1. ' BASHIR A. MUJAHID, J.=--Muhammad Aslam alias Shera son of Nazar Muhammad and Shakeel Ahmad son of. - Muhammad ..Bashir have challenged judgment dated 15-3-1999 passed by the learned Judge, Special Court under A.T.A. 1997, Gujranwala, whereby they were convicted under section 393, P.P.C. And sentenced to undergo 7 years R.I. Each and fine of Rs,10,000 each or in default thereof to further suffer 1 year's R.I. They were giver' benefit of section 382, Cr.P.C. They were further convicted under section 302-B, P.P.C. Read with section 34, P.P.C. For the murder of Noor Shams deceased and both were sentenced to death and they were also convicted under sections 301,302-B, P.P.C. Read with section 34 P:P.C. And sentenced to death for the murder of Muhammad Akrairt.
2. Brief facts of the case are that F.I.R. No,42 -of 1998 'dated 14-1-1998 Exh.P.A./1 was registered at police Station Uggoki District Sialkot at 9-15 p.m. On the basis of statement Exh.P.A. Of Javed Iqbal P.W.' 1 recorded by Tariq Mahmood S.I. P.W. 15 at 9 45 p.m. At Umar Town, Uggoki wherein it was stated that the complainant along with . His. Brother Noor Shams alias Shamshad (deceased) and their father Muhammad Boota were present in their house in Mohalla Umar Pura, Uggoki, when somebody knocked at the outer door and Noor Shams opened the, door and found one unknown person who tried to enter into the house forcibly which was stopped by Noor Shams. Meanwhile three unknown persons came running from behind and opened fire at Noor Shams hitting on his head, chest and also caused injuries to the person who was grappling with Noor Shams. Noor Shams died at the door step while the unknown person who was companion of the accused had succumbed to the injuries in the street. It was alleged that the occurrence was finessed by Javed Iqbal complainant and Muhammad Boota his father.
3. Tariq Mahmood, S.I. P.W. 15 after recording the statement Exh.P.A. Of Javed Iqbal P.W. 1 sent the same for registration of formal F.I.R. He himself started the investigation and took into possession the dead body of Noor Shams and of unknown person who was identified as Muhammad Akram.'
2. He prepared the injury statement of Muhammad Akram vide memo. Exh.P.N. And on his personal search found 3 currency notes of denomination of Rs,100 P.1/1-3 and 80 notes of one rupee P.2/1-:80 which were in the purse P.3. He also took into possession one receipt P.4 and since it was in the name of Muhammad Akram and he sent Imran Saleem, S.I. To verify the name and address. He also took into possession pistol P.5 lying near the dead body of Muhammad Akram and 2 live bullets from the magzine P.6/1-2 and one magazine P.7 and 2 live bullets in the magazine P.5/1-2. All these articles P.1 to P.8 were taken into possession vide recovery memo. Exh.P.13. He also prepared inquest report of dead body- of Muhammad Akram vide memo. Exh.P.Q. He also prepared the injury statement of Noor Shams vide memo. Exh.P.R and inquest report vide memo. Exh.P.S and dispatched the dead bodies for post-mortem examination through Muhammad Amin and Muhammad Akbar, F.Cs. He also took into possession bloodstained earth from the place where dead body of Noor Shams was lying vide memo.
3. ' Exh.P.D and from the place where the dead body of Muhammad Akram was lying vide memo.
4. Exh.P.E. He also took into possession 3 empties P.9/1-3 from the place of occurrence vide memo.
5. Exh.P.C. In the meanwhile Muhammad Aslam father of Muhammad Akram deceased arrived at the place of occurrence and identified the dead body of his son Muhammad Akram. He prepared the site plan of the place of occurrence vide memo. Exh.. P.T. On 15-1-1998 Muhammad Amin and Muhammad Akbar, F.Cs. Produced the last worn clothes of both the deceased which were taken into possession vide memo. Exhs.P.J and P.F. He got prepared the site plan through Masud Ahmad Bhatti,. Draftsman P.W.12. On 8-2-1998 he arrested both the appellants and instructed /hem to muffle their faces and sent them to judicial lock-up for identification parade. He moved an application Exhs.P.0 to A.C. Sialkot for deputing a Magistrate for conducting identification parade.
6. On 10-2-1998 Nadeem Sarwar, Magistrate P.W. 17 was deputed to conduct the identification parade and on 20-2-1998 the identification parade was held and he obtained the physical remand of the appellants. On 6-3-1998 Muhammad Aslam alias Sher Khan appellant while in police custody led to the recovery of pistol P.16 which was taken into possession vide memo. Exh.P.G. On the same day Shakeel Ahmad accused led to the recovery of pistol P.17 which was taken into possession vide memo. Exh.P.H. He completed the investigation and submitted the challan.
7. ' Charge was framed by the trial Court which was denied by the accused/appellants and they claimed the trial.
8. ' During the trial the prosecution examined as many as 17 witnesses to prove the guilt of the accused.
9. ' Medical evidence was furnished 13; Dr. Muhammad Ashraf Khan P.W. 10 and Dr. Zahid Ghani Dar P.W.
11. Dr. Muhammad Ashraf Khan P.W.10 conducted the post-mortem examination on the dead body of Muhammad Akram on 15-1-1998 and found the following injuries on his person:-
(1) A lacerated circular wound of 1 c.m. Diameter with inverted blackened margins on the upper most part of right cheek near the outer aspect of right eye.
(2) A lacerated wound 5 c.m.. Into 3 c.m. On the occipital region of head almost 'n the middle.
(3) Bleeding from nose, mouth and ear was present.
10. ' On the same day Dr. Zahid Ghazi Dar P.W. 11 conducted post-mortem examination on the dead body of Noor Shams alias Shamshad and found the following injuries on his dead body:-
(1) A lacerated wound 2 x 1 c.m. On right occipital region of head.
11. (2).A circular wound 1 c.m. In diameter on upper most part of the back of left shoulder. Margins were inverted, blackening was present around the wound.
(3) An oval shaped wound 1.5 x 1 c.m. On right middle front of the chest 2 c.m. Lateral to right nipple, margins were evened.
(4) A circular wound 1 c.m. In diameter on anterior medial aspect of middle of left thigh. Margins were everted blackening was present around the wound.
(5) An oval shaped wound.
12. 1.5 x 1 c.m. On posterior medial aspect of left thigh on middle part. Margins were everted.
13. ' The ocular account was furnished by Javed Iqbal P.W. 1 who was complainant of the case and he supported the version of the F.I.R. And got supplementary statement recorded with the Investigating Officer on 17-1-1998 by narrating the motive of the occurrence alleging that the accused had arrived at their house in order to commit dacoity. He also identified the appellants in the identification parade held on 20-1-1998 in District Jail, Sialkot before Nadeem Sarwar, Magistrate P.W.
17. Muhammad Boota was examined as P.W.2 who was father of Javed Iqbal and deceased Noor Sharns. He supported the prosecution story as an eye-witness of the occurrence and corroborated Javed Iqbal P.W.1 by stating that on the day of occurrence when his son Noor Shams deceased went out in response to the knock at the door he was fired at by the appellant and he along with Javid lqbal witnesses the occurrence. He also identified the appellants during the identification parade held on 20-1-1998. Abdur Razzaq son of Muhammad Din P.W. 3 attested the recovery memo. Exh.P.B whereby the Investigating Officer took into possession the incriminating articles from the place of occurrence. Abdur Razzaq son of Muhammad Sadiq P..W.4 had attested the recovery memo. Exh.P.D whereby bloodstained earth was taken into possession by the Investigating Officer from the place of occurrence. Muhammad Aslam P.W.5 had identified the dead body of Noor Shams at the time of post-mortem examination. Ghulam Mustafa P.W.6 attested the recovery memo. Exh.P.G whereby Muhammad Aslam got recovered pistol P.16. Muhammad Akbar, F.C. Had escorted the dead body of Noor Shams for post-mortem examination and had produced his last worn clothes before the Investigating Officer Muhammad Amin, F.C, P.W.8 had escorted the dead body of Muhammad Akram and produced his last worn clothes before the Investigating Officer Khalil Ahmad, H.C, P.W.9 had received the sealed parcels from Tariq Mahmood, SA. And kept them in Malkhana of the police station for safe custody. Masud Ahmad Bhatti P.W.12 had prepared the site plan. Manzoor Hussain, S.I. P.W.13 had recorded the formal F.I.R. Tariq Mahmood S.I. P.W.15 had investigate the case as stateu aoove. Muhammad Aslam P.W.16 was father of Muhammad Akan deceased who identified the dead body of his son at the time of postmortem examination.
14. Nadeem Sarwar, M.I.C, P.W.17 had supervised the identification parade held in District Jail, Sialkot and issued report of proceedings Exh.P.0 with a certificate signed by him. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exhs.P.V and PX of serologist Exhs.P.I and P.Z and of Forensic Science Laboratory Exh . P. A. A.
15. ' Statements of the appellants/ accused were recorded under section 342, Cr.P.C. They denied the allegation and claimed their innocence and false implication due to suspicion and party fiction at the behest of their enemies.
16. ' Zafar Iqbal was examined in defence as D.W.1 who stated that on 17-1-1998 he had produced both the appellants before the Investigating Officer, Muhammad Amir Ijaz was examined as D.W.2 who had signed the application D.B moved on behalf of the accused to be produced before Nadeem Sarwar, Magistrate wherein objection was raised on behalf of the appellants that they have been shown to the P. Ws. At the police station prior to the identification parade. Muhammad Zahid was examined as D.W.3 who also supported Zafar Iqbal D.W.1 stating that the appellants were produced before the Investigating Officer on 17-1-1998.
17. ' That trial culminated into conviction of the appellants as mentioned above. They .Have challenged their conviction and sentence through Criminal Appeal No,286 of 1999 while the trial Cour has' sent up Murder Reference No,98/T of 1999 for confirmation of death sentence. Both the matters are being decided by this single judgment.
18. ' Learned counsel for appellants has argued that it was an unwitnessed night occurrence; that no motive was stated in the F.I.R. But was mentioned in supplementary statement recorded on 17-1- 1998 and supplementary statement is dishonest improvement and has got no evidentiary value.
19. Reliance has been placed on 1995 SCM R 1350. In the F.I.R. It has been mentioned that three persons fired at the deceased while only two appellants were implicated during the investigation; that both the eye-witnesses Javed Iqbal and Muhammad Boota have stated that empties were taken into possession from inside the Courtyard while the Investigating Officer had taken the empties into possession from the street. It was stated by Javaid Iqbal P.W. I that bullets also hit the pillars of the house and marks were shown to the Investigating Officer but this fact has been denied by Tariq Mahmood, S P.W.15. Statements of both the prosecution witnesses are contradictory and unbelievable. Appellants were arrested on 17-1-1998 and were kept in illegal confinement, by the police before showing their arrest on 6-2-1998 and meanwhile they were shown to the P.Ws. And this objection in writing was specifically taken on their behalf before the Magistrate through application moved by Zafar, Iqbal D.W.1. Therefore, identification of the accused cannot be relied upon; that motive for the commission of dacoity was afterthought and has not been established; that there is clear contradiction in ocular account and the medical evidence. The seats of injuries are such that thqse could not have been caused as alleged by the eyewitnesses. The recovery of weapons have been planted and the positive report of Forensic Science Laboratory is of no help to the prosecution as the parcels of the empties were dispatched after arrest of the accused. The prosecution has failed to establish its case against the appellants beyond doubt and the appellants be acquitted by allowing their appeal.
20. ' Conversely the appeal has been opposed by the learned counsel for the complainant and for the State. Learned counsel for the complainant has supplemented his contention by arguing that motive was alleged and proved by the eye-witnesses and absence or weakness of motive is immaterial for commission of crime. He has placed reliance on 2001 SC MR 223 to argue that minor discrepancies in the statements made "were due to dishonest investigation and any irregularity committed by the Investigating Officer will not demolish the prosecution case. Reliance has been made to 2000 PCr.L.J. 453, wherein it has been laid down that:- ' Sending of recovered articles to the Expert with delay can only be fatal to the prosecution case if malice has been established on the part of the police by the defence or the empties have been substituted to match the crime weapons..
21. ' It was further held that:- ' Procedural defects and irregularities and sometime even the illegalities committed during the course of investigation shall not demolish the prosecution case nor vitiate the trial that there is no mala fide on the part of the complainant for false implication of the appellants. They were rightly identified by the P.Ws. During the identification parade, the objection raised on behalf of the appellants was after thought as application on behalf of the appellants was moved only one day before the identification parade. The empties taken into possession from the spot tallied with the weapons of offence got recovered by the appellants. The presence of the eye-witnesses at the spot is natural and believable. He has made reliance to 2000 SCM R 1758 wherein it has been held that:-- ' Where there is any variation between ocular and medical evidence, the latter does not overweigh the former type of evidence if otherwise the ocular evidence is coherent and trustworthy.
22. ' Therefore, it has been prayed that the appeal be dismissed.
23. ' Heard. Record perused.
24. ' The occurrence took place at 8-30 p.m. The statement Exh.P.A. Was recorded at the spot by Tariq Mahmood, S.1, P.W.15 at 9-15 p.m. On which F.I.R. Was registered promptly. The Investigating Officer took into possession receipt on which name and particulars of Muhammad Akram deceased were found and then he sent immediately Imran Saleem, S.I. To verify the same and address of Muhammad Akram son of Muhammad It slam P.W.16. Muhammad Aslam appeared before the Investigating Officer and stated that his son Muhammad Akram was taken away by Shakeel Ahmad appellant and on his disclosure Shakeel and Muhammad Aslam appellants were arrested.
25. Zafar Iqbal D.W.1 real brother of Muhammad Aslam accused had admitted that after the registration of case the police has been conducting raid at his house in order to arrest Muhammad Akram. The appellants were not known to the P.Ws. Previously and alter their arrest they were directed to muffle their faces and they were sent in judicial lock-up on the next day and thereafter identification parade was conducted under the supervision of Magistrate and both the eye- witnesses of the occurrence Javid Iqbal and Muhammad Boota identified both the appellants in the identification parade by their role played during the occurrence. All the formalities were observed for conducting the identification parade. The complainant has no enmity for false implication of the appellants or their substitution by letting off the real culprits. Absence or weakness of motive is immaterial as per law laid down by the Hon'ble Supreme Court in 2001SCMR
223. We 'also do not find and conflict-in medical evidence and the ocular 'I account. Javid lqhal and Muhammad Boota P. Ws. Stated that Noor Shams deceased had grappled with a person who knocked at the door on which his companions arrived at the spot and fired at both. It is not possible to give microscopic detail of causing injuries as the occurrence was over within no time and accused had decamped from the place of occurrence. The streetlight was available and in the site plan has been duly mentioned by the draftsman. The contention raised by the learned counsel for the appellants that it was an unwitnessed night occurrence has no force. Three empties were taken into possession from the spot and those were dispatched to the Forensic Science Laboratory much pr:i-ir to the arrest of the accused and recovery of weapons of offence.
26. The report of Forensic Science Laboratory is in positive. Two empties were fired from the pistol of Shakeel Ahmad and one from the pistol of Muhammad Aslam. The ocular account has been corroborated, by recovery of weapons of offence and by the medical evidence.
27. After deep re-appraisal of evidence we are convinced that the appellants are the real culprits for commission of murder of Noor Shams and companion of the accused namely Muhammad Akram, and find no reason to interfere in the conviction recorded or the sentence awarded to them, and same are maintained.
28. ' Resultantly Criminal. Appeal No, 286 of 1999 is dismissed. Death sentence awarded to the appellants is confirmed.
29. ' Murder Reference is answered in the affirmative.