' ASIF SAEED KHAN KHOSA, J.--- Muhammad Arshad and Muhammad Asghar alias Akra appellants were convicted for an offence under section 302(b)/34, P.P.C. Vide judgment, dated 31-10-2000 passed by the learned Additional Sessions Judge/Judge, Special Court (Suppression of Terrorist Activities), Gujrat and Muhammad Arshad appellant was sentenced to death whereas Muhammad Asghar alias Akra appellant was sentenced to imprisonment for life. The appellants were also ordered to pay a sum of Rs,1,00,000 each by way of compensation under section 544-A, Cr.P.C. To the heirs of Haji Muhammad Akhtar deceased or in default of payment thereof, the said amount was ordered to be recovered by way of arrears of land revenue. The benefit under section 382-B, Cr.P.C. Was extended to Muhammad Asghar alias Akra appellant. Through the same judgment Muhammad Afzal a co-accused of the present appellants, had, however, been acquitted by the learned trial Court by extending the benefit of doubt to him. Another accused person in this case namely Muhammad Azam had been discharged during the investigation and he was not even put to trial. 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 at about 3-00 p.m. On 13-5-1998. Fayyaz Ahmad complainant, Haji Muhammad Akhtar and Tahir Mehmood were proceeding towards their homes in village Dheerkay Kalan after offering their prayers in a mosque and when they reached near the house of one Azhar Iqbal in a street Muhammad Arshad appellant, armed with a double- barrel gun .12 bore, Muhammad Afzal co-accused, armed with a gun, and Muhammad Asghar alias Akra appellant, armed with a gun .12 bore, confronted them. Muhammad Arshad appellant raised a Lalkara that Haji Muhammad Akhtar should be taught a lesson for getting unjustified criminal cases registered whereupon Asghar alias Akra appellant and Muhammad Afzal co- accused fired from their guns and their fires hit Haji Muhammad Akhtar at the outer side of his left wrist. Upon receipt of that injury Haji Muhammad Akhtar fell down and in that fallen condition he was fired at by Muhammad Arshad appellant from his gun hitting Haji Muhammad Akhtar's head on his right side taking his brains out. The hue and cry raised by the complainant attracted Khalid Javed and Inayatullah P. Ws. Who also came to the spot, witnessed the occurrence and entreated the culprits to spare the complainant party. The appellants and their co-accused then left the place of occurrence. Haji Muhammad Akhtar succumbed to his injuries at the spot. While the appellants and their co-accused were fleeing from the place of occurrence Mst. Irshad Bibi (D.W.1) tried to stop Muhammad Arshad appellant whereupon the latter fired at her hitting her near her left shoulder. The motive stated in the F.I.R. Was that a few days ago Muhammad Asghar alias Akra appellant and Muhammad Afzal co-accused were booked in a case of theft and Muhammad Arshad appellant had been booked in a case under section 506, P.P.C. And the appellants and their co-accused had suspected that it was Haji Muhammad Akhtar deceased who had got those criminal cases registered against them. It was also mentioned in the F.I.R. That a few days prior to this occurrence Muhammad Azam co-accused had conspired with the other accused persons regarding committing the murder of Haji Muhammad Akhtar. After the occurrence Fayyaz Ahmad complainant proceeded to report the matter to the police and lodged F.I.R. No,313 at Police Station Sadar, Gujrat at 3-30 p.m. On the same day. The F.I.R. Was registered by Sabir Hussain Shah, S.-I.
(P.W.12).
3. After registration of the F.I.R. Sabir Hussain Shah, S.-I. (P.W.12) took up the investigation of this case, proceeded to the place of occurrence, prepared an injury statement and an inquest report in respect of the dead body of Haji Muhammad Akhtar and sent the dead body to the mortuary for autopsy. He also collected blood-stained earth from the place of occurrence.
4. At about 4-40 p.m. On 13-5-1998 Dr. Qazi Adil Inam (P.W.1) conducted the post-mortem examination of the dead body of Haji Muhammad Akhtar deceased and found the following injuries on his person:--
(1) A fire-arm wound of entry 16 c.m. x 10 c.m. With brain matter coming out, the skull bones had been fractured, frontal and parietal bones had been shattered alongwith the scalp.
(2) A fire-arm wound 12 c.m. x 6 c.m. Into bone deep on the back of left shoulder, the margins were inverted and irregular. There were corresponding holes on the clothes.
(3) A fire-arm wound 8 c.m. x 9 c.m. Into bone deep on the outer side of the middle of left forearm.
' In the opinion of the doctor all the injuries were ante-mortem and had been caused by fire-arm.
Injury No,1 was sufficient to cause death immediately due to extensive damage to the brain leading to shock. That injury was sufficient to cause death in the ordinary course of nature. The remaining injuries had also been found by the doctor to be contributory in causation of the death. In the doctor's opinion the probable time elapsing between the injuries and death was immediate while that between the death and the post-mortem examination was about one to two hours.
5. After the post-mortem examination of the dead body of Haji Muhammad Akhtar deceased the last-worn clothes of the deceased were received by Sabir Hussain Shah, S.-I. (P.W.12), the Investigating Officer, on 13-5-1998. On 14-5-1998 he got a formal site plan of the place of occurrence prepared by a draftsman. On 16-5-1998 he arrested Muhammad Azam accused. He then obtained non-bailable warrants of arrest against Muhammad Arshad appellant as well as Muhammad Asghar alias Akra appellant and then got proclamations issued against them regarding their declaration as proclaimed offenders. On 20-6-1998 he arrested Muhammad Afzal accused and on 2-7-1998 he recovered a gun from his possession. On 23-7-1998 he sent an incomplete challan in this case. On 7-11-1998 he arrested Muhammad Asghar alias Akra appellant and on the same day recovered a gun from his possession. On 20-11-1998 he submitted another incomplete challan in this case. The investigation of this case was subsequently taken over by Muhammad Akram, A.S.-I. (P.W.13) and he arrested Muhammad Arshad appellant and recovered a gun from his possession on 4-8-1999. Thereafter, he submitted a challan against the said appellant.
6. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 302/34 and 324/34, P.P.C. Against the appellants and their co-accused to which they pleaded not guilty and claimed a trial.
7. During the trial the prosecution produced as many as 14 witnesses in support of its case against the appellants and their co-accused. Fayyaz Ahmad complainant (P.W.2/P.W.9), Tahir Mehmood (P.W.3) and Khalid Javed (P.W.11) furnished the ocular account of the incident in question and they also deposed about the motive. Sajid Mehmood (P.W.8) Saeed-ur-Rehman (P.W.10) and Muhammad Ashraf, F.C. (P.W.14) stated about the recoveries of weapons from different accused persons in this case. The medical evidence was provided by Dr. Qazi Adil Inam (P.W.1). Sabir Hussain, S.-I. (P.W.12) and Muhammad Akram, A.S.-I. (P.W.13) stated about the various steps taken by them 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. While responding to a question as to why they had been implicated in this case and why the prosecution witnesses had deposed against them both the appellants had maintained that some unknown persons belonging to Sipah-e-Muhammad had murdered Haji Muhammad Akhtar deceased due to religious differences and the appellants had falsely been implicated in this case. The appellants and their co-accused opted not to make any statement on oath under section 340(2), Cr.P.C. But they, however, produced Mst. Irshad Bibi (D.W.1) in their defence.
9. At the conclusion of the trial the learned trial Court acquitted Muhammad Afzal co-accused by extending the benefit of doubt to him but, after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, the learned trial Court convicted and sentenced the appellants 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 the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the State has maintained that the guilt of the appellants had been proved to the hilt of the prosecution and, therefore, the appellant's conviction 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 it has been noticed by us .That according to the prosecution's case the allegation against Muhammad Asghar alias Akra appellant and his co-accused namely Muhammad Afzal was identical inasmuch as it had been maintained by the prosecution witnesses that Muhammad Asghar alias Akra appellant and Muhammad Afzal co-accused had simultaneously fired from their respective guns at Haji Muhammad Akhtar deceased hitting the latter on the outer side of his left wrist. The said allegation against Muhammad Afzal co-accused had not been believed by the learned trial Court and he was acquitted by extending the benefit of doubt to him. In the circumstances of this case we have not been able to find any reason why the same benefit ought not to he extended to Muhammad Asghar alias Akra appellant as well. The medical evidence available in this case shows that the deceased had sustained three fire-arm injuries and the diagram of his injuries shows that all the fires had been shot at the deceased from the same direction. Dr. Qazi Adil Inam (P.W.1) had opined that all the three injuries sustained by the deceased could be caused by one and the same weapon. The weapons allegedly used by all the three assailants were also the same kind, i,e, guns and, thus, it could well be that the spreading pellets of the shot fired by the principal accused of this case namely Muhammad Arshad appellant from his gun could have caused all the three injuries to the deceased at various parts of his body. This impression stands fortified by the statement of Mst. Irshad Bibi (D.W.1), who had herself received an injury in this case, to the effect that there was only one assailant available at the spot who had fired at Haji Muhammad Akhtar deceased as well as at D.W.1. We have, thus, found it to be unsafe. To withhold from Muhammad Asghar alias Akra appellant the benefit of doubt which has already been extended to his co- accused namely Muhammad Afzal by the learned trial Court regarding the self-same injury sustained by the deceased.
12. As regards Muhammad Arshad appellant we have noticed that although Tahir Mehmood (P.W.3) was a son of Haji Muhammad Akhtar deceased but the other two witnesses, i,e, Fayyaz Ahmad complainant (P.W.2/P.W.9) and Khalid Javed (P.W.11) were not shown to be closely connected with the deceased. It had never been established by the defence that the eye- witnesses produced by the prosecution had any enmity or serious against Muhammad Arshad appellant to falsely implicate him in a case of this nature. Muhammad Arshad appellant stood saddled with the responsibility of causing the fatal fire-arm injury on the head of the deceased and the medical evidence fully supported the said allegation vis-a-vis the time of the occurrence, the locale of the injury and the weapon used for causing the said injury.. It may be true that the different motives set up by, the prosecution had not been conclusively established in this case and the weapon of offence allegedly recovered from Muhammad Arshad appellant had not been connected with the alleged offence due to lack of its matching with any crime-empty but at the same time we have found the statements made by the eye-witnesses to be quite consistent and the said statements had found sufficient support from the medical evidence. It was a case of a daylight occurrence and the F.I.R. Had been lodged with sufficient promptitude with a specific allegation against Muhammad Arshad appellant regarding causing the fatal fire-arm injury on Haji Muhammad Akhtar deceased. The absconscion of Muhammad Arshad appellant had also provided corroboration to the allegation levelled against him. Thus, the evidence produced by the prosecution implicating Muhammad Arshad appellant in the murder of Haji Muhammad Akhtar deceased has inspired our confidence so as to place implicit reliance upon the same.
13. For what has been discussed above this appeal is partly allowed to the extent of Muhammad Asghar alias Akra appellant who is acquitted of the charge by way of abundant caution for safe administration of criminal justice. He shall be released from jail forthwith if not required in any other case. This appeal is, however, dismissed to the extent of Muhammad Arshad appellant and his convictions and sentences recorded by the learned trial Court are upheld and maintained.