IJAZ AHMAD CHAUDHARY, J.---This criminal appeal has been directed against the judgment dated 16-12-2000, passed by Special Judge, Suppression of Terrorist Activities, Faisalabad, by which he has convicted the appellants Muhammad Rasheed, Muhammad Arif and Muhammad Saleem under section 302(b), P.P.C. For the murder of Muhammad Arshad and has sentenced each of them to death with the direction for payment of Rs.50,000 each to the legal heirs of the deceased and in case of default in payment of compensation, they were directed to undergo six months' S.I.
However, Muhammad Sadiq was acquitted.
2. Muhammad Akhtar P.W.1 got recorded his statement Exh.P.A. Under section 154, Cr.P.C., which was recorded by Ata-ur-Rehman's, S.-I. /S. H. O., P.W.12, at the spot on 1-1-1998 at 2-30 p.m. On the basis of which formal F.I.R. Exh.P.A./1 was recorded at 2-55 p.m. On- the same day by Muhammad Nasim Muharrar P.W.9, at Police Station Sattiana, District Faisalabad for an occurrence, which had taken place at 1-30 p.m. In the grocery shop of one Allah Ditta in Chak No.30/G.B. Situate at the distance of four miles from police station. After registration of the F.I.R. Blood-stained earth was taken into possession vide memo. Exh.P.C. And 23 crime-empties of 223 bore rifle, 11 crime-empties of 222 bore rifle and two empties of 7 m.m. Rifle were taken into possession vide memo. Exh.P.B.
Muhammad Rasheed appellant was arrested on 15-2-1998 and on his pointation on 1-3-1998 222 bore rifle was taken into possession but according to the Forensic Science Laboratory Exh.P.M. It was poor in mechanical condition, hence the recovery of empties of 222 rifle C-1 to C-11 were not compared as it was not possible for accidental fire and no test empty of respective bore could be prepared for comparison, hence no opinion was expressed. Similarly, 7 m.m. Rifle was recovered from Muhammad Saleem on 7-8-1998, when he was arrested but the same was not sent to the Forensic Science Laboratory for its opinion. Nothing was recovered from Muhammad Arif appellant, who appeared before P.W.12, Investigating Officer on arrested on the same date
3. Brief facts as narrated by Muhammad Akhtar Hussain P.W.1 are that at 1-30 p.m. On the day of occurrence he alongwith Muhammad Saleem (given up P.W.) and P.W.2, Sajjad Hussain had gone to mosque for saying Zohar prayers and when they reached near the shop of Allah Ditta Muhammad Arshad deceased was seen while entering in the shop in running condition and he was being followed by Muhammad Arif armed with rifle 223 bore, Muhammad Rasheed armed with rifle 222 and Muhammad Saleem armed with rifle 7 m.m., who were raising Lalkara. They followed Muhammad Arshad and fired straight at Muhammad Arshad and Muhammad Sadiq stood outside the shop while firing. The complainant and witnesses did not go near the deceased due to fear and they entered into shop when the appellants and their co-accused left the place of occurrence.
Muhammad Arshad was found dead due to injuries received as a result of fire shots.
4. The motive of occurrence has been stated that four months ago Maqsood Ahmed, Tayazad brother of Arif etc., was murdered, in which father of the complainant and his three brothers were arrested and were in jail in that murder case, therefore, Muhammad Arif, Muhammad Rasheed, Muhammad Sadiq and Muhammad Saleem according to the complainant in consultation of each other had murdered Muhammad Arshad deceased.
5. After conclusion of investigation, the report was submitted under section 173, Cr.P.C. Muhammad Arif was found innocent and was placed in Column 2. Charge was framed against the appellants and their co-- accused, which was denied by them and then claimed to be tried. Prosecution in order to prove the guilt of the appellants and 'their acquitted accused produced 14 P.Ws. The ocular account consists of statements of Muhammad Akhtar and Sajjad Hussain P.W.1 and P.W.2. The investigation had been conducted by Ata-ur-Rehman's, S.-I./ P.W.12 and Zafar Abbas, P.W.11. The post--mortem examination was conducted by Dr. Javed Iqbal P.W.8. Other evidence is of formal nature. After completion of prosecution evidence accused in their statements under section 342, Cr.P.C. Denied the allegation. On a question :o Muhammad Rasheed "why this case against you and why the P. Ws. Have deposed against you?" He replied that "the case is false. The complainant has falsely implicated me and my alleged co-accused. Some unknown person killed Muhammad Arshad deceased. The complainant concocted a false story and falsely implicated me and alleged co-accused in connivance with the police. The alleged eye-witnesses Muhammad Akhtar, Sajjad and Saleem were not present at the place of occurrence at the time of occurrence and they had not seen the said occurrence. P.Ws. Have made false statements because of being related to Muhammad Arshad deceased and because of inimical to me and my co-accused". Similarly other accused also denied their presence at the spot and participation in the occurrence. After the completion of trial/impugned judgment has been passed, which is being assailed through this appeal.
6. Learned counsel for the appellants contends that so far as the involvement of Arif appellant is concerned, he was found innocent by the police and nothing was recovered from him, thus, his case is at par with the case of Muhammad Sadiq, his brother and he is also entitled to acquittal. It is further contended that enmity between Muhammad Arif and complainant party is established, hence without corroboration of any independent piece of evidence to ocular account there are not sufficient reasons for upholding his conviction. It is further contended that Allah Ditta in whose shop the occurrence had taken place, was neither joined in the investigation nor was produced by the prosecution of the trial, hence the ocular account consisting of the statements. Of interested witnesses is not sufficient and the best piece of evidence .Has been withheld by the prosecution, which causes serious doubt in the prosecution case. It is further contended that P.W.1 and P.W.2 have taken the false stand that neither Allah Ditta nor any other person of locality had witnessed the occurrence and if they had not seen the occurrence it would have been an unseen occurrence.
It is further contended that recovery effected from Muhammad Rasheed and Muhammad Saleem has not been relied upon and without being corroborated by any other evidence, the oral statements of eye--witnesses are not sufficient to connect the appellants with the commission of crime. It is further contended that Muhammad Saleem at the time of occurrence was aged about 16 years and is entitled to lenient view by converting his sentence to life imprisonment as his co- convict Muhammad Rasheed according to the Home Department was less than 18 years at the time of occurrence and his sentence has been converted into life imprisonment and he has been brought out of death cell. Saleem is also entitled to same treatment. It is further contended that both eye-witnesses are not consistent on the material points and they are in contradiction with each other hence they are not worthy of reliance while P.W.2, Sajjad Hussain was also resident of far-of place and being a chance witness his statement is not reliable which may be disbelieved.
7. On the other hand, learned State Counsel has opposed this appeal on the grounds that F.I.R. Was lodged immediately after the occurrence and specific roles were ascribed to the appellants hence the judgment is supported by evidence on the record and the minor discrepancies in the statements of prosecution witnesses are not sufficient to affect the prosecution case as a whole. It is further contended that Muhammad Arif had also participated in the occurrence who is complainant of a case got registered against the present complainant party for the murder of his cousin Maqsood Ahmed, had also motive for participation in the occurrence alongwith his .Co- accused hence he is not entitled to any relief. It is also contended that Muhammad Arif has not produced any witness to prove his innocence and the plea of alibi, which was raised during the investigation, is not binding on the Court.
8. Nobody has entered appearance on behalf of the complainant, although, Munir Ahmed Khan, Advocate of Faisalabad, filed power of attorney on behalf of the complainant and his name was duly notified in the daily cause list and office had also issued him notice as outside counsel on 15- 11-2002 for the fixation of present case hence we are not inclined -to wait any more and the case is being decided on its own merit.
9. We have heard the arguments of learned counsel for the parties and have also gone through the record with due care and caution.
10. P.W.1 Muhammad Akhtar, though is real brother of the deceased, yetis resident of the same locality and thus his presence at the spot is not doubtful. Similarly, Sajjad Hussain while appearing as P.W.2 has also stated that he was present at the spot as at the time of occurrence he was going to say Zohar prayers. He has also stated that he alongwith his other family members had been visiting the house of his sister, were of the deceased, on harvesting season of wheat and peddy for the last 3/4 years and had come to the house of the deceased about fifteen days prior to the occurrence and they were since then. P.W.2 is also consistent on material points with P.W.1. After perusal of statements of both P.Ws., we are of the view that both P.Ws. Were present at the spot and had witnessed the occurrence while the F.I.R. In this case was also lodged promptly without any inordinate delay. Every detail of occurrence had also been mentioned in the F.I.R. And the same was reiterated at the trial by the eye--witnesses. These witnesses were subjected to lengthy cross- examination but defence had failed to gain anything in their favour. Both the witnesses were consistent on the point that when they had seen the accused they were following Muhammad Arshad deceased, who entered into the shop of Allah Ditta and they fired at him except Muhammad Sadiq, who stopped in front of the shop. There is no contradiction regarding the place, time and manner of the occurrence in the statements of these two witnesses. Although, these witnesses are related to the deceased closely but from perusal of their statements, we feel that they are reliable witnesses and mere relationship with the deceased and having no previous criminal history between the parties is not sufficient to discard their statements as the other circumstances, i.e. The F.I.R. Was registered immediately, the empties of different weapons had been recovered at the spot inspection by the Investigating Officer, the fire-arm injury had been found on the person of deceased by P.W.8, Dr. Javaid Iqbal, who conducted the post-mortem examination, corroborate their statements. In our examination the defence has failed to show any- immediate reason for the false involvement of Muhammad Rasheed and Muhammad Saleem appellants in the occurrence by leaving behind real culprits. It is also admitted that throughout the investigation the stand of Muhammad Rashat and Muhammad Saleem was that they had participated in the occurrence and the remaining accused were innocent. As regards participation of Muhammad Arif appellant it seems to be doubtful as reasonable grounds are available to infer the chances of his false implication in the present case as Qaim Din Taya of Muhammad Akhtar P.W.1 had earlier got registered case F.I.R. No.517 of 1996 against Muhammad Arif accused under section 397, P.P.C. It is also admitted by P. W.1 that Muhammad Arshad deceased had got registered a case F.I.R. No.561 of 1997 under sections 380 and 457, P.P.C. Against Muhammad Arif accused. Similarly, case F.I.R. No.450 of 1999 under sections 324, 148 and 149, P.P.C. Was got registered by Muhammad Arif accused against the complainant party. It is also admitted that Muhammad Arif was complainant in the murder case of his cousin Maqsood, which case was registered against the father and brothers of the complainant Muhammad Akhtar. It is admitted fact that Muhammad Rasheed had taken the stand at the time of his arrest that he and his co- convict Muhammad Saleem had participated in the occurrence and the other accused were innocent. We ourselves have gone through the case diaries in the interest of justice to ascertain consistency and this stand is borne out from the police record. P.W.12 Ata ur Rahman during cross- examination also admitted that when Muhammad Arif was arrested, he had claimed him and Muhammad Sadiq to be innocent being not present at the spot. Numerous persons were also produced by him in his defence during investigation on 6-12-1998, 21-1-1998, 12-12-1998 and on 14- 2-1998 that he was not present at the time of occurrence. We are mindful that ipsi dixit of the police is not binding on the Court and opinion of police is also not admissible in evidence nor we are influenced by the same but we feel impressed by the production of numerous persons in favour of Muhammad Arif making statements supporting his plea of innocence and alibi taken immediately after his arrest while other co-accused Muhammad Rasheed had made inculpatory statement before the police but had excluded Muhammad Arif. Moreover, only general allegation of firing at the deceased has been levelled against him alongwith the co-- convicts. Nothing was recovered from Muhammad Arif and due to extreme enmity between the complainant party an a Muhammad Arif appellant it is not safe to rely on the statements of P.W.1 and P.W.2. Without corroboration by independent piece of evidence to maintain conviction of Muhammad Arif. In such circumstances in the absence of any corroborative piece of evidence, we are not inclined to maintain conviction of Muhammad Arif appellant. To his extent this appeal is partly accepted, and he is acquitted of the charge by extending him the benefit of doubt. He shall be released forthwith if not required in any other case.
11. So far as other two convicts Muhammad Rasheed and Muhammad Saleem appellants are concerned, the enmity between complainant party and them is not so extreme for their false implication by prosecution witnesses, who had seen the occurrence. P.W.2, Sajjad Hussain though is brother of widow of the deceased yet he had no direct enmity with these appellants to falsely implicate them in this case and leave the real culprits.
12. For the above reasons, we are of the view that as regards Muhammad Rasheed anti Muhammad Saleem appellants the prosecution has succeeded in proving its case beyond any reasonable doubt. Hence, we uphold the conviction of Muhammad Rasheed and Muhammad Saleem appellants. As regards quantum of sentence, we find no extenuating circumstances warranting lesser punishment in this case. The contention of the learned counsel for the appellants is that the death sentence of Muhammad Rasheed appellant has already been converted into life imprisonment by giving him remission in view of Notification No.F.8/41/2001-Ptus issued by Government of Pakistan, Ministry of Interior and Narcotics Control (Interior Division) dated 13-12- 2001 by treating him juvenile as his age was accepted 17 years recorded in his statement under section 342, Cr.P.C., who has also been brought out death cell and, therefore, Muhammad Saleem appellant is also entitled to the same treatment because at the time of recording his statement under section 342, Cr.P.C. On 22-11-2000 his age was mentioned as 20 years meaning thereby on the day of occurrence (1-1-1998) he was less than 18 years of age and was juvenile. We are of the view that the age got mentioned by an accused. While recording his statement under section 342, Cr.P.C. Cannot be termed as conclusive proof of his age for the purpose of Juvenile Justice System Ordinance, 2000. As regards the first contention that the death sentence of Muhammad Rasheed appellant has already been converted into life imprisonment in view of Notification dated 13-12- 2001, we do not want to comment upon the same as this mater is not before us and it is open for the parties to have their recourse before the appropriate forums and any comments by us at this stage may prejudice the case of either party there. According to the prosecution evidence Muhammad Arshad deceased had been done to death after being chased and 21 (17 entry and 4 exit) fire-arm injuries were' found on his person by the doctor. Hence, the death sentence awarded to Muhammad Rasheed and Muhammad Saleem appellants by the learned trial Court is confirmed and reference sent by the learned trial Court in this regard is replied in the affirmative.
The direction for payment of compensation to the legal heirs of the deceased is also maintained.
To the extent of .Muhammad Rasheed and Muhammad Saleem appellants, this appeal stands dismissed by maintaining the impugned judgment of conviction and sentence.