' ASIF SAEED KHAN KHOSA, J.--- Mehfooz Alam and Fayyaz Khaliq alias Pappu appellants were convicted for an offence under section 302(b)/34, P.P.C. Vide judgment, dated 31-10-1998 rendered by the learned Additional Sessions Judge-I/Special Judge, Suppression of Terrorist Activities Court, Mianwali and Mehfooz Alam appellant was sentenced to death whereas Fayyaz Khaliq alias Pappu appellant was sentenced to imprisonment for life. Mehfooz Alam appellant was also ordered to pay a sum of Rs,50,000 by way of compensation under section 544-A, Cr.P.C. To the heirs of Muhammad Fayyaz deceased or in default of payment thereof to undergo rigorous imprisonment for six months whereas Fayyaz Khaliq alias Pappu appellant was ordered to pay a sum of Rs,30,000 to the heirs of Muhammad Fayyaz deceased by way of compensation or in default of payment thereof to undergo rigorous imprisonment for six months. Both the appellants were also convicted for an offence under section 460, P.P.C. And were sentenced to rigorous imprisonment for ten years each. The sentences of imprisonment passed against Fayyaz Khalid alias Pappu appellant were ordered to run concurrently and the benefit under section 382-B, Cr.P.C. Was extended to him.
Through the same judgment the learned trial Court had acquitted the appellants co-accused namely Khurshid Alam. The appellants have challenged their convictions and sentences before this Court through the present appeal.
2. The prosecution's case narrated in the F.I.R. Was that Ghulam Sarwar complainant was a resident of Wandha Noshehra Dakhli, Isa Khail and was an agriculturist by profession. On 14-7-1995 the complainant's paternal-cousin namely Muhammad Siddique had come to the complainant's house and was staying overnight. The complainant, his son namely Muhammad Fayyaz, the complainant's brother namely Muhammad Amir and the above mentioned cousin of the complainant namely Muhammad Siddique sat together in the house of the complainant while chatting and then at about 9/10-00 p.m. They all went to sleep together in the compound of the complainant's house wherein the complainant's wife and children were also sleeping. At about 2- 00 a.m. During the night between 14/15-7-1995 they woke up upon barking of a dog and in the light of an electric bulb they saw both the present appellants, armed with a pistol .30 bore each, to be present near their cots. The complainant's son namely Muhammad Fayyaz stood up and proceeded towards the appellants whereupon Mehfooz Alam appellant fired a shot at him hitting his left side of chest. Upon receipt of that injury the complainant's son namely Muhammad Fayyaz fell down whereafter the complainant took Mehfooz Alam appellant in his clasp whereupon Fayyaz Khaliq alias Pappu appellant fired at the complainant from his back hitting the complainant at his left buttock and left thigh whereupon the complainant left Mehfooz Alam appellant from his clasp.
The other witnesses then tried to apprehend the appellants but they fled from the scene while firing. The complainant's son namely Muhammad Fayyaz succumbed to his injuries at the spot. It was mentioned in the F.I.R. That about 9/10 months ago Mehfooz Alam appellant had attempted to commit sodomy with the complainant's son namely Muhammad Fayyaz whereupon Muhammad Fayyaz had lodged F.I.R. No,90 of 1994 for an offence under sections 377/511, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which case was then pending trial. It was further mentioned in the F.I.R. That the appellant's co-accused namely Khurshid Alam, a brother. Of Mehfooz Alam appellant, had approached the complainant party about two days ago and had asked the complainant party to effect a compromise with the accused party in the above mentioned case of sodomy but upon the complainant's refusal in that regard the said Khurshid Alam accused had threatened the complainant that within one week the complainant party shall come to know of the consequences of their refusal to effect a compromise. According to the F.I.R.
The present appellants had committed the murder of the complainant's son at the behest of Khurshid Alam co-accused. The complainant lodged F.I.R. No,49 at Police Station Isa Khail, District Mianwali in respect of the above mentioned incident at 6-05 a.m. On 15-7-1995 for offences under sections 302/324/34/109, P. P . C .
3. After registration of the F.I.R. Muhammad Sharif, Inspector/S.H.O. (P.W.14) took up the investigation of this case. He prepared an injury statement in respect of the complainant and sent him for medical examination. He thereafter, proceeded to the place of occurrence, prepared an injury statement and an inquest report in respect of Muhammad Fayyaz deceased and sent the dead body to the mortuary for autopsy. He then inspected the spot, collected blood-stained earth and two crime-empties therefrom and then prepared a rough site plan of the place of occurrence and recorded the statements of witnesses.
4. On 15-7-1995 Dr. Aal-i-Rasul (P.W.8) conducted post-mortem examination of the dead body of Muhammad Fayyaz deceased and found two fire-arm injuries on it one of which was an entry wound and the other was an exit wound. In his opinion both the injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. The cause of death was opined by him to be damage to both the lungs and aorta leading to internal haemorrhage, shock and death.
The time elapsing between the injuries and death was opined by him. To be within five to ten minutes and that between the death and post-mortem examination to be between seven to eight hours. On the same day the same doctor also medically examined Ghulam Sarwar complainant and found two fire-arm injuries on his person which had both been caused within a duration of six hours.
5. After the post-mortem examination of the deceased Muhammad Sharif, Inspector/S.H.O.
(P.W.14), the Investigating Officer, received the last-worn clothes of the deceased. On 16-7-1995 he got a formal site plan of the place of occurrence prepared by a draftsman. On 24-7-1995 he arrested Mehfooz Alam appellant and on 25-7-1995 he recovered a pistol from the said appellants' possession. On 30-7-1995 he arrested Khurshid Alam accused. On 4-8-1995 he arrested Fayyaz Khaliq alias Pappu appellant and on 9-8-1995 he recovered a pistol from his possession. Thereafter he concluded the investigation and submitted a challan.
6. At the commencement of the trial the learned trial Court framed a charge with three heads under sections 302/34/109, P.P.C., 324/34/109, P.P.C. And 460/34, P.P.C. To which the appellants and their co-accused pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as fourteen witnesses in support of its case against the appellants and their co-accused. Ghulam Sarwar complainant (P.W.9) and Muhammad Amir (P.W.10) furnished the ocular account of the incident in question and also deposed about the motive. Ghulam Yasin (P.W.11) and Meemdad, F.C. (P.W.13) stated about the recoveries of pistols effected from the appellants during the investigation of this case. Dr. Aal-I- Rasul (P.W.8) provided the medical evidence. Muhammad Sharif, Inspector/S.H.O. (P. W.14) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
8. In their statements recorded under section 342, Cr.P.C. The appellants and their co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And they also did not produce any witness in their defence.
9. At the conclusion of the trial the learned trial Court acquitted Khurshid Alam accused but the prosecution's case against the present appellants was found to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeal before this Court.
10. In support of this appeal it has been argued by the learned counsel for Mehfooz Alam appellant that the prosecution had failed to prove its case against the said appellant beyond reasonable doubt. The learned counsel appointed at the State expense to represent Fayyaz Khaliq alias Pappu appellant has not entered appearance before this Court and while awaiting his appearance we had required the learned counsel for Mehfooz Alam appellant to commence reading of the evidence. The learned counsel for Fayyaz Khaliq alias Pappu appellant did not enter appearance till we concluded reading of the record and hearing of arguments of the learned counsel for Mehfooz Alam appellant as well as the learned counsel for the State and, therefore, in view of the judgment that we proposed to deliver after hearing the said learned counsel we decided not to adjourn the hearing of this appeal so as to await appearance of the learned counsel for Fayyaz Khaliq alias Pappu appellant. The learned counsel for the State has argued that the prosecution had proved its case against both the appellants beyond reasonable doubt and, therefore, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
11. After hearing the learned counsel for the parties and going through the record we have noticed that the F.1.R. In this case had been lodged with reasonable promptitude and Mehfooz- Alam appellant had been specifically nominated therein as the principal perpetrator who had caused the solitary and fatal fire-arm injury on the person of Muhammad Fayyaz deceased. Although the occurrence in this case had taken place during a night yet in the F.I.R. It had specifically been mentioned that an electric bulb was alight at the relevant time and presence of two such bulbs stood duly depicted in the site plan (Exh.P.C./1). Ghulam Sarwar complainant (P.W.9) was a natural witness of the occurrence as the occurrence had taken place in his own house. The complainant had also sustained fire-arm injuries on his person during the said incident and, therefore, his presence at the spot at the relevant time could not be disputed with any degree of seriousness.
Muhammad Amir (P.W.10) resided in the house contiguous to the 'house of his brother i,e, Ghulam Sarwar complainant and his claim regarding sleeping in the compound of his brother's adjoining house in the company of their common guest i,e, their cousin namely Muhammad Siddique has not been found by us to be either unnatural or unusual. Although Ghulam Sarwar complainant happens to be the father of Muhammad Fayyaz deceased and Muhammad Amir (P.W.10) is a brother of the complainant and a paternal-uncle of the deceased yet we have found that the said witnesses did not have any serious motivation to falsely implicate Mehfooz Alam appellant in a case of this nature. Both the said witnesses had made consistent statements before the learned trial Court qua Mehfooz Alam appellant and their credibility could not be shaken during their cross- examination. The forthrightness of these witnesses and the straightforward statements made by them before the learned trial Court have impressed us and we have found them to be reliable enough to place our implicit reliance upon them vis-a-vis Mehfooz Alam appellant.
12. The motive set up by the prosecution was based upon a criminal case lodged by Muhammad Fayyaz deceased against Mehfooz Alam appellant in respect of an alleged sodomy committed by the said appellant upon the deceased about 9/10 months prior to the present occurrence.
Although in his statement recorded under section 342, Cr.P.C. Mehfooz Alam appellant had denied such a motive and had maintained that no such criminal case had been registered in the past yet Fayyaz Khaliq alias Pappu appellant tad accepted registration of such a criminal case as a fact.
Even the trend of cross-examination of the eye-witnesses produced by the prosecution shows that the defence had accepted registration of the earlier case of sodomy against Mehfooz Alam appellant. In these circumstances the motive set up by the prosecution has been found by us to have been amply proved as the same had not even been seriously questioned by the defence. The said motive, thus, provided corroboration to the ocular account vis-a-vis Mehfooz Alam appellant.
13. During the investigation of this case two crime-empties had been recovered from the place of occurrence and they had been sent to the Forensic Science Laboratory prior to recovery of a pistol from Mehfooz Alam appellant. Subsequently the pistol recovered from Mehfooz Alam appellant was also sent to the Forensic Science Laboratory and vide report (Exh.P.P.) the Forensic Science Laboratory had found the pistol recovered from Mehfooz Alam appellant to be wedded with a crime-empty. The pistol recovered from Fayyaz Khaliq alias Pappu appellant, however, was not even sealed into a parcel and admittedly the same was never sent to the Forensic Science Laboratory for its matching with the crime-empties. In these circumstances the recovery of weapon from Mehfooz Alam appellant had provided independent corroboration to the ocular account as far as Mehfooz Alam appellant was concerned but no such corroboration was available vis-a-vis Fayyaz Khaliq alias Pappu appellant.
14. The medical evidence provided by Dr. Aal-i-Rasul (P.W.8) confirmed the ocular account and, thus, provided support to the same.
15. The discussion made above shows that the ocular account furnished by Ghulam Sarwar complainant (P.W.9) and Muhammad Amir (P.W.10) had received corroboration from the motive and the recovery and the medical evidence had also provided sufficient support to the same as far as the prosecution's case against Mehfooz Alam appellant is concerned. However, it has been noticed by us that Fayyaz Khaliq alias Pappu appellant had admittedly not caused any injury to Muhammad Fayyaz deceased; the injuries sustained by Muhammad Fayyaz deceased and Ghulam Sarwar complainant (P.W.9) had been caused by a similar weapon; it could well be that the injuries sustained by the complainant had been caused by Mehfooz Alam appellant when the complainant had grappled with him; Fayyaz Khaliq alias Pappu appellant was not directly connected with the motive set up by the prosecution as he was not an accused person in the criminal case regarding sodomy lodged by Muhammad Fayyaz deceased against. Mehfooz Alam; Fayyaz Khaliq alias Pappu appellant was a witness for the defence in the abovementioned sodomy case and, therefore, the complainant party could have a reason to entangle him in the present murder case; and the pistol allegedly recovered from this appellant had admittedly not matched with any crime-empty. We have, thus, felt that the independent corroboration available to the ocular account in the case of Mehfooz Alain appellant is surely not available in the case of Fayyaz Khaliq alias Pappu appellant. We have, therefore, decided to extend the benefit of doubt to Fayyaz Khaliq alias Pappu appellant while finding the case against Mehfooz Alam appellant to have been proved beyond reasonable doubt.
16. For what has been discussed above this appeal is partly allowed to the extent of Fayyaz Khaliq alias Pappu appellant, his convictions and sentences recorded by the learned trial Court are set aside and he is acquitted of the charge. He shall be released from jail forthwith if not required in any other case. However, this appeal is dismissed to the extent of Mehfooz Alam appellant whose convictions and sentences recorded by the learned trial Court are hereby maintained and upheld with the modification that in case of his failure to pay the amount of compensation he shall undergo simple imprisonment for six months instead of rigorous imprisonment for six months as ordered by the learned trial Court.