' RUSTAM ALI MALIK, J.--- Through this judgment we intend to dispose of Criminal Appeal No,3-J of 1999, Criminal Appeal No,109/J of 1998 and also Murder Reference No,344 of 1998, arising out of judgment, dated 5-10-1998 passed by learned Additional Sessions Judge, Toba Tek Singh.
2. In this case the formal F.I.R. Exh.P.E./1 was registered on 24-2-1997 at 9-20 a.m. In Police Station City Gojra, District Toba Tek Singh under section 302/34, P.P.C. On the basis of statement Exh.P.E. Of Bashir Ahmed complainant, which was recorded by Mushtaq Hussain, S.-I. In his statement Exh.P.E., Bashir Ahmed complainant had stated that he is an ex-employee of police and Army and that on the day of occurrence i,e, on 24-2-1997 around 7-30 a.m. He as well as his son Touqeer Ahmed and Waqar Ahmed and also Muhammad Mushtaq P.W. Were standing near Habib Bank Gojra, Master Cold General Store, adjacent Chowk Ghulam Gojra and were talking to each other while his son Mubashir Ahmed was returning to their house after 'having bath in the Hammam. When his son Mubashir Ahmed reached near the heap of chaff, suddenly from the side of Kot Ghulam Muhammad, Motorcycle No,9866/TSA arrived and on which Muhammad Khalid armed with gun .12 bore and Iftikhar alias Teddi armed with revolver were sitting which was being driven by Iftikhar alias Teddi. They stopped the motorcycle and raised a Lalkara that Mubashir Ahmed be not allowed to escape and that he be taught a lesson for the previous fight. Within the view of the complainant and his companions, Muhammad Khalid accused fired with the gun .12 bore at his son Mubashir Ahmed which hit on his right rib, on the front of chest. Then Khalid accused fired the second shot which hit Mubashir Ahmed on his right upper arm. Thereafter Iftikhar alias Teddi accused fired at Mubashir Ahmed but the shot fired by him hit the wall and his son fell down on the ground. Thereafter both the accused fled away on the motorcycle while raising Lalkaras and firing in the air. Mubashir Ahmed was taken to Civil Hospital, Gojra but after reaching there he succumbed to the injuries.
3. In the F.I.R. It was also stated that two years prior to this occurrence there had taken place a quarrel between Mubashir Ahmed and Khalid, etc. And on account of the said grievance, in order to avenge their insult, the accused had attacked and committed Qatl-e-Amd of Mubashir Ahmed deceased.
4. The statement of the complainant had been recorded by P.W.8 Mushtaq Ahmed, S.-I. On 24-2- 1997. After the completion of the investigation the challan was submitted in the Court. The learned Additional Sessions Judge, Toba Tek Singh formally 'charged the accused Khalid and Iftikhar Hussain accused on 14-9-1993 under section 302, P.P.C. Read with section 34, P.P.C. Both of them pleaded not guilty and the prosecution was thus asked to produce its evidence.
5. In this case the prosecution has examined as many as 8 witnesses. Of them, P.W.8 is Mushtaq Hussain, S.-I., who on 24-2-1997 while posted as S.-I. At Police Station City Gojra was present at Kutchery Chowk, Gojra when Bashir Ahmed complainant appeared before him and made before him the statement Exh.P.E., which was sent by him through a constable to Police Station City Gojra for registration of the formal F.I.R. Thereafter, he proceeded to the place of occurrence, recorded the statements of the P.Ws. Under section 161, Cr.P.C. Collected blood-stained earth and also prepared rough site plan of the place of occurrence. Thereafter he proceeded to Eye-cum-General Hospital, Gojra and after reaching there he inspected the dead body of Mubashir Ahmed deceased lying there in the premises of the hospital and prepared injury statement Exh.P.A. And also the inquest report Exh.P.B. Thereafter he sent the dead body of.The deceased under the escort of constable for autopsy. On 14-3-1997, he arrested Iftikhar alias Teddi accused from Mehdi Mohallah, Gojra. He obtained physical remand of the accused on 15-3-1997. On 17-3-1997, Muhammad Khalid accused while in custody made a disclosure and then led to the recovery of .12 bore gun P.6 from his house situated in Chhajjuke Basti, alongwith two live cartridges P.7/2. On 28-3-1997, Iftikhar alias Teddi accused made a disclosure and then led to the recovery of revolver .32 bore P.5 and live bullets P.8/1-4 from the room of his house situated in Garh Mohallah, Gojra. After the completion of the investigation, P.W.8 submitted the challan in this case.
6. P.W.1 is Dr. Bashir Ahmed, Medical Officer, who on 24-2-1997 had conducted post-mortem examination on the dead body of Mubashir Ahmed deceased and had found as many as seven injuries on his person. Three metallic pellets were recovered from the front of right chest just below the skin. In the opinion of doctor, the cause of death was haemorrhage and shock due to all the injuries to various organs. All the injuries were ante-mortem and were caused by fire-arm weapon and were sufficient to cause death in ordinary course of nature. Approximate duration between injuries and death was 30 minutes and between death and post-mortem was 8 hours. Exh.P.C. Is the carbon copy of the postmortem report while Exh.P.C./1 is the sketch of injuries.
7. P.W.2 Muhammad Ashraf Draftsman drafted site plans Exhs.P.D. And P.D./1 in the scale of one inch equal to 40 feet.
8. The eye-witnesses account in this case is furnished by P.W.5 Bashir Ahmed complainant, who is the father of the deceased and also by Waqar Ahmed P.W.7, who is the brother of the deceased.
9. P.W.5 Bashir Ahmed complainant also deposed about the motive. He stated that the motive for this occurrence was that 1-1/2 years prior to the present occurrence a fight had taken place between Mubashir Ahmed deceased and Khalid accused and as a result thereof Falak Sher had lodged a criminal case against him i,e, the complainant Mubashir Ahmed, Touqeer Ahmed deceased and Waqar Ahmed P.Ws. And also against Iqrar Ahmed the son of the complainant. In the said case Muhammad Khalid accused was the injured P.W. However, in the said case lodged by Falak Sher they were acquitted by the Court.
10. P.W.6 is Zaman Khan who on 28-3-1997 had witnessed the recovery of revolver .32 bore (P.5) on the pointation of Iftikhar alias Teddi accused. He had also signed the recovery memo. Exh.P.J., as an attesting witness.
11. On 19-9-1998 the learned Prosecutor tendered in evidence report of Chemical Examiner as Exh.P.K. And the report of the Serologist as Exh.P.L. He gave up the remaining P.Ws. As unnecessary and closed the case for the prosecution. However, on 1-10-1998, he tendered in- evidence attested copy of judgment Exh.P.M. Passed in case F.I.R. No:65 registered on 10-3-1994 under sections 324/ 440/148/149, P.P.C. In Police Station City Gojra and then closed the prosecution case.
12. After the conclusion of the prosecution evidence, the statements of the accused under section 342, Cr.P.C. Were recorded. In answer to the question as to why this case against him and why the P.Ws. Have deposed against him, Khalid accused replied as following:-- "The case was lodged against me out of suspicion. Bashir Ahmed and Waqar Ahmed P.Ws. Were not present at the place of occurrence when the alleged occurrence took place as they had gone to Gujranwala City for contracting the engagement of Mubashir Ahmed deceased. Bashir Ahmed and Waqar Ahmed P.Ws. Came back to Gojra City after getting the information about this occurrence. Bashir Ahmed complainant in connivance with Mushtaq Hussain, Sub-Inspector, the Investigating Officer of this case, concocted a false story. The F.I.R. In this case was registered on the following day of the occurrence and it was ante-dated by Mushtaq Hussain, Sub-Inspector, the Investigating Officer. I was arrested by Mushtaq Hussain, S.-I. On 25-2-1997. Waqar Ahmed P.W. Is son of Bashir Ahmed P.W. They being related to Mubashir Ahmed deceased have deposed falsely against me out of suspicion."
13. In answer to the same question Iftikhar alias Teddi accused replied as follows:-- "I have been involved in this case due to suspicion. I had no animus against Bashir Ahmed complainant or Mubashir Ahmed deceased. I do not know motorcycle driving; I am not having any motorcycle. I was Naib-Qasid in Government High School in Chak No,157/G.B. On 25-2-1997 while I was taking post of the school to aforementioned High School, and when the bus left for Gojra City, I was arrested by the police and was kept in police station lock-up till 28-3-1997. I have no relation with Khalid accused nor he is my friend. Bashir Ahmed complainant is father of Waqar Ahmed P.W.
Mubashir Ahmed deceased was son of Bashir Ahmed complainant. The remaining private prosecution witnesses are friends of Bashir Ahmed complainant. The witnesses have deposed falsely against me."
14. None of the accused appeared in the witness-box to make statement on oath under section 340(2), Cr.P.C. Nor any of them has produced any evidence in defence.
15. On the conclusion of the trial, the learned Additional Sessions Judge convicted Khalid and Iftikhar alias Teddi accused under section 302(b), P.P.C. Read with section 34, P.P.C. Khalid accused/appellant was senterced to death and was also directed to pay a fine of Rs,20,000 or in case of default to undergo R.I. For two years. He was also directed to pay an amount of Rs,20,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Mubashir Ahmed deceased and in case of default to undergo six months' S.I. Iftikhar Ahmed was sentenced to life imprisonment and a fine of Rs,20,000. It was directed that in case of default in payment of fine he will undergo R.I. For two years. He was also directed to pay an amount of Rs,20,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in case of default to undergo 6 months' S.I. It was directed by the learned trial Court that the amount of fine, if recovered, shall be paid to the legal heirs of Mubashir Ahmed deceased.
16. Learned counsel for Khalid appellant has argued that there is a conflict in the medical evidence and the ocular account as according to the eye-witnesses Muhammad Khalid accused appellant after raising Lalkara had fired with shot gun hitting Mubashir Ahmed deceased on the right side of his chest. Then the said accused/appellant had fired a second shot at the deceased hitting him on his right humerous and in. Consequence of which Mubashir Ahmed had fallen down. He has pointed out that according to the post-mortem report there were as many as seven injuries on the person of the deceased and that injuries Nos.5, 6 and 7 are not attributed to any one. He has argued that it remains a mystery as to who had caused injuries Nos.5, 6 and 7 to the deceased.
Concerning injuries Nos.1 to 4 he has argued that although injury No,1 was entry wound, injury No,2 was its exit. He has asserted that post-mortem report and the statement of the doctor who had conducted the post-mortem examination i,e, P.W.1, do not corroborate the ocular account in its material particulars. He has argued that P.W.5 is the father while P.W.7 is the brother of the deceased and both of whom are interested witnesses and, cannot be relied upon to record conviction on the capital charge. He has also argued that the gun P.6 allegedly recovered from Khalid accused was not sent to the F.S.L. For comparison with the crime-empty, if any. He has argued that it seems that crime-empty was not collected at all from the place of occurrence. He has referred to the defence version of Khalid accused and has argued that Bashir Ahmed and Waqar Ahmed P. Ws. Were not present at the time of occurrence and that actually they were away to Gujranwala in connection with the engagement of Mubashir Ahmed deceased when this occurrence had taken place and that they had come back to Gojra City only after receiving the information about this occurrence. He has argued that Bashir Ahmed complainant in connivance with Mushtaq Hussain, S.-I./Investigating Officer had concocted a false story about the occurrence and that the F.I.R. In this case was registered on the next day after the occurrence but it was antedated by Mushtaq Hussain, S.-I. He has argued that Khalid accused/appellant had been in fact arrested on 25-2-1997 and that Waqar Ahmad P.W. Is the son of Bashir Ahmed complainant and both of them had deposed falsely against the accused with ulterior motives. He has argued that the assistance of motive in this case was not at all proved as the statement of P.W.5 in that respect is not corroborated. He has argued that the prosecution has been unable to prove its case against Khalid accused/appellant beyond reasonable doubt and that the prosecution evidence in this case is full of contradictions and inconsistencies which do not inspire confidence 'and as such Khalid accused/appellant is entitled to be acquitted.
17. The learned counsel for Iftikhar alias Teddi appellant has argued that in fact Iftikhar alias Teddi had no concern with the occurrence and that he has been involved in this case only on account of suspicion. He has argued that Iftikhar accused had no animus against the complainant or the deceased. He has further argued that Iftikhar accused did not know as how to drive the motorcycle nor he was having a motorcycle and he is merely a Naib-Qasid in Government High School Chak No,127/G.B. And that he was arrested on 25-2-1997 and was kept in police lock-up till 28-3-1997 illegally. He has argued that Iftikhar accused has no relation whatsoever with Khalid accused/appellant nor he is his friend and that even according to the prosecution story the shot allegedly fired by him had hit the wall and not the deceased and as such the prosecution has been unable to establish that he had the common intention with his co-accused i,e, Khalid appellant and as such the conviction recorded against him on the charge under section 302/34, P.P.C. Is liable to be set aside.
18. From the other side, the learned counsel for the State has supported the judgment of the learned trial Court and has asserted that there is sufficient evidence on record to warrant conviction and that there is no justification for interference with the well-reasoned judgment of the learned trial Court.
19. We have carefully considered the arguments advanced from both sides.
20. So far as Khalid appellant is concerned, he is clearly named in A the F.I.R. And it is clearly stated that he was armed with a gun .12 bore; at the time of occurrence and had fired two shots at Mubashir Ahmed deceased and as a result of which he had fallen down and had later on expired in the hospital. According to statement of P.W.1 the injuries on the person of the deceased had been caused by fire-arm weapon. While witnessing an occurrence of this nature the eye-witnesses cannot be expected to be able to notice as to,which of the pellets was hitting which part of the body of the victim. Discrepancy, if any, in this respect is not of such a nature as to strike down the prosecution story from its very foundation. According to' the ocular account, Khalid accused/appellant was armed with a .12 bore gun and had fired with the same at the deceased and had caused injuries to him. The occurrence had taken place on 24-2-1997 around 7-30 a.m.
Whereas the F.I.R. Was lodged at 9-15 a.m. On the same day. The statement of the Medical Officer that the post-mortem examination on the dead body of the deceased was delayed because Irfan and Waqar Ahmed who .Had identified the dead body of the deceased had asked him to conduct the post-mortem examination on the arrival of their father, who had gone to Gujranwala City, can be considered only a concession given by the Medical Officer to the accused. It was the duty of the Medical Officer to conduct the postmortem examination with promptitude and he could not postpone it on the request of the person who had identified the dead body at the time of post- mortem examination. There is nothing on record to indicate that F.I.R. Had been ante-dated by P.W.8 Mushtaq Hussain. It is not understandable as to why P.W.5 Bashir Ahmed who is the father of the deceased Would like to substitute Khalid accused/appellant for the actual culprits. Both the eye-witnesses Bashir Ahmed and Waqar Ahmed cannot be considered as chance witnesses. The testimony of P.W.5 and P.W.7 which otherwise :nspiring confidence cannot be excluded from consideration merely on account of their relationship with the deceased. Khalid accused/appellant had also got recovered the weapon of offence i,e, gun .12 bore P.6 and also the live cartridges P.7/1- 2 from the Baithak of his house on 17-3-1997, after making a disclosure in that respect. The existence of motive is fully established from the statement of P.W.5 and also from the copy of the judgment Exh.P.M. Passed in case F.I.R. No,65 dated 10-3-1994 under sections 324/440/148/149, P.P,C.
Since the deceased, the complainant and others who were accused in the said case had been acquitted by the Magistrate Section 30, Gojra on 28-9-1996, the accused party could have the motive against the deceased to avenge the earlier incident and in which members of the accused party had been injured.
21. The prosecution in this case has fully established the charge under section 302(b), P.P.C. Against Khalid appellant and he has been thus rightly convicted by the learned trial Court.
22. So far as Iftikhar appellant is concerned, according to the prosecution story he was present at the place of occurrence armed with revolver at the time of occurrence and had fired a shot with the same at the deceased but the shot fired by him had hit the wall. As such, no injury on the person of the deceased is attributed to him. Had he the common intention with his co-accused i,e, Khalid to cause Qatl-e-Amd of the deceased, he could have fired the second shot and there was nothing that could have prevented him from doing so. Since the prosecution has failed to prove that Iftikhar alias Teddi was having common intention with Khalid accused/appellant, therefore, he could not be convicted on the charge under section 302/34, P.P.C. Thus, the conviction recorded against him is liable to set aside.
23. In view of what has been stated above the appeal filed by Khalid accused/appellant (Criminal Appeal No,34 of 1999) is dismissed and the conviction recorded against him by the learned trial Court on the charge under section 302(b), P.P.C. Is upheld and the sentence of death awarded to him by the learned trial Court is confirmed. However, the sentence of fine of Rs,20,000 is converted into compensation under section 544-A, Cr.P.C. Khalid appellant will thus pay a total amount of Rs,40,000 as compensation under section 544-A, Cr.P.C. To the legal 'heirs of the deceased and in case of default will suffer S.I. For six months.
24. Criminal appeal filed by Iftikhar alias Teddi (Criminal Appeal No,109/J of 1998) is however, accepted. The conviction recorded by the learned trial Court and the sentence awarded to him in this case by the learned trial Court is set aside and by extending to him the benefit of doubt, we acquit him of the charge under section 302/34, P.P.C. If not required in connection with any other case, Iftikhar alias Teddi appellant be set at liberty forthwith.
25. Murder Reference (No,344 of 1998) sent by the learned trial Court for confirmation of sentence of death awarded to Khalid accused/appellant is answered in the affirmative.