' RANA BHAGWANDAS, J.---This appeal with the leave of this Court arises out of judgment of the Lahore High Court dated 3-8-2000 maintaining conviction and sentence of death of the appellants for committing Qatl-e-Amd of deceased Manzoor Hussain and Muhammad Nawaz by means of fire-arms on or about 23-3-1989 in the area of Police Station Khanqah Dogran, District Sheikhupura.
2. Report of the incident was lodged by Rehmatullah P.W.8, who is the nephew of deceased Manzoor Hussain and brother of deceased Muhammad Nawaz. It was recorded by S.H.O.
Amanullah, while he was available at Adda Padianwala in connection with his official duty.
According to prosecution, on the fateful day at 9-30 a.m. Deceased Manzoor Hussain as well as Muhammad Nawaz came to Adda Thatha Ali on the metalled road leading to Sheikhupura.
Complainant Rehmatullah alongwith Abdullah son of Shahadat and Nazar Muhammad son of Ali Muhammad were also proceeding towards the Adda. In the meanwhile a bus with Registration No,LER 9511 came from the direction of Gujiana and stopped at the Adda. At about the same time, appellants Abdul Khaliq and Attaullah armed with 7 MM rifle and .12 bore gun respectively, accused Riaz (declared as proclaimed offender) armed with .12 bore gun came on a motorcycle bearing No,6089/FDD and parked their motorcycle. Simultaneously, accused Ashiq Hussain (declared as proclaimed offender) armed with 7 MM rifle, accused Akbar and Jameel both armed with .12 bore guns, came from the village towards the Adda. Accused Sultan, Mansha, Muhammad Arshad and Nawaz armed with fire-arms and present at a shop situated in the west of the Adda accompanied by Muhammad Azam and Muhammad Nawaz both sons of Ashiq Hussain and Muhammad Afzal armed with fire-arms arrived over there. Appellant Abdul Khaliq raised Lalkara to avenge the murder of his brother deceased Arif and exhorted his companions to eliminate Muhammad Nawaz and Manzoor Hussain. Appellant Attaullah fired from his gun hitting Manzoor Hussain on the front of his forehead. Deceased Muhammad Nawaz sensing armed onslaught took to his hees followed by Abdul Khaliq, Riaz, Ashiq Hussain, Akbar and Jameel. By the time Muhammad Nawaz reached tobacco fields, appellant Abdul Khaliq tired with his 7 MM rifle hitting him on his temporal region.
Accused Akbar son of Murad and Jameel fired from their respective guns which hit Muhammad Nawaz on his right thigh and front abdomen. Accused Ashiti Hussain tired from his 7 MM rifle hitting Muhammad Nawaz on his abdomen whereupon he fell to the ground. Thereafter, the accused party consisting 01 13 persons started firing indiscriminately, injuring bus passengers namely Samanda, Shafique, Mst. Allah naafi and Muhammad Samar apart from damaging the doors and windows-panes of the bus. Both the deceased succumbed to the injuries. According to complainant, revolver of deceased Muhammad Nawaz carried by him for his self-defence was also taken away by the accused party while fleeing away.
3. Motive for the occurrences stated to be the murder of deceased Arif brother of appellant Abdul Khaliq committed on 21-12-1998 by Boota and others as a sequel to old enmity.
4. At the trial co-accused Sultan, Akbar, Afzal, Muhammad Arshad, Muhammad Mansha, Nawaz son of Inayat, Muhammad Azam and Nawaz son of Ashiq were acquitted whereas accused Ashiq Hussain and Riaz absconded before the close of final arguments. They were declared proclaimed offenders and are still fugitives from process of law. Appellants Abdul Khaliq and Attaullah as well as accused Jameel were convicted under section 302/34, P.P.C. And sentenced to death on both counts in addition to a fine of Rs,25,000 each or R.I. For three years in lieu thereof. They were also ordered to pay compensation of Rs,25,000 each to the heirs of each of the deceased or to undergo R.I. For three years in, default. All the accused were however, acquitted of the charge under sections 307, 148, 149, P.P.C. As none of the injured witnesses was examined at the trial. In appeal a Division Bench of the Lahore High Court maintained their conviction and sentence but accepted the appeal of accused Jameel extending him the benefit of doubt.
5. Leave to appeal was granted to examine whether the impugned judgment did not qualify on the touchstone of section 367, Cr.P.C. As the evidence led in defence consisting of two injured witnesses was not considered and defence plea was not appreciated m its correct perspective.
6. We have heard Khawaja Sultan Ahmad, learned Senior Advocate Supreme Court for the appellants and Malik Ainul Hach learned Advocate Supreme Court on behalf of the State and with their assistance perused the evidence. Main thrust of arguments advanced by the learned counsel for the appellants is that the impugned judgment of the High Court is vitiated for the reason that the defence plea and the evidence adduced in support thereof was not adverted to and was completely omitted from consideration. It may be observed that in their respective statements, appellants simply denied the accusation and pleaded false implication due to enmity. They did not appear as their own witnesses in defence but examined two of the injured P.Ws. Namely Muhammad Sarwar and Samanda in addition to Muhammad Hanif and Abdul Khalid, Learned counsel is correct to submit that learned Members of the Division Bench omitted to discuss the defence evidence whereas in fact there was no defence plea except bare denial without any explanation.
7. Since the incident occurred as far back as March, 1989 and leave to appeal was granted to re- appraise the evidence; in order to appreciate the contentions of the appellants, we proceed to examine the merits of the prosecution case vis-a-vis the defence evidence heavily relied upon by the appellants as, in our view, remand of the case to the High Court at this stage would only add to the agony of the parties. On close and careful scrutiny of the evidence of D.W.1 Muhammad Sarwar and D.W.3 Samanda, we are least impressed by their concocted and afterthought version of the incident as it did not ring true. At any event, said defence version is incompatible with the hypothesis of innocence of the appellants. On his part D.W.1 Muhammad Sarwar, quite contrary to the prosecution case, claimed that when the bus reached at bus stop of Thatha Ali, both the deceased duly armed with carbines boarded the bus. According to him, when the bus reached the second stop of Thatha Ali, he noticed exchange of firing when 3/4 persons were firing from western side of the road and three persons from the eastern side. The said witness himself aggrieved having animosity with the complainant party became alert, apprehending attack on himself, he alongwith his fire-arm disembarked from the bus. He stated that both the deceased started firing from their respective carbines from inside the bus, which was nobody's case throughout the proceedings, He claimed that he asked them to come down with a view to request the assailants on both the sides to stop the firing. Interestingly, he stated that he himself, his uncle and deceased Muhammad Nawaz disembarked the bus while Manzoor Hussain was in the process of getting down, when he was fired at. He did not state as to at whose hands he was injured. He has also introduced a unique and novel story by asserting that he took Muhammad Nawaz deceased to a room situated 2/3 Karams away from the bus on the road side, broke open the lock of the door and shut Muhammad Nawaz into the room but, within his view, Muhammad Nawaz came out of the room and started running towards the village. He had hardly covered 15-20 Karams when he sustained a fire shot and fell down. This statement on the face of it is absurd, unusual and difficult to believe. The witness claimed to have sustained an injury by bullet on his neck and was rushed to Farooqabad Hospital by his uncle, but surprisingly he did not get him medically examined.
According to the witness, he was neither acquainted with the appellants nor any of the accused but, he was anxious enough to say that none of the accused persons was among the assailants.
His testimony was seriously challenged during the cross-examination but obviously he denied the suggestions so made. He himself affirmed to have not been to police of his own till he was summoned by Inspector Amanullah, which was quite unnatural to human normal conduct.
8. D.W.3 Samanda in clear contradiction to the prosecution case that be sustained injuries inside the bus, claimed that on the material day he had been towards Adda Thatha All to attend the call of the nature. He noticed exchange of fire going on. He has named Babu, Judge, Ishaq, deceased Muhammad Nawaz, deceased Manzoor Hussain both allegedly armed with carbines and Nazar armed with a gun. He did not know as to who was firing at whom and the factions of the warring groups. He claimed to be injured on account of firing and, therefore, hurried to slip away. He did not know as to who else was injured at the site and did not see any of the accused persons present in the Court at the scene of occurrence. Quite manifestly, witness appears to have been wonover by the defence and has made knowingly dishonest statement with intent to favour the appellants, spoil the prosecution case and to create a dent therein to the wrongful benefit of the appellants. He stated that the statement made by him before the trial Court was not made by him before the Investigating Officer, which manifestly supported the view that the act of the Law Officer conducting prosecution in giving him up as prosecution witness was neither unwarranted nor unjustified in the circumstances. He conceded that he was summoned by the prosecution and had been attending the Court but he was given up. He was also obliged to accept that he had appeared in the Court other day and made an application that he did not want to depose in the case. In our view, this circumstance alone is enough to treat his testimony to be not worthy of credit and to hold that he is not a truthful witness.
9. Having analysed the evidence of two P.Ws., turned hostile and examined in defence, we are left with the evidence of Muhammad Hanif D.W.2 and Abdullah Khalid, D.S.P., Ferozewala. D.W.
Muhammad Hanif claimed that he was present at Adda Nehrwala to board a bus for Farooqabad alongwith other persons waiting for the bus, when he noticed exchange of fire at Adda Thatha Ali.
According to him, after about 15-20 minutes two persons came from the side of Adda Thatha Ali and declared that two persons had died on account of firing. He added that at this juncture appellant Attaullah came over there from the opposite side of Adda Thatha All heading towards Thatha Ali. He was dissuaded not to go in that direction for two persons had already died, whereupon, he proceeded towards Thatta Nuster. D.W. Abdullah Khalid stated that he had investigated the plea of alibi raised by the accused in this case and found accused Azam, Sultan, Mansha, Arshad, Nawaz son of Inayat, Nawaz son of Ashiq, Muhammad Afzal and Muhammad Akbar to be not involved in the case and directed their names to be placed in Column No,2. Be that as it may, we feel persuaded to the view that neither the belated evidence of P.W.2 Muhammad Hanif has the impact of demolishing the prosecution case nor opinion of the Investigating Officer is binding on a Court of law. At any rate, opinion formed by D.W. Abdullah Khalid is neither relevant nor consequential as far as the guilt of the appellants is concerned. Needless to observe that this officer admitted that Nazar Hussain, Saadullah, Samanda (injured) and Iqbal son of Sohna had appeared before him and supported the prosecution case, which again would react adversely on the defence plea.
10. Adverting to the prosecution case, ocular, straightforward and consistent testimony furnished by Rehmatullah P.W.8 and Abdullah P.W.9 was found to be creditworthy by the trial Court as well as the First Appellate Court. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond every reasonable shadow of doubt. It is true that P.W. Rehmatullah is closely related to both the deceased but fact of the matter remains that mere relationship of the witness with the deceased per se would not render him an interested or partisan witness. At any rate P.W. Abdullah, on the face of record, has been proved to be an independent and disinterested witness having no animus against the appellants. Long-standing blood feed between the party of the appellants and complainant, however, manifestly suggests that apparently appellants had a strong motive to avenge the murder of deceased Arif as both the deceased in this case were pursuing the said case of accused Boota and others. It is true that enmity is a double-edged weapon and cuts both ways but, in all probability, it was the appellants' party who harboured a grievance and an element of to assault the complainant party rather than the complainant party to grind an axe against them. Appellants have not been able to dispute the motive attributed to them and in fact they have not raised any defence plea except bare denial. The fact that injured witnesses were not produced by the prosecution at the trial does not adversely react on the prosecution case as the witnesses were statedly pressurised and suborned from deposing true facts before the Court.
11. It is intrinsic worth and value of evidence, which is always relevant for determining the reliability of a witness in a case rather than quantity of witnesses. Prosecution having proved the guilt of the accused by strong motive, ocular reliable testimony coupled with corroborative medico-legal opinion and recovery on crime weapons, we are unable to subscribe to the view of the learned defence counsel that there is a conflict between the ocular and medical evidence.
12. Learned counsel submitted that on identical evidence accused Jameel had been acquitted by the High Court, therefore, the benefit of doubt should also have been extended to the appellants.
We have considered this argument with utmost care and found from the record that fire-arm injury attributed to this accused was not established on record from the medical evidence, therefore, learned Members of the Division Bench neither acted illegally nor arbitrarily in extending the benefit of doubt to the said accused. At any G event, case of the appellants is distinguishable and not at par with that of co-accused Jameel, since acquitted.
13. Lastly, learned counsel contended that there being a free fight between the parties rule of safe administration of justice demands that the appellants should not have been inflicted with capital punishment and, in the matter of sentence, they should be dealt with leniently. Apart from interested, afterthought and hired defence evidence, there is no tangible and concrete evidence on record to indicate that there was a free fight at the site between the parties. Obviously nature of injuries caused to the injured persons named in the F.I.R. And travelling in the bus are not available on the record. In fact such witnesses either kept away from the Investigating Officer or did not get them medically examined. They were indeed vulnerable to unjustifiable influence of the accused party and did not come forward with true facts. Accused Ashiq Hussain, who purportedly sustained fire-arm injuries preferred to abscond away during the proceedings of the case. It is not ascertainable from the record as to at what point of time and at whose hands he sustained injuries. The callous and brutal manner in which the appellants acted in this case and caused fatal fire-arm injuries, in our view, does not justify mitigation of sentence. In the event of proof of charge of Qatl-e-Amd normal penalty under the law is death and exceptional circumstances must be shown to exist for taking a lenient view and for the award of lesser penalty, which do not appear to exist on the face of record.
' In this view of the matter it is not necessary to refer to the cases cited by the learned counsel, which are distinguishable on facts.
14. For the aforesaid facts and reasons, there is no merit in this appeal, which is devoid of any substance. It is accordingly dismissed. Inspector-. J General of Police, Punjab shall take steps for apprehension of proclaimed offenders Riaz and Ashiq Hussain in order to bring home the charge against them.