' MUHAMMAD NAWAZ ABBASI, J.-These two Criminal Petitions No,293-L of 2002 and 378-L of 2002 under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 arising out of a common judgment passed by a learned Division Bench of Lahore High Court, Lahore, in Criminal Appeals Nos.15-J of 1996 and 824 of 1995, are disposed of through this single judgment.
2. Abdul Rashid alias Sheda Mota petitioner in Criminal Petition No,293-L of 2002 and Muhammad Rafiq alias Billa in Criminal Petition No,378-L of 2002 were sent to face the trial before Special Court established under the Suppression of Terrorist Activities Act, 1975, Gujranwala Division, Gujranwala for the charge under section 302/34, P.P.C. For committing the murder of Muhammad Ashiq and Ijaz Ahmed.
3. The trial Court in two separate cases registered against the petitioners vide F.I.R. No, 281 of 1993 dated 20-9-1993 at Police Station Peoples Colony and at Police Station, Sabzi Mandi, Gujranwala respectively conducted the joint trial. The first occurrence pertaining to F.I.R. No,281 of 1993 took place on 20-9-1993 at about 5-45 p.m. At Abid Sweet Shop near Approach Road, Nigar Phatak whereas the second occurrence of F.I.R. No,428 of 1993 had taken place at 6 p.m. On the same day in the Main Bazar, Asghar Colony, Gujranwala.
4. The prosecution story as unfolded in the complaint lodged by Din Muhammad (P.W.20) in the first case is that on the fateful day he alongwith Liaqat Ali, his brother-in-law went to see Muhammad Ashiq at his shop known as Abid Sweet Shop, situated on the Approach Road near Nigar Phatak, Gujranwala, and when they were at a distance of 15/20 paces from the shop, Abdul Rashid alias Sheda Mota and Muhammad Rafiq alias Billa arrived there on a Honda motorbike.
Abdul Rashid alias Sheda Mota and Muhammad Ashiq whereas Muhammad Rafiq, while carrying .222 bore rifle was sitting on the rear seat. Abdul Rashid stopped motorbike in front of shop of Muhammad Ashiq and Muhammad Rafiq after alighting from the motorbike opened firing at Muhammad Ashiq. The accused after committing the crime left the place of occurrence on the same motorbike. The occurrence was also witnessed by Muhammad Ramzan and Adil Ali.
Muhammad Ashiq was immediately taken to the hospital in injured condition for medical aid but he succumbed to the injuries while in his way to the hospital.
5. The facts of the second case as narrated in the F.I.R. Lodged by Muhammad Farooq (P.W.18) at Police Station Sabzi Mandi, Gujranwala on 20-9-1993 are that Muhammad Riaz, his real brother, was running a Video Cassettes shop in Main Bazar, Asghar Colony, Gujranwala jointly with Ijaz Ahmed, his another brother, who was also employed as a Light Inspector in Municipal Committee, Gujranwala. On the fateful day at about 6 p.m. The complainant and his above named two brothers were present in the Video shop when, Abdul Rashid alias Sheda Mota armed with .222 bore rifle and Muhammad Rafiq alias Billa readied there on a motorbike. Muhammad Rafiq started hurling abuses and Abdul Rashid alias Sheda Mota opened firing with .222 bore rifle at Ijaz Ahmed who having sustained injuries on different parts of the body, lost his breath and the accused after committing the crime, escaped from the place of occurrence on the same motorbike.
6. The motive behind the occurrence was that the accused and deceased picked up a quarrel with each other 2/3 days prior to the occurrence at the Video shop of Ijaz Alimed and Muhammad Ashiq, who was also present at the shop supported Ijaz Ahmed, who refused to fulfil the demand of accused of providing nude video cassettes to them. The accused and the two deceased after exchange of altercation grappled with each other and the accused having felt insulted left the Video shop by extending threats of life to Ijaz Ahmed and Muhammad Ashiq.
7. The investigation in the first case (F.I.R. 281 of 1993) was conducted by Hamid Ahmed Alvi, Inspector (P.W.22) who after recording statement of Din Muhammad first informant (P.W.20) in the hospital prepared inquest report and injury statement of Muhammad Ashiq deceased. The Inspector then dispatched the dead body to the mortuary for post-mortem examination and recorded the statement of Liaqat Ali. Dr. Ashiq Hussain (P.W.-1) during the .Autopsy of the dead body of Muhammad Ashiq deceased, traced the following injuries on his person:-- ' "Injuries
(1) A lacerated fire-arm wound of entry 3 x 4 c.m. Into 3 x 4 c.m. Into deep going on right side of abdomen 9 c.m. Away from umbilicus.
(2) A lacerated fire-arm wound of exit 1 x 1 c.m. Into deep going on outer side of right lumber region.
(3) A lacerated fire-arm wound of entry 1/2 c.m. Into deep going front of left chest upper part 8 c.m.
Above left nipple.
(4) A lacerated fire-arm wound of exit 1-1/2 c.m. x 1/2 c.m. Into deep going on back of chest upper part mid line."
' The doctor was of the opinion that injuries Nos.1 to 4 were sufficient to cause death in the ordinary course of nature, individually and collectively. {{PAGE BLUR}}
8. The Investigating Officer, secured piece of gunny heutditiald with blood in a sealed parcel and later took into possesSigth the leStlwacn clothes of the deceased and also got the site pLigi,repint4 bYdslitsa0d Ahmed Bhatti, Draftsman (P.W.-6). The iinspectokirott4e4ered,4b041 Rashid alias Sheda Mora proclaimed offender being not traceable and subsequently on his arrest, reotiVell4at his ifilitinbeV/itOtaibike which was used in the occurrencer."Iditheihmad 5-12-1993 got recovered'
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9. Intihefsecond case (F.I.R. No,428 of 1993) -tegistered atopplice Station Sabzi Gujranwala, Iqbal Hussain, 54; 4,,tiwitiile reaching at the place of occurrence prepared the -injun SikatemeInti,and inquest report of Ijaz Ahmed deceased andr,fsnwkwdeAck body lothe teary for,,egtopsy. Dr. Ashiq Hussain VAA. 1) haying condmckedi die poldtatanem 'ibei dead, ,body, traced AigiAlolowICTininKies,ifficpe Person of decessed: 2E L3ntrrisxa , 979\ii Injuries , tp.So lobluna nuilfirio 5riT bunnisituM Arn,r!" P,EW l'Pr",;tir' "Jr!Tr.,11/) flOi/W2 noi: (1) "A lacerated,fgefarntAveimd of entry, margins wertanInVetted 5 etsitiintte gip, going on lowen part-, pkthebpizisia ofsthe 'O . "19d ' right tam th lost; otahe Amer pad of AheVONna leatiEdurain matte/wasp:owing mit.Tt.Tiw btmistrm odw zuK),%1Iiig -D.4(2) Lacerated fire-firm wound of fexitddx tti c h rira a deep get% on tails -bithbfEktcifieft cheatailgon.-frixtb wfl b3inab #TBS zl')A /2 can: creep going on #TBE AfAVY'rTr, (3), Lacerated fire-arni wound` of entry 1/1 x back of right chest 5 c.m. From mid line. :.,4;,::. 1st ,,,All i'' fire-arm wound of exit Z x - c.Pt.. Mni.Deep going ..,..Vi:,, Ilr, P uit,g Sfir.S. q ids ti AO of abdomen 7 c.m. From , taigdkainv., leAngjaiirtiteiefite-ertitiVatinitiof entry'-40/ iiidlhatim. Into deep bon 5igt.W61101P.t013,4iilitt iditiilder 6 c.Riti.VOiletipififfight, shoulder. .0, r%)14. eAr.Tirtl, .. f r9P: 'z. 0'4 9ZZD ifinimii- I IA i_Pacfr44/d *turn woundlogfist 4 Arfig- 4/Akot.4nto,deep going insnisto. On Infirl4Witi knf the right Wiloof thefi a.'// ' mil 4,
(7) Uieratid`fiSii-arin wound of exit 1-1/2 c.m. x 1 c.m: into deep 'i going oii!Ilitier side of right 'tipper arm 11 c.m. Above right !,mr, 5...y- elbow.. ', 57r rat' 4-. {{PAGE BLUR}} ' In the opinion of doctor, the above injuries caused with fire-arm were sufficient to cause death in the ordinary course of nature.
10. Abdul Hameed Bajwa (P.W.25) S.H.O., Police Station, Sabzi Mandi, Gujranwala, during the spot inspection prepared rough sketch of the place of occurrence and secured blood-stained earth from the spot through a sealed parcel. The Investigating Officer then took into possession the last- worn clothes of the deceased and got prepared the site plan of the place of occurrence by Masood Ahmad Bhatti, Draftsman (P.W.6). The accused after the occurrence absconded, therefore, the Investigating Officer got him declared proclaimed offender.
11. The learned trial Judge keeping in view consistency of facts and the manner in which two murders were committed in the course of same transaction with an interval of 15 minutes for the same motive and by use of same weapons framed joint charge against the petitioners under section 302/34 for the two murders. The prosecution in this joint trial, produced 25 witnesses in all including Dr. Ashiq Hussain who conducted post-mortem on the person of both the deceased.
Muhammad Farooq (P.W.18) and Muhammad Amin (P.W .19) were examined as eyewitnesses in the F.I.R. No,428 of 1993 registered at Police Station Sabzi Mandi, Gujranwala, whereas Din Muhammad (P.W.20) and Adil Ali (P.W.21) were examined as eye-witnesses in the case of murder of Muhammad Ashiq. The challan in murder case registered at Police Station Peoples Colony, Gujranwala, was submitted by Hameed Ahmed Alvi, Inspector, (P.W.22) and in the case registered at Police Station Sabzi Mandi, Gujranwala, it was submitted by Abdul Hameed Bajwa, Inspector (P.W.25). The prosecution also examined a number of witnesses who remained associated with the investigation of two cases.
12. The accused in their statements under section 342, Cr.P.C. Denied the charge and pleaded false implication. Abdul Rashid alias Sheda Mota petitioner in reply to Question No,12 made the following answer:-- ' "I have falsely been implicated in this 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 dealings in Narcotic and a Criminal Case No,277 of 1993 under Articles 3-4/79, H.O. 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 this complaint being furnished by me to the police and consequently they falsely roped me in this case. The eye-witnesses are closely related to both the deceased and the complainant and the witnesses of these cases belong to same clan and brotherhood. In fact the assailants were unknown and the occurrence remained unwitnessed and the S.H.Os. Of the concerned both Police Stations after due deliberations and consultation with the complainant party falsely involved me in these cases."
13. Muhammad Rafiq alias Billa in reply to Question No,13 made the following answer:-- ' "I have been falsely implicated in this case because the deceased Ejaz and Ashiq as well as Liaqat Ali P.W. Deal in contrabands of Narcotics and I informed the concerned police so many times about their narcotics contrabands and in Criminal Case No,277 of 1993 under Articles 3-4/4/79, Police Station Sabzi Mandi. The complainant party got annoyed due to this complaint being furnishing spy information and they roped me in this case falsely. The eye-witnesses are closely related to the deceased and the complainant of the cases and belongs to the same clan. In fact the assailants were unknown and the occurrence remained unwitnessed and S.H.Os. Of the concerned both Police Stations after due deliberations and consultation with the complainant party falsely involved me in these cases."
14. The learned trial Judge having found both the petitioners guilty of the charge of double murder, convicted them under sections 302/34, P.P.C. And awarded each one of them the sentence of death on each count for the murder of Muhammad Ashiq and Ijaz Ahmed. The petitioners were also directed to pay Rs,50,000 each as compensation to the legal heirs of the each deceased and in default of the payment of compensation to undergo R.I. For two years each on each count vide judgment dated 9-4-1995. The conviction and sentence awarded to the petitioners was maintained by a learned Division Bench of Lahore High Court in appeals vide the impugned judgment with the modification that in default of payment of compensation, the petitioners would undergo S.I. For six months each on each count.
15. The learned counsel representing Muhammad Rafiq alias Billa, petitioner in Criminal Petition 378-L of 2002, has contended that none of the eye-witness examined by the prosecution was present at the spot and that the occurrences in both the cases had taken place at the shops of the deceased which were situated in the busy bazar but no independent person from the adjoining shops was produced which would create a serious doubt about the correctness of the prosecution story against the petitioners in the two cases. Learned counsel argued that the detail probe of the evidence would reveal that the case in the first occurrence was registered after the registration of case in the second occurrence on the instructions of S.H.O., Police Station Sabzi Mandi to the S.H.O., Police Station Peoples Colony and in consequence thereto the claim of presence of Din Muhammad and Adil Ali at the spot would be negated. The learned counsel next -argued that in the site plan relating to the place of occurrence of murder of Ijaz Ahmad .Which was prepared on the pointation of eye-witnesses Abdul Rashid alias Sheda Mota was alone shown as accused and thus the presence and participation of Muhammad Rafiq alias Billa in the occurrence would be belied by the site plan. Lastly it was argued by the learned counsel that .222 bore licensed rifle recovered from Muhammad Rafique was not connected with the crime and there was no other independent evidence on record to establish the role of firing assigned to the petitioners in the two occurrences and consequently the extreme penalty of death would not be legal and sentence of life imprisonment in both the cases would sufficiently meet the ends of justice.
16. The learned counsel while questioning the legality of joint trial has contended that the two occurrences were entirely independent and the mere fact that two murders were committed on the same day with a short interval of 15 minutes at different places in the same vicinity situated in the different police stations by the petitioners jointly for common grievance, would not suggest that two occurrences would be the part of the same transaction. The learned counsel submitted that undoubtedly the case in the first occurrence was triable by the Special Court established under Suppression of Terrorist Activities, 1975 whereas in the second occurrence the offence would not be included in the Schedule to the Suppression of Terrorist Activities Act, 1975 to be tried by the Special Court established under the said Act, therefore, the joint trial in the two cases of independent jurisdiction, was illegal.
17. Learned counsel representing Abdul Rashid alias Sheda Mota, petitioner in Criminal Petition 293- L of 2002 while pointing out the minor discrepancies and contradictions in the statements of eye- witnesses contended that their evidence was not confidence-inspiring and truthful. The motive of quarrel between the accused and deceased at the shop of Ijaz Ahmed 2/3 days prior to the occurrence, was not proved by any independent evidence and in any case it would not appeal to mind that such a petty quarrel would bring such a serious result. Learned counsel submitted that there was absolutely no independent evidence, therefore, the conviction on the capital charge on the basis of sole evidence of interested witnesses would not be sustainable. The learned counsel argued that the circumstances of the case would sufficiently suggest that the S.H.Os. Of the two police stations in consultation with each other withheld the independent witnesses and only close relatives of the two deceased were cited as eye-witnesses of the occurrence. In nutshell he argued that it would not be safe to maintain the conviction and sentence without independent corroboration on the capital charge.
18. This is correct that the occurrence in the murder case of Muhammad Ashiq took place at 5-45 p.m. And F.I.R. Was lodged at 7-30 p.m. At Police Station Peoples Colony, Gujranwala on the statement made by Din Muhammad , father of the deceased whereas the second occurrence in which Ijaz Ahmed was murdered, took place at 6 p.m. And F.I.R. Was registered at 6-30 p.m. At Police Station Sabzi Mandi, Gujranwala but the petitioners were nominated in both the cases and it was mentioned in the F.I.R. Registered at Police Station Sabzi Mandi, Gujranwala that the petitioners after committing the murder of Muhammad Ashiq at his shop also murdered Ijaz Ahmed and thus the registration of case of the first occurrence after registration of the case of the second occurrence would not be a circumstance to create doubt about the presence of Din Muhammad and Adil Ali at the shop of Muhammad Ashiq at the time of occurrence. The residences of these witnesses were situated at a short distance from the shop of Muhammad Ashiq and they used to visit his shop quite frequently, therefore, their presence at the spot was not unexpected or unnatural. The accused admittedly had no other grievance against the deceased except the incident of exchange of hot words and grappling happened 2/3 days earlier at the Video shop of Ijaz Ahmed deceased. The occurrence in both the cases took place in the bright daylight and witnesses had no personal reason to substitute the petitioners with the real culprits and make a false statement to involve the petitioners in the case of capital punishment. The defence despite lengthy cross-examination of the above named two eye-witnesses has not been able to discredit their testimony on any material point. The witnesses have narrated the occurrence in the manner it happened without any exaggeration, improvement or material discrepancy to suggest a slight doubt in favour of accused.
19. In the second occurrence pertaining to the murder of Ijaz Ahmed, the witnesses namely Muhammad Farooq (P.W.18) and Muhammad Amin (P.W.19) have furnished the ocular account.
Muhammad Farooq is real brother of the deceased Ijaz Ahmed and was present at the Video shop at the time of quarrel between the deceased and accused prior to the present occurrence, therefore, he had direct knowledge of the incident of motive and was also present at the shop of his brother at the time of fateful occurrence. The presence of Muhammad Amin (P.W.19) at the shop of deceased at the relevant time was also established beyond doubt. They were quite natural witnesses and despite being closely related to Ijaz Ahmed, deceased, were found entirely independent. They had no personal reason or enmity against the petitioners to substitute them for the real culprits at the instance of the police. The slight delay of about one hour in lodging the report of the occurrence and registration of case relating to the murder of Muhammad Ashiq at the police station in the extraordinary situation in the area on account of taking place of two murders at the same time in the same vicinity would not be material and fatal to the prosecution. The fact relating to the committing of murder of Muhammad Ashiq at his shop by the petitioners shortly before the murder of Ijaz Ahmed is found mentioned in the F.I.R. Registered at Police Station Sabzi Mandl to the second occurrence, therefore, the registration of case in the first occurrence after taking place of the second occurrence, would be of no significance.
20. The next contention of the learned counsel that in absence of recovery of any empty from the place of occurrence it could not be ascertained that which weapon was used in the two occurrences and who was responsible for firing at the two deceased and consequently, the doubt created qua the manner of taking place of the occurrence, would suggest the innocence of petitioners, would be without any foundation. The eye-witnesses of the two occurrences have specifically described the role of each accused in each occurrence, therefore, the non-recovery of empty from the place of murder would not undo the direct evidence of natural witnesses of the occurrence.
21. We having scrutinized the testimony of the eye-witnesses, have found it entirely independent, confidence-inspiring and of unimpeachable character, which would also be confirmed by the evidence of motive and medical: There can be no departure to the rule that if the direct evidence is credible, truthful and trustworthy and it is deemed sufficient to establish the charge, the corroboration from any other source is not required. The rule of corroboration in the criminal administration of justice is not a mandatory rule to be observed in each case rather it being a rule of abundant caution, is applied to satisfy the mind and ensure the truthfulness of the direct evidence.
22. The learned counsel has also questioned the legality of the joint trial and disposal of the two separate cases through a consolidated judgment. The joint trial of more than one cases in which the offence is committed by the accused jointly in the same transaction is permissible in F law if the essential condition of continuity of intention and action are present. In the case in hand the accused with the continuity of intention and action for the same motive committed two murders with short interval in the same transaction. This may be pointed out that same transaction is essentially one in which series of acts must be committed together in a manner to form a single transaction and if the essential element of continuity of action and proximity of time is available to connect the series of acts together so as to form the part of the same transaction, the two offences of same kind committed in same series by the same accused, can be tried jointly. In the joint trial of the petitioners in the two cases registered at different police stations, the learned trial Judge having framed the charge jointly, recorded the evidence of the witnesses of two cases separately and provided them full opportunity of cross-examination. The petitioners having the common grievance against the deceased while acting in furtherance of their common intention, committed their murder one after the other at two different places in the same sequence by using the same weapons and thus the commonality of acts committed by the accused would form part of the same transaction and the joint trial would not be suffering from any legal defect and consequently, the disposal of two separate cases through common judgment at the joint trial was not illegal. The learned counsel for the petitioners has not been able to point out the prejudice if any caused to the petitioners by joint trial of two cases and disposal of the same through the common judgment. We having examined the question relating to jurisdiction of the trial Court find it without any substance.
The two murders were committed by the petitioners in the same transaction by using the same weapon and case in the first occurrence admittedly was triable by the Court established under Suppression of Terrorist Activities Act, 1997, therefore, the trial of second case forming part of same transaction in which the same weapon was used, would also be triable by the Special Court.
23. While considering the question of quantum of sentence, we find that the petitioners committed murder of two innocent persons in a desperate manner without any background of enmity except the grudge on account of their quarrel with the deceased two days prior to the occurrence on a very petty matter. The petitioners With the intention to kill both the deceased at the same time, attacked at them at their place of business with short interval and notwithstanding that what role was played by them in the two occurrences, they would be squally responsible for taking lives of the two deceased and in both the cases no mitigating circumstance was available in favour of any one of them for lesser punishment. We therefore, while maintaining the conviction and sentences awarded to the petitioners for two murders, dismiss these petitions. Leave is refused.