' MUHAMMAD FARRUKH MAHMOOD, J.---Appellants Sajid Tufail alias Abuzar son of Muhammad Tufail and Nadeem alias Deemi son of Naeem Khan, through the present appeal, have challenged their conviction and sentence passed by Pir Akhtar Hussain Bodla, Judge Special Court Noll (Anti- Terrorism), Multan vide judgment dated 13-6-2000.
2. The appellants alongwith one Amjad Ali son of Ali Bakhsh, co-accused, were tried by the Judge Special Court, for offences under sections 302/34 and 109, P.P.C., for causing murder of Mir Zaheerul-Hassan. After the trial, the Judge Special Court found the appellants guilty for the offences under sections 302(b)/34, P.P.C. And sentenced them to death each. The appellants were also burdened with compensation amounting to Rs,2,00,000 each to be paid to the legal heirs of the deceased and in default of payment thereof to undergo two years' R.I. Each. However, Amjad Ali, co-accused, was acquitted of the charge by the learned trial Court by giving benefit of doubt.
3. The occurrence took place at "Dur-e-Najaf" the residence of the deceased situated at Chak Shahana Road, Jaswa nt Nagar, Khanewal, within the area of jurisdiction of Police Station City Khanewal. The incident was reported by Farrukh Burjees Haider, Advocate, son of the deceased (who was subsequently murdered), to Manzoor Hussain, Inspector/S.H.O. P.W.15, when he reached the place of occurrence, and the same is Exh.P.H., which was recorded at 7-30 a.m. On 17-3-1997.
Thereafter, the formal F.I.R. No,106 of 1997 Exh.P. H. 1 was recorded by Ass Muhammad, Head Constable P.W.10 at 7-45 a.m. For offences under sections 324/34, P.P.C. And subsequently after the death of Mir Zaheer-ul-Hassan section 302, P.P.C., was added. The distance between the place of occurrence and the police station was approximately 4 K.Ms.
4. According to the F.I.R., the complainant lived in a house namely "Dur-e-Najaf" situated at Chak Shahana Road, Jaswa nt Nagar, Khanewal, alongwith with his father. It was also stated that the complainant and his family members belonged to `Fiqa-eJaffaria'. On the fateful date at about 7- 00 a.m. Mir Zaheer-ul-Hassan, father of the complainant, was having usual morning walk at the backside of his residence and at that time the complainant and his servant Muhammad Shafqat P.W.14 were serving fodder to the cattle, who were also tethered at the backside of the house.
Suddenly two persons, who were having beards and were of wheatish colour, wearing shalwar qameez entered from the southern side through a damaged portion of wall, inside the house. Both these persons were armed with kalashnikovs and in order to cause murder fired at the father of the complainant. The complainant and his companions rushed towards the place of occurrence, the accused while firing left the house from the place of entrance. Mir Zaheer ul Hassan, father of the complainant, after having received injuries on his right jaw, neck, abdomen, right buttock and other others part of his body, fell down on the ground and became unconscious. He was immediately sent to the D.H.Q. Hospital Khanewal and as the condition of the injured was serious he was referred to Nishtar Hospital, Multan. It was also stated by the complainant that he and Muhammad Shafqat can identify the accused. The motive given in the F.I.R. Was that the father of the -complainant was done to death because of sectarian differences and intolerance.
5. After recording the statement of Syed Farrukh Burjees Haider, Advocate, Manzoor Hussain, S.H.O., sent the same to the Police Station through Ghulam Muhammad, Constable P.W.7 for formal registration of the F.I.R. Manzoor Hussain, S.H.O., on 17-3-1997 i,e, on the day of occurrence, lifted blood-stained earth from the spot vide memo. Exh.P.M. He also took into possession 20 empties of Kalashnikov P-9/1-20 vide memo. Exh.P.N. He also took into possession the blood-stained cap P-10 and spectacles P-11 vide memo. Exh.P.O and the afore-referred memos. Were signed by Azdar P.W.12, Manzoor Hussain, S.H.O. P.W.15 and one Amir Abbas, who was not produced during the trial.
Similarly, the moulds of the foot-prints of the culprits were taken into possession vide memo.
Exh.P.T. And the same was attested by Farrukh Burjees Haider and Allah Yar P.Ws. Both were not produced during trial as the earlier was murdered before commencement of trial and the latter was stated to have lost mental balance.
6. Mir Zaheer ul Hassan was taken to D.H.Q. Hospital, Khanewal, soon after the occurrence and he was medically examined on 17-3-1997 at 7-15 a.m. By Dr. Zahid Imran, who appeared as P.W.6, found nine fire-arm injuries on the person of Mir Zaheer ul Hassan consisting of entry and exit wounds. His medico-legal report is Exh.P.F. He also stated that at that time the patient was unconscious and was referred to Nishtar Hospital, Multan, after, completion of his medical examination. Mir Zaheer ul Hassan succumbed to the injuries, while he was admitted in Nishtar Hospital, Multan, on 9-4-1997. P.W.13 Dr. Raza Mohy ud Din conducted the post-mortem examination and found 11 injuries on the person of Mir Zaheer ul Hassan. Out of these injuries, injuries Nos.10 and 11 were in fact the result of surgical procedure. His postmortem report was exhibited as Exh.P.P. Dr. Muhammad Yousaf, who appeared ' as P.W.11, stated that the police had been submitting applications on 17-3-1997, 3-4-1997 and 8-4-1997 inquiring about the condition of the injured and whether he was fit to make any statement and as the injured was not in a fit condition to make any statement, the same was never recorded.
7. Appellant namely Nadeem alias Deemi was arrested by. Naeem ul Hassan Khan, D.S.P. (the then Inspector/S.H.0.), on 5-8-1997 and the time of his arrest a Kalashnikov P.I alongwith loaded magazines P-2 and P-3 were recovered and taken into possession. Both the magazines were unloaded and 56 live bullets were also taken into possession (28 bullets from each magazine) and two number plates of motorcycle bearing Registration No,4856-MNT P-3/1-2 were also recovered.
All the articles were packed in a fertilizer sack, which- Nadeem alias Deemi was holding at the time of his arrest. Those recovered articles were taken into possession vide memo. Exh.P.B. This memo.
Was attested by Naeem ul Hassan Khan, DSP P.W.4 as well as Mazhar Hussain, Head-Constable (Muharrar), who appeared as P.W.S. It is significant to note that the appellant Nadeem alias Deemi was arrested in a case F.I.R. No,198 of 1997 registered at Police Station Nawan Shaher Khanewal, for offence under sections 324, 353 and 186, P.P.C. The appellant Nadeem alias Deemi was formally arrested in this case on 6-8-1997 by P.W.16 Rab Nawaz, Inspector Range Crime.
8. P.W.16 also arrested Sajjad Tufail, appellant, in this case on 24-9-1997 when he was already arrested in a case registered at Police Station City Kabirwala vide F.I.R. No,243 of 1997 for offence under sections 392 and 34, P.P.C. However, he was sent to the Judicial Lock-up on 25-9-1997.
9. The appellants denied the charges and claimed to be tried.
10. During trial, the prosecution examined 16 witnesses. P.W.6, Dr. Zahid Imran, P.W. 11 Dr. Muhammad Yousaf and P.W.13 Dr. Raza Mohy ud Din supplied the medical evidence.
11. P.W.1 Sajjad Zaheer identified the dead body of Mir Zaheer ul Hassan, while P.W.2 Ghulam Rasool prepared site plans. Naeem ul Hassan Khan, D.S.P., P.W.4 and Rab Nawaz, Inspector Range Crime P.W.16 testified about the arrest and the recoveries effected from the accused. P.W.8 Barkat Ali, Head-Constable (Muharrar) stated about the keeping of recovered articles in the Malkhana, while P.W.9 Muhammad Ramzan, constable stated about taking the recovered articles to the Forensic Science Laboratory. P.W.10 Ass Muhammad, Head-Constable (Muharrar) stated about the registration of formal F.I.R. And about keeping the empties recovered on the date of occurrence and other articles in the Malkhana. P.W.14 Muhammad Shafqat gave the ocular account of the occurrence. However, the other eye-witness and the first informant Syed Farrukh Burjees Haider, Advocate, could not be produced as he was murdered prior to the trial. P.W.15 Manzoor Hussain, Inspector/S.H.O. And P.W.16 Rab Nawaz, Inspector Range Crime also testified the investigation of the case. The other witnesses were formal in nature.
12. On 23-5-2000 after tendering report of Chemical Examiner, Exh.P.U, reported of Serologist, Exh.P.V, reported of Forensic Science Laboratory Exh.P.W. And attested copy of F.I.R. No,89 of 2000 dated 26-4-2000 registered at Police Station Kohna Khanewal, for offences under sections 302/34, P.P.C., relating to murder of Syed Farrukh Burjees Haider, Advocate, Exh.P.X., the prosecution closed its case.
13. The statements of the appellants were recorded in accordance with section 342, Cr.P.C. Both the appellants stated that they have been falsely involved in this case due to sectarian differences and also stated that the P.Ws. Were related to the deceased. However, they refused to lead any evidence in defence or to make statements on Oath in accordance with section 340(2), Cr.P.C.
14. We have very patently heard the learned counsel for the appellants as well as the learned counsel for the State and also examined the entire record all the aspects of the case and gone through the impugned judgment.
15. The learned counsel for the appellants has raised the following points in his arguments:--
(i) that the F.I.R. Was recorded after investigation and the same was, therefore, unreliable;
(ii) that presence of Muhammad Shafqat P.W.14 at the time of occurrence was not adequately provided by the prosecution;
(iii) that identification of the assailants was not possible;
(iv) that identification parade should have been held in this case, which was not held;
(v) that the medical evidence did not support the ocular testimony;
(vi) that the recovery of weapon used in the occurrence by Nadeem alias Deemi was also not proved satisfactorily;
(vii) that the investigation of the case was not above board; and (viii)that the appellants were, in the circumstances, entitled to the benefit of doubt.
16. On the other hand, the learned counsel appearing on behalf of the State has support'' the conviction of the appellants.
". The prosecution case mainly rests upon the ocular testimony of Muhammad Shafqat P.W.14, who was given very straightforward ai.Count of the occurrence. Muhammad Shafqat P.W.14 is the natural witnesses, who admittedly, was serving the deceased for the last 15 years and, therefore, his, presence in the house at the time of occurrence cannot be denied. The occurrence took place at about 7-00 a.m. And the statement (Exh.P.H.) of Farrukh Burjees Haider, Advocate, son of the deceased was recorded at about 7-30 a.m. By P.W.15 Manzoor Hussain, S.H.O. And the name of Muhammad Shafqat is clearly mentioned in the said statement, which was the base for the formal F.I.R., Exh.P.H./1. It has been established during the cross-examination of P.W.15 Manzoor Hussain, S.H.O., that he recorded the statement of Muhammad Shafqat at the spot. We have also noticed that this P.W. Had no reason to involve the appellants falsely in the. Case. Although he was subjected to lengthy cross-examination yet nothing could be pointed out against the witness as to why he would falsely depose on Oath against the appellants. In the background of motive, a question vis-a-vis the sect of this witness was also asked and the witness replied that he was a 'Sunni' by sect.
18. Much emphasis has been laid on this .Point that even if this witness was present at the time of occurrence, he was not in a position to see the assailants. This witness has clearly stated that he.
Was serving fodder to the cattle alongwith Farrukh Burjees Haider, Advocate, while his master Mir Zaheer ul Hassan was taking his usual morning walk, when he saw the assailants coming and firing at the deceased. It is very natural that if two strangers armed with deadly weapons entered into the house, they would certainly draw the attention of the inmates of the house. During the firing, it was natural for the witness to take position for a clear vision of the assailants, who were firing at his master.
19. As far as the identification parade of the assailants is concerned, there was no need to have any identification parade of the appellants, as they had already been identified by P.W. Muhammad Shafqat and first informant Farrukh Burjees Haider. The criticism of the learned counsel for the appellants against the identification of the appellants by this P.W. Has been clearly met with during the trial. It is in the evidence that after about 17 days of the occurrence, while P.W. Muhammad Shafqat and Farrukh Burjees Haider were on their way to drop a relative of the deceased at Kabirwala, they stopped near the old Bus Stand, Kabirwala, in order to purchase fruit, they came across the assailants, who were also present at the fruit-shop and were duly identified. Thereafter, P.W. Muhammad Shafqat and Farrukh Burjees Haider made inquiry about the names of the appellants from the other people present at the spot. The learned counsel for the appellants has also objected that why the assailants were not apprehended at the spot or the matter was reported to the Kabirwala Police.
20. The conduct of the P.W. Is quite explainable. He was accompanied by Farrukh Burjees Haider, who was an Advocate by profession and was a literate person. He would not take any risk of his life at the hands of the appellants by trying to apprehend them with bare hands and it was very natural that he after identifying the assailants made inquiry about their names and once he came to know about their names, he alongwith P.W. Muhammad Shafqat reported the matter to Manzoor Hussain, S.H.O. P.W.15, who recorded their statements on 3-4-1997. Muhammad Shafqat P.W. Also identified the appellants as assailants in the Court while he was making his statement on Oath. It is natural that lasting imprints would remain in the memory of a person, who had seen the assailants.
It was not a case of the appellants that it was dark. In fact the time, manner and the place of occurrence have not been challenged at all.
21. The learned counsel for the appellants also raised objection that as to why the first informant and P.W. Muhammad Shafqat did not accompany the injured/deceased to the Hospital.
22. Firstly, it was not necessary for P.W. Muhammad Shafqat, who was a servant, to accompany the injured to the Hospital. Secondly, it has been brought on the record that the injured was taken to the Hospital in a 'Dana' by his other two sons namely Wasiq and Khurarn. Muhammad Shafqat P.W.
In his statement has stated he immediately attended the deceased after occurrence and in that process his clothes were stained with blood.
23. It is true that P.W. Muhammad Shafqat was a servant of the deceased but that does not mean that he was "an interested witness" as against the appellants. The words "Interested Witness" have been defined by the Hon'ble Supreme Court of Pakistan in a case titled Iqbal alias Bhalla and 2 others v. The State (1994 SCM R 1), as follows:-- .....Who has a motive for a falsely implicating an accused, is a partisan witness and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused."
24. The learned counsel for the appellants has also drawn our attention to certain contradictions between the statement recorded during the trial and the statement recorded during investigation vis-a-vis P.W. Muhammad Shafqat.
25. A close perusal of the statement of the P.W. (Muhammad Shafqat) shows that in fact there were no contradictions and only explanations and details of the occurrence were given during the trial, therefore, such contradictions are neither material nor of any use for the prosecution. As far as the occurrence is concerned, this P.W. Has given a very straightforward, truthful and trustworthy account, therefore, the minor contradictions can safely be ignored. Reliance is placed on the cases of Sarfraz alias Sappi and others v. The State (2000 SCM R 1758) and Mushtaq alias Shaman v. The State (PLD 1995 SC 46).
26. The learned counsel for the appellants has also laid much emphasis on the mould taken of the foot-prints of the assailants from the spot after.The occurrence.
27. P.W.16 Rab Nawaz, Inspector Range Crime, has clearly stated that the person who took the mould could not be produced as he had lost his mental balance. Even otherwise there was hardly any need of matching of mould for the reason that the assailants/appellants were identified by the eye-witnesses. The mould were taken at the time when the assailants were not known.
28. In these circumstances, we have come to the considered opinion that P.W. Muhammad Shafqat has given an absolutely truthful and trustworthy statement and there is no reason whatsoever to disbelieve him. A solitary witness of the quality of Muhammad Shafqat is to be believed, as it is quality of a witness which matters and not the quantity. Under Article 17 of the Qanun-e-Shahadat, 1984, Court can convict an accused person on testimony of a dependable sole witness. Reliance is placed on the judgment passed by the Division Bench of this Court reported as Rab Nawaz v. The State (1991 PCr.LJ 826 (DB)) and the case of Ali Ahmed alias Ahmed Mia v. The State (PLD 1962 SC 102) and Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State (1971 SCM R 659).
29. The motive as alleged in the F.I.R. Was that the deceased belonged to Shia sect and he was murdered due to sectarian intolerance. A perusal of the statement of P.W.14 Muhammad Shafqat makes it clear that Mir Zaheer ul Hassan deceased was Shia by sect and was murdered by the members of Sipha-e-Sahaba on account of sectarian differences. Both the appellants also admitted in their statements that they belonged to different sect. However, they added that they were involved in this case because of sectarian differences. The line of cross-examination also shows that there was no other motive, as question was asked about sect from P.W.14 and P.W.2, both replied that they were `Ahl-e-Sunnat'.
30. The medical evidence fully supports the prosecution version. The injuries on the person of the deceased were caused by fire-arms. A perusal of the statement of Dr. Zahid Imran P.W.6, who conducted the medical examination of the deceased clearly shows that there were differences in the dimension, distance as well as direction of injuries, which lead to the logical conclusion that the assailants were more than one and thereby supported the prosecution version.
31. Now we come to the point of F.I.R. The F.I.R. Was based on the statement of Farrukh Burjees Haider, Advocate, son of the deceased, who made his statement Exh.P.H. At the place of occurrence within a short time, when Manzoor Hussain, S.H.O. P.W.15 reached the place of occurrence after knowing about it. It has already been stated that Mir Zaheer ul Hassan was sent to the Hospital alongwith Wasiq and Khuram, his other two sons. The occurrence took place at 7-00 a.m. And at that time the presence of the first informant at his place of residence was natural. Farrukh Burjees Haider, who was an Advocate by profession was subsequently murdered and, therefore, could not appear as a witness during trial. In these circumstances the F.I.R. Is related to the extent that it set the law in motion. However, the story of the F.I.R. Is quite natural and D no exaggeration has been made in it and it contains the name of Muhammad Shafqat, who appeared as P.W.14.
32. 20 empties of Kalashnikov were recovered from the place of occurrence and were taken into possession vide memo. Exh.P.N. Ass Muhammad, Head-Constable (Muharrar) appeared as P.W 10 and stated that on 17-3-1997 i,e, the date of occurrence, Manzoor Hussain, S.H.O. P.W.14 handed over two sealed parcels pertaining to the case, one contained the blood-stained earth and the other was of empty bullets for safe custody in the Police Malkhana. This P.W. Also stated that on 14-4-1997 he handed over both these parcels intact to Salamat Ali, Head-Constable for onward transmission to the Office of the Chemical Examiner, Lahore and the Forensic Science Laboratory, Lahore. This P.W. Was not cross-examined although opportunity was given. So, the version given by this P.W.
Stands unchallenged.
33. Nadeem alias Deemi appellant was arrested on 5-8-1997 by P.W.4 Naeem ul Hassan and at the time of his arrest Kalashnikov Exh.P.l alongwith loaded magazines was recovered from him and memo. Exh.P.B was prepared and P.Ws.4 and 5 testified the recovery from Nadeem alias Deemi.
34. It is pertinent to note that Nadeem alias,Deemi appellant was arrested initially in a case F.I.R.
No,198 of 1997 registered at Police Station Nawan Shaher Kabirwala, under sections 324, 353 and 186, P.P.C. And he was formally arrested by P.W.16 in this case, on 6-8-1997. P.W.9 Muhammad Ramzan, Constable testified during trial that he took the recovered Kalashnikov alongwith two empty magazines to Forensic Science Laboratory, Lahore on 24-8-1997 and as there was some objection, he again took the aforementioned articles to the afore-referred Laboratory on 26-8-1977.
In other words the empties were taken to the Forensic Science Laboratory on 14-4-1997 while the Kalashnikov was recovered later and then the recovered Kalashnikov was taken to the said Laboratory on 26-8-1997. The report of the Forensic Science Laboratory Exh.P.W., clearly shows that the empties recovered in this case matched with the Kalashnikov recovered from Nadeem alias Deemi appellant. As the empties were sent earlier and the recovered Kalashnikov from Nadeem alias Deemi was sent afterwards and the empties matched with the recovered weapon, which cannot be said that the recovery was fake and in the circumstances the recovery corroborates the ocular account.
35. The learned counsel for the appellants has pointed out the lapses relating to the investigation of the case.
36. Suffice it to say that it was held in the case of Weram v. The State (1985 PCr.LJ 372) that "lapse on the part of Investigating Agency and prosecuting agency in conduct of a case involving double murder was not sufficient to nullify other reliable evidence on record".
37. We have found that the ocular account was confidence inspiring in this case and was fully supported and corroborated by the medical evidence, the motive and the other related circumstances of the case. It was held by a Division Bench of this Court in a case reported as Fateh Shah and 2 others v. The State (1993 PCr.LJ 1036) that if the ocular account was confidence- inspiring then without asking for corroboration from any other evidence and source, it was sufficient to convict the accused.
38. The nutshell of the above discussion is that we have come to the considered conclusion that the prosecution had proved its case beyond any shadow of doubt. There are no mitigating circumstances available in the case. Hence this appeal is dismissed and the convictions under sections 302(b)/34, P.P.C. And the sentences of death are maintained. We also maintain the amount of compensation awarded by the learned trial Court with a slight modification that in default of payment of compensation, the appellants shall suffer six months' S.I. Each.