TASSADUQ HUSSAIN JILANI, J--This judgment shall dispose of Criminal Appeal No,363 of 2000 filed by Babar Mushtaq Criminal Appeal No, 465 of 2000 tiled by Muhammad Arif alias Arfi, Criminal Appeal No,677 of 2000 filed by Faqir Hussain and Murder Reference No,262-T of 2000, as they arise out of the same Judgment dated 22-3-2000 passed by the learned Judge. Special Court, Gujranwala vide which having tried the appellants in case registered vide F.I.R. No,226 (Exh.P.G) dated 14-7-1999 Police Station Sambrial for the murder of Bashiran Bibi and murderous assault on others, he convicted and sentenced them in the following terms:- "All the three convicted under section 460, P.P.C. and sentenced to ten years R.I. each, with a fine of Rs,20.000 each. in default whereof to the further undergo one year R.I. each.
All the three appellants convicted under section 394. P.P.C. and sentenced to ten years R.I. each, with a tine of Rs,20,000 each in default of which each one of them to further undergo one year R.I.
Muhammad Arif and Babar Mushtaq appellants convicted under section 302/34, P.P.C. and both sentenced to death.
Muhammad Arif appellant further convicted under section 324, P.P.C. and sentenced to ten years R.I. also to pay a tine of Rs,10,000 in default whereof to further undergo six months R.I."
All the sentences of imprisonment were ordered to run concurrently and benefit under section 382- B, Cr.P.C. was given.
2. The prosecution story as given in the F.I.R. briefly stated is that on the night between 13/14-7-1999 complainant Muhammad Ilyas P.W.7 alongwith his wife Mst. Sajida Begum and two kids were asleep on the roof top while his father Inayat Ullah P.W.8 and mother Mst. Bashiran Begum, Nasir Mehmood (a guest in the house) were sleeping in the courtyard. At about 2-45 a.m. the appellant Muhammad Arif alias Arfi, Babar Mushtaq and Pervaiz accused (declared Proclaimed Offender) came to the roof top, woke up Muhammad Ilyas and asked for keys of the room which he refused, his wife Sajida who too had woke up, raised hue and cry, the accused started giving them beating, in the meanwhile, Babar Mushtaq picked up the pistol lying underneath the pillow of Muhammad Ilyas. on account of the noise the inmates of the house sleeping in the courtyard also woke up. The fourth accused namely Faqir appellant was in the courtyard. Inayat Ullah P.W.8 tried to catch Faqir Hussain which resulted in grappling and prompted by motherly instinct Mst. Bashiran rushed to the roof top, where his son was, Muhammad Arif appellant fired which hit the belly of Mst. Bashiran, Babar Mushtaq also tired, which too hit Mst. Bashiran, Arif appellant made a second shot hitting Muhammad Ilyas P.W.7 on the right foot. The firing of Muhammad Arif appellant also iniured Babar Mushtaq, all the accused, however, in the midst of commotion which ensued were able to flee from the spot. While leaving they also took away the licenced pistol Bearing No,9898 of Muhammad Ilyas P.W.7. The complainant alleged that he had identified the accused in the electric light and that assailants had come with a view to commit robbery. as Muhammad Arif knew that brother of Muhammad Ilyas P.W.7 namely Mushtaq had returned from Saudi Arabia two days prior to the occurrence and they had the impression that he must have brought cash and other valuable articles.
3. Having recorded the statement of Muhammad Ilyas P.W.7 at police station (at 3-45 a.m.) P.W.11 Muhammad Ashraf Inspector/S. H .0. C . I. A . Staff, Sialkot proceeded to the spot, secured blood- stained earth from the roof top where the dead body of Mst. Bashiran was lying, prepared the site- plan Exh.P.M., recorded the injury statement, prepared the inquest report Exh.P.O, handed over the dead body to Muhammad Nawaz and Fayyaz Ahmad Constables for mortuary and secured last worn clothes of the deceased after post-mortem examination. Muhammad Arif, Babar Mushtaq and Faqir Hussain as per P.W..11 appeared before him through one Mushtaq Hussain retired Sub- Inspector, Pervaiz alias Bohla was declared proclaimed offender by the Court concerned. He gave an application Exh.P.R to the Medical Officer for medical examination of Babar Mushtaq who had allegedly received injuries during the occurrence. On 11-8-1999 Babar Mushtaq made a disclosure that he had kept the stolen pistol P.3 on a steel chest in the room of his house, thereafter, he led to the recovery of said pistol which was taken into possession vide memo. Exh. P. K . Muhammad Arif accused got recovered his pistol Exh.P.J. Faqir Hussain made a similar disclosure about the carbine lying in his house, in sequel to which he led to the recovery of carbine in question which was taken into possession vide memo. Exh.P.1, alongwith two live bullets.
4. P.W.1 Dr. Faran Mehmood Qazi, on 14-7-1999 medically examined Muhammad Ilyas P.W.7 and observed the following injuries on his body:--
(1) A rounded wound measuring 2 x 2 c.m. with lacerations at margins showing the entry wound for bullet on the inner aspect of right heel.
(2) A lacerated wound measuring 3 x I c.m. on the planter aspect of right foot just in front of right heel about 5 c.m. in front of the Injury No,1 showing the exist wound for the bullet.
(3) Complains of pain on the forehead.
(4) A bruise on the forehead measuring 1 x 1 c.m. just above the right brow.
(5) A bruise measuring 1 .g .5 c.m. on the forehead about four c.m. above the left eye-brow.
(6) A bruise measuring .5 x .5 c.m. just lateral to Injury No,5.
On the same day, he medically examined Inayat Ullah and noted the following injuries on his person:--
(1) A lacerated wound 1.5 c.m. x 1 c.m. on the back of left forearm disrupting skin.
(2) Complain of pain in the left shoulder.
On 12-8-1999 the said doctor also medically examined Babar Mushtaq and observed the following injuries on his body:-
(1) A healed scar mark on front of right forearm 1 c.m. x (3/4) c.m. oval in shape.
(2) A healed scar mark on the outer aspect of right forearm 1 c.m. x c.m. oval in shape.
5. P.W.9 Dr. Sameena Kouser conducted the post-mortem examined of Mst. Bashiran Begum and noted the following injuries on the dead body:-
(1) A fire-arm lacerated wound with inverted margins 1/2 x 1/2 circular in shape in midline of lumber region at the level of about third lumber vertebrae. Blackening was present around the margins. It was wound of entry.
(2) A fire-arm lacerated wound with evened margins 1.5 x 2 c.m. about four c.m. below and lateral to umbilicus on right side of abdomen. It was exit wound.
(3) A fire-arm lacerated wound 1 x 1 c.m. on anterolateral lateral aspect of left thigh in the middle with inverted margins.
(4) A contused swelling 2 x 3 c.m. on medial , aspect of left thigh, just below the middle.
Death according to the doctor was on account of Injuries Nos,1 and 2.
6. During trial the prosecution examined twelve witnesses including the doctors and the investigating Officer. P.W.2 is Masood Ahmad Bhatti, Draftsman who prepared the site plan of the place of occurrence. P.W.3 is Arshad Mehmood an 'attesting witness of the memos. vide which blood-stained earth was taken into possession. He also identified the dead body of Mst. Bashiran P.W.4 'is Muhammad Nawaz Constable who escorted the dead body of Mst,. Bashiran to mortuary.
P.W..5 is Qamar us Zaman mho delivered the parcel containing blood-stained earth to the office of the Chemical Examiner- P.W.6 is 'Muhainmad Shahbaz Head Constable who kept the parcels containing blood-stained earth in Malkhana for safe custody. P.W.7 is complainant Muhammad Ilyas who . made statement consistent with the version given in the F.I.R. P.W.8 is Inayat Ullah father of Muhammad Ilyas P.W.7 and also an' eye-witness. He corroborated the statement of P.W.7. P.W.10 is Ghulam Hussain. He is attesting witness of recovery of pistols from Muhammad Arif appellant as also from Babar Mushtaq and carbine from Faqir Hussain. P.W.1,1 is the Investigating Officer and P.W.12 is Tariq Mehmood Constable who having obtained the non-bailable warrants of arrest and thereafter, proclamation against Pervaiz alias Bohla accused, affixed the same in the vicinity of the house of the said accused.
7. The accused when examined under section 342, Cr.P.C. denied the prosecution story and alleged that real accused had not been arrayed as accused by the complainant. According to appellant Muhammad Arif, wife of Muhammad Ilyas P.W.7 had illicit relations with one Khalid who on the fateful night had come to see her; that he was present alongwith complainant's wife on the roof top; that they were surprised by Muhammad Ilyas, that in the meanwhile. Mst. Bashiran also reached; that Khalid' and Muhammad Ilyas both were carrying pistols; that both tired; that tire of Muhammad Ilyas hit his mother and that in order to cover up the crime a false case had beep set up against him only because afore-referred Khalid used to visit his house. The other accused also took more Dr less the same plea. Babar Mushtaq also pleaded alibi and added that his father was posted as Additional S.H.O. Police Station Sambrial prior to the occurrence., that father of Muhammad Ilyas P.W.7 is habitual thief: that cases had -been registered for keeping illicit arms against him and that on that account he bore a grudge against his father and that is why had been falsely involved.
8. In support of their appeals, the learned counsel for the, three appellants made the following submissions:-
(1) That the ocular account is not in conformity with the medical evidence, in sofar as timing of the occurrence is concerned;
(II) That the motive has not been proved inasmuch as, Mushtaq brother of the complainant who had 'allegedly come from Saudi Arabia and whose cash and valuable articles, the appellants allegedly wanted to steal. was never produced; (III)That it is repellent to common sense that the neighbours would commit such a dacoity without taking necessary precautions like muffling their faces; (IV)That the complainant did not produce his wife Mst. Sajida Begum as that would expose the mala fides of the allegation levelled by the complainant;
(V) That if the appellants had come to commit dacoity the real target of the appellants would have been Muhammad Ilyas or Inayat Ullah and not Mst. Bashiran Begum who got killed; (VI)That no crime empty was recovered from the spot 'which makes the occurrence doubtful: and
(VII) That the statements of P.W.7 and P.W.11 with regard to the seat of injuries of Mst. Bashiran Bibi have been belied by the medical evidence. They tried to make improvements in. Court to bring it in line with the later evidence which would erode their credibility.
9. The learned counsel for the complainant and the State on the other hand, supported the impugned Judgment. They stated that all the accused have been specifically named and role attributed to each of the appellant stands corroborated by the medical evidence; that ocular account consists of natural witnesses, their presence at the spot is beyond doubt and there is no reason why they should falsely implicate the appellants.
10.Heard.
11. It was indeed. a case of prompt F.I.R. i,e, the occurrence took place at 2-45 a.m. and the report was lodged within one hour i,e,3-45 a.m. The accused were specifically named and a definite role was assigned to each one of them. Eye-witnesses are inmates of the house where the occurrence took place; both the eye-witnesses namely Muhammad Ilyas P.W.7 and Inayat Ullah P.W.8 are injured and the medical evidence confirms their presence at the spot. They were subjected to lengthy cross-examination but they remained consistent on all material particulars, their statements are corroborated by the medical evidence, is so far as time of the occurrence and locale of the injuries is concerned. An attempt was made to create inconsistency between the ocular and the medical evidence by arguing that as per ocular account Mst, Bashiran Begum received an injury on the abdomen whereas as per medical evidence there is no injury on the abdomen. We have examined Injury No, i on the person of Mst. Bashiran deceased and note that there is an injury in the middle 'of Lumber region at the level of about third lumber vertabrae. The exit wound Of the afore-referred injury is on the right` side of abdomen. It was a night time/occurrence, the parties were in State of ;shock and desperate excitement and in that mental state it is not possible with exactitude to pin point the locale of the fire-arm injuries, may be having seen the blood oozing out from Injury No,2, P.Ws.7 and 8 thought that fire' hit the abdomen but this bona fide mistake in the circumstances surrounding the occurrence is understandable. Such Mistakes do occur in criminal cases but the Courts keeping in view the totality of event and circumstances have not found such lapses in the prosecution evidence to be of any significance, if the prosecution story is otherwise credible. In Saeedullah Khan v. The State (1986 SCM R 1027); the august Supreme Court at page 1031 appreciated this aspect in a criminal case and observed:- "After considering the evidence on the record we are inclined to agree with the view taken by the trial Court that the description of the manner in which the injury was. sustained by the deceased was the result of confusion and excitement generated by the dramatic circumstances in which the offence was committed."
12. The second limb of the argument of the learned counsel for the appellants regarding the discrepancy between the medical and ocular evidence was qua the timing of the occurrence. This arugment has no substance because P.W.1 Dr. Farhan Mehmood examined Muhammad Ilyas P.W.7 and Inayat Ullah P.W.8 on 14-7-1999 at 6-00 p.m. and he was of the view that probable duration of injuries was within ,twenty four hours.This probable time given in the conformity with the ocular evidence with regard to the time of the occurrence. Similarly with, regard to the duration of injuries on the pers& of Babar ,Musntaq we note that he was examined by the doctor on 12-8-1999, as the wounds had healed there was some confusion in assessing the duration but eventually P.W.1 candidly stated that "duration was assessed to be about 4 to 8 weeks". This would squarely correspond with the time of occurrence as given by the prosecution.
13.Besides being inmates of the house and having been injured during the occurrence, P.W.7 and P.W.8 had no enmity to falsely implicate the appellants. The defence plea that one Khalid had come on the roof top at the fateful time in'sequel to illicit relations with the wife of Muhammad Ilyas P.W.7, besides being scandalous does not appeal to reason.Substitution is a rare phenomenon in criminal law. There was no reason to let off the real culprits. If the complainant party had a grouse on ground of family honour they could have implicated afore-referred Khalid as accused.
No evidence was led by the appellant in support of this plea, the same therefore, carries no substance.
14.The argument that the appellants being neighbours of the complainant would have muffled their faces in order to hide their identity, loses sight of the fact that a criminal does not follow a single patern. A lot depends on the experience, the level of intelligence time factor and criminal perception in a given circumstances as to how he makes and executes the plan of a crime.
Moreover, it is in evidence that the appellants and the complainant were not on visiting terms to such an extent which could raise a reasonable apprehension in the mind of the appellants that they would be identified and therefore, they should muffle up their faces. In these circumstances, merely because the appellants had not muffled up their faces would not make the prosecution story unnatural and not worthy of credit.
15.Much stress has been laid on non-appearance of Mushtaq brother of the complainant whose arrival from Saudi Arabia two days prior to the occurrence was the motive for the alleged crime as appellants wanted to rob him of the cash and valuable articles that they though he must have brought. There is yet another missing link i,e, non-recovery of empties. While examining these two aspects we may observe that non-proof of motive is not always fatal to the prosecution case, it really depends on of the circumstances of each case. If the ocular evidence is overwhelming corroborated by the medical evidence, a lapse like non-recovery of empties can be ignored.
Moreover, in this particular case, we are conscious of the fact that one of the appellants namely Babar Mushtaq is son of a former Additional S.H.O. of the same police station where the case was registered. We further note that although he was injured during the occurrence, yet he was got medically examined after amount of the occurrence. Mushtaq brother of the complainant who had come from Saudi Arabia had been appearing before the Investigating Officer.If his statement was not recorded by him, the complainant should not suffer.
16. For what has been discussed above, we are of the considered view 'that the prosecution has proved its case beyond reasonable doubt to sustain the impugned conviction. There are no merits in the appeals. Criminal Appeal No, 363 of 2000 Criminal Appeal No, 465 of 2000 and Criminal Appeal No,677 of 2000 are therefore dismissed. The death sentences awarded to Muhammad Arif and Babar Mushtaq appellants are confirmed.