1. ' BASHIR A. MUJAHID, J.---Muhammad Ishaque son of Nazar Hussain and Shahid Imran alias Ali Imran have challenged judgment dated 28-6-2001 passed by learned Judge, Special Court under S.T.A., 1997 Gujranwala, whereby they were convicted under section 302(b)/34, P.P.C. For causing murder of Haji Muhammad Akram. Muhammad Ishaque was sentenced to death and Shahid Imran alias Ali, Imran was sentenced to imprisonment for life. They were also convicted under section 392, P.P.C. And sentenced to 10 years' R.I. Each and were imposed fine of Rs,20,000 each, in default, thereof, to undergo one year R.I. Each. Both the sentences were ordered to run concurrently.
2. Benefit of section 382-B, Cr.P.C., was also extended in his favour.
3. ' Through the same judgment Murtaza Ali and Muhammad Yousaf accused were acquitted of the charge. The brief facts of the prosecution case are that F.I.R. No,49 dated 20-4-2000 Exh.P.A. Was recorded at Police Station Qila Kalarwala, District Sialkot on 20-4-2000 at 9-20 p.m. On the application Exh.P.A./1 of Haji Anayat Ullah, P.W.1, about the occurrence which took place at 7-15 p.m.
4. On the same day in the vicinity of Village Saukanwind at a distance of 7 miles from the police station, alleging that on 20-4-2000 he left his bricks kiln for his village alongwith Muhammad Riaz and Muhammad Ismail, P. Ws. On his tractor/trolley and when they were at a distance of 3/4 kms from the village Abadi, his brother Haji Muhammad Akram, deceased, overtook them on his motorcycle and was going ahead, when two persons one with covered face with white cloth of short height armed with pistol while the other was tall covered face with black cloth was armed with 7MM rifle signaled Haji Muhammad Akram to stop his motorcycle, who did not, on which, the man with black veil fired from his rifle 7MM hitting Haji Muhammad Akram on his back, who lost his control on the motocycle and fell on the ground. The accused person went near him and the other person i,e,, of short height searched the pocket of Haji Muhammad Akram and fled away after removing his belonging. The complainant took his brother in injured condition to the hospital in his tractor-trolley but he succumbed to the injuries on the way, so the dead body was brought to his house.
5. ' Mazhar Hussain, S.-I., P.W.14 received the application Exh.P.A. At Bus Stop Saukanwind from the complainant where he had arrived after receiving information of incident and sent the same to the Police Station through Khalid Hussain, F.C. For registration of formal F.I.R. And he himself arrived in the house of the complainant and took the dead body of Haji Muhammad Akram into possession, prepared his injury statement through memo. Exh.P.P., inquest report Exh.P.Q., and dispatched the dead body for post-mortem examination through Abdul Majid, F.C. He recorded the supplementary statement of Haji Anayat Ullah and inspected the place of occurrence where he collected the blood-stained earth through memo. Exh.P.E. And took the empty of rifle 7MM from the place of occurrence through memo. Exh.P.F. He also took into possession motorcycle GTC818 of the deceased from the spot through memo. Exh.P.G. After post-mortem examination, Abdul Majid, FC produced the last-worn.Clothes of the deceased which were taken into possession by him on 21-4- 2000. On 2-6-2000, he arrested Shahid Imran and on 5-6-2000 Muhammad Ishaque in this case.
6. On 9-6-2000, Muhammad Ishaque while in police custody led to the recovery of Rs,2,000 P.9/1-2, Identity Card of Haji Muhammad Akram P.7 and A/c Book P8 of deceased Haji Muhammad Akram which were taken into possession through memo. Exh.P.J. On his pointation rifle 7MM P.4, bag P.5, live bullets P.6/1-7 were also taken into possession through memo. Exh.P.H. Muhammad Ishaque also led to the recovery of Motorcycle No,2653/GTC from the shop of Dr. Talib Hussain which was taken into possession through memo. Exh.P.K. He completed the investigation and submitted the challan in the trial Court.
7. ' The trial Court framed the charge which was denied by the accused and they claimed the trial.
8. ' During the trial the prosecution examined as many as 17 witnesses to prove the guilt of the accused.
9. ' The medical evidence was furnished by Dr. Nawaz Bajwa, P.W.4 who on 21-4-2000 at 8 a.m.
10. Conducted the post-mortem examination on the dead body of Haji Muhammad Akram and found the following injuries on his person:-- (1-A) Fire-arm would 1 x 1 c.m. Margins inverted back of right renal area just below the last rib 5 c.m.
11. From back bone. It was the wound of entry.
12. (1-B) Fire-arm wound 3 x 2 c.m. Margins everted omentum lying outside the wound, front of leg hypochondrium 6 c.m. From midline. It was wound of exit.
(2) Multiple abrasions front of forehead.
(3) Multiple abrasions from right arm.
(4) Abrasion 3 x 2 c.m. Front of right knee-joint.
13. ' In the opinion of the doctor, the death was due to haemorrhage and shock and injury to liver, resulting from injury No,1 which was sufficient to cause death in ordinary course of nature.
14. ' The ocular account was furnished by Haji Anayat Ullah, P.W.1, who was complainant of the case and he supported the version of the F.I.R. He further stated that after two hours of the occurrence he alongwith police officer were going to the place of occurrence and on the way Rana Muhammad Aslam, P.W.2 and Muhammad Nawaz, P.W.3 met him and they stated in presence of the S.H.O. That they had seen Muhammad Ishaque and Shahid Imran appellant near the place of occurrence and they stopped the motorcycle in the wheat field; Muhammad Ishaque accused was armed with rifle 7MM covered his face with a piece of black cloth while Shahid Imran accused used white cloth to cover his face and was armed with pistol; Muhammad Ishaque fired from his rifle at Haji Muhammad Akram while Shahid Imran searched his pockets. They also stated that Muhammad Yousaf and Murtaza Ali accused were with the appellants; After the occurrence they ran away from the spot towards the village Abadi. Rana Muhammad Aslam, P.W.2 and Muhammad Nawaz. P.W.3 also supported the complainant stating that they had seen the accused at the place of occurrence. Muhammad Ishaque was armed with rifle 7MM while Shahid Imran accused was armed with pistol. They were joined by Murtaza Ali and Yousaf acquitted co-accused. Muhammad Ishaque had muffled his face with black cloth while Shahid Imran veiled his face with white cloth and they stood on the road side under a 'Sheesham' tree. A motorcycle was going towards the village Saukanwind and when passed by the appellants they signaled him to stop but he did not on which Muhammad Ishaque fired at the motorcyclist who fell on the ground and Shahid Imran accused searched his pocket and both the accused fled away from the spot on motorcycle towards village Saukanwind. They also stated that they met Haji Anayat Ullah, P.W.1 subsequently and narrated the story to him. Iftikhar Ahmad Patwari, P.W.5 had prepared the site plan Exh.P.C. Of the place of occurrence. Abdul Majid, F.C. P.W.6 had escorted the dead body of Haji Muhammad Akram deceased for postmortem examination and also produced the last worn clothes of the deceased before the Investigating Officer which were taken into possession through memo. Exh.P.D.
15. Which was attested by this witness. Tariq Mehmood, H.C. P.W.7 kept the sealed parcel containing rifle 7MM in Police Maalkhana in safe custody deposited with him by Mazhar Hussain, S.H.O. On 9-6- 2000 and he handed over those parcels to Muhammad Younis, F.C., P.W.12 on 13-6-2000 to deposit in the office of Forensic Science Laboratory. Haji Mubarak Ali,. P.W.8 had attested the recovery memos. Of blood-stained earth Exh.P.E. And of empty 7MM Exh.P.F. Taken into possession by the Investigating Officer from the spot. He also attested the recovery memo. Exh.P.H. Whereby rifle 7MM P.4, seven live bullets P6/1-7 and the bag P.5 were taken into possession on the pointation of Muhammad Ishaque. He also attested recovery memo. Exh.P.J., whereby Identity Card P.7, Account Book P.8 and cash P.9/1-2' were taken into possession by the Investigating Officer Muhammad Ishaque appellant also led to the recovery of motorcycle No,GTC/2653 with registration book from the shop of Dr. Talib Hussain. Muhammad Akram, A.S.-I. P.W.9 had recorded the formal F.I.R.
16. Exh.P.A./1 on the application Exh.P.A. Hafiz Muhammad Aslam, P.W.10 was witness of Wajtakar and he stated that on 20-4-2000 after Maghrab prayers he alongwith Muhammad Siddiq were going to fields to answer the call of nature in the area of village Saukanwind and they saw both the appellants Muhammad Ishaque and Shahid Imran going on motorcycle towards the village Abadi and on the same day at 9-30 p.m. He came to know that Haji Muhammad Akram has been killed due to commission of dacoity. Muhammad Yamin, F.C. P.W.11 had deposited the two sealed parcels containing crime empty of 7MM and of blood-stained earth at the respective destinations.
17. Muhammad Younas, P.W.12 on 13-6-2000 delivered the parcel containing 7MM rifle at the office of Forensic Science Laboratory. Zafar Iqbal, A.S.-I. P.W.13 had arrested the accused/appellants on 19- 5-2000 while he was on patrol duty alongwith other police officials near Judicial Colony, Gujranwala and at the time of arrest Muhammad Ishaque was found in possession of pistol 30 bore alongwith 7 live bullets while Shahid Imran was in possession of pistol and a case vide F.I.R.
18. No,302 dated 16-5-2000 was registered at Police Station Sabzi Mandi, Gujranwala Exh.P.O., against them in which both the appellants were sent in judicial lock-up wherefrom they were arrested in the instant case.
19. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.T. And of Forensic Science Laboratory Exh.P.V. And that of Serologist Exh.P.U.
20. ' The statements of the appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Muhammad Ishaque, appellant in reply to question No,15 as to why the case against him and the P.Ws. Deposed against him, replied as under:-- "The P.Ws. Are inimical to me and they have falsely involved me in this case. It was a blind murder and the P.Ws. In connivance with the local police concocted a false version and implicated me in this case on the following day of the occurrence. Police of Police Station Qila Kallarwala arrested me from my house one month prior to 19-5-2000, the date of my formal arrest and I was kept in an illegal confinement. I am innocent. False and fabricated evidence has been produced against me."
21. ' Shahid Imran, appellant to the similar question No,11 replied as under:-- "One month prior to 19-5-2000 I was waiting for a telephone call in P.C.O. At Gujranwala where a Police Constable came and tried to take my turn. I told him that I was waiting before him upon which he felt ill and quarrelled with me and forcibly took me to Police Station Sabzi Mandi. I was given beating by the police and illegally confined there till 19-5-2000. Thereafter, the Police of Police Station Sabzi Mandi, Gujranwala, showed my formal arrest in connivance with S.H.O., Police Station Qila Kallarwala on account of his personal grudge. Police of Police Station Sabzi Mandi handed me over to S.H.O., Qila Kallarwala who challaned me in this case."
22. ' Muhammad Ishaque appellant examined Saeed Ahmad as D.W.1 who stated that on the day of occurrence while he was present at his shop a passerby informed him that a person is lying in injured condition on Pasrur-Qila Kallarwala Road at a distance of 1 km from the village Abadi, on which, he went towards that side on motorcycle and identified that Haji Muhammad Akram was lying dead and his motorcycle was lying ,near the dead body. He returned to the village and informed the family of Haji Muhammad Akram.
23. ' The trial culminated into conviction of the appellant as mentioned above. Hence this appeal.
24. ' Muhammad Ishaque has filed Criminal Appeal No,1022 of 2001 while Shahid Imran alias Ali Imran has filed Criminal Appeal No,1050 of 2001 against their conviction and sentence. Muhammad Ishaque has also filed Criminal Appeal No,1023 of 2001 against his conviction. The trial Court has sent up Murder Reference No,50-T of 2001 for 'confirmation of death sentence of Muhammad Ishaque, therefore, all the matters are being decided by this single judgment.
25. ' Learned counsel for the appellants has argued that the accused were not nominated in the F.I.R. It was night unwitnessed occurrence and two important eye-witnesses Muhammad Riaz son of Ghulam Qadir and Muhammad Isma eel son of Nazir Hussain mentioned in the F.I.R. Have not been examined by the prosecution; Rana Muhammad Aslam, P.W.2 and Muhammad Nawaz, P.W.3 were subsequently introduced and therefore, cannot be relied upon; that the recovery of Rs,2,000 alleged looted amount from the deceased and Identity Card alongwith Note Book have been planted; that the presence of witnesses and the empty allegedly taken into possession from the spot by the Investigating Officer have not been shown in the site plan. The conduct of the so-called eye-witnesses namely, Rana Muhammad Aslam and Muhammad Nawaz was unnatural and unbelievable. Likewise, the statement of Haji Muhammad Aslam, who claims himself to be witness of Wajtakkar is not correct and confidence-inspiriting, thus the prosecution case against the appellant is doubtful and they are entitled for acquittal.
26. ' Conversely, the appeal has been opposed by the learned counsel for the complainant and for the State.
27. ' Heard. Record perused.
28. The occurrence took place at 7-15 p.m. While application Exh.P.A. Was received by the S.-I./S.H.O. At 8-45 p.m., on the same day and formal F.I.R. Was also recorded at the Police Station at 9-20 p.m., which is at a distance of 7 miles from the place of occurrence. It shows that the F.I.R. Was promptly recorded narrating the story in natural manner. It is correct that no accused was nominated in the F.I.R., but the description of both the accused, who were visible to the complainant, has been given in F.I.R. According to the complainant a man of middle height had muffled his face with white colour cloth was armed with pistol while tall man had muffled his face with black cloth and was armed with rifle 7MM. The tall man fired from his rifle at Haji Muhammad Akram, deceased. The complainant took his brother in injured condition to the hospital, who succumbed to the injuries on the way and dead body was brought back home. Thereafter, he moved an application Exh.P.A. And got registered the case without nominating any accused. On the arrival of the Investigating Officer, who was being taken towards the place of occurrence. Rana Muhammad Aslam, P.W.1, and Muhammad Nawaz, P.W.2 met them and got their statements recorded disclosing the fact that they had identified both the appellants at the spot alongwith other acquitted co-accused. Non- examination of Muhammad Riaz and Muhammad Ismaeel during the trial by the complainant is of no consequence as Muhammad Ishaque, accused, is cousin of Muhammad Riaz and real brother of Muhammad Ismaeel and both of them were given up having been won over. No adverse inference can also be drawn against the prosecution as their evidence was in only support of the complainant who had not nominated the accused in F.I.R. Rana Muhammad Aslam, P.W.2 and Muhammad Nawaz, P.W.3 are independent and impartial witnesses. They have no previous enmity against the accused for their false implication. Their statements under section 161, Cr.P.C. Were recorded on the same day. Rana Muhammad Aslam has his agricultural land near the place of occurrence and his presence in his land at the relevant time alongwith Muhammad Nawaz has been sufficiently explained which is natural and believable. The testimony of these two witnesses has been further corroborated by Haji Muhammad Aslam, P.W.10, who had seen the accused near the place of occurrence just after the commission of crime. They stood the test of lengthy cross- examination and nothing has been brought on record to discard their testimony. It depends on each person how he reacts to an incident at particular time. They thought it proper not to raise hue and cry and kept mum to avoid any kind of complication and after coming to know about the victim of dacoity as Haji Muhammad Akram they told the complainant. Their conduct cannot be taken as unnatural or unusual in prevailing circumstances of the society as the people do not come forward to depose against the criminals.
29. ' The important aspect of the case is that the crime empty of 7MM was taken into possession from the spot by the Investigation Officer through Exh.P.F. And the recovery memo. Was attested by Haji Mubarik Ali, P.W.8, and the sealed parcel was kept in Police Mall-Khana for safe custody on 21-4- 2000. The parcel was deposited in the office of Forensic Science Laboratory on 10-5-2000.
30. Muhammad Ishaque, appellant was arrested on 5-6-2000 in the instant case, when he was already in judicial lock-up in case F.I.R. No,302 registered at Police Station Sabzi Mandi, Gujranwala under sections 399/401, P.P.C. (Exh.l'.O.), wherein he was arrested on 19-5-2000. After his arrest he led to the recovery of rifle from his house and its sealed parcel was received in the office of Forensic Science Laboratory on 13-6-2000 after a period of more than month of receiving the empty, it tallied having fired from the said rifle got recovered by Muhammad Ishaque, appellant.
31. The positive report of Forensic Science Laboratory Exh.P.V. Also supports the prosecution case against Muhammad Ishaque appellant.
32. ' The ocular account furnished by Rana Muhammad Aslam, P.W.1 Muhammad Naw az, P.W.2 and Haji Muhammad Aslam, P.W.10 has been fully corroborated by the recovery of weapon of offence from Muhammad Ishaque, appellant. It has further been corroborated by the recovery of Identity Card, looted amount of Rs,2,000 and Note Book belonging to Haji Muhammad Akram, deceased from his possession. Muhammad Ishaque, appellant is resident of the same village where the occurrence took place and also related to the deceased and the complainant. Therefore, the complainant has no reason for his false implication. Saeed Ahmad, D.W.1 never joined the investigation, therefore, his statement is of no use to the accused. The appellants failed to examine Muhammad Ismail or Riaz in their defence if they were innocent. They never objected to the investigation or moved the higher police officials.
33. ' Argument of the learned counsel for appellant that three days after the occurrence snuffer dogs were brought in order to trace out the culprits till then the accused were not known to the complainant party has no basis as according to the complainant Haji Anayat Ullah detective dogs were deployed in order to locate the hides of the accused person Muhammad Ishaque appellant himself has stated in his statement under section 342, Cr.P.C. That he was involved next day after the occurrence.
34. ' The learned counsel for the appellant has also laid much stress on the point that the names and the location of the P. Ws. And the accused has not been mentioned in the site plan, which was prepared on 26-4-2000 six days after the occurrence, which shows that the accused were not known till then and the witnesses were also introduced subsequently . This contention does not adversely affect the prosecution case. According to the cases reported in PLJ 1996 Criminal Cases Quetta 527 and 1998 SCM R 1823, the site plan cannot contradict the ocular account and it is also not substantive piece of evidence.
35. ' We also find that no question regarding non-recovery of the empty from the spot or tampering with the sealed parcel has been put to the Investigating Officer or to the witnesses who attested the recovery memo. And also to Muhammad Yameen, F.C. P.W.11, who delivered the parcel of empty in Police Mallkhana. And Tariq Mahmood, Head Constable, P.W.7, or Muhammad Younas, P.W.12 who deposited the same in the office of Forensic Science Laboratory.
36. ' Resultantly, after deep appraisal of the evidence we find that the prosecution case has been established against Muhammad Ishaque, appellant, beyond any shadow of doubt and find no reason to interfere with the conviction recorded against him by the trial Court or the sentence awarded against him. So, his Criminal Appeal No,1022 of 2001 is dismissed. His death sentence is confirmed.
37. ' As far as the case of Shahid Imran alias Ali Imran is concerned, no recovery has been effected from him, although it was alleged that he had searched out the pocket of the deceased and took away valuables from the pocket of Haji Muhammad Akram, but nothing was recovered from his possession. He has also not been attributed any injury having caused to the deceased and the same prosecution evidence has not been relied upon qua co-accused Murtaza Ali and Muhammad Yousaf, who were acquitted by the trial Court. Hence for safer administration of criminal justice we also extend benefit of doubt in his favour. Therefore, his appeal is allowed.
38. Conviction and sentence is set aside and he is acquitted of the charge. He be released forthwith if not required to be detained in any other case.
39. ' Criminal Appeal No,1023 of 2001 is dismissed having no force.
40. ' Murder Reference No,50-T of 2001 qua Muhammad Ishaque is answered in affirmative.