' IJAZ AHMAD CHAUDHRY, J.--- This judgment shall dispose of Criminal Appeal No,1183 of 1999 filed by Safdar Jameel and Criminal Appeal No,24/J of 2000 filed by Muhammad Riaz, Muhammad Rafique and Rashid Masih, which have arisen from the judgment passed by the learned Judge Special Court, Okara, dated' 27-11-1999 by which appellants Muhammad Rafique and Rashid Masih have been found guilty of the offence under section 302(b)/34, P.P.C. And sentenced to imprisonment for life. They were also directed to pay compensation of Rs,50,000 each to the legal heirs of Muhammad Siddique deceased and in default of payment of compensation they have to further undergo three years' R.I. Each. Safdar Jameel and Muhammad Riaz appellants have been sentenced to death under section 302(b)/34, P.P.C. They were also directed to pay compensation of Rs,1,00,000 each to the legal heirs of Muhammad Siddique deceased and in case of default of compensation they were directed to undergo 3 years' R.I. Each. All the four appellants were also convicted under section 397/34, P.P.C. And sentenced to seven years' R.I. Each with a fine of Rs,30,000 each and in case of default of payment of fine they were directed to further undergo R.I.
For two years each. All the sentences awarded to Muhammad Rafique and Rashid Masih were directed to run currently. Benefit of section 382-B, Cr.P.C. Has been given to the appellants.
2. This judgment has arisen out of case F.I.R. No,105 registered on 21-6-1996 at Police Station City Renala Khurd at 5-00 p.m. On the statement Exh.P.E. Of Sardar Muhammad P.W.5 which was recorded by Muhammad Ashraf, S.-I. P.W.16 and on the basis of this statement formal F.I.R. Exh.P.E./1 was recorded by Muhammad Akram, Moharrar/Head Constable P.W.
15.
3. The brief facts of the prosecution case are that on 21-6-1996 Sardar Muhammad complainant alongwith Muhammad Rafique and Ghulam Nabi given up P.W. Were coming back to Renala Khurd from "Darbar Muhammad Ghaus" in Car No,FDH-134 and when at 4-00 p.m. They reached near Army Remount Depot, saw Suzuki Car No,LOK-9125 which was being driven by Muhammad Siddique deceased parked there and on the right side of the road Car No,LOJ-6380 Toyota Corolla white colour was also parked. All .The four appellants, namely Safdar Jameel armed with pistol .30 bore, Rashid Masih armed with carbine 12 bore, Riaz Shah armed with rifle 222 bore and Rafique armed with carbine in their view after pulling out Muhammad Siddique from the car had grappled with. Him. Rafique and Rashid accused had caught hold of Muhammad Siddique from his collar and taken out Rs,1,500 from his pocket and also tried to snatch the key of the car whereupon Muhammad Siddique deceased resisted on which Riaz appellant instigated Safdar Jameel appellant who fired five consecutive shots with his pistol .30 bore hitting Muhammad Siddique on different parts of the body. Thereafter, Riaz appellant fired four shots with his rifle 222 bore which also hit on the different parts of the body of Muhammad Siddique deceased who fell down. Safdar Jameel and Rashid appellants boarded into car of Muhammad Siddique deceased while Riaz and Rafique appellants boarded into another Car No,LOJ-6380 alongwith their weapons and fled away towards Satghra. During the investigation it transpired that Mushtaq Ahmad, F.C. P.W.11 received wireless message regarding the present occurrence while present at Barrier of Noor Shah Chowk where at 5-25 p.m., Car No,LOK-9125 wherein Safdar Jameel and Rashid appellants were present.
When they were stopped they firstly tried to take back the car but then came out of the car and firing was exchanged between them whereafter they were arrested. On search pistol .30 bore loaded with five cartridges was recovered from Safdar Jamil and six live bullets were recovered from the bandolier. All the said recovered articles were taken into possession vide recovery memo.
Exh.P.P. Rashid Masih appellant was also searched and from his possession carbine .12 bore loaded with four live cartridges was recovered which were taken into possession vide memo. Exh.P.Q. Car No,LOK 9125 P.14 was also taken into possession from the appellant Rashid Masih vide memo.
Exh.P.R. Riaz Hussain, A.S.-I. Appeared as P.W.12 who constituted the raiding party on the receipt of message about the occurrence and arrested Safdar Jamil and Rashid Masih accused and recovered the abovesaid weapons. However, Muhammad Riaz -and Muhammad Rafique appellants were apprehended by Javid lqbal, S.-I. P.W.13 who after receipt of information about the occurrence was present at the barrier of Chak No,44/GD alongwith other police officials where Car No,STD-3288 (subsequently it transpired that its original number was LOJ-6380) came which was being driven by Muhammad Riaz appellant while Muhammad Rafique was sitting on the rear seat.
Both of them were apprehended and from the possession of Muhammad Rafique SMG rifle P.21 was recovered alongwith live 30 bullets which were taken into possession by memo. Exh.P.T. From the possession of Muhammad Riaz 30 live bullets in Magazine were recovered, which were taken into possession vide memo. Exh.P.W. Car was also taken into possession vide memo. Exh.P.V. Plate bearing words M.N.A. Was also taken into possession vide memo. Exh.P.Y. Muhammad Ashraf, S.-I.
P.W.16 immediately visited the spot and recovered four empties of .30 bore pistol which were taken into possession vide memo. Exh.P.A. In the presence of Shakeel Ahmad P.W.2 and three empties of rifle were taken into possession vide memo. Exh.P.B. After the completion of the investigation report was submitted under section 173, Cr.P.C. And charge was framed against the appellants which was denied by them and they claimed to be tried.
4. The prosecution in order to prove the guilt of the appellants produced 16 witnesses. After the prosecution evidence was closed, the statements of the appellants were recorded under section 342, Cr.P.C. In which they denied the allegations and also claimed that they are innocent. When asked "why the P.Ws. Have deposed against you and why this case against you" they made the following reply:-- ' Safdar Jamil appellant "It was an unseen and un-witnessed occurrence in which the deceased was murdered by unknown persons. The story of the taking of his car is incorrect. I was going to see one of my relatives and was arrested by Gogera Police under suspicion. Gogera police planted bogus recoveries on me in connivance with Renala Khurd Police and the complainant party. Car No,LOK-9125 Exh.14 and its documents were never recovered from me. The recovery of pistol P.16 cartridges P.17/1-5 and bullets P.18/1-6 have also been planted on me by the police to strengthen the prosecution case.
Initially it was the case of the prosecution that the culprits had used a Toyota Corolla car, whereas later on the police changed the story by saying that Car No,STD-3288 was used, which shows that the actual culprits were let off. I am innocent. I have been falsely challaned by the police."
' Muhammad Riaz alias Riaz Shah appellant.
"It was an unseen and unwitnessed occurrence in which some unknown culprits killed the deceased by using a Toyota Corolla Car but later on the police and the complainant party dishonestly changed the story that Suzuki Car No,3288-STD was used. There is clear difference between a Suzuki Car and a Toyota Corolla Car. Sardar Muhammad and Ghulam Nabi P.Ws. Have been keeping cars since long, as stated by them in the Court and thus they can very well- differentiate the Suzuki Car and Toyota Corolla Car. On 20-6-1996 Muhammad Rafique driver of Taxi Car No,3288-STD Suzuki came to Sahiwal with a passenger and. I also accompanied Rafique, who belongs to my village and I used to accompany him, when he used to take some passenger on a long journey. The Noor Shah police planted bogus recoveries of plate P.23, and rounds P.24/1- 30 on me with the connivance of Renala Police to strengthen the prosecution case. I am innocent."
' Muhammad Rafique alias Feeqa ' It was an unseen and un-witnessed occurrence in which some unknown culprits killed the deceased by using a Toyota Corolla Car bearing No,LOJ-6380 but later on the police and the complainant party dishonestly changed the story that Car No,3288-STD bearing bogus number plate of LOJ-6380 was used. There is clear difference between Suzuki Car and a Toyota Corolla Car.
Sardar Muhammad complainant and Ghulam Nabi P.W. Both have been keeping cars since long and therefore, they can very well-differentiate between a Suzuki and Toyota Corolla Car. I was servant as a driver with one Ch. Muhammad Ashraf of Dijkot and was driving Car No,STD-3288 Suzuki. One day prior to the 21-6-1996 I was coming from Sahiwal after dropping a passenger and was arrested by Noor Shah Police under suspicion and later on with the connivance of the Renala Khurd Police bogus recoveries of SMG rifle P.22 and 30 rounds P.20/1-30 and number plate P.23 was planted showing a bogus recovery. Had there been any recovery of number plate P.23, the case under sections 420, 467 and 471, P.P.C. Must has been registered on the first day. I am innocent. I have neither murdered Muhammad Siddique deceased nor taken away his car."
' Rashid Masih appellant "It was an unseen and un-witnessed occurrence. The car of the deceased was never stolen. The police and the complainant party changed the initial story later on. I was arrested by Gogera Police from Gogera Adda under suspicion and later on was inserted in the present case. The case was registered with an inordinate delay after preliminary investigation and much latter to the arrest of myself and other co-accused. The story of the prosecution is false and fabricated."
' Statement of D.W.1 was recorded and thereafter impugned judgment was passed after hearing arguments which has been assailed through these appeals.
5. Learned counsel for the appellants have contended that both the eye-witnesses (P.Ws.5 and 6) are not reliable as they were not consistent on material points and their statements are liable to be rejected as they stated it Suzuki Car which as subsequently found as Toyota Corolla and both of them being used to deal in cars this fault of these P.Ws. Is sufficient to hold that they were not present at the spot and had not seen the occurrence. It has also been contended that the statements of both the witnesses are contradictory with each other regarding the surroundings of the Darbar where they had gone and also the time of reaching the Darbar and coming out of it. It is further contended that the medical evidence is . In contradiction with the ocular account as according to the prosecution witnesses in their statements under sections 154 and 161, Cr.P.C. Five shots were fired by Safdar Jamil appellant while four shots were fired by Muhammad Riaz appellant but according to the doctor all the injuries were not entry wounds and in order to bring their statements in the line with the medical evidence eye-witnesses had improved their version at the trial by stating that all the shots fired by both the appellants did not hit the deceased rather some of them had hit him. It is also contended that the prosecution evidence is not trustworthy and is not supported by any corroborative piece of evidence, while appellants are innocent and they are liable to be acquitted by giving them the benefit of doubt. It is also contended that Muhammad Riaz appellant is alleged to have fired shots on the legs of the deceased as has been admitted by P.W.6 during his cross-examination and is entitled to lesser penalty as well. "
6, Learned counsel for the complainant has opposed this appeal on the ground that the occurrence was reported with promptitude while the names of the accused are mentioned ;n the F.I.R. And no enmity exists of them with the complainant and the other P.Ws. Hence there are no chances of false implication of the appellants in this case and judgment of the learned Special Judge is liable to be upheld.
7. We have heard the arguments of learned counsel for both the parties and also perused the record carefully. The statements of P.Ws. 5 and 6 have been perused by us minutely and we have not found any contradictions on the material points in the statements of these two witnesses rather they are consistent on material points. We have also noticed that they were subjected to lengthy but the defence has failed to gain anything in its favor. Both the witnesses are residents of the same locality and their presence at the spot is not at all doubtful. They have supported the prosecution case and we have found no reason for disbelieving their statements as they have no enmity or grudge with the appellants to falsely implicate them in this case. Both the witnesses have given minute details of the occurrence and are not contradictory to each other. P.W.5 Sardar Muhammad, complainant, though is related to Muhammad Siddique deceased as he was his nephew but mere relationship with the deceased is not sufficient to discard his evidence. Ghulam Nabi P.W.6 is an independent witness who is not related to the deceased or any P.W. And is resident of the same locality. We have noticed that while giving minute details of the occurrence during the examination-in-chief and while replying the question to the learned counsel for the accused they remained consistent that they were present at the spot and had witnessed the occurrence and also that Safdar Jamil fired five shots at the deceased which hit on the different parts of the body of Muhammad Siddique. They are also consistent about the role ascribed to Muhammad Riaz appellant that he too fired with his pistol at the deceased four shots which hit on different parts of the body. The role ascribed to other two appellants is also supported by both of them that hey had caught hold of the deceased from his collar and had snatched the money from him. They had also given minute details of the occurrence and also about the running of the accused from the spot in separate cars alongwith their weapons. Their statements are worthy of reliance being supported by the recording of F.I.R. With promptitude as the occurrence had taken place at 4-00 p.m. While the F.I.R. Was lodged at police station on the basis of the statement of P.W.5 Sardar Muhammad at 5-00 p.m. And wireless message was immediately conveyed to the other Police Officers which was received by the raiding parties of different police stations who were standing at the barriers and apprehending the appellants on the same day immediately after the occurrence while in possession of the weapons as were in possession of the appellants and were used by them during the B occurrence and the separate F.I.R. Has been registered in this connection against the appellants even at different Police Station Noor Shah of District Sahiwal against Safdar Jamil and Rashid Masih. The ocular account is also corroborated by the recovery of 7 empties of two different weapons (pistol 32 bore and rifle) and then these weapons were sent to the Office of Forensic Science Laboratory and subsequently the weapons recovered from the appellants Safdar Jamil and Muhammad Riaz were also sent to the Office of the Forensic Science Laboratory for comparison and report Exh.P.G. Of the Forensic Science Laboratory is positive. The medical evidence is also not in contradiction with the ocular account as it is not possible to see with a bare eye that how many shots had actually hit the deceased out of the total fired with rifle and then from pistol. Nine fire-arm injuries have been found by the doctor while conducting medical examination of the deceased and it cannot be said that the medical evidence is in contradiction with the ocular account merely on the ground that all the 9 injuries caused by fire-arm are not entry wounds as though the P.Ws. Have stated. That 9 shots were fired and hit the deceased yet with bare eye it cannot be said with certainty that how much fires had actually hit the deceased, arid the occurrence was reported promptly. We have also found that during cross-examination on both Sardar Muhammad and Ghulam Nabi P.Ws.5 and 6 respectively they had mentioned the names of the appellants with detail and there.Is no question of misidentity of the appellants as both the witnesses claimed to have known the appellants before the occurrence and had rightly identified them. It is a daylight occurrence and sufficient evidence has been placed on the record to connect the appellants with the commission of the crime. We, therefore, hold that the impugned judgment of conviction and sentence is based on evidence on the record and is maintained. As the appellants Safdar Jamil and Muhammad Riaz had acted in a cruel manner by firing at the deceased successively 4/5 shots respectively and had participated in the commission of the dacoity are not entitled to any leniency by this Court. The death sentence awarded to them in the peculiar circumstances of this case is, therefore, confirmed, as no mitigating circumstances are available on the record. They shall be hanged by neck till dead.
' As regards Rashid Masih and Muhammad Rafique appellants their sentence of life imprisonment and seven years' R.I. Under different offences which have to run concurrently directed by the learned trial Court with compensation of Rs,50,000 and Rs,30,000 as fine each is though maintained yet the sentences to further undergo in default of payment of the abovesaid amount, as directed by the learned trial Court, is reduced to one year R.I. Each under each head.
' These appeals are dismissed.