' BASHIR A. MUJAHID, J.--- Salahuddin, Waheed Hussain Shah and Shahbaz Yousaf have assailed judgment dated 20-11-1996 passed by the learned Additional Sessions, Judge Sheikhupura whereby they were convicted in case F.I.R. No,215 dated 16-11-1993 under sections 302/324/148/149, P.P.C. Registered with Police Station Mananwala. Salah Uddin appellant was convicted under section 302, P.P.C. For causing the murder of Shahid Iqbal and sentenced to death. He was also imposed compensation of Rs,20,000 to be paid to the legal heirs of the deceased or in default thereof to further undergo 6 months' R.I and Waheed Hussain and Shahbaz Yousaf appellants were convicted under section 324/337-F(iii), P.P.C. And sentenced to ,10 years' R.I. Each under section 324, P.P.C. And fine of Rs,10,000 each and in case of default of payment of fine they were ordered to undergo 6 months' R.I. They were also- sentenced under section 337-F(iii), P.P.C. For two years' R.I and Daman to the tune of Rs,10,000 each to be paid to the legal heirs of the deceased or in default thereof to undergo 6 months' R.I. With benefit of section 382-B. Cr.P.C. While, their co-accused Kausar Zaman and Muhammad Ashraf were acquitted.
2. Briefly stated the facts of the case are that F.I.R. No,215/93 Exh.P.F was recorded at Police Station Mananwala on 16-11-1993 at 12-05 p.m. On the statement Exh.P.F of Mehdi Hasan P.W.5 with Shahbaz Ahmad A.S.I. At Adda Mananwala at 11-15 a.m. Wherein it has been stated that he is cultivator and resident of Mananwala. At 11-00 a.m. On the said date, he along with his son Shahid Iqbal were sitting in Pepsi Agency of Abrar Hussain P.W.6 where Liaquat son of Muhammad Sharif who was guest of Abrar Hussain was also present. The complainant along with his son Shahid Iqbal had just departed the shop for Adda when Salah Uddin accused armed with Pump Action .12 bore, Waheed Hussain Shah armed with Carbine .12 bore and 'Shahbaz armed with .30 bore pistol Kausar Zaman armed with Mouser and Muhammad Ashraf armed with pistol arrived there while raising Lalkara.
Salah Uddin fired at Shahid Iqbal hitting him on his left side of chest. Shahid in order to save his life entered into the shop where Salah Uddin fired second shot after chasing him hitting on left side of his abdomen who fell down and succumbed to the injuries at the. Spot. Meanwhile Waheed Hussain Shah armed with .12 bore Carbine and Shahbaz 'Yousaf armed with pistol .30 bore fired. At Abrar Hussain hitting on his left thigh and was injured. Kausar Zaman fired at Rana Liaquat Ali which also landed on his right leg. He also fell down after receiving injury. Muhammad Ashraf also fired at Yousaf Masih which landed on his right leg. The occurrence was witnessed apart from the complainant by Master Muhammad Salem, Nasir son of Saleem and Iftikhar son of Nawab.
Thereafter all the accused ran away towards the Chobara of Mushtaq while firing. About 15 days ago Mushtaq Ahmad and Zahid Hussain co-accused (P.0) had instigated the appellant at Hotel Panjtan, Sheikhupura and had conspired to take revenge of murder of Saeed from complainant party and on their instigation Shahid Iqbal had been murdered and other persons were injured.
' The motive for this occurrence was that two years' before Shahid Iqbal and other had committed murder of Saeed Ahmad son of Mushtaq Ahmad accused and they had grudge against the deceased.
3. Shabaz Ahmad A.S.I. P.W. 12 after recording the statement Exh.P.F sent the same for registration of formal F.I.R. And he undertook the investigation of the case. He dispatched the injured to hospital for medical attendance and inspected the dead body of Shahid Iqbal and prepared injury statement Exh.P.R and inquest report Exh.P.S and dispatched the same for postmortem examination through Muhammad Ashraf and Muhammad Asghar Constables and 'he himself secured the blood-stained earth from the place where dead body of Shahid Iqbal was lying vide memo.. Exh.P.H and from the place where Abrar Hussain P.W. Had received injuries vide memo. , Exh.P.J. He also took into possession 2 empties of .30 bore vide memo. Exh.P.K and one crime empty of .12 bore vide memo. Exh.P.K/1 from the place of occurrence. He recorded the statements of the prosecution witnesses on 23-11-1993. He took into possession blood-stained clothes of Abrar Hussain injured P.W. Vide memo. Exh.P.G. Thereafter the investigation of the case was taken over by S.H.0 P.W.14 who on 17-11-1993 took into possession the last worn clothes of the deceased produced before him by Muhammad Ashraf FC vide memo. Exh.P.D. On the same day he arrested all the accused. He took into possession Pump Action P.5 from Salah Uddin vide memo. Exh.P.M., Carbine from Waheed Hussain Shah vide memo. Exh.P.N and .30 bore pistol P.7 from Shahbaz Yousaf vide memo. Exh.P.O. He completed the investigation and challaned the accused to face the trial.
4. Charge was framed by the trial Court. The appellants denied the charge and clained trial.
5. During the trial prosecution examined as many as 15 witnesses to prove the guilt of the accused.
6. Medical evidence was furnished by Dr. Farooq Ahmad Kasana P.W.1 who on 16-11-1993 medically examined Abrar Hussain P.W.6 and found the following injuries on his person:-
(1) Fire-arm punctured wound 7 x 3 c.m. x going deep on outer mid of right thigh.
(2) Fire-arm punctured wound 5 x 5 c.m. x going deep inner and mid of right thigh.
(3) Fire-arm lacerated wound 6 x 3 c.m. x muscle deep inner and lower right thigh.
(4) Fire-arm lacerated wound 7 x 3 c.m. Muscle deep on right side of scrotum and penis.
(5) Fire-arm abrasion 1 x 1 c.m. On inner and lower of right thigh.
' On the same day he also medically examined Rana Liaquat Ali P.W.8 and found the following injuries on his person:-
(1) Fire-arm punctured wound 1 c.m in diameter going deep outer and Middle of right leg right tibia was found fractured.
(2) Fire-arm punctured wound 1 c.m. In diameter going deep outer and lower of right leg.
(3) Fire-arm punctured wound 1 c.m. In diameter going deep inner and lower of right leg.
(4) Fire-arm punctured wound 1 c.m. In diameter x going deep on back and mid of right leg.
' On the same day he also examined Yousaf Masih and found two fire-arm injuries on his person.
' On 17-11-1993 Dr. Iftikhar Ahmad P.W.13 conducted post-mortem examination on the dead body of Shahid Iqbal and found the following injuries:-
(1) Fire-arm punctured wound 5 x 4.5 c.m. x going deep on front of left chest 4 c.m. Below left nipple and 6 c.m outer to mid liac. Edges of the wound were inverted.
(2) Fire-arm punctured wound 3 c.m. In dia. x going deep on front and lower left chest 7 c.m. Below injury No,2 6 c.m. Outer to mid-line. Edges of the wound were inverted. Blackening of edges of injuries No,1 & 2 were present.
(3) Seven fire-arm punctured wound in an area of 7 c.m. x 6 c.m. On back of left abdomen 6 c.m.
Outer to mid-line each measuring 1 c.m. In dia x going deep. Edges were everted.
(4) Three fire-arm punctured wounds on outer of right abdomen and measuring 1 c.m. In dia x going deep in an area of 6 x 4 c.m. 14 c.m. Outer to mid line: Edges of the wound were everted.
6. The ocular account was furnished by Mehdi Hassan P.W.5 who was father of the deceased Shahid Iqbal and was eyewitness of the occurrence and he supported the version of F.I.R. And narrated the motive for the allege occurrence. Abrar Hussain P.W.6 was injured in the same occurrence. He supported the prosecution story as an eye-witness of the occurrence. He implicated all the appellants in his statement and identified the accused in the Court, Rana Liaquat Ali was examined as P.W.8. He was also injured in the same occurrence and he stated that he was guest of Abrar Hussain P.W.6 and was present in the shop on the day of occurrence and supported the prosecution story. Iftikhar Hussain P.W.9 also supported the prosecution story as an eye- witness. Dildar Hussain P.W.7 was witness of conspiracy hatched between the accused.
Muhammad Siddique A.S.I. P.W.10 had recorded the formal F.I.R. Muhammad Afzal P.W.11 attested the recovery memo. Exh.P.M whereby Pump Action was recovered from the possession of Salah Uddin appellant and also attested the recovery memos Exh.P.N and P.O from his co-accused. The remaining witnesses are of formal in nature and need not to be discussed.
7. The prosecution evidence was closed after tendering in evidence the report of Chemical Examiner Exh.P.W, report of Serologist Exh.P.X and that of Forensic Science Laboratory as Exh.P.Y.
8. Statement of the accused/appellants were recorded under section 342, Cr.P.C. Towards the end of the trial by putting them the prosecution evidence brought on record. They denied the allegation and claimed their innocence and false involvement due to enmity. They also denied the recovery of weapons of offence from their possession and Salah Uddin appellant in reply to question No,7, as to why this case against him and the P.Ws. Deposed against him, he stated as under:- ' He was not present at the time of occurrence. In fact the office of Passban (Jamaat-i-Islami) is situated at the upper storey of United Bank Limited owned by his father and Pepsi Cola shop is in front of the said Bank across the road. The office of Passban was being maintained by his brother Saeed Ahmad deceased. The Afghan Mujahiddin also used to stay there and had cordial relations with his brother Saeed Ahmad deceased. Although they had compromised with the complainant party of that case in the murder of Saeed Ahmad yet the Afghan Mujahiddin had got a grudge against the complainant party especially Shahid Iqbal deceased in their mind. The said persons who are not known to him had committed murder of Shahid Iqbal deceased and also inflicted injuries on the person of remaining P.Ws. The complainant was not present at the spot and the police after due deliberations involved them in the instant case. He was arrested by the police due to the reasons that he could not specify the name of those Afghan Mujahiddin who committed the murder of Shahid Iqbal deceased.
9. The trial culminated into conviction of the appellant as mentioned above. They have challenged their conviction and sentence through the instant Criminal Appeal No,1001 of 1996 while the trial Court has sent up Murder Reference No,53 of 1997 for confirmation of death of Salah Uddin under section 374 Cr.P.C. Both the matters are being decided by this single judgment.
10. Learned counsel for the appellants at the very outset has stated that Waheed Hussain Shah and Shahbaz Yousal appellants have been released from jail after serving out their entire sentence.
Therefore, he does not press this appeal to their extent as it has become infructuous.
11. As far as appeal of Salah Uddin is concerned, it has been argued that complainant Mehdi Hassan was not present at the spot. The F.I.R. Was recorded at the spot and presumption is that the case was registered after preliminary investigation; that the motive alleged by the prosecution is false as the murder of Saeed Ahmad, brother of Salah Uddin was patched up and the accused were acquitted. The prosecution witnesses are related inter se and their statements have not been corroborated from any other independent source. Report of Forensic Science Laboratory is in negative and sentence of death is not warranted under the law; that the statements of Abrar Hussain P.W.6 and Rana Liaquat Ali P.W.8 were recorded on 23-11-1995 with inordinate delay and they admitted the fact that during this period their relatives have been meeting them and it has also been admitted by both the witnesses in their cross-examinations that they were not 'sure that whose fire hit whom therefore, the prosecution case is doubtful and benefit of doubt be extended in favour of the present appellant and he be acquitted from the charge, or at least major penalty of death is not warranted in these circumstances.
12. Conversely the appeal has been opposed by the learned State Counsel who has supported the impugned judgment.
13. Heard. Record perused.
14. It was a day light occurrence. Police Station was only at a distance of 1 k.m. The previous enmity and involvement of the deceased in the murder of Saeed brother of Salah Uddin appellant has been admitted. The appellant was nominated accused in promptly recorded F.I.R. The appellants were known to the prosecution witnesses and there is no reason for their false implication or substitution by letting off the real culprits. Abrar Hussain P.W.6 and Rana Liaquat Ali P.W.8 were injured in the same occurrence. Their presence at the spot cannot be doubted rather it has been admitted. They implicated the appellant in their examination-in-chief and he was also identified by them in the Court. Any concession made by them in the cross-examination in favour of the accused/ appellant is of no use to the defence. Previous enmity between the complainant party and the appellant has not been denied and on the statement of the injured witnesses, false implication or substitution is not possible. The ocular account has been corroborated by the medical evidence as well as by motive and recovery of weapons of offence. The defence plea that Afghan Mujahiddin had relations with Saeed deceased who had grudge against Shahid Iqbal is afterthought and unbelievable.
15. After deep re-appraisal of evidence, we are convinced that the prosecution has proved its case against the appellants beyond any shadow of doubt and we do not find any illegality or infirmity of reasons given in the impugned judgment to be interfered with. We also do not find any mitigating circumstance for not awarding the major penalty of death.
16. Resultantly the appeal is dismissed to the extent of Salah Uddin appellant as having no force, while the appeal of Waheed Hussain Shah and Shahbaz Yousaf is dismissed as having become infructuous and not pressed by the learned counsel for the appellants. The death sentence of Salah Uddin appellant is confirmed.
' Murder Reference is answered in affirmative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.