' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.--- Appellant Muhammad Rafique alongwith five other co- accused was tried by the Additional Sessions Judge, Sheikhupura for the murders of Faqir Hussain and Mst. Halima Bibi in case F.I.R. No,494 of 1994 dated 21-10-1994 under sections 302/148/149, P.P.C.
Registered at Police Station Bhikki, District Sheikhupura who vide judgment dated 24-6-1998 while acquitting the co-accused namely Muhammad Sharif, Muhammad Bashir, Nisar Ahmad, Abbas Ahmed and Muhammad Hussain convicted the appellant under section 302, P.P.C. And sentenced him to death as Qisas as well as to pay Rs,50,000 as compensation to the legal heirs of the deceased and in default whereof to further undergo six months' R.I.
2. Being aggrieved of the aforesaid judgment, appellant has filed Criminal Appeal No,754 of 1998 against his conviction. Whereas complainant Muhammad Latif has also filed an appeal against acquittal of respondents namely Muhammad Sharif, Muhammad Bashir, Muhammad Hussain, N
3. On 21-10-1994 Faqir Hussain and Mst. Halima Bibi were murdered in the area of village Dera Fateh Wala falling within the jurisdiction of Police Station Bhikki and upon the statement of Muhammad Latif son of Shafi Muhammad (P.W.2), brother of both the deceased, formal F.I.R. Exh.P.C./1 was registered.
4. Facts of the prosecution case as narrated in the F.I.R. Are that on 21-10-1994 at 11 a.m. The complainant and his brother Faqir Hussain went to see their crop of sugercane wnere Nisar Ahmed son of Muhammad Sharif was plucking sugercane from the field who was restrained by Faqir Hussain. Both of them quarrelled and Faqir Hussain slapped Nisar, Ahmed who while leaving threatened Faqir Hussain to teach him a lesson for the insult. The complainant and Faqir Hussain after working in the fields at about Degarwela came back to the village and took bath in the bath room of the mosque. Said Muhammad their uncle and Abdul Hameed who were offering Asar prayer in the mosque also met them. They all started proceeding towards their home when suddenly Muhammad Rafique, Muhammad Sharif, Muhammad Rashid sons of Muhammad Hussain each armed with .12 bore single-barrel gun, Nisar Ahmed son of Muhammad Sharif, Abbas Ahmed and Bashir Ahmed sons of Muhammad Hussain all armed with Sotas, Muhammad Hussain son of Noor Muhammad empty-handed also came there. Muhammad Hussain raised Lalkara that Faqir Hussain should not go alive. The complainant loudly restrained them from quarrelling. On hearing the commotion, sister of the complainant Mst. Haleema Bibi also came out in the street from her shop. Rashid Ahmed fired from his gun .12 bore, which hit Mst. Haleema Bibi on her chest and abdomen on the left side, she fell down on the ground. Muhammad Sharif fired from his gun on Faqir Hussain which hit him on the left hand. Faqir Hussain ran to save his life towards the Baithak of his uncle (Chacha) Akbar, then Muhammad Rafique fired from his gun .12 bore which hit Faqir Hussain on the abdomen who also fell down. The accused persons while firing and raising Lalkaras went away. Mst. Haleema Bibi died on the spot.
' Faqir Hussain was removed to the Civil Hospital, Sheikhupura but during the journey he also succumbed to the injuries. Allegedly Muhammad Rafique etc., in the furtherance of their common intention had committed the murder of Mst. Haleema Bibi and Faqir Hussain. Statedly this occurrence was also witnessed by Abdul Hameed.
5. This case was investigated by Muhammad Yaqoob, S.-I./ P.W.11. The said Police Officer after preparing necessary documents sent the dead bodies to the mortuary for post-mortem examination. He also prepared rough site plan Exh.P.E. As well as recorded the statements of the witnesses under section 161, Cr.P.C. On 25-10-1994 he arrested Rafique (appellant) alongwith Bashir, Abbas and Nisar. On 8-11-1994, Muhammad Rafique appellant led to the recovery of .12 bore single- barrel gun P/5 which was taken into possession vide recovery memo. Exh.P.D. On the same day he arrested Muhammad Hussain accused whereas Muhammad Sharif accused was arrested on 17-11- 1994. One of the co-accused namely Rashid Ahmed was not traceable, thus the Investigating Officer after complying with the legal formalities got issued proclamation under sections 87/88, Cr.P.C. Against the said accused and finally submitted the challan before the trial Court.
6. Dr. Muhammad Ashraf Javed, P.W.8 conducted the post-mortem examination on the dead body of Mst. Haleema Bibi and found the following injuries on her person:--
(1) A penetrating fire-arm wound 1 c.m. x 0.7 c.m. On the left breast 4 c.m. Above the nipple. There 4as charring around the wound with 0.3 c.m. Circumference width. The pellet passed through the left breast between fourth and fifth left ribs fractured the fifth rib (left) passed through and through the heart, passed through the right lung and was found lying over the 9th right rib with thoracic cavity full of blood. (The rib was also fractured without dislocation.
(2) A penetrating fire-arm wound 0.7 c.m. x 0.7 c.m. With 0.3 c.m. Wide charring around it on the abdomen at the level of umbilicus 10 c.m. Left to the umbilicus. The pellet passed through the anterior abdominal wall caused penetrating wounds in small and large intestines and were found a little above the right pelvic bone. Abdominal cavity contained free blood.
' In the opinion of the doctor death occurred due to severe bleeding, shock and injury to the vital organs by the pellets of fire-arm. Statedly both the injuries separately and collectively were sufficient to cause the death.
' On the same day P.W.8 Doctor Muhammad Ashraf Javed also conducted the post-mortem examination on the dead body of Faqir Hussain and observed the following injuries on his person:--
(1) A penetrating wound of fire-arm on the upper left side of epigastrium 1 c.m. From the midline and 11 c.m. From the umbilicus. It measured 0.7 c.m. x 0.7 c.m. With 0.3 c.m. Area circumferential charring around the wound. The pellet passed through the anterior abdominal wall, passed through the left loov of liver damaged lower part of the left lung and diaphram and lodged into the 11th throcic vertebra with a punctured hole about 0.4 c.m. x 0.4 c.m. On its anterior middle part. The vertebra was broken and pellet was removed. The thoracic cavity was full of blood.
(2) A penetrating wound 1 x 0.7 c.m. On the outer side of proximal part of left index finger with an exit wound 1.5 c.m. x 1 c.m. On the medial side of index finger.
' In the opinion of doctor both the injuries were caused by fire-arm and injury No,1 had caused severe haemorrhage, shock and death.
7. In order to prove its case against the appellant and his other co- accused prosecution produced 12 witnesses before the trial Court. Muhammad Akbar P.W.1 identified the dead bodies of both the deceased at the time of post-mortem examination. He was also present when the last worn clothes of the deceased were handed over to the Investigating Officer Muhammad Latif P.W.2 and Abdul Hameed P.W.3 being the eye-witnesses of this occurrence while supporting the prosecution case narrated the circumstances under which the appellant and his co-accused committed the murder of Mst. Halima Bibi and Faqir Hussain. Muhammad Akhtar, F.C./P.W.4 alongwith Muhammad Alam F.C./P.W.1 took the dead bodies to the mortuary for post-mortem examination and after the same delivered the last worn clothes of the deceased to the Investigating Officer. Habibullah, A.S.- I./P.W.5 was stated to be present when Muhammad Rafique appellant led to the recovery of gun P/5. He also attested the recovery memo. Exh.P.D. In this regard. Sajjad Abbas, A.S.-I./P.W.6 entered the formal F.I.R. Exh.F.C./1. Syed Abdur Raheem Kazmi, Draftsman/P.W.7 prepared the scaled site plans Exh.P.E. And Exh.P.E./1. Dr. Muhammad Ashraf Javed P.W.8 conducted the post-mortem examination on the dead bodies of the deceased as narrated earlier. Muhammad Akhtar, H.C./P.W.9 was entrusted with the warrants of arrest of Muhammad Rashid co-accused in view of proceedings under sections 87/88, Cr.P.C. And on the basis of his report, proclamation was issued.
Muhammad Yaqoob, S.-I./P.W.11 being the Investigating Officer conducted the investigation of this case, as narrated earlier. Shabbir Hussain, H.C./P.W.12 kept the parcels (case property) in Malkhana in safe custody and later on delivered the same intact to the relevant offices.
' Learned trial Court also examined the appellant under section 342, Cr.P.C. While answering to the question as to "why this case against you and why the P. Ws. Deposed against you" replied as under:-- "Faqir Hussain deceased had grazed his cattles in the paddy field owned by us. Upon which, a quarrel took place between Faqir Hussain deceased and Nisar and Faqir deceased slapped Nisar.
Thereafter, mother of Nisar accused went and complained of this fact to elders of Faqir deceased.
He also insulted them. This incident took place at 11-00 a.m. Thereafter some firing took place between Rashid accused (P.O.) and Faqir deceased but the people of the vicinity separated them.
At about 5-00 p.m., I was coming on bicycle after bringing Diesel for my Peter Engine and when I reached near my house, Faqir deceased armed with pistol came there, fired at me. On hearing the fire shot, his sister Haleema Bibi also came there and tried to stop him and I in order to save my life fired with carbine, which hit both the deceased. Complainant party with help of police changed place of occurrence and falsely implicated me in this case and no P.W. Was present at the spot."
' Appellant neither made any statement under section 340(2), Cr.P C. Nor produced any witness in his defence. However Talib Hussain D. W.1 and Muhammad Siddique D.W .2 were produced by Muhammad Sharif, co-accused of the appellant in his defence in order to prove his plea of alibi.
' The learned trial Court after appraisal of evidence vide judgment dated 24-6-1998 convicted and sentenced the appellant as narrated earlier.
8. Learned counsel for the appellant while challenging the legality of the impugned judgment submitted that the eye-witnesses who had deposed before the trial Court were not present at the relevant time but they were introduced later on just to strengthen the prosecution case; that the contradictions in the medical evidence and the ocular account has shattered the credibility of the prosecution case; that the evidence which had been disbelieved qua the co-accused of the appellant could not be relied upon to convict the appellant in the absence of any corroborative piece of evidence and that the appellant had been involved in this case malafidely as a result of dishonest investigation conducted by the police officials.. Conversely learned counsel for the complainant as well as the State while supporting the impugned judgment vehemently opposed the arguments raised by learned counsel for the appellant.
9. With the able assistance of learned counsel for the parties we have minutely gone through the record of this case.
10. It is a case of two versions. Day, time, kind of weapon used during the occurrence are the admitted facts and the only question to be resolved is whether the story narrated by the prosecution is to be relied upon or the plea of self-defence taken up by the appellant is to be accepted in totality.
' Both the deceased were real brother and sister. They were done to death during the day light hours at about Degarwela on 21-10-1994. Muhammad Latif, complainant/P.W.2 (brother of both the deceased persons) and Abdul Hameed (husband of Mst. Haleema Bibi) P.W.3 were coming back to their home after taking bath in the bath room of the mosque, when this occurrence took place.
Both the said witnesses were the residents of the same area and had their houses near the place of occurrence. Presence of both the witnesses at the relevant time of occurrence seems to be natural and plausible. No doubt they are related inter se as well as to the deceased persons but there is nothing on the record to show that they had any previous enmity with the appellant to falsely implicate him in this case. After the occurrence matter was reported to the police promptly and this promptness in lodging the F.I.R. Is yet another circumstance to support the prosecution case. Ocular account narrated by these witnesses finds support from the medical evidence. The nature, location and duration of injuries, as narrated by the eye-witnesses, stands affirmed by this piece of evidence. Learned counsel for the appellant also argued that the Doctor had observed charring around the wounds on the person of Mst. Haleema Bibi. She was fired at from a close range and not from the distance of 60 feet as mentioned in the site plan thus the story of the prosecution is not inconsonance with the medical evidence. We are afraid the contentions raised by the learned counsel have no force. Firstly appellant never caused any injury to Mst. Haleema Bibi and the role attributed to the appellant is that he caused fire-arm injury to Faqir Hussain. The medical evidence in this regard supports the ocular account. Secondly, there is nothing on the record to suggest that at the time of occurrence accused persons were not moving and remained stationed at the point shown in the site plan. Thirdly it is well-settled proposition of law that site plan is only a supporting document and is not of any substantial value, the same cannot be given preference over the evidence of truthful and natural witnesses. This view is in the line with the observation of the Honourable Supreme Court in the case of Sardar Khan and 3 others v. The State 1998 SCM R 1823.
' On the other hand appellant took the plea that he committed the murders of both the deceased in the right of self-defence in order to save his life. We have observed that before the trial Court while cross-examining the witnesses the plea of the appellant is that at the time of occurrence he was coming on a bicycle with diesel for his Peter Engine and when he reached near his house, Faqir Hussain armed with a pistol and Bilal armed with a Carbine started quarrelling with him. On hearing the commotion Mst. Haleema Bibi the sister of the deceased also came at the spot and tried to intervene, during this scuffle Carbine of Bilal went off as a result of which Mst. Haleema Bibi and Faqir Hussain received injuries. On the other hand while making statement under section 342, Cr.P.C. Before the trial Court, the stand of appellant was that on the day of occurrence when he reached near his house Faqir Hussain deceased fired at him and in the right of self-defence he (appellant) fired from his carbine which hit both the deceased i,e, Faqir. Hussain and his sister Mst.
Haleema Bibi. The contradiction between both the stands taken up by the appellant before the trial Court are sufficient to doubt the credibility of the appellant's plea of self-defence. This occurrence admittedly took place in a thickly populated area but the appellant neither produced any defence witness nor had made any statement under section 340(2), Cr.P.C. In this view of the matter we are not persuaded to accept the plea of appellant and the same stands rejected.
' The crux of the above discussion is that statements of both the eye-witnesses namely Muhammad Latif P.W.2 and Abdul Hameed P.W.3 inspire confidence, ring true and in the circumstances of this case the same can be relied upon safely to uphold the conviction and sentence of the appellant. Accordingly Criminal Appeal No,754 of 1998 stands dismissed.
11. As far Criminal Appeal No,841 of 1998 against acquittal of respondents namely Muhammad Sharif, Muhammad Bashir, Muhammad Hussain, Nisar Ahmed and Abbas Ahmed, is concerned, admittedly Bashir, Abbas, Nisar and Muhammad Hussain respondents did not cause any injury to the deceased and during the investigation nothing was recovered from them. As far as Muhammad Sharif respondent is concerned there is ample evidence on the record that at the time of occurrence he was not present at the spot. Statements of two defence witnesses i,e, Talib Hussain D.W.1 and Muhammad Siddique D.W.2 are sufficient to establish the plea of alibi of Muhammad Sharif respondent. In the circumstances of this case, the reasons given by the trial.
Court while acquitting respondents are neither perverse nor fanciful and need no interference by this Court in its appellate jurisdiction. This appeal has no force and the same also stands dismissed.
' Death sentence is confirmed and murder reference is answered in affirmative.