' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,256 of 1998 directed against the judgment dated 16-7-1998 passed by the learned Additional Sessions Judge, Shujabad, whereby he convicted Muhammad Sadiq appellant under section 302(b), P.P.C. And sentenced him to death with a fine of Rs,30,000 or in default six months' R.I. He also convicted Ghulam Nazir appellant under section 324, P.P.C. And sentenced him to undergo R.I. For 7 years with a fine of Rs,10,000 and Daman of Rs,20,000 or in default six months' R.I. Benefit of section 382-B, Cr.P.C. Was also granted to them.
2. Occurrence in this case took at 6 p.m. On 30-6-1995 in village Ganvain situated within the jurisdiction of Police Station, Saddar Shujabad, District Multan, 16 Miles towards south from Police Station. Matter was reported to the police by Muhammad Yar complainant on 1-7-1995 at 12-45 midnight.
3. The facts in brief as narrated 53, the complainant are that on 30-6-1995 at 6. p.m. Muhammad Yar complainant went to his land situated in village Ganwaif alongwith his two sons Farooq Ali and Abdul Raoof. Niaz Ahmad, Irshad Ahmad and Rustam Ali were also with them. They were near Rajban Hafizwala when both the accused appellants Muhammad Sadiq and Ghulam Nazik armed with 12 bore guns came there. Ghulam Nazik shouted that they would teach lesson to the complainant and his sons for arranging sale of land. For their relatives out of the khata of paternal uncle and step-brother of the accused. Muhammad Sadiq accused fired at Farooq Ali hitting on the right side of his mouth. He fired second shot hitting on the left side of his nose, neck, arms and upper parts of the left side of his chest. Ghulam Nazik fired twice at Abdul Raoof hitting on his right and left legs. Accused ran away. The complainant and other P.Ws. Took both the injured to Civil Hospital Shujabad. The M.O. Admitted Abdul Raoof injured and referred Farooq Ali deceased to Nishtar Hospital who expired on the way to Hospital. Motive was a dispute on land.
4. The local police after completing all the necessary formalities, headed by Mian Muhammad S.I.
Proceeded to Civil Hospital where S.I. Mian Muhammad prepared injury statement and inquest report Exh.P.F. And then proceeded towards the spot. He collected blood-stained earth Exh.P.J. And two crime empties of 12 bore gun vide memo. Exh.P.K. From the spot. He arrested both the accused/appellants on 11-7-1995 and he recovered 12 bore licenced gun P.7 of Muhammad Sadiq on 15-7-1995 vide memo. Exh.P.L. After completing the investigation both the accused were challaned.
5. The prosecution in order to prove this case has produced as many as 10 witnesses including Doctor, Investigating Officer and other relevant witnesses. After tendering in evidence report of Chemical Examiner Exh.P.N., report Qf Serologist Exh.P.O. And report of Forensic Science Laboratory Exh.P.Q. Closed the prosecution evidence. Thereafter, statements of the accused under section 342, Cr.P.C. Was recorded. Three D.Ws. Were also produced by the accused in their defence.
6. Sardar Muhammad Latif Khan Khosa, Advocate, for Muhammad Sadiq appellant submits the prosecution has failed to prove the motive against the appellants because it is improbable that the deceased who was 18 years of age and Abdul Raoof injured P.W. Whose age according to him was 16 years, could not have got the bargain struck about the land as mentioned in the F.I.R. While their father who is complainant in this case was not a party to tlm. Bargain, that the F.I.R. Was not recorded in the Police Station but at a place situated at Small Canal, that the complainant Ahmad Yar was not present at the spot. Neither he took the deceased and the injured to the Hospital after the occurrence nor his physical presence has been established by the prosecution at the spot. He even did not try to save his sons from the assailants, that both the deceased and the injured were persons of desparate character having been involved in 7/8 criminal cases of heinous nature, that the occurrence had taken place on the land of Muhammad Sadiq appellant, that there are material discrepancies in the statements of the witnesses, that the learned trial Court has also discussed these discrepancies at page 74 of the paper book in his judgment, that the recovery has already been disbelieved by the learned trial Court. He adds that Shabbir Ahmad H.C. No,722 has appeared as P.W.3 and has stated during the cross-examination that he had not mentioned the names of the eye-witnesses and the weapons of accused party in the daily diary about the registration of the F.I.R. In the instant case, that case, that according to this witness there was Entry No,16 to the effect that one Ishtiaq Ahmad Bokhari, Advocate had come to the police station and told the Moharrar that Farooq Ali had been murdered and the Roznamcha should be closed because the F.I.R. Would be lodged later on. He further submits that according to Manzoor Hussain F.C. Who appeared as P.W.4 had admitted during the cross-examination that there was a Police Post at mauza Ganwain Kothi in those days. According to him Ashiq Hussain Constable 2191 and Ghulam Murtaza Constable No,I516 were on duty at the Police Post and that these two constables took the injured to the Hospital, this fact also falsifies the presence of the eye-witnesses specially of the complainant. He also adds that it is a case of two versions and has referred to the version of the appellant submitted by him at page 47 in reply to Question No,15 in his statement recorded under section 342, Cr.P.C. He submits that no case whatsoever is made out against the appellant.
He also submits that in fact deceased and the injured received the injuries by one fire. Shot. He lastly submits that this is not a case of death sentence; because motive has not been proved by the prosecution.
7. Sahibzada Farooq Ali Khan, learned counsel for Ghulam Nazik appellant, who was convicted under section 324, P.P.C. And was released from Jail after serving out his 'sentence, in January, 2001, submits that it was a case of single shot, that the appellants have been falsely implicated in this case, that ocular account is contradicted by the medical evidence because in the site plan the distance between the deceased, the injured and the assailants is about 8 to 10 paces while Doctor had stated that there was burning on the injuries of both the injured. Later on one of the injured Farooq Ali died.
8. On the other hand learned State counsel submits that the appellants are named in the F.I.R. And specific role is attributed to him. It was a broad daylight occurrence. He submits that delay in lodging the F.I.R. Has been explained by the complainant and he supports the judgment of the learned trial Court.
9. We have heard the learned counsel for the parties and also have gone through the record with their assistance and the submissions made by them. In the instant case occurrence took place at 6 p.m. On 30-6-1995 just half an hour after the Asar prayer so it was broad daylight occurrence and there was no question of mistaken identity, parties were A known to each other, although, the complaint Exh.P.G. Was recorded by Mian Muhammad S.-I. P.W. At 12-30 midnight on 1-7-1995 near Small Canal for the reason that the complainant had first taken his two injured sons to the Civil Hospital Shujabad on Tractor Trolley, where Abdul Raoof P.W. Was admitted in the Hospital and as the condition of Farooq Ali injured was precarious, he was referred to Nishtar Hospital, Multan. Then the complainant took his son Farooq Ali in Ambulance and started for Nishtar Hospital, when he reached near the Hospital Farooq All died. On the same Ambulance the deceased was taken back to Shujabad. This delay in lodging the complaint by the complainant has been fully explained as mentioned above. In the instant case much stress has been laid that both, the deceased and the injured were persons of bad character and in this regard cross-examination was conducted on the complainant which is at pages 28 and 29 of the paper book. We have gone through the same. In all the cases, they were either acquitted or the same were withdrawn by the complainant so it does not affect the case of the prosecution. Moreover, it has nowhere been mentioned in the statute that if a deceased having cases against him is murdered then the accused cannot be convicted.
Moreover, if we took this into consideration then that would be the character of the present appellant who had killed one Farooq Ali and injured Abdul Raoof to whom the defence allegedly termed them as desperados. It means that the appellants are more desperados than the deceased party who have killed allegedly such desperados as stated by the learned counsel for the appellant Muhammad Sadiq. As far as statements of P.Ws.3 and 4 are concerned, they are constables, any concessions made by them would not effect the prosecution case. We are of the considered view that the Invstigating Officer in this case was acting in a mala fide manner against the prosecution because Rapat No,16 Exh.P.A. Which is at page 93 of the paper book, allegedly lodged by Mr. Ishtiaq Ahmad Bokhari, Advocate, we do not find his signature being the informant of this Rapat. Moreover, this Ishtiaq Ahmad Bokhari, Advocate has never been cited as P.W. Or summoned by the Court as C.W. On the application of the appellant or as D.W. He was not produced. He was also never asked to join the investigation. No question was put in this regard to the Investigating Officer whether he was summoned to join the investigation or not. In our considered opinion this rapat was entered in the daily diary only damage the prosecution case. As far as Rapat No,17 Exh.D.B. Which is at page 94 of the paper book, is concerned, name of the complainant and name of the accused persons have been mentioned. This type of rapats are entered in the daily diary in order to write down the gist of the F.I.R., so there is nothing wrong with this rapat. As far as motive is concerned learned counsel has stated that both, the deceased and the injured P.W. Were not of mature age so how they could get the bargain struck about the land, between Hashim Ali uncle of the appellant and the step-brother of Manzoor Ahmad son of Qasim Ali on the one hand and first cousin of the complainant Hashim Ali son of Ghulam Rasool and Ali Nawaz his nephew on the other hand. In the F.I.R. Exh.P.G. Which is at page 85 of the paper book the complainant had stated in, the last three lines that this bargain was struck between the parties through him and his two sons and the accused persons had grudge about that against the complainant party and even one week prior to the present occurrence Muhammad Sadiq and Ghulam Nazik appellants had a quarrel with his two sons who were injured in this case and one of them namely Farooq Ali died later on.. In our view the prosecution has proved its case against the appellants beyond any shadow of doubt. Moreover, in the recent judgment 2001 SCM R 387 title as Waris Khan v. The State, it was held that:- ' Motive---Sententt---Weakness or absence of motive or failure to prove the same---Effect--- Where the eye-witness account was worthy of credence, unimpeachable, confidce-inspiring and accusation was established beyond shadow of doubt, weakness of motive or its absence or where alleged but not proved would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstances."
10. From the medico-legal reports of Farooq Ali and Abdul Raoof which are Exh.P.B. And Exh.P.C. It is clear that it was Muhammad Yar complainant and father of the two injured persons who took them to Civil Hospital Shujabad, so his presence is fully confirmed from these two documents. Persons can tell lie, as P.Ws. And 4 have done so but the documents cannot do so. The name of the complainant who took the two injured to the Hospital as stated above finds mention in the M.L.Rs, It proves his physical presence at the spot. The star witness in this case is Abdul Raoof who is an injured P.W. His presence can also not be doubted. Even there was no previous background of enmity between the parties. It is not a case of false Implication. There are two injuries on the person of Abdul Raoof while there were four injuries with fire-arm on the person of the deceased. Number of the accused coincide with the number of the injuries. It may be noted here that accused Muhammad Sadiq appellant was arrested in this case on 11-7-1995, he never put his first version to the Investigating Officer who during cross-examination had stated that on 8-7-1995 Bashir Ahmad, Noor Muhammad, Muhammad Ali and others appeared before him on behalf of the accused persons and their version was that a quarrel took place between Sadiq appellant and Ghulam Shabbir Kamboh over some prize bond scheme, at Pacci Pulli and the dispute was settled by the peoples present there, that it was Ashiq F.C. And Ghulam Mustafa F.C. Who had committed this occurrence. Neither Ashiq nor Mustafa FCs were produced as C.W. Or D.W. Before the trial Court.
Moreover, this is hearsay evidence because the above said persons were never produced by the defence. The version of the appellant has been given in his statement recorded under section 342, Cr.P.C. While replying in Question No,15 which is re-produced below:-- 'Before 15/20 days of this occurrence there was a quarrel with Ghulam Shabbir Kamboh over the prize bond scheme and the people present there separated them. He had complained against Ghulam Shabbir Kamboh to his relatives and asked them to stop Ghulam Shabbir to visit the place near to our residence as he was known as a man of bad character. A day prior to the alleged occurrence Ghulam Shabbir Kamboh passed near his house and he again asked him to refrain from visiting that place while going he threatened him that he would take revenge of this insult from him. His younger brother Ghulam Nazik was present near the Rajbah in our land where Farooq deceased, Abdul Raoof injured and Ghulam Shabbir alongwith 2/3 others armed with fire-arms reached there on a Tonga of Qasim and they caught hold of Ghulam Nazik co-accused, his brother and attempted to put him in the Tonga as Ghulam Shabbir, Farooq and Raoof were of bad character, therefore, Ghulam Nazik raised an alarm which attracted Ashiq Hussain, Mustafa constable who fired and injured Farooq and Abdul Raoof in order to rescue Ghulam Nazik. He had been falsely involved because the occurrence had taken place in their land due to dispute in between Ghulam Shabbir Kamboh and them as stated above."
11. If both the versions are put in a juxtaposition, the version put forward by the prosecution seems to be more plausible, convincing and appeal to reasons while the version of the appellant Muhammad Sadiq being absurd does not appeal to mind. This version was never stated by the appellant at the time of his arrest nor it was put to the I.O. Before the trial Court, even it has not been brought on the record that regarding this version any application to the superior police officer or in the High Court in the form of writ petition was submitted. Even the private complaint was also not instituted by him. Moreover, the injuries on the person of deceased and injured are with 12 bore gun while judicial notice can be taken that police officials who perform their duties at different place keep rifles with them and not 12 bore guns. It also falsifies the defence version. It was argued that according to the site plan fire was shot from a distance of 8 to 10 paces on the person of Farooq Ali and Abdul Raoof, while Muhammad Yar complainant has stated in the last three lines of his cross-examination which is at page 30 of the paper book, that Farooq deceased was at a distance of 4/5 feets when first fire was made by Muhammad Sadiq appellant. During the cross- examination he has also stated on the same page that the land where the occurrence had taken place was owned by Sadiq appellant but in order to reach their land they have to pass through that land. The distance between the deceased and the appellant as stated by the complainant finds support from the medical evidence. As far as recovery is concerned learned trial Court was right to disbelieve the same. We also disbelieve the same. Recoveries are treated to be additional corroborative piece of evidence and the site plan is not substantive piece of evidence. In the instant case we have got reliable ocular account including statement of injured P.W. Whose presence cannot be negated and the motive. Keeping in view these aspects of this case, we are fully satisfied in our mind without any hesitation that the prosecution has proved its case against the appellant. In this view of the matter, this appeal is dismissed, Murder Reference is replied in the affirmative and the sentence awarded to the appellant is maintained.
' Death sentence awarded to the appellant by the trial Court is confirmed.