KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,188/J of 2000 filed by Shahab Din, appellant through jail who was convicted under section 302, P.P.C. and sentenced to death vide judgment, dated 15-72000 passed by learned Judge (STA) Kasur.
Criminal Appeal No,1246 of 2000 filed by Muhammad Rasheed, complainant against the acquittal of Muhammad Hanif, Amanat Ali and Khushi Muhammad shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 6-30 a.m. on 10-9-1995 at a distance of 7-1/2 miles from Police Station Chunian, District Kasur while the matter was reported to the Police by Muhammad Rasheed, complainant through written complaint Exh.P.W.P/1 at 8-55 a.m. the same day at Noorpur Tibba and the formal F.I.R. Exh.P.W.16/1 was recorded by Noor Muhammad, Head Constable.
3. Briefly stated the facts of the case are that on 10-9-1995 Muhammad Rasheed the complainant alongwith Mukhtar Ahmad Zia and Haji Nazir Ahmad (father of the complainant) were proceedings to The engmor from their village on their respective bicycles when at 6-30 a.m. father of the complainant asked the complainant and Mukhtar Ahmad to stay on a place as he intended to meet one Bashir Ahmad Arian whose Haveli was nearby, hence the father of the complainant proceeded to the Haveli crossing the field wherein the crop of Tenda was grown and when he covered a distance of 40 Karams from the complainant, all of a sudden Shahab Din Muhammad Inayat alongwith two unknown persons all armed with deadly weapons like 222 and 7MM rifles emerged from the sugarcane field. Shahab Din and Inayat fired at the chest of the deceased as a result of which he fell down. Thereafter, the other accused fired at Nazir hitting or different parts of his body. The complainant alongwith Mukhtar Ahmad tried to apprehend the assailants but while making aerial firing accused decamped. Haji Nazir Ahmad father of the complainant succumbed to his injuries at the spot. Conspiracy was alleged against Muhammad Sharif, Jalal and Muhammad Hanif.
The motive alleged was that some three years prior to the occurrence two brothers of Shahab Din and Sharif, namely Sharaf Din and Sher Muhammad alongwith their Bhabi Mst. Zubaida Bibi wen encountered with the police whereby all the three were killed while the police officio namely Manzoor was also killed in the encounter. Sharaf Din was P.O. The accuse. suspected father of the complainant to be the man who pointed out the said offender Shark Din and supplied information to police an since then the accused had been extending threats to the deceased who through goo offices of the respectable of the village has attempted to clarify the position but they were not satisfied.
4. Investigation of the case was taken over by Naseem Ahmad Bhatti, Inspector (P.W.17). He also with police officials and complainant proceeded to the place of occurrence where the dead body of Nazir Ahmad was lying in the field of Fazal where the crop of Tenda was present. Inquest Report Exh.P.W.17/1,Injurystatement Exh.P.W./17/2 were prepared by him. He prepared the rough site plan of the place of occurrence Exh. P . W . 17/4. Blood-stained earth was taken into possession vide memo. Exh.PA. Supplementary statement of the complainant was also recorded and on 15-10-1995, Amanat, Khushi Muhammad and Hanif were arrested. The investigation was then taken over by Rab Nawaz, Inspector P.W.18. He arrested Shahab Din on 25-12-1995. Shahab Din while on physical remand led to the recovery of 222 rifle which was taken into possession vide memo. Exh.PC. On 28- 10-1995 accused Amanat got recovered rifle 7MM which was secured vide memo. Exh.P.W.13/1. On the same day, Khushi Muhammad got recovered 222 rifle which was taken into possession vide memo. Exh.P.W.18/7. The accused Inayat who died later on was never arrested and proceedings under sections 87/88, Cr.P.C. were taken against him. After completion of the investigation, Muhammad Hanif, Amanat Ali, Khushi Muhammad and Shahab Din were found guilty and challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 18 witnesses in all, then the learned D.D.A. tendered in evidence report of Chemical Examiner Exh.P.18/8, report of the Serologist Exh. PF, report of the Forensic Science Laboratory Exh.P.18/9 and closed the prosecution case, thereafter, Hameed-ud-Din Qazi, D.S.P. Incharge, Finger Print Bureau was examined as C.W. 1 and after that statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence and false implication. However, after conclusion of the trial except Shahab Din, the present appellant, all the remaining accused were acquitted.
6. Learned counsel for the convict appellant after having read the entire prosecution evidence and other material available on record submits that it was a blind murder having not been witnessed by any one. Further submits that the two eyewitnesses produced by the prosecution are son and son-in-law of the deceased. Also submits that there are material contradictions in the statements of the witnesses. Learned counsel argues that the F.I.R. was recorded after due deliberation and consultation and the plea of alibi taken by the appellant stands proved.. Next submits that though recovery of weapon of offence had taken place but crime empty having not been recovered, it does not advance' the prosecution case. Concluding his submissions, learned counsel submits that the prosecution has failed to prove its case against the appellant and he is entitled to clean acquittal.
7. On the other hand learned counsel for the Mate assisted by learned counsel for the complainant submits that it was appellant who had the motive to kill the deceased, occurrence had taken place at 6-30 a.m. while the matter was reported to the police at 8-55 a.m. on the same day at Noor Pur Tiba and the formal F.I.R. was registered at 9-15 a.m. though the distance between the place of occurrence and police station is 7-1/2 miles, appellant armed with tire-arm alongwith co-accused who were also armed with deadly weapons fired at the deceased, there are twelve injuries on the person of the deceased, the unknown persons mentioned in the F.I.R. were Khushi Muhammad and Amanat who had been acquitted by the trial Court, Muhammad Hanif accused of abetment has also been acquitted alongwth two accused namely Sharaf Din and Jalal having been found to be innocent and that the prosecution has fully proved its case against the appellant and the acquitted respondents.
8. We have heard the learned counsel for the parties and have gone through the record specially the statements of Muhammad Rasheed, complainant, P.W.9 and Mukhtar Ahmad Zia, P.W.10 with their able assistance. There was not an iota of enmity between the parties. so there was no question of false implication. The occurrence took place at 6-30 a.m. in the month of September when it was a broad daylight. The appellant was known to the complainant party. There was no question of mistaken enmity. The doctor (P.W.7) who conducted the postmortem examination at 3 p.m. on 10-9-1995 on the dead body of the deceased gave the duration between death and the post-mortem as 9 to 10 hours which fits in with the time of occurrence as stated by the prosecution. A bullet was also recovered from the dead body of the deceased which shows that the rifle was used in this case. The number of accused coincided with the number of injuries on the person of the deceased. Mere relationship of eye-witnesses namely Muhammad Rasheed and Mukhtar Ahmad Zia with the deceased is no criteria to discard their evidence.
9. The plea of alibi raised by the appellant Shahab Din was to the effect that he was arrested on 5- 9-1995 in case F.I.R. No,584 under section 13 of Arms Ordinance XX of 1965 while Inayat co-accused of the appellant, (now dead) was arrested in case F.I.R. No,586 under Arms Ordinance registered with same Police Station i,e, Tibbi District Lahore and remained in judicial lockup from 6-9-1995 to 20-9-1995 was found to be false by the learned trial Court while giving the detailed reasons and we also hold the same view, for the reasons that the thumb-impressions were tampered with as was found by the Incharge Finger Print Bureau examined as C. W.1 Bald. statement of the appellant that he had enmity With the complainant party without any proof is of no avail to the appellant. The appellant even neither produced the F.I.R. registered against him under the Arms Ordinance with Police Station Tibbi nor summoned the Moharrir or the Investigating Officer of the said case. The certified copy of judicial remand order passed by the Magistrate P.W.2 was not brought on record.
10. So far as the motive is concerned that is mentioned in the F.I.R. and was also reiterated by the complainant before the trial Court. The same reads as under:-- "that in the year 1992, police encounter took place in which Sharif Din, Sher Muhammad and Zubaida wife of Sharif Din were killed. Sharif Din and Sher Muhammad were the brothers of Shahab Din and Muhammad Sharif accused. Sharif Din was P.O. and the accused suspected that the deceased not only help the police but also informed the presence of Sharif Din. The accused also' extended threats to the deceased and the deceased tried his level best to satisfy accused but they were not satisfied."
After having read the motive we are of the view that except the reasons stated by the complainant, there was no other reason for the murder of Haji Nazir deceased. He had no enmity with anybody.
Not a single suggestion was put to any eye-witness to discard the motive as alleged by the prosecution.
After having believed the motive, presence of eye-witnesses at the spot and the ocular account duly corroborated by the medical evidence, we are fully satisfied in our mind that it was the appellant who alongwith Inayat (since dead) committed the murder of the deceased Haji Nazir.
There is no mitigating circumstance to award the lesser penalty. It is settled law that when there is no mitigating circumstance, normal penalty of death is to be awarded. Reliance is placed on 1998 SCM R 862. Resultantly the appeal filed by the convict appellant is dismissed.
Conviction and sentence against him recorded by the learned trial Court is maintained. His death sentence is confirmed.
So far as Criminal Appeal No,1246 of 2000 filed by complainant against the acquittal of Muhammad Hanif, Amanat Ali, and Khushi Muhammad respondents is concerned, the reasoning giving by the learned trial Court do not suffer from any legal infirmity rather are in accordance with principles laid down by the superior Courts for dispensation of criminal justice. We, therefore, find ourselves unable to interfere with the well-reasoned judgment so far as it relates to acquittal of the respondents. The same is dismissed.