KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.71 of 1999 filed by Shabbir Ahmad, Zameer Ahmad and Saqib Shahzad, appellants who were convicted and sentenced by learned Additional Sessions Judge, Jhelum vide judgment dated 19-4-1999 as under: -- Shabbir Ahmad Death under sections 302/34, P.P.C.
Zameer Ahmad Imprisonment for life with the benefit of section 382-B, Cr.P.C., under sections 302/34, P.P.C.
Saqib Shahzad Imprisonment for fife with the benefit of section 382-B, Cr.P.C. Under sections 302/ 34, P.P.C.
Murder Reference No.258 of 1999 for confirmation of death sentence of Shabbir Ahmad and Criminal Revision No.42 of 1999 filed by complainant for enhancement of sentence of Zameer Ahmad and Saqib Shahzad shall also dispose of through this single judgment.
2. Occurrence in this case had taken place at 11-30 p.m. On 9-9-1997 in the area of Masheen Mohallah at a distance of 1-1/2 furlongs from Police Station City, District Jhelum while the matter was reported to the Police by Naeem ur Rehman's; complainant in the Police Station at 11-45 p.m.
The same night and formal F.I.R. Exh.P.M. Was recorded by Rab Nawaz, S.-I.
3. Briefly stated the facts of the case are that on 9-9-1997 at about 11-30 p.m., Naeem ur Rehman's, the complainant alongwith Abdul Karim son of Abdul Aziz, his son Shahzad Karim and Abdul Shakoor son of Kalay Khan were going to take juice on a car bearing Registration No.AD/433 towards GTS Chowk. Abdul Karim was driving the cat while the complainant was sitting on the front seat. Shahzad Karim and Abdul Shakoor were sitting on the pillion seat of the car. When the complainant party reached ahead from Afzal Hospital on the road where the street-light was on, Shabbir Ahmad, Zameer Ahmad and Saqib came on a motorcycle from the side of Major Akram Shaheed Road. Saqib was driving the motorcycle. Shabbir and Zameer both were armed with .30 bore pistols. All the three accused came towards the car of the complainant from the right side.
Saqib raised Lalkara that fire and finish all. Upon this Lalkara, Zameer fired a shot which hit on the front side of the car. In the meanwhile, Shabbir fired at Abdul Karim which hit on his neck towards left. Due to fire-arm injury, Abdul Karim who was driving the car lost control over the vehicle and same struck against the wall. Due to blood oozing from the body of Abdul Karim, the clothes of the complainant also became blood-stained. Abdul Karim succumbed to his injury at the spot.
The motive alleged was that on 6-9-1997 due to abusive language, Abdul Karim had beaten Shabbir Ahmad. Due to this grudge, Shabbir Ahmad alongwith Zameer Ahmad and Saqib his son in prosecution of their common object committed .The murder of Abdul Karim.
4. Investigation of the case was taken over by Rab Nawaz. S.-I. (P.W.12). He after registration of the formal F.I.R., reached the place of occurrence, inspected the dead body of Abdul Karim, prepared inquest repot Exh.P.O., injury statement Exh.P.P. And from the place took into possession the blood-- stained earth vide memo. Exh.P.E. The crime empties P.3/1-2 and the car were taken into possession vide memo. Exh.P.H. A pair of shoes of the deceased was also secured vide memo. Exh.P.Q. Shabbir Ahmad and Zameer Ahmad and Saqib accused were arrested on 11-9-1997. While in Police custody, on 14-9-1997, Shabbir Ahmad led to the recovery of pistol P.6 which was taken into possession vide memo. Exh.P.J. Zameer accused also got recovered pistol P.7 which was secured vide memo. Exh.P.K. Saqib accused got recovered motorcycle P.8 which was taken into possession vide memo. Exh.P.L. After completion of the remaining formal investigation, all the three accused were challaned to face the trial.
5. At the trial, the prosecution in order to prove its case produced 12 witnesses in all. Then the learned APP tendered in evidence reports of the Chemical Examiner Exh.P.R., Exh.P.S., Exh.P.T. Reports of the Serologist Exh.P.R.1. Exh.P.S.1. Exh.P.T.1 and closed the case of prosecution. After that, statements of the accused. Were recorded under section 342, Cr.P.C. In which they pleaded false implication. The accused in their defence also produced 8 D.Ws. However, after conclusion of the trial, the accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants after having read the prosecution evidence submits that prosecution has failed to prove the motive; it was an unwitnessed occurrence; none of the P.W.
Was present at the spot, both the eye-witnesses are closely related to the deceased; there is also plea of alibi raised by Shabbir Ahmad and Zameer Ahmad, both real brothers Shabbir Ahmad had been falsely implicated alongwith his brother Zameer Ahmad and son Saqib; no independent witness had been produced by the prosecution; the mode of occurrence as narrated by the prosecution is not believable; crime empties recovered from the spot did not match with the pistols allegedly recovered on the pointation of Shabbir and Zameer appellants; the draftsman namely Maqbool Hussain examined as P.W.6 in his statement had not mentioned the place of occurrence, he had also not shown the electric pole in the site-plan; the place where the deceased allegedly received injuries has also not been shown; during the course of investigation by the Crime Branch, the appellants were found to be innocent; 8 D.Ws. Were produced by the appellants to prove their innocence and that if all the facts as submitted above are taken together, the prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that appellants are named in the promptly lodged F.I.R. All the appellants are vicariously liable for causing the murder of Abdul Karim, the deceased in this case, the bonnet of the car was also hit due to shot fired by Zameer Ahmad, appellant; all the appellants came at the place of occurrence on a motorcycle with common intention; the prosecution has proved the motive; ocular account is fully corroborated by medical evidence, mere non-matching of the empties with the pistols recovered on the pointation of Shabbir and Zameer appellants cannot damage the prosecution case and that the prosecution has. Been successful in proving its case against the appellants to its hilt. They both support the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, the occurrence had taken place at 11-30 p.m. On 9-9-1997 while the matter was reported to the police in the Police Station at 11-45 p.m. The same night as the distance between the place of occurrence and the police station was 1-1/2 furlongs, so it was a case of promptly lodged F.I.R. The motive set up by the prosecution was that 4 days prior to the occurrence, Abdul Karim etc. Had given beating to Shabbir Ahmad, appellant which became the cause of grudge and in the instant occurrence had taken place. At page 140 or the paper book, there is a report bearing No.9 dated 6-9-1997 of Police Station Civil Lines. Jhelum recorded on the statement of Shabbir Ahmad appellant with regard to abuses extended by Abdul Karim, the deceased. This shows that motive laid with Shabbir appellant and now it was his turn to take the revenge of his insult. It is thus clear that the prosecution has been successful in proving motive against Shabbir appellant.
As to plea of Shabbir appellant regarding alibi, at page 157 of the paper book, there is document marked as Exh.D.C. Which is bed head ticket. There is note on this document which has been marked with red pencil by us. The same reads as under:-- "Absconded on 9-9-1997 at 10 p.m."
The time and date of admission of patient namely Shabbir Ahmad is 6 p.m. On 6-9-1997. The note reproduced above shows that Shabbir appellant though was admitted in D.H.Q. Hospital but absconded from there at 10 p.m. On 9-9-1997 while the occurrence had taken place at 11-30 p.m.
This document produced by the defence itself sufficiently demonstrates that it was Shabbir appellant who had committed murder of the deceased. He caused fatal injury on the neck of the deceased. The post-mortem on the dead body of deceased was conducted by Dr. Shahid Baig (P.W.7). There was one entry wound with fire-arm having also an exit. On internal examination, it was found by the doctor that the stomach contained semi-digested food, faecal matter was present in the large intestine, about 159 ml. Urine was present in the bladder, the time between death and injury was immediate and between death and post-mortem was 7 hours which fits in with the time of occurrence given by the prosecution.
So far as objection of learned counsel for defence with regard to electric pole is concerned, it does not advance the case of defence because it was stated by the complainant in the F.I.R. That apart from the light of pole, the electric light of the adjacent house was also on.
The Investigating Officer took into possession the blood-stained clothes of the complainant Naeem ur Rehman's vide memo. Exh.P.N. Who according to F.I.R. Was sitting on the front seat of the car which was being driven by the deceased. It was the case of the prosecution that when the shot fired by Shabbir appellant hit Abdul Karim, his head bowed upon the complainant and due to blood oozing from the body of the deceased, the clothes of the complainant were also stained with blood. This proves that the complainant was accompanying the deceased at the time or occurrence and his statement cannot be brushed aside by any stretch of imagination. Mere relationship of eye-witnesses with the deceased or the complainant is no criteria to discard their evidence unless their evidence is tainted with enmity. No enmity of any nature of the eye- witnesses, the defence could bring on record though the P.W. Were put to the test of lengthy cross- examination.
There is also a document in the nature of mark A at page 151 of the paper book. It is a report submitted by Messrs M.A. Majeed Sons which shows that bonnet cover and front mudguard were completely damaged. It. Was also the case of prosecution that due to shot fired by Shabbir appellant, the deceased lost control and the car struck a wall. Mere non-matching of crime empties with the pistol recovered on the pointation of Shabbir appellant is of no avail to the prosecution as it is not necessary that the accused had produced the same pistol with which he had fired at the deceased specially when the occurrence had taken place on 9-9-1997 and the pistol on the pointation of the accused appellant was recovered on 14-9-1999.
The motive having been proved ocular account being fully corroborated by medical evidence, the plea of alibi set up by the appellant having been disproved from bare reference to Exh.D.C., the bed head ticket, we are fully satisfied in our mind that it was Shabbir appellant who had committed the murder of Abdul Karim, deceased and the prosecution has been successful in proving its case against him. Resultantly, this appeal to his extent is dismissed. Conviction and sentence recorded against him by the trial Court is maintained. There being no mitigating circumstance in favour of the appellant, his death sentence is confirmed. Murder reference is replied in the affirmative.
Now, we take up the case of Zameer Ahmad appellant. He is real brother of Shabbir Ahmad appellant. He had no motive. He was an employee of the Police. According to him, he was present on his duty as guard at the residence of Sessions Judge. He was implicated for the reason that he being police official may not pursue the case of his real brother. He, according to case of the prosecution, fired but the said fire hit the bonnet of the car. The fatal shot was attributed to Shabbir, his real brother. It is also not believable that Zameer appellant would accompany his real brother and nephew on a motorcycle to kill the deceased. He has also produced D.Ws. To support his plea of alibi. Believing the plea of alibi o. This appellant and the fact that he being reap brother of Shabbir appellant, possibility his false implication cannot be ruled out, we extend the benefit of doubt qua him anti acquit him of the charge. To his extent, the appeal is accepted. Conviction and sentence recorded against him by the trial Court is set aside. He is in jail and shall be released forthwith, if not required to be detained in any other case.
Now is the turn of case of Saqib Shahzad, appellant. He is son of Shabbir accused. He was 16/17 years of age at the time of occurrence. The role attributed to him was that of Lalkara. No other oven act was attributed to him. He being real son of Shabbir, appellant, possibility of his false implication cannot be ruled out. So, while extending the benefit of doubt, we also acquit Saqib Shahzad, appellant of the charge and set aside the conviction and sentence recorded against him by the trial Court. Tile appellant is in jail and he shall be released forthwith, if not required to be detained in any other case.