1. ' BASHIR A. MUJAHID, J.--- Muzammal Hussain appellant alongwith his acquitted co-accused Ashiq Hussain, Muhammad Aslam and Abdul Wahid were tried by learned Additional Sessions Judge, Gujrat in case F.I.R. No,295, dated 2-6-1993 under sections 302/109/34, P.P.C. Registered at Police Station Civil Lines, Gujrat at the instance of Waheed Ahmad for commission of murder of Muhammad Bashir and Mst. Sughran Bibi father and mother of the complainant and was convicted vide impugned judgment, dated 1-2-1995 and sentenced to death on two counts as Qisas and was directed to pay a sum of Rs,50,000 to the legal heirs of both the deceased as compensation under section 544-A, Cr.P.C.
2. The prosecution case in brief narrated in the F.I.R. Exh.P.G. Authored by Waheed Ahmad P.W.4 at Police Station Civil Lines at 9 a.m. On 2-6-1993 are that the complainant was residing in Noorpur Sharqi Mohalla and a week earlier, Mst. Sughran mother of the complainant told that Muzammal appellant wanted to murder him on which the complainant took his family to Gujrat while his parents contacted Ashiq Hussain brother of Muzammal Hussain appellant, Muhammad Aslam and Abdul Wahid who are his uncles to restrain Muzammal from this evil design but they replied in negative. It is further stated that on the fateful day at 8-30 a.m. When the complainant alongwith his wife and parents was present at his home alongwith his maternal-uncle Nazir Ahmad and uncle Muhammad Rafique were also present in order to see the family, Muzammal appellant armed with Mouser arrived at the spot and raised Lalkara to the effect that complainant and Tehmina his wife will not be spared that day and fired at the complainant with Mousar but the same missed. The father of complainant namely Muhammad Bashir and mother Mst. Sughran Bibi tried to catch hold of the accused but he kept on firing with his mouser which hit on thumb of left hand, left side of chest and back of head of Mst. Sughran Bibi while two bullets were fired at left shoulder of his father and on his right side of chest. Both Muhammad Bashir and Mst. Sughran Bibi, father and mother of the complainant succumbed to the injuries at the spot.
2. ' The motive for this occurrence was that two years prior to the occurrence Mst. Tehmina sister of Muzammal accused had contracted marriage with the complainant of her own free-will against the wishes of her family and the accused; due to this grudge appellant was sent by his co- accused Abdul Wahid and Ashiq Hussain to commit the murder of complainant and his wife but his parents were done to death in the occurrence.
3. ' After registration of F.I.R. Muhammad Amin, Inspector/S.H.O. P.W.9 arrived at the place of occurrence. He secured blood-stained earth from the place where the dead body of Muhammad Bashir was lying vide memo. Exh.P.H. And from the place where the dead body of Mst. Sughran Bibi was available vide memo. Exh.P.J./1. He prepared the inquest report of Muhammad Bashir vide memo. Exh.P.B. And of Mst. Sughran Bibi vide memo. Exh.P.D. Injury statement of both the deceased were prepared vide memo. Exhs.P.L and P.M. Respectively. He also secured 5 empty cartridges from the place of occurrence P.2/1-5. The identity card of the accused was also taken into possession vide memo. Exh.P.J. And sent the dead bodies for post-mortem examination which was conducted on 2-6-1993 by Dr. Iftikhar Ahmad P.W.1 who found the following injuries on their persons:-- Muhammad Bashir
(1) Two fire-arm wounds of entry with blackening around each 1 c.m. Circular over left side of chest near left shoulder. One deformed metallic foreign body recovered in this area. Upper lob of the left lung was damaged.
(2) A fire-arm wound of entry about 1 c.m. Circular with blackening over right side of chest above nipples. There was extensive damages to the right lung. Search for metallic body was deferred to avoid nutilation.
(3) A fire-arm wound of entry about 1 c.m. Circular over back of chest between capuly (shoulder about).
4. Mst. Sughran Bibi
(1) A lacerated fire-arm wound of entry and exit over the thumb of right hand. There was blackening present and under line bone was fractured.
(2) A fire-arm lacerated wound of entry about 1 c.m. Circular with blackening over left side of chest, above nipples. Under line left lung and heart was damaged.
(3) A lacerated wound 2 c.m. x 1 c.m. Over occitrial region of head above neck. Could be due to fall.
(4) A fire-arm wound of entry 1 c.m. Over back of chest. Chest cavity contain about one litre of blood. There was extensive damage to the left lung. Search for metallic body was deferred to avoid Mutalation of body.
5. ' On 12-6-1993 P.W.9 arrested Muzammal accused and on 19-6-1993 while in police custody he led to the recovery of Mouser P.1 from his residential Kotha which was taken into possession vide memo. Exh.P.F. When Muzammal accused was arrested the Investigating Officer noticed the accused having injuries on his left arm, therefore, he got him medically examined from the same doctor on 13-6-1993 who found the following injuries on his person:--
(1) A lacerated wound 1.5 c.m. Circular with pus, over left side of middle of left forearm (D.N.P.).
(2) A lacerated wound about 1 c.m. Circular with pus adjacent to injury No,l.
(3) A lacerated wound 2-1/2 c.m. Circular with pus on left fore-arm.
6. ' The Investigating Officer recorded the statements of the prosecution witnesses, completed the investigation and challaned the accused to face trial.
7. ' The prosecution examined as many as 9 witnesses to prove its case. Dr. Iftikhar appeared as P.W.1 who conducted post-mortem examination on the dead bodies of Muhammad Bashir and Sughran Bibi and had also medically examined accused Muzammal as mentioned above. Waheed Ahmad was examined as P.W.4. He supported the version of the F.I.R. And the ocular account as an eye- witness of the occurrence. He also proved the alleged motive. Nazir Ahmad who was real brother of Bashir deceased and paternal-uncle of the complainant was examined as P.W.S. He corroborated the prosecution story as an eye-witness of the incident. He being real brother of deceased Muhammad Bashir was present in the house of the deceased as it was Eid-uz-Zuha. Muhammad Sarwar P.W.7 attested the recovery memo. Of incriminating articles recovered by Muhammad Amin, Investigating Officer from the spot. Inayat Ullah P.W.2 proved the recovery of Mousar P.1 at the instance of accused Muzammal, Muhammad Amin, Inspector was examined as P.W.9 who had recorded the F.I.R. And investigated the case, arrested the accused and recovered the weapon of offence.
8. ' Learned A.D.A. Closed the prosecution evidence by tendering in evidence the Report of Chemical Examiner Exh.P.Q. And that of Serologist Exh.P.R.
9. ' Towards the end of the trial statement of the accused was recorded under section 342, Cr.P.C. By putting all prosecution evidence brought on record against him who denied the charge and claimed his innocence and to the question as to why the prosecution witnesses have deposed against him, he replied as under:-- ' "He has been falsely implicated in the case. On the day of occurrence he was proceeding to the house of Muhammad Fazal, his relative and on the way side Ahmad Hasan brother of Waheed Ahmad and Yar Muhammad were available. They were armed with pistols. They dragged him inside their house. They were interested that Mst. Tehminal should have her share from him and his family members. He started grappling with Ahmad Hasan and Yar Muhammad in the house of Muhammad Bashir. During the course of grappling Ahmad Hasan and Yar Muhammad opened fires at him. He was also injured. He received fire shots at his wrist. He was also subjected to medical examination. When Mst. Sughran and Bashir intervened in grappling then fire shot opened by Ahmad Hasan and Yar Muhammad hit them. Muhammad Bashir and Sughran had not received injuries at his hand. Waheed Ahmad, Nazir Ahmad and Muhammad Bashir were not available at the place of occurrence. P. Ws. Are not only interested but they are also inimical towards him and his family members. His injuries have been suppressed an innocent."
10. ' The trial culminated into conviction of Muzammal Hussain appellant as mentioned above.
11. Muzammal Hussain has filed this appeal challenging his conviction and sentence while learned trial Judge has sent the Murder Reference No,92 of 1995 for confirmation of death sentence under section 374, Cr.P.C. Both these matters are being decided by this single judgment.
12. ' Learned counsel for the appellant has argued that the injuries on the person of accused/appellant were suppressed in the F.I.R., therefore, the plea of accused is very reasonable and probable; that the alleged occurrence has not taken place in the manner the complainant and the prosecution witnesses have stated; that the motive is not proved as Tehmina sister of the appellant married the complainant two years prior to the occurrence; that residence of the appellant and of the complainant are in the same locality and during the past two years no such occurrence took place; that the prosecution witnesses are inter se related and inimical towards the appellant; that the recovery of Mousar is planted to strengthen the case of the prosecution; that Mst. Tehmina was although cited as prosecution witness but has been withheld and not produced; that the co-accused have been acquitted disbelieving the same evidence and this benefit should also be extended to the appellant and that this being a case of family honour the appellant is entitled for lesser sentence.
13. ' Conversely the learned counsel for the State and for the complainant have supported the impugned judgment.
14. ' Heard. Record perused.
15. It was a daylight occurrence which took place in the house of the complainant at 8-30 a.m. The F.I.R. Was lodged at the police station promptly i.e, at 9 a.m. On the same day. There was no chance for consultation or deliberation. The motive has been alleged and is admitted between the parties.
16. The occurrence is also admitted by the appellant himself but he took the plea that at the relevant time he was going to the house of his relative Muhammad Fazal when Ahmad Hasan and Yar Muhammad armed with pistols dragged him to their house and during this grappling Ahmad, Hasan and Yar Muhammad opened fire on him. He received fire-arm injury on his wrist while Mst.'
17. Sughran Bibi and Muhammad Bashir intervened in the grappling and were also injured by the firing of their own sons but this plea has neither been substantiated by the evidence nor the same was taken by the appellant during the investigation. He never got himself medically examined prior to his arrest. Although the prosecution witnesses are related inter se but mere relationship is not enough to discard their testimony. They were the natural witnesses of the occurrence being inmates of the house. The appellant has failed to summon his own sister Tehmina in his defence.
18. The weapon of offence recovered at his instance tallied with the empties recovered from the place of occurrence. The prosecution case has been proved against the appellant by ocular account narrated by the complainant P.W.2 and Nazir Ahmad P.W.4 and has been corroborated by motive, medical evidence and by recovery of weapon of offence beyond any shadow of doubt.
19. After deep reappraisal of the evidence, we are of the considered view that the trial Court was justified to convict and sentence the appellant. Lives of two innocent persons and does not deserve any leniency. No No ground for interference has been made out. The appellant has taken the mitigating circumstance has been found in the case for grant of lesser punishment. Resultantly this appeal is dismissed. The conviction and sentence is maintained. Death sentence is confirmed.
20. ' The Murder Reference is answered in affirmative.