' SHEIKH ABDUR RAZZAQ, J.---Briefly stated the facts are that on 14-9-1998 at about 6-00 p.m.
Shabbir Hussain complainant (P.W.9) alongwith Muhammad Rafiq son of Mehar Din was sitting at the shop of Bashir Ahmad when Muhammad Iqbal son of Khushi Muhammad, Ali Ahmad, Ali Akbar sons of Muhammad Iqbal, Qasim son of Muhammad Iqbal and Manzoor son of Bashir Ahmad knocked at the door of Bashir Ahmad. Bashir Ahmad son of Ali Muhammad opened the door who was enquired about Arshad. Bashir Ahmad informed that he had returned to his duty. Qasim and Manzoor entered the said door and dragged Bashir Ahmad and asked him to accompany them.
Bashir Ahmad refused to accompany them upon which Ali Akbar gave him a kick which hit him at his buttock. Qasim and Manzoor picked up Bashir Ahmad and started towards Bazar. Mst. Kishwar Bibi tried to intervene upon which Ali Akbar also picked her on his shoulders. Muhammad Iqbal and Ali Ahmad also caught hold of Muhammad Rafiq from his arms and made for the place where Muhammad Hussain son of Muhammad Iqbal was present armed with pistol. All the abductees were released upon which Muhammad Iqbal raised lalkara that they be taught a lesson for demanding water supply bill by firing at them. Upon this Muhammad Hussain (P.O.) fired three shots successively which hit Bashir Ahmad. Mst. Kishwar Bibi and Muhammad Rafiq upon his mouth, left cheek and abdomen respectively who as a result thereof fell down. Muhammad Javed son of Muhammad Ramzan and Zulfiqar son of Ali Ahmad witnessed the occurrence and attracted towards the place of occurrence. Muhammad Hussain fired two shots which hit Zulfiqar on his left leg and on the chest of Muhammad Javed. Muhammad Hussain also fired at the complainant party asserting that he was also brother-in-law of Bashir Ahmad. However, he was lucky not to receive the said fire on his person and consequently it hit Ali Ahmad on-his right thigh. The incident was also witnessed by Muhammad Siddique, Muhammad Saleem and other residents of the village. Seeing the residents of the village gathering on the spot the assailants decamped from there. The complainant and others found that Bashir Ahmad and Mst. Kishwar Bibi had succumbed to the injuries. Leaving the dead persons on the spot, the complainant alongwith other made for the hospital along with the injured. Motive behind this occurrence is that hot words were exchanged between Muhammad Rafiq and Bashir Ahmad Members, Water Supply Committee with Muhammad Iqbal over the payment of water supply bill. Muhammad Iqbal abused Muhammad Rafique upon which Muhammad Rafiq and Arshad slapped Iqbal and Bashir Ahmad had also insulted Muhammad Iqbal. It is alleged that in order to wreak vengeance of said disgrace Muhammad Iqbal and others in prosecution of their common object committed the murder of Mst.
Kishwar Bibi and Bashir Ahmad and caused injuries to Muhammad Rafique, Muhammad Javed and Zulfiqar Ali. Leaving the dead bodies at the spot the complainant made for the Police Station and lodged complaint Exh. P.O.
2. Javed Ali, Inspector/S.H.O. (P.W.12) was posed as S.H.O., Police Station Saddar, Gojra. On 14-9-1998 he recorded complaint Exh.P.O. On the statement of Shabbir Hussain who met him near the gate of Civil Hospital, Gojra at 7-45. He sent the complaint through Bashir Ahmad Constable for formal registration of F.I.R. At the Police Station. He then visited the hospital where dead bodies of Bashir Ahmad and Mst. Kishwar Bibi were lying alongwith Muhammad Rafique, Muhammad Javed and Zulfiqar who had been admitted in injured condition. He prepared statement of injury of Bashir Ahmad deceased Exh.P.H. And inquest report Exh.P.I. He also prepared injury statement of deceased Mst. Kishwar Bibi. Exh.P.B. And inquest report Exh.P.C. He handed over the dead bodies to Bashir Ahmad, Constable for post-mortem examination and made for the place of occurrence. He prepared rough site plan of the place of occurrence Exh.P.W., secured blood-stained earth from the place of murder of Bashir Ahmad vide memo. Exh.P.R. And secured blood-stained earth from the place of murder of Mst. Kishwar Bibi vide memo. Exh.P.S. He also secured blood-stained earth from the place of injury of Muhammad Rafique Exh.P.Q. He arrested Ali Ahmad injured and despatched him to the hospital for his medical examination. He also prepared statement of injury of Muhammad Rafique Exh.P.E. And inquest report Exh.P.F. He despatched the dead body of Muhammad Rafique for post-mortem examination through Bashir Ahmad, Constable. On 15-9- 1998 Bashir Ahmad, Constable produced last-worn clothes of deceased Bashir Ahmad P.3 to P.5 of Mst. Kishwar Bibi P.6 and 7 of Muhammad Rafiq P.1 and P.2 which he secured vide memo. Exhs.PM, PN and PL respectively. He also moved applications for recording statement of injury of Muhammad Javed and Zulfiqar ExhOPX and P,Y respectively upon which the reports of Medical Officer are Exhs.PX/1 and PY/1 respectively. On 16-9-1998 he repeated said applications PZ and PAA upon which the reports of Medical Officer are Exh.PZ/1 and PAA/1. He thereafter recorded the statements of Muhammad Javed and Zulfiqar. The complainant also produced Medico-Legal Report of Zulfiqar Exh.P.J. And Muhammad Javed Exh.P.K. He also produced their blood-stained clothes P.11 and P.12 of Zulfiqar and P.9 and 10 of Muhammad Javed. He secured the same vide memo.. Exh.P.V..And PU respectively. On 16-9-1998 he got the site plans Exhs.PT and PT/1 prepared from the draftsman. On 20-9-1998 he recorded the statement of Kazin) Hussain Shah. On 24-9- 1998 he received the reports of Chemical Examiner in respect of deceased Muhammad Rafique, Bashir Ahmad and Mst. Kishwar Bibi. On 1-10-1998 he arrested accused Muhammad Iqbal, Ali Ahmad, Ali Akbar, Manzoor and Muhammad Qazim. On 2-10-1998 he added offence under section 7 of Anti-Terrorism Act and offence under section 364, P.P.C. On 3-10-1998 the investigation was transferred from him. Thereafter, Ahmad Javaid, Inspector (P.W.13) took up the investigation on 5- 10-1998. He prepared report under section 173, Cr.P.C. On 6-10-1998 and moved application for requiring warrants of arrest of Muhammad Hussain Exh.PBB and regarding other accused Exh.P.C.
After usual investigation the case was sent up for trial.
3. A charge under sections 302/324/ 148/149, P.P.C. Read with section 7 .Of the. Anti-Terrorism Act, 1997 was framed to which they did not plead guilty and claimed trial.
4. To bring home guilt to the accused prosecution examined Dr. Samia Zain, W.M.O. (P.W.1) who on 15-9-1998 conducted the post-mortem examination of Mst. Kishwar Bibi wife of Zulfiqar and found the following injury on her person:---
(1) A wound of fire-arm of entrance with inverted margins, size small 2 c.m. x 1 c.m. D.N.P. Seen on left cheek left to the left eye with a wound of exit with everted margins on left side of head 8 c.m.
Behind the left ear, size was 2 c.m. x 2 c.m. D.N.P.
' The cause of - death was shock and haemorrhage due to injury No,1 which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. The time between injury and death was immediate and between death and postmortem examination was within 15 hours.
He produced carbon copy of post-mortem examination report Exh.PA and its pictorial diagram Exh.PA 1 . He also signed injury statement Exh.PB and inquest report Exh.PC of the said deceased.
P.W.2 Dr. Bashir Ahmad conducted the post-mortem examination of Muhammad Rafique son of Mehar Din on 15-9-1998 and found the following injuries on his person:---
(1) A lacerated wound of entry 1 c.m. x 0.7 c.m. x DNP in the epigastrium region, 7 c.m. Away from umbilicus. The margins of the wound were burnt and inverted, corresponding cut was present on Qameez.
(2) A lacerated wound of exit 1 c.m. x 0.9 c.m. x DNP on the back and left side of lumbo-sacral region. The margins of the wound were everted. A stitched wound of laprotomy of 31 c.m. On left side of abdomen, 2 abdominal drains were present on the right side of abdomen.
' In his opinion the cause of death was shock and haemorrhage caused by injury No,1 which was caused by fire-arm and was ante-mortem in nature and was also sufficient to cause death in the ordinary course of nature. The duration between injures and death was about six hours and between the death and post-mortem examination was nine hours. He produced carbon copy of postmortem examination report Exh.PD and pictorial diagram Exh.PD/1. He also signed statement of injury Exh.PE and inquest report Exh.PF of the said deceased. On the same day he also conducted post-mortem examination of Bashir Ahmad son of Ali Muhammad and found the following injuries on his person:--
(1) A fire-arm wound of entrance 0.5 c.m. x 0.5 c.m. Margins inverted and black on the outer side of left forearm and DNP with exit wound of 2 c.m. x 2 c.m. On the inner side of left elbow-joint.
(2) A lacerated wound 1 c.m. x 1 c.m. x DNP, margins were inverted on the left side of both lips. Injury No,2 was in continuation of injury No, 1 .
' In his opinion the cause of death was shock and haemorrhage due to injuries No,1 and 2 collectively. Both the injuries were ante-mortem and had been caused by fire-arm and were sufficient to cause death in the ordinary course of nature. He produced postmortem report Exh.PG, pictorial diagram Exh.PG/1 and also inquest report and statement of injury Exhs.P1 and PH respectively. On 14-9-1998 he medically examined Zulfiqar Ali and found the following injuries on his person:---
(1) A lacerated wound of entry 1 c.m. x 0.5 c.m. x DNP on the back of right leg. The margins of the wound were burnt and inverted. The patient was in a serious condition. His D.P was 60/40 MM. HG.
(2) A lacerated wound of exit 1-1/2 c.m. x 1 c.m. x DNP on the front and lateral side of right leg. The margins of the wound were everted, 11 c.m. Away from the right knee-joint. Injuries Nos.1 and 2 were kept under observation. Probable duration of injuries is fresh. The injury was caused by fire-arm.
The patient was advised for X-Ray and after X-Ray examination vide report of Radiologist No, 771, dated 14-9-1998, there was fracture of right Tibia. So, injuries Nos.1 and 2 were declared as Hashimah Jurh Ghair Jaifah. He issued medico-legal report Exh.PJ.
' He also medically examined Muhammad Javed on the same day and found the following injuries on his person:---
(1) A lacerated wound of entry 1 c.m. x 0.5 c.m. x DNP on the front and left side of chest 3.5 c.m. Away from left nipple. The margins of the wound were inverted and burnt.
(2) An exit wound of 1-1/2 c.m. x 7 c.m. On the back and right side of chest (right scapular region).
The margins of the wound were everted. The condition of the patient was serious and D.P of the patient was not recorded.
' He produced his medico-legal report Exh.P.K.
' Bashir Ahmad Constable (P.W.3) was handed over the dead bodies of Muhammad Rafique, Bashir Ahmad and Mst. Kishwar Bibi on 15-9-1998 for post-mortem examination. After the post-mortem examination he produced last-worn clothes of Muhammad Rafique P.1 and P.2. Which were secured vide memo. Exh.P.L. He also produced last-worn clothes of Bashir Ahmad P.3 and P.4 alongwith sealed phial which was secured vide memo. Exh.PM. He also produced last worn clothes of Mst. Kishwar Bibi P.6 to P.8 which were secured by the Investigating Officer vide memo. Exh.PN.
Muhammad Arshad (P.W.4) Constable was given three parcels containing blood-stained earth on 21-9-1998 which he delivered in the Office of Chemical Examiner intact on 22-9-1998. Muhammad Quresh (P.W.5), Moharrir Head Constable drafted formal F.I.R. Exh.PO/1 on the basis of complaint Exh.PO on 14-9-1998. On 15-9-1998 he was given three sealed parcels containing bloodstained earth which he delivered to Muhammad Arshad Constable on 21-9-1998 for onward transmission to the Office of the Chemical Examiner. Muhammad Aslam (11.W.6) identified the dead bodies of the three deceased. Muhammad Siddique (P.W.7) is witness of memos. Of recovery Exh.PQ, PR and PS pertaining to the securing of blood-stained earth from the place of murder of Muhammad Rafique, Bashir Ahmad and Mst. Kishwar Bibi respectively. Syed Kazim Hussain draftsman (P.W.8) prepared site plans Exhs.PT and PT/1 and handed over the same to the Investigating Officer.
Shabbir Hussain (P.W.9) is the complainant who has corroborated his version appearing in complaint Exh.P0. Muhammad Javed (P.W.10) is injured witness of this occurrence and has corroborated the prosecution version. He also produced his blood-stained clothes P.9 and P.10 which were secured vide memo. Exh.PU. Zulfiqar Ali (P.W.11) is another injured eye-witness and has also supported the prosecution version. He also produced his blood-stained clothes P.9 and P.10 which were secured vide memo. Exh.P.U. Zulfiqar Ali, (P.W.11) is another injured eye-witness who has also supported the prosecution version. He also produced his blood-stained clothes P.11 and P.12 which were secured vide memo. Exh.PV. Javaid Ali, Inspector/S.H.O. (P.W.12) and Ahmad Javaid, Inspector (P.W.13) are the Investigating Officers whose evidence has already been discussed above. Thereafter, the learned Public Prosecutor produced reports of Chemical Examiner Exhs.PDD, PEE and PFF in respect of blood-stained- earth pertaining to deceased My Muhammad Rafique, Bashir Ahmad and Mst. Kishwar Bibi respectively. He also produced reports of Serologist Exh.PGG, PHH and PJJ in respect of aforementioned deceased and closed the case of prosecution vide his statement, dated 22-12-1998.
5. When examined under section 342, Cr.P.C. The accused Muhammad Qasim and Manzoor Ahmad denied the prosecution version and stated that they had been implicated in this case falsely. Ali Akbar and Muhammad Iqbal have also denied the prosecution version and accused Ali Ahmad while replying to Question No,6 as to why this case has been registered against him stated as follows:-- "The P.Ws. Have deposed against me due to their enmity. They have deposed against my co- accused also due to their enmity with them. The real facts are that on the day of occurrence at evening time at about 6-00 p.m. I heard that my brother Muhammad Hussain co-accused was being beaten severely by deceased Bashir Ahmad, Muhammad Rafique, Kishwar Bibi and the nephews of Muhammad Rafique deceased. Ireached at the place of occurrence and saw that Bashir Ahmad, Muhammad Rafique and Kishwar Bibi were lying dead at the spot while Muhammad Rafique was lying in injured condition. After that I saw Zulfiqar and Javed P.Ws. Reached at the spot.
Zulfiqar injured P.W. Saw his wife Mst. Kishwar Bibi lying dead and being provoked by this he fired at my brother Muhammad Hussain co-accused (since P.O.). I stepped forward to save my brother and the fire hit on my thigh and I also fell down. Muhammad Hussain my brother and co-accused, then, in realization fired two shots and injured Zulfiqar and Javed P.Ws. Respectively. None of the accused except myself and my brother Muhammad Hussain co-accused were present at the place of occurrence. I also came to know that prior to the occurrence Muhammad Hussain my brother and co-accused had gone to the house of Bashir Ahmad deceased for making a complaint of his father's insult to Bashir Ahmad alone. He was given a-7 mereiless beating by Bashir Ahmad, Muhammad Rafique', deceased. The. Deceased and nephews of Muhammad Rafique deceased had reached in front of the house of Shabbir Hussain P.W. While giving beating to my brother Muhammad Hussain co-accused. My brother Muhammad Hussain was seriously injured by the deceased and their relatives, he fell down on the ground in an injured condition, then he fired three shots with his pistol hitting the three deceased persons respectively."
The accused Ali Akbar and Muhammad Iqbal have also made a similar statement regarding their involvement as given by accused Ali Ahmad.
6. After going through the evidence produced by the prosecution the learned trial Court convicted Ali Ahmad, Ali Akbar, Muhammad Iqbal, Muhammad Qasim and Manzoor Ahmad under section 148, P.P.C. And sentenced them to R.I. For three years each (nine years for three counts) and to pay a fine of Rs,10,000 each (Rs,30,000 for three counts) and in default thereof to undergo further R.I. For 6 months. The trial Court further held Ali Ahmad, Ali Akbar, Muhammad Iqbal, Muhammad Qasim and Manzoor Ahmad guilty under sections 302/ 149, P.P.C. And awarded them death punishment and to pay a fine of Rs,50,000 (Rs,1,50,000 for three counts) and in default thereof to further undergo R.I. For seven years (21 years on three counts). It was further ordered that if the fine is realized it shall be paid to the legal heirs according to law. The accused were further held guilty under sections 324/149, P.P.C. And were sentenced to R.I. For ten years each (30 years for three counts) and to pay fine of Rs,10,000 each (Rs,30,000 for three counts), in default thereof to further undergo R.I. For 2-1/2 years each (7-1/2 years for three counts). The fine if recovered, was ordered to be paid to the injured prosecution witnesses. The accused were further convicted under section 7 of Anti-Terrorism Act and were imposed death punishment on three counts and to pay fine of Rs,50,000 each (Rs,1,50,000 for three counts) or in default thereof to undergo R.I. For seven years each (21 years for three counts). It was further ordered that all the sentences awarded to the appellant shall run concurrently and they will also be extended the benefit of section 382-B, Cr.P.C.
7. Feeling aggrieved the accused/appellants filed instant appeal. Along with this Criminal Appeal, Murder Reference No,13-T of 1999 has also been submitted as required under section 374, Cr.P.C.
The instant appeal and Murder Reference arise out of same judgment so both are being disposed of by this single judgment.
8. We have heard the learned counsel for the appellants, complainant as well as learned counsel for the State.
9. It has been stated by the learned counsel for the appellant that Muhammad Iqbal son of Khushi Muhammad has died. As such the appeal to the extent of Muhammad Iqbal stands abated. It is argued that according to the prosecution version the accused had abducted initially Bashir Ahmad and thereafter abducted Muhammad Rafique which stand of the prosecution has not been accepted. As such the -accused were not convicted under section 364, P.P.C., that the prosecution witnesses have also made dishonest improvements to bring their statements in line with the medical evidence and as such their statements are not trustworthy and in this respect placed reliance on Abdul Rehman v. Fateh Sher and 8 others (1996 SCM R 176), that presence of the injured witnesses, no doubt, cannot be disputed at the time of occurrence but their statements cannot be accepted without any independent corroboration and placed reliance on Iqbal Shah v. The State (1998 PCr.LJ 1177), that independent corroboration of the statement of the complainant is required which is lacking in the instant case and as such prosecution evidence cannot be relied upon and placed reliance upon Haji Rab Nawaz v. Sikandar Zulqamain and 7 others (1998 SCM R 25).
' He further contended that if his submissions do not find favour with this Court, even then the sentence of death imposed upon the appellants is not warranted by law as Ali Ahmad, Muhammad Qasim and Manzoor Ahmad are of tender ages as they are 18, 19 years, 19, 20 years and 20,21 years respectively, that their young age is also a ground for imposing upon the lesser penalty than the normal penalty and p aced reliance upon Muhammad Riaz and another v. The State (1999 SCM R 976). He further argued that even otherwise effective role has been attributed to Muhammad Hussain who is still at large and no active and effective role in the commission of this offence has been attributed and assigned to the accused/appellant. He also argued that none of the present accused/appellant was armed with any lethal weapon at the time of occurrence and as such can in no way be inflicted the normal penalty of death in the instant case. He thus submitted that the sentence of death awarded to the accused/appellants be altered to imprisonment for life and they be also extended benefit of section 382-B, Cr.P.C.
10. Conversely the impugned judgment has been supported by the learned counsel for the complainant as well as State. To supplement his contention, he contended that time, place of occurrence and motive almost stands admitted by the accused/appellants, that occurrence took place on 14-9-1998 at 6-00 p.m. Whereas F.I.R. Was lodged on the same day at 7-45 p.m. And this promptness in lodging the F.I.R. Rules out possibility of any false involvement, that Bashir Ahmad deceased was lifted from his house and was thereafter removed by the accused/appellants and same is the case in respect of Muhammad Rafique and Mst. Kishwar Bibi. It was further submitted that as the accused have been responsible for committing a brutal murder of three persons so they are not entitled to lesser penalty and have been awarded appropriate punishment as required by law.
11. It is evident from the contents of the F.I.R. Exh.PO/1 that main part has been attributed to Muhammad Hussain who has been shown to be armed with pistol. It is Muhammad Hussain who fired three shots hitting Bashir Ahmad, Mst. Kishwar Bibi and Muhammad Rafique who finally succumbed to the said injuries. Again it is Muhammad Hussain who fired two successive fire shots hitting Zulfiqar (P.W.11) and Muhammad Javed (P.W.10). No fire whatsoever has been attributed to either of the accused/appellants. The accused/appellants have been assigned the role of facilitating the commission of this offence as they had supported Muhammad Hussain (P.O.) in removing Bashir Ahmad and Muhammad Rafique from their respective places and then to drop them where they had been finally done to death. It is thus clear that none of the accused/appellants has been responsible for causing the death of aforementioned three deceased. Under these circumstances, we feel that the accused/appellants were not entitled to the normal punishment which has been awarded to them as they have not been attributed any injury what to talk of a fatal injury on the person of any one of the three deceased. Thus they could not be awarded normal punishment of death and they are entitled to lesser punishment.
Accordingly while dismissing the appeal we modify the sentence of death to imprisonment for life.
However, the other sentences awards to them are hereby maintained. Since all the accused/appellants have participated in any occurrence resulting into the death of three innocent persons so we do not consider it appropriate to extend them benefit of section 382-B, Cr. P . C .
However, it is ordered that all the sentences awarded to the accused/appellants shall run concurrently.
12. Since the death sentence awarded to the appellants has been modified to imprisonment for life so the Murder Reference is answered in the negative.
Sentence reduced.