M. NAEEMULLAH KHAN SHERWANI, J.---The way in which this appeal arises is this. Abdul Rashid alias Sheeda Mota son of Khair Din and Muhammad Rafiq alias Billa son of Rehmat Ali were tried. by learned Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, Gujranwala in a joint trial for , two murder incidents, wherein Muhammad Ashiq and ljaz alias Jajji were mactated, for which two separate F.I.Rs, bearing Nos,291 and 428 of 1993 stood registered with Police Stations Peoples. Colony and Sabzi Mandi, Gujranwala, respectively on 20-9-1993. The learned trial Judge by virtue of his judgment dated 9-4-1995, found them guilty of the said charges, convicted them under section 302/34, P.P.C. and sentenced them to death on two counts with further direction to pay Rs,50,000 each to legal heirs of each deceased by way of compensation as envisaged by the relevant provisions of section 544-A, Cr.P.C. or in default thereof to undergo rigorous imprisonment for two years each under each count.
2. Muhammad Rafiq alias Bilal convict has instituted two separate appeals bearing Criminal Appeal No, 282 of 1995 (in case F.I.R. No, 281 of 1993) and Criminal Appeal No,291 of 1995 (in case F.I,R. No, 428 of 1993), whereas he and his co-convict, namely, Rashid alias Sheeda Mota has also preferred Criminal Appeal No, 15-J of 1996 to call in question convictions and sentences passed against them by the said learned Judge. All these matters are being disposed of together .through this single judgment.
3. Occurrence of the first incident took place on 20-9-1993 at 5-45 p.m. at Abid Sweet Shop.
Approach Road, situated at a distance of two and a half kilometres from Police station Peoples Colony, Gujranwala. It was reported by Din Muhammad-complainant (P.W.20) to Hameed Ahmad Alvi, Inspector (P.W.22), S.H.O. of the said police station at 7-00 p.m. on the same day, when he was available in Emergency Ward of Civil Hospital, Gujranwala. The said Inspector as per dictation of the complainant reduced into writing his statement (Exh.PC) and despatched the same to the police station through some constable for formal registration of a case. Consequent "upon receipt thereof at the police station, Muhammad Azam M/A.S.-I. (P.W.2) drew up F.I.R. (Exh. PC/1) on the same day at 7-30 p.m. correctly without any addition or subtraction on his part.
4. Occurrence of the second incident also took place on the same day at 6-00 p.m. in the area of Main Bazar, Asghar Colony, situate at a distance of four furlongs from Police Station Sabzi Mandi, Gujranwala. Muhammad Farooq-complainant (P.W.18) reported the matter to Iqbal Hussain, S.-I.
(P.W.4) at the police station, who as per his dictation drew up formal F.I.R. (Exh.PD), at 6-30 p.m. on the same day without any addition or subtraction on his part.
5. Din Muhammad, son of Feroze Din, resident of Mohallah Salamatpura, Police Station Sabzi Mandi, Gujranwala had set the police machinery into motion by getting Crime Report No,281 dated 20-9- 1993 registered with Police Station Peoples Colony, Gujranwala against the appellants for the murder of his maternal nephew, Muhammad Ashiq, on 20-9-1993, at 5-45 p.m. when he was available at his shop 'near Nigar Railway Crossing. He puts the matter succinctly by stating that on the fateful day at about 5-45 p.m. he alongwith Liaqat Ali, his wife's brother, went to the shop of his maternal nephew, Muhammad Ashiq, for his personal work. Muhammad Ashiq had his sweetmeet shop (Abid Sweet Shop) near Nigar Railway Crossing, Approach Road, Gujranwala. They were hardly at 15/20 paces from said shop, when the appellants stopped their motorcycle in front of shop of Muhammad Ashiq. Both the appellants happen to be Mohallandars of the complainant.
The motorcycle was being driven by Rashid alias Sheeda Mota appellant, whereas Muhammad Rafiq alias Billa appellant was the pillion rider. He had a 222-rifle with him at that time Rashid alias Sheeda Mota appellant kept on sitting on the motorcycle, whereas Muhammad Rafiq alias Billa alighted from it and resorted to firing at Muhammad Ashiq, who fell down on the Platform on receipt of injuries. Immediately after this both the appellants left towards Nigar Railway Crossing.
Complainant with the assistance of Liaqat Ali, Muhammad Ramzan worker and Aadil Ali, Salesman, took care of the victim of assault. They all had seen the incident. Complainant and Liaqat Ali shifted Muhammad Ashiq to Civil Hospital, by means of a Rickshaw Muhammad Ashiq succumbed to his injuries while on his way to the hospital.
Motive behind the present occurrence was that both the appellants asked for a blueprint cassette from Ijaz Ahmad, son of the complainant. Ijaz Ahmad had his shop in Main Bazar, Asghar Colony, Ijaz Ahmad could not fulfil their demand because said cassette was not available with him. Both the appellants were persistent in their demand. Muhammad Ashiq was then incidentally available with Ijaz Ahmad at his shop. Both the sides had not only exchanged hot words, but also gave fist blows to each other. Mohallandars intervened and separated them. While leaving the spot, they issued threats to Muhammad Ashiq and Ijaz Ahmad that they would teach a lesson for insulting them. Ultimately this became a reason for the outbreak of this occurrence.
Thereafter, another incident took place within a short span of fifteen minutes in the Main Bazar, Asghar Colony, in which Ijaz Ahmad was fatally wounded by Rashid alias Mota appellant by the discharge of 222-rifle. Muhammad Farooq son of Din Muhammad set the State functionaries into motion by lodging Crime Report No,428, dated 20-9-1993 with Police Station Sabzi Mandi at 6-30 p.m. He expounded his version in the following words:-- He resides in Mohalla Salamatpura and is a contractor in Nigar Cinema. His younger brother Ijaz Ahmad was an employee of the Municipal Committee as a Light Inspector. Riaz Ahmad, his other younger brother runs a video cassette shop in the Main Bazar, Asghar Colony, Gujranwala, Ijaz Ahmad after being free from his duty used to work at the shop. On the day of occurrence at about 6-00 p.m. complainant alongwith Riaz Ahmad, Ijaz Ahmad, his brothers and Muhammad Amin son of Muhammad Sadiq were sitting at the shop. Rashid alias Sheeda Mota, armed with a .222 rifle and Muhammad Rafiq alias Billa, appellants, arrived there. Muhammad Rafiq alias Billa started hurling filthy abuses, whereas Rashid alias Sheeda. Mota made three successive shots at Ijaz Ahmad landing on his right upper arm, right ear and abdomen. Then he made two more shots, which also hit him on different parts of his body. Rashid alias Sheeda Mota-appellant then resorted to firing in the street and both decamped from the spot on their motorcycle. Complainant also came to know that the appellants had killed Muhammad Ashiq his maternal cousin, who was present at his shop near Approach Road, Allah Bakhsh Colony.
Reason behind the outbreak of this incident was that 2/3 days earlier to the present occurrence, the appellant came to the shop of Riaz Ahmad to have a blue-print cassette. At that time, complainant Ijaz Ahmad, Riaz Ahmad and Muhammad Ashiq were available at the shop. Ijaz Ahmad pointed out that they do not deal in obscene cassettes. The appellants not only abused Ijaz Ahmad, but also grappled with him. People of the vicinity intervened and made peace between the two. The appellants went away while issuing threats, that they would soon teach a lesson to Muhammad Ashiq and Ijaz Ahmad for having grappled with them. The appellants just because of the previous incident committed Mutation of Ijaz Ahmad. Occurrence of the alleged incident was witnessed by the complainant, Riaz Ahmad and Muhammad Amin. The complainant left for the police station, where by lodging the instant F.I.R. laid a foundation for criminal prosecution of the appellants.
6. Now the vital interest of the police was to reach the spot to despatch the dead body to the mortuary for autopsy purpose, collect other important evidence from the spot and apprehend the accused as early as possible. Hameed Ahmad Alvi Inspector/S.H.O. (P.W.22) forthwith set at the most difficult task of investigation. As he was available in the Civil Hospital, Gujranwala, he recorded statement of Liaqat Ali P.W. under section 161, Cr.P.C., prepared injury statement (Exh.P0), inquest report (Exh.P0/1), of. Muhammad Ashiq deceased and despatched the dead body to the mortuary for autopsy purpose under the escort of Muhammad . Yousaf, .constable (P.W.15) and Muhammad Idrees constable (not produced). Thereafter, he rushed to the venue of occurrence, inspected the same and prepared rough site plan (Exh.PP) thereof. He secured blood-stained gunny bag (P11) from the spot made the 'same into a sealed parcel and prepared seizure memo.
Exh.PQ. duly attested by Muhammad Hafeez (P.W.23) and Malik Khalid P.W. (not produced). He got prepared site plan of the place of occurrence in duplicate (Exhs.PH and PH/1) from Masood Ahmad Bhatti, Draftsman (P.W.6). He recorded statements of the relevant witnesses under section 161, Cr.P.C. He searched for the accused, but they hibernated themselves somewhere. He obtained non-bailable warrants against Rashid alias Sheeda Mota and Rafiq alias Billa accused on the basis of an application (Exh.P.W.22/A and entrusted the same to Liaqat Ali, A.S.-I. (P.W.16), but of no After completing necessary formalities, he got them declared proclaimed offenders. Thereafter, on 26- 11-1993 and 12-12-1993, Abdul Rashid alias Mota and Muhammad Rafiq alias Billa' accused could be arrested by him. He secured motorcycle (P.7) through memo. Exh.M, duly attested by Liaqat Ali, (P.W.16) and Muhammad Javed constable (not produced). During course of interrogation, Muhammad Rafiq alia Billa got recovered 222-rifle (P.8) alongwith its magazine (P.9) and the bullets (P10/1-10) which was taken into possession by the investigator through Exh.PN/I, duly attested by Pervaiz Akhtrar and Liaqat Ali, A.S.-Is. (P.Ws.10. and 16). Muhammad Rafiq-accused could not produce licence for retaining the abovesaid arms and ammunition, so a separate case under the Arms Ordinance stood registered against him. Case property was handed over by him to Muharrir of the police station' to be dealt with in accordance with relevant rules. After completing investigation, challan against the accused was prepared and submitted to the Court for their trial in accordance with law.
Consequent upon registered of case F.I.R. No,428, Iqbal Hussain, S.-I. (P.W.4) took over the uphill task of investigation, immediately rushed to the spot, inspected dead body of ljaz Ahmad, prepared its injury statement (Exh. PE), inquest report (Exh.PE/1) and despatched the same to the mortuary for autopsy purpose under the escort of Muhammad Younas, constable (P . W . 7) . Thereafter on 21-9- 1993, investigation into the crime was taken over by Abdul Hameed Bajwa, Inspector/S.H.O. (P.W.25).
He immediately proceeded to the venue of occurrence inspected the same and prepared rough site plan (Exh.PS) thereof. He collected blood-stained soil from the spot, made the same a sealed parcel and prepared a seizure memo Exh.PK, duly attested by Shahzad Hussain (P.W.12) and Riasat Ali P.W. (not produced). He took into possession last worn clothes of Ijaz Ahmad deceased through Memo. Exh.PI, duly attested by Muhammad Younas, constable (P.W.7) and Bashir. Ahmad P.W. (not produced). He got prepared site plan of the place of occurrence in duplice (Exhs.PG and PG/1) from Masood Ahmad Bhatti, Draftsman (P.W.6). He endeavoured his best of arrest the accused, but failed to do so. Then after observing all the necessary legal formalities, he got them declared 'proclaimed offenders'. He became successful in arresting Rashid alias Sheeda Mota accused on 18-11-1993, who was having an unlicenced .12-bore gun in his possession at that time. A separate case under the Arms Ordinance stood registered against him. On 14-11-1993, he conducted a raid for arrest of Rafiq alias Billa-accused, who on catching site of him went away leaving his .222-rifle (P.8) in the lane. Said rifle alongwith magazine (P.9) and ten cartridges (P10/1-10) was taken into possession by him through Memo. Exh.PN, duly attested by Muhammad Munir (P.W.17) and Muhammad Khalid P.W. (not produced). Thereafter, investigation of the case in question was entrusted to Shahid Mahboob, Inspector/S.H.O. (P.W.24), who on 19-11-1993 arrested Rashid alias Sheeda Mota accused. After finalization of the investigation, challan was prepared and submitted by him to the Court for trial of the accused in accordance with law.
6. On receipt of the challans, the trial Court vide order dated 5-12-1994, consolidated trial in both the cases, and after observing all the legal formalities framed charge against the accused, which reads as under:-- "That on 20-9-1993, at about 5-45 p.m. you the accused Muhammad Rafique alias Billa and Abdul Rasheed alias Sheeda Mota in furtherance of your common intention, while armed with .222 bore rifle went to the shop of Ashiq deceased on a motor bike, which is located in the area of Approach Road near Nigar Crossing Police Station Peoples Colony, Gujranwala and by firing on him intentionally and knowingly caused such bodily injuries that the deceased died as a result of those injuries and thereby you both the accused committed the offence of the Qatl-e-Amd of Muhammad Ashiq deceased, which is punishable under section 302/34, P.P.C., which is within my cognizance being a scheduled offence.
Secondly: That on the same date, and time, after having committed the Qatl-eAmd of Muhammad Ashiq deceased, you both the accused in furtherance of your common intention went to the shop of Ejaz deceased on the motor bike, which is located in the Bazar Asghar Colony, Police Station Sabzi Mandi Gujranwala and by firing on him with .222 bore /rifle intentionally and knowingly caused such bodily injuries that Ejaz deceased died of them and thereby you both the accused have committed the offence of Qatl-e-Amd of Ejaz alias Jajjio deceased, which is punishable under section 302/34, P.P.C. which is within my cognizance being a scheduled offence."
It was put to them to which they pleaded not guilty and claimed to be tried. Thereafter, the prosecution was called upon to adduce the best possible evidence available within its power and domain to achieve success in the trial.
7. The prosecution ventured to produce as many as twenty five witnesses, out of which evidence of Dr. Ashiq Hussain (P.W.1), Pervaiz Akhtar (P.W.10), Liaqat Ali, A.S.-I., (P.W.16), Muhammad Farooq (P.W.18), Muhammad Amin (P.W.19), Din Muhammad (P.W.20), and Aadil (P.W.21) is . of great significance whereas that of rest of the witnesses is of formal nature.
Dr. Ashiq Hussain, Medical Officer (P.W.1) conducted autopsy on dead bodies of Muhammad Ashiq and Ijaz Ahmad and observed four and seven injuries, respectively, on their person. According to him, Muhammad Ashiq deceased died due to such haemorrhage resulting from injuries Nos,1 to 4, which were sufficient to cause death in the ordinary course of nature. In his opinion, Ijaz Ahmad deceased died due to haemorrhage and shock resulting from injuries Nos,1, 2, 3 and 4, which were sufficient to cause death in the ordinary course of nature. He prepared their post-mortem reports (Exhs.PA and PB) and pictorial diagrams (Exhs.PA/1, PB/1 and PB/II), respectively.
Pervaiz Akhtar, A.S.-I. (P.W.10) and Liaqat Ali, A.S.-I.; (P.W.16) appeared to prove the factum of recovery of .222-rifle at the instance of Muhammad Rafiq alias Billa-appellant. In addition to this, Liaqat Ali, A.S.-I. (P.W.16) also testified to the recovery of motorcycle at the instance of Rashid alias Sheeda Mota-appellants.
DinMuhammad-complainant (P.W.20), Aadil Ali (P.W.21), Muhammad Farooq-complainant (P.W.18) and Muhammad Amin (P.W.19) appeared as eye-witnesses of the two respective incidents. They in a nutshell reiterated story of the F.I.Rs, They fully supported the prosecution cases.
8. Learned prosecutor gave up remaining witnesses being unnecessary and after tendering in evidence reports of the Chemical Examiner (Exhs.PT and PW). Serologist (Exhs.PU & PX) and Forensic Science Laboratories (Exhs.PV and PY), declared the prosecution case close.
9. The accused were then called upon to make statements under section 342, Cr.P.C.. All the incriminating circumstances were put to them so that they may offer handsome explanation for the crime imputed to them. They proclaimed their absolute innocence in the matter and alleged their false involvement in the case due to animosity. In an answer to question No,12 "Why this case against you and why P.Ws, have deposed against you'?", Abdul Rashid alias Sheeda Mota appellant stated in the following manner:-- "I have falsely been implicated in the case because the deceased Ejaz and Ashiq and Liaqat Ali P.W. have been dealing in the contraband of Narcotics and I have been informing the Police Station Sabzi Mandi, Peoples Colony, CIA Staff, Gujranwala on so many occasions about their dealing in Narcotics and a Criminal Case No,277 of 1993, under sections 3-4/4/79 HO, 'Police Station Sabzi Mandi was registered against Liaqat Ali P.W. of this case, on my spy information. The complainant party got annoyed due to these complaints being furnished by me to the police, and consequently they falsely roped me in this case. The eye-witnesses of these cases are closely relaed to both the deceased and the complainant and the witnesses of these cases belong to the same clan and brotherhood. In fact the assailents were unknown and the occurrence remained unwitnessed and the S.H.Os., of the concerned both police stations after due deliberations and consultations with the complainant party falsely involved me in these cases."
Standpoint adopted by Muhammad Rafiq alias Billa accused was similar to that of his co-accused.
They did not opt to make statements under section 340(2), Cr.P.C. in disproof of the allegations levelled against them. They also did not produce defence evidence.
10.Upon culmination of the trial proceedings, learned trial Judge considered all the material available on record, pronounced verdict of guilt against the appellants and punished them as aforementioned.
11.Learned counsel for appellants vehemently argued this appeal. They highlighted following points for our consideration:--
(i) That the eye-witnesses are not only related inter se but also related to both the deceased. Their presence at the spot is extremely doubtful. They are chance witnesses. There is no corroboration in their statements.
(ii) That medical evidence is not in consonance with the ocular evidence.
(iii)That motive part of the occurrence is fake and a patent fabrication.
(iv)That evidence regarding abscondance of the appellants was also fabricated by the police and it renders no corroboration to the prosecution version. The appellants never absconded.
(v)That trial of both the F.I.Rs, was consolidated by the learned trial Judge and the matter was decided through a single judgment, which offends the relevant provisions of section 367, Cr.P.C.
In the end, they prayed for clean acquittal of the appellants.
12.On the contrary, learned counsel for the State submits that there is absolutely no defect or flaw in the trial proceedings and the appellants stood rightly convicted by the trial Court on the strength of overwhelming evidence. He also submits that ocular account was fully confirmed by the medical evidence and guilt of the appellants stands confirmed by the abscondance evidence. He supports judgment of the trial Court.
13.Ms. Yasmin Sehgal, learned Assistant Advocate-General, who was present on Court's call submits that as far as objections regarding consolidated trial and convictions of the appellants through single judgment is concerned, learned counsel for the appellants has raised these objections for the first time. Said objections were neither raised before the trial Court nor in their appeals. She submits that both the incidents took place within fifteen minutes and places of occurrence are situate at a short distance from each other, and that objections raised by the learned counsel for the appellants are washed out in view of the provisions of sections 239 and 537, Cr.P.C. It was next submitted that only thing which is to be seen is whether any prejudice accrued to the cause of the appellants or not. The only answer to this question would be that no prejudice has occasioned to the cause of the defence. She placed reliance on case, Ahmad Hassan and another v. The State (2001 SCM R 505).
14.We have consciously heard and soberly considered respective arguments of learned counsel for both the sides and perused the record with their able assistance.
15.We have very carefully studied both the crime reports. Both the incidents took place because of a definite motive. Motive part of the occurrence has been fully described by Muhammad Farooq (P.W.18) and Din Muhammad (P.W.20) not only in the crime reports, but also before the trial Court.
Both the appellants asked for nude video cassettes from Ijaz Ahmed deceased about two days prior to the occurrence, but he gave them flat refusal that he did not deal in nude video cassettes, so the same could not be provided to them. The appellants took it as their insult. Consequently, a quarrel took place between Muhammad Ashiq and Ijaz Ahmad, on one side, and the appellants, on the other side. The appellant depicted a persistent attitude. They indulged into exchange of hot words and grappling. People of the locality timely intervened and separated the two sides. Motive part of the occurrence has been duly supported by Muhammad Bashir Butt (P.W.13), Muhammad Farooq (P.W.18) and Din Muhammad (P.W.20). All the eye-witnesses have corroborated each other.
Muhammad Bashir Butt (P.W.13) had no earthly reason to wish maximum harm to the appellants by deposing falsely against them. Likewise he had no interest in the complainant side to support them without there being any justification. He is an independent witness. There is nothing to doubt credibility of his evidence. All the witnesses were subjected to a lengthy cross-examination qua motive, but their testimony remained unshaken. Motive has rightly been relied upon by the trial Court.
16.The standpoint adopted by the accused is that Muhammad Ashiq, Ijaz Ahmad deceased and Liaqat Ali P.W., were dealing in narcotics. They had been laying information about their nefarious activities before, the police. They alleged their false involvement in this case. The question is that they have been brutally murdered in a barbaric manner by the appellants. If this standpoint is taken to be true, then Ijaz Ahmad and Muhammad Ashiq should have killed the appellants. This explanation on the part of the appellants is just absurd, ridiculous and fantastic one.
17.The prosecution has produced Din Muhammad (P.W.20) and Aadil Ali (P.W.21) to establish charge regarding Qatle-Amd of Muhammad Ashiq deceased. Din Muhammad (P.W.20) is admittedly father of Ijaz Ahmad deceased and husband of maternal aunt of Muhammad Ashiq deceased. His visit to the shop of Muhammad Ashiq deceased on the day of occurrence is natural and believable. There is nothing to disbelieve this assertion of the prosecution. He was a close relative of Muhammad Ashiq deceased, so he could go to his shop for his personal work. Presence of Aadil. All (P.W.21) at the spot cannot be denied. Muhammad Ashiq deceased was a Sweelt Meat Seller and Aadil Ali (P.W.21) used to prepare sweets at his shop. His presence at his shop was by all means natural and cannot be doubted as such. This witness admits of presence of Din Muhammad (P.W.20) at the spot at the time of occurrence. Aadil Ali (P.W.21) has furnished full facts and circumstances revolving around this occurrence. He has furnished names of the accused, the weapon possessed at that time and the way it was used by Muhammad Rafiq appellant. Fire-arm injuries were found available by the examining doctor on the person of Muhammad Ashiq deceased. Aadil All (P.W.21) is an independent natural witness. He has wholeheartedly supported the prosecution version. His testimony rings true and in confidence-inspiring. He bore no grudge, grouse, malice or spite against the appellants to depose falsely against them. Both these witnesses have been rightly believed by the trial Court.
18. Now we would like to dilate upon facts and circumstances revolving around Qatl-e-Amd of Ijaz Ahmad alias Jajji. Muhammad Farooq, (P.W.18) and Muhammad Amin (P.W.19) came forward to depose against the appellants. Muhammad Farooq-complainant (P.W.18) rio doubt is brother of Ijaz Ahmad deceased. The videocassettes shop actually belonged to Ijaz Ahmad deceased and Riaz Ahmad, another brother of Muhammad Farooq-complainant. His presence at the shop cannot be doubted. There can be no controversy with regard to their presence at the shop. Muhammad Amin (P.W.19) was available with Muhammad Farooq-complainant when occurrence of the alleged incident took place. He is an independent witness. He is not related to the complainant side. This witness also had motive to depose falsely against the appellants. He too has furnished true and detailed account of the occurrence. All those events, which happened in his presence and personally observed by him, have been narrated by him in his statement. He in clear cut manner supported accusations brought against the appellants. The way the appellants arrived at the spot, the way they acted there, and then levanted from the spot after accomplishing their ignoble design has been described in minutest possible details by the witnesses. Both these witnesses corroborated each other on all material facts. They agree in their testimony. They had means for gaining correct information and they had no interest in concealing truth or bring false charge of Qatl-e-Amd against the appellants.
19. Our study and scrutiny of entire material reveals that the witnesses of both the incidents faired well in furnishing all the relevant fact and circumstances with much exactitude. These incidents could not have remained unnoticed. If it was an unwitnessed 'occurrence and the appellants had not committed the crime of murders imputed to them, then they should have staged a protest against it at all levels. Nothing could be done by the appellants to demonstrate their innocence in the matter. No reason is forthcoming as to why they should have been maliciously and falsely implicated in this case. In our judgment, they are cent per cent guilty. These murders have been committed out of elaborate planning and in furtherance of common intention of both the appellants. The appellants created a panicky and sensational situation by resorting to firing at both the places of occurrence.
20.Photographic narration of injuries by the witnesses in such-like situation is hardly possible. If there is any slight variation in between the ocular account and the medical evidence, that would be immaterial. Medical evidence establishes that both the deceased-suffered injuries by the discharge of a firearm. Injuries can hardly be described by scientific precision by the witnesses in such like situations Medical evidence fully supports the ocular account.
21.There is no material dispute with regard to the material facts like, time, date and place of occurrence. In this case, the learned trial Judge has rightly discarded recovery evidence. We find that Abdul Rashid alias Sheeda Mota-appellant could he arrested by the police, on 26-11-1993, whereas Muhammad Rafiq alias Billa-appellant could be arrested on 5-12-1993. The murder events had happened on 20-9-1993. . The appellants did not make themselves available before the investigating agemcy. They hibernated themselves somewhere to avoid their possible arrest. They were rightly got declared as proclaimed offenders. In this case, their absconsion is a strong circumstance corroborating ocular evidence to prove guilt of the appellants.
22. Now we would like to address our answer to the objections raised by learned counsel for the appellants at the very outset. The fact remains that the first occurrence took place on 20-9-1993 at 5-45 p.m. within the territorial jurisdiction of Police Station Peoples Colony, Gujranwala. Muhammad Ashiq, nephew of Din Muhammad-complainant fell a prey to the brutality committed by the appellants. The matter stood reported at police at 7-00 p.m. by the complainant. This is a prompt and straightforward F.I.R. containing all the material details regarding the murder incident. The appellants after accomplishing their ignoble design and for a common motive immediately went to the shop of Ijaz Ahmad, where they killed him. The place of occurrence fell within the territorial jurisdiction of Police Station Sabzi Mandi, where the occurrence stood reported by Muhammad Farooq (P.W.18), brother of the deceased on 20-9-1993 at 6-30 p.m. The F.I.R. was recorded expeditiously eliminating all chances of deliberations and conference on the part of the complainant side. The distance between the two places is small and both the incidents were committed within short span of fifteen minutes. Motive is same in both the cases and accused are also the same. The second murder was committed during course of same transaction. The provisions of section 239, Cr.P.C. are reproduced below:--
239. What persons may be charged jointly.---The following persons may be charged and tried together, namely:--
(a) persons accused of the same offence committed in the course of the same transacton;
(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;
(c) persons accused of more than one -offence of the same kind, within the meaning of section 234 committed by them jointly thin the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving, or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last named offence;
(f) persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and (g)persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused of any others offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges."
23. We find that both the murders were committed in consequence of same transaction. Learned counsel for the appellants have failed to demonstrate any prejudice caused to them either in the investigation or conduct of trial. Sufficient reasons have been given by the learned trial Judge while passing order, dated 5-12-1994 whereby trial of both the cases were consolidated. This order reads as under:-- "The case is fixed for evidence. But the accused allegedly committed a murder on the same day in the same transaction in the area of Police Station Peoples Colony. The deceased in both the cases are related to each other. The other case has been fixed for evidence on 22-12-1994. This case also be adjourned to the same date because both the cases are to be consolidated and their joint trial is to be held. P.Ws. present be bound down. The S.H.O. Police Station Sabzi Mandi and Police Station Peoples Colony, Gujranwala be summoned for 7-12-1994 to effect the service of the P.Ws. positively. Muhammad Rafiq accused has expressed his inability to engage defence counsel. To meet the ends of justice, Akhtar Hussain, Advocate is appointed as his counsel in both the cases to defend him on the State expenses."
Then on 22-12-1994, the learned triaf Judge passed following order:-- "In the light of the previous order, dated 5-12-1994, both the cases are consolidated and joint trial of the accused shall be held in case F.I.R. No,281 of 1993 as provided under section 239, Cr.P.C. Because both the accused persons have committed the murders of Muhammad Ashiq and Ejaz Ahmad alias Jajji deceased in the course of the same transaction and the nature of offences is also similar."
Thereafter, the trial Court framed consolidated charge for both murders and put the same to the appellants, to which they pleaded not guilty. They did neither raise any objection at the time of passing of orders regarding consolidation of the trials, nor at the time when Charge was put to them. Even this objection was not raised at the time of filing the appeals.
It is also pertinent to mention here that when they were examined under section 342, Cr.P.C., questions with regard to two murders were put to them, which are reproduced as under:--
(1) ABDUL R ASHID: "Q.No,3. It is in the evidence that on 20-9-1993 at 5-40 p.m. you were driving Motorbike whereas Muhammad Rafiq you co-accused holding a .222 rifle and was sitting on the rear seat of Motorbike, you stopped Motorbike in front of Sweets Shops of Muhammad Ashiq deceased situated near Approach Road Nigar Railway Crossing and then your co-accused Muhammad Rafiq in the furtherance of common intention fired at Muhammad Ashiq who sustained injuries on his different parts of his body in the presence of the witnesses and thereafter you and your co-accused decamped while firing and creating harassment from the place of occurrence of Motorbike.
Muhammad Ashiq was lifted to the Hospital who succumbed to the injuries on way to the Hospital and thereby you committed Qatl-eAmd of Muhammad Ashiq. What have you to say about it?
Ans. It is incorrect, I was not present at the place of occurrence.
Q.No,4. It is in evidence that after injuries Muhammad Ashiq deceased, you and your co-accused reached the Video Cassettes Shop of Ejaz deceased situated in Asghar Colony Gujranwala at about 6 p.m. when your co-accused Muhammad Rafiq alias Billa was driving Motorbike. You were sitting on the rear seat of the Motorbike holding .222 rifle. your co-accused stopped the Motorbike near the shop of Ejaz deceased and you both alighted from the Motorbike, Muhammad Rafiq alias Billa your co-accused hurled abuses to. Ejaz deceased. and you in furtherance of your common intention in the presence of witnesses fired shots with your .222 rifle which hit Ejaz deceased, who died due to these injuries and you and your co-accused decamped while firing and creating harassm ent from the place of occurrence on the Motorbike alongwith .222 rifle after committing Qatl-e-Amd of Ejaz deceased. What have you to say about it?
Ans. It is incorrect."
(II) MUHAMMAD RAFIQ alias BILLA: "Q.No,3. It is in the evidence that on 20-9-1993 at 5-45 p.m. your co-accused Abdul Rashid alias Moota was driving Motorbike whereas you were holding a rifle .222 and was sitting on the rear seat of Motorbike, your co-accused stopped Motorbike in front of Sweets Shops of Muhammad Ashiq deceased situated near Approach road Nigar Railway Crossing and then you in the furtherance, of common intention fired at Muhammad Ashiq who sustained injuries on his different parts of his body in the presence of the witnesses and thereafter you and your co-accused decamped while firing and creating harassm ent from the place of occurrence on Motorbike. Muhammad Ashiq was lifted to the Hospital who succumbed to the injuries on way to the Hospital and thereby you committed Qatl-eAmd of Muhammad Ashiq. What have you to say about it?
Ans. It is incorrect, I was not present at the place of occurrence.
Q.NO.4. It is in evidence that after injuring Muhammad Ashiq deceased, you and your co-accused reached the Video cassettes shops of Ejaz deceased sitauted in Asghar Colony Gujranwala at about 6-00 p.m. when you were dirving Motorbike and your co-accused Abdul Rashid alias Moota was sitting on the rear seat of the Motorbike holding .222 rifle. You stopped motorbike near the shop of Ejaz deceased and you both alighted from the motorcyle. You hurled abuses to Ejaz deceased and your co-accused Abdul Rashid alias Moota in furtherance of your common intention in the presence of witnesses fired shots with your .222 rifle which hit Ejaz deceased, who died due to these injuries and you and your co-accused decamped while firing and creating harassment from the place of occurrence on the motorbike alongwith .222 rifle after committing Qatl-e-Amd of Ejaz deceased. What have you to say about it?.
Ans. It is also incorrect."
In view of the above situation, we are of the firm view that joint trial of both the cases is legal and the learned trial Judge was right in disposing of these two cases through a single judgment.
Objections raised by learned counsel for the appellants are accordingly overruled.
24. For all these reasons, we dismiss these appeals while maintaining convictions and sentences awarded to the appellants by the trial Court. Their death sentence is accordingly confirmed.
25.We find that the learned trial Judge while passing order with regard to payment of compensation to legal heirs of the deceased, directed that in default thereof, the appellants shall undergo rigorous imprisonment for two years each under each count, which is not legal. We accordingly order that if the appellants fail to pay compensation to legal heirs of the deceased, they will undergo simple imprisonment for six months each under each count.