators as they could take their lives as well. Trying to apprehend or overcome armed assailants could not be designated as heroic, but could be foolhardy.
18. Motive part of the occurrence is almost admitted by the parties. In this case morning incident can well be considered as causa causins i.e,, the immediate cause of grievance, which led to the outbreak of the murder incident. High degree of interest was possessed by Jawad Ahmad and others also joined him fully well to accomplish his ignoble design.
19. Medical evidence speaks of deliberate excessive violence upon the deceased by most formidable weapons. Manner of perpetration of crime indicates that it was a calculated, pre- planned and barbaric murder. Jawad Ahmad appellant had woven the whole scheme being master-mind behind the whole occurrence. The fullest participation of the appellants cannot be doubted by any stretch of imagination. The number of injuries commensurate with the number of assailants and depicts use of fire-arms of different calibres. Statements of eye-witnesses are also corroborated by the recoveries of weapons.
20. The next most significant fact of this case is the very absconsion of the appellants after the occurrence. They hibernated themselves after the occurrence and could be arrested after more than two months. This fugitiveness on the part of the appellants also furnishes necessary corroboration to the guilt of the accused.
21. As regards defence version of Jawad Ahmad appellant, it may be seen that it was raised after a considerable long time, when he had the chance to establish contact with several persons. After fullest evaluation of facts and circumstances of this case, we hold that the defence version is damnably false, and afterthought one. It is absurd, ridiculous, fantastic, unnatural and improbable one. Fringed, feigned and surreptitious type of accusations against the deceased were brought to conceal their own parts in the occurrence and with a view to shift the entire blame upon shoulders of the deceased. We discard the defence version being wholly unreal and untrue. It is also not supported by any evidence of any sort. Mere suggestions by the defence cannot be treated as legal proof of the facts suggested.
22. As regards innocence of Abid Iftikhar appellant, the mere personal opinion of a police official is no legal evidence in the case. It cannot be considered at all being inadmissible in evidence. Only opinions of the experts are valid and not the opinion of the police official. According to Abid Iftikhar appellant, he was not present at the spot and was at Wazirabad. Neither anybody from the locality of occurrence nor any witness from Wazirabad was ever produced during the course of investigation to prove factum of alibi. It was bounden duty of Abid Iftikhar appellant to have proved his plea by the production of best evidence within his domain or power. Every one is expected to endavour his best to establish his defence plea, if at all it is good one, and, therefore, to adduce all evidence in his power and control that would support his plea. There is utter failure on the part of Abid Iftikhar appellant to produce any defence evidence to prove his plea. What evidence he could have produced easily, if it existed, is, therefore, open to presumption that it was not in existence.
However, there are chances of his having acted under influence of his elder brother Jawad Ahmad, so his death sentence is reduced to imprisonment for life.
23. Sentence of fine on a murder charge is not legal and the same could not be imposed under the prevalent law, so the sentence of fine of Rs,1,00,000 each imposed upon the appellants on the murder charge is set aside being illegal.
24. We find that quantum of sentence of ten years' R.I. Awarded under section 364, P.P.C. Is severe, so it is accordingly reduced to five years' R.I. Each with a fine of Rs,10,000 each or in default thereof the appellants will further suffer R.I. For six months.
25. The convictions and sentences passed against Jawad Ahmad, Manzoor Ahmad and Noor Ahmad under the murder charge as well as the conviction and sentence under section 380, P.P.C.
Awarded to Noor Ahmad appellant are maintained.
26. No order with regard to the sentence to be suffered by the appellants in default of payment of compensation amount has been passed by the learned trial Judge. We direct that in the event of default in payment of compensation, the appellants will suffer further S.I. For six months.
' Benefit of section 382-B, Cr.P.C. Shall, however, be extended to the appellants.
27. With the above modifications in the sentences this appeal is dismissed.
' The learned trial Judge has not awarded maximum penalty to Manzoor Ahmad and Noor Ahmad appellants for sufficient reasons. Even otherwise, the revision petition is not seriously contested by the learned counsel for the complainant, so it is also dismissed.