' IJAZ AHMAD CHAUDHRY, J.--- This judgment will dispose of Criminal Appeal No,132 of 1995 alongwith Criminal Appeal No,133 of 1995 as both arise out of one judgment, dated 8-2-1994 passed by Justice (Retd.) Dr. Muhammad Sharif Chaudhry, learned Judge Special Court for Speedy Trials, Multan, whereby he convicted Umar Hayat, Iqbal and Zaman under section 302/34, P.P.C. And sentenced each one of them to death with further order to pay Rs,1,00,000 each to the legal heirs of deceased. They were further convicted under section 392/34, P.P.C. And sentenced to ten years' R.I.
Each with a fine of Rs,10,000 each, in default whereon to further suffer S.I. For two months each.
Umar Hayat, Iqbal and Zaman were also convicted under section 427/34, P.P.C. And sentenced to two years' R.I. With a fine of Rs,10,000 each, failing which to further undergo two months' S.I. Each.
However, Jahangir and Sultan alias Sulla were acquitted by the learned trial Court by giving them the benefit of doubt.
' Criminal Appeal No,132 of 1995 has been filed by Umar Hayat, Iqbal alias Bali and Zaman alias Zamani challenging their conviction and sentence, whereas Criminal Appeal No,133 of 1995 has been filed by the State seeking reversal of judgment to the extent of acquittal of Jahangir and Sultan.
2. The occurrence in this case took place on 29-9-1993 at 10-00 a.m. Within the area of Mouza Nusratpur falling within the jurisdiction of Police Station Tulumba, Tehsil Mian Channu, District Khanewal. F.I.R. No,227 of 1993 Exh.P.P. Was lodged by Khalid Mehmood P.W.8 nephew of the deceased at 1-00 p.m. On the same day at police station which was recorded by Sahibdad, Inspector/S.H.O. P.W.11, who proceeded to the spot, recovered empty of bullet, bloodstained earth, broken window glasses, diary of the deceased, pair of clothes of the deceased, Tissue papers, stikers and the Pajero. The dead body was sent for post-mortem examination which was performed by a Board of Doctors.
3. The prosecution case as it emerges from F.I.R. Exh.P.P. Is that on 29-9-1993 in the morning Mian Ghulam Haider Wyne, went to village Nusratpur in pursuit of election compaign, accompanied by Muhammad Ashiq Driver (given up), Khalid Mehmood (P.W.8), Shahid Shafique (P.W.9) and one Azhar Hassan (P.W.12). On return when they reached Pulli Mattanwali, on seeing a ditch on the road the driver stopped the Pajero. In the meanwhile, Umar Hayat armed with hatchet, Zaman with .12 bore pistol, Jahangir, Iqbal and Sultan with 7 mm rifles emerged from behind the branches of tress.
Umar Hayat broke the widow panes of the left side of Pajero with his hatchet. Zaman accused fired at Mian Ghulam Haider Wyne deceased, who was sitting on the front seat, hitting him on the chest.
The companions of the deceased were ordered to come down from the Pajero. Shahid Shafique P.W.9 took out his pistol which was snatched by Umar Hayat. The accused opened the door and dragged Mian Ghulam Haider Wyne out and violently threw him on the ground. He was fired at by the accused and Iqbal accused in the sight of the P.Ws. Injuring the right wrist of the victim. Before leaving the spot the accused raised slogans, picked up the empties from the spot and went away while sitting on a white coloured Pajero. Umar Hayat accused also took with him the pistol snatched from Shahid Shafique P.W.9.
4. Sahibdad, Inspector/S.H.O. P.W.11 after recording the F.I.R. Proceeded to the spot ' and initiated the investigation. The various formalities performed by him have been detailed supra. On completion of the investigation, he submitted challan against the accused.
5. The learned trial Court framed charge, to which accused pleaded not guilty and claimed to be tried. In order to prove its case, the prosecution examined as many as 12 witnesses. P.W.1 Ghazanfar Abbas, Patwari prepared the rough site plan. P.W.2 Munir Baqir, Constable is a formal witness from police who took into possession the last-worn clothes of the deceased and despatched the dead body to mortuary for postmortem examination. P.W.3 Abdul Hafiz identified the dead body at the time of post-mortem. P.W.4 Muhammad Jamal is the photographer who took snaps of the deceased at the spot. P.W.5 Dr. Mushtaq Ahmad alongwith another doctor had conducted the post-mortem examination of the deceased. P.W.6 Muhammad Hussain, A.S.-I. Is the witness of recovery of rifle 7 mm from Jahangir accused, pistol and hatchet from Umar Hayat accused. P.W.7 Aziz Ullah, A.S.-I. Is the recovery witness of 7 mm rifle alongwith two live bullets from Iqbal accused, .12 bore pistol and two live cartridges from Zaman accused and 7 mm rifle from Sultan accused.
P.W.8 Khalid Mehmood complainant, P.W.9 Shahid Shafique and P.W.12 Azhar Hassan are the eye- witnesses of the occurrence. P.W.10 Muhammad Anwar, Head Constable is a formal witness from police. P.W.11 Sahibdad, Inspector/S.H.O. Is the Investigating Officer of this case. On conclusion of the prosecution evidence the learned Assistant Advocate-General produced in evidence the reports of Forensic Science Laboratory Exh.P.EE., Exh.P.FF. Reports of Chemical Examiner Exh.P.GG., Exh.P.HH., Exh.P.J. Reports of Serologist Exh.P.KK., Exh.P.LL., Exh.P.MM., gave up certain witnesses being unnecessary and with that closed the case for the prosecution.
6. The accused when examined under section 342, Cr.P.C. Denied the prosecution case and attributed their false implicafion due to enmity with police on account of another murder of Jahangir Malooka. They, however, did not produce any defence nor they themselves appeared as their own witnesses under section 340(2), Cr.P.C.
7. On conclusion of the trial, the learned trial Court convicted and sentenced the three accused/appellants as detailed above. The remaining co-accused i,e, Jahangir and Sultan respondents were, however, acquitted of the charge by giving them the benefit of doubt. Hence, these appeals, one against conviction and other challenging acquittal.
8. Learned counsel for the appellants/convicts has contended that the F.I.R. In the present case was lodged with a delay of three hours, not in the manner stated by the pfosecution as P.W.11 Sahib Dad Khan, Inspector/S.H.O. Admitted during the cross-examination that initially he went to the spot at 11-02 a.m. And then in order to trace out the complainant went back to the police station where he had recorded the F.I.R. It is further contended that no sanctity is attached to such an F.I.R., having been lodged after preliminary investigation and thus mentioning of the names of the eye- witnesses, the accused and the roles attributed to them cannot be taken into account as a first hand information and gospal truth; that Shahid Shafique P.W.9, Khalid Mahmood P.W.8 and Azhar Hussain P.W.13 were not present at the spot and they were later on introduced as eye-witnesses by concocting a false story, which fact, according to the learned counsel finds support from the contents of the rough site plan where the names of the witnesses and the accused are not mentioned; that the deceased was a political figure and ex-Chief Minister of Punjab, therefore, the police being under pressure had concocted false story by nominating the accused in order to release pressure from different corners and show "Karwai". It is further contended that no motive was assigned to the convicts whereas according to the prosecution itself the murder was committed due to political rivalry but neither the appellants belonged to Bodla Group and nor any of them belongs to Bodla Tribe and the prosecution has also failed to bring on record any evidence to show that the appellants had any concoction or common intention with the Bodla to commit the murder of the deceased; that the ocular account furnished by the three witnesses is a bundle of lies and not trustworthy, who in fact were not present at the spot as Sahib Dad Khan, Inspector P.W.11 who recorded the F.I.R. Has stated that when he went to the place of occurrence, one Tauqeer Shah told him that Malookas had encircled the deceased, which fact further controverts the presence of the eye-witnesses at the spot, who if were actually present at the spot might have reported the matter to the police promptly instead of later receiving the information through one Tauqeer Shah who even was not cited as a witness; that none of the eye-witnesses sustained injuries during the occurrence is unbelievable which leads to an inference that they were not present at the spot and had they been present at the spot, should not be spared by the assailants to create evidence against them, when it is stated to be a pre-planned occurrence committed at a deserted place and the P.Ws. Were at the mercy of the assailants; that all the witnesses had made dishonest improvements at the trial while attributing specific roles Lo each of the accused which is sufficient to discharge the eye-witnesses account; that both the aquitted co-accused were assigned the same role and the appellants are also entitled to the same treatment of acquittal from the charge as no other independent evidence is available to connect them with the commission of the crime; that it is an unnatural story that P.W.9 Shahid Shafique was in possession of pistol but before he could use the same, it was snatched by the assailants; that the medical evidence is in contradiction with the ocular account and after the conduct of the post-mortem examination the injury on the right wrist of the deceased was attributed to Iqbal alias Bali accused; that the recovery of empty from the spot has been introduced later on in order to strengthen the prosecution case as the documents allegedly prepared immediately after the occurrence do not find mentioned recovery of the same from the spot, and that prosecution has not been able to prove its case beyond any shadow of doubt.
9. On the other hand Mr. Aftab Farrukh, learned counsel for the complainant/appellant in Criminal Appeal No,133 of 1995 filed against acquittal contends that it was a day time occurrence and the deceased being on election compaign was accompanied by his supporters/relatives at the time of occurrence is not at all unnatural, hence the presence of the eye--witnesses at the spot cannot be doubted; that it was not an unwitnessed occurrence as it was reported immediately after the occurrence and statement of Ghazanfar Abbas P.W.1 shows that he had taken rough notes on the day of occurrence at about 1-30 p.m. P.W.2 Munir Baqir had taken photographs of the deceased when he was lying near the Pajero jeep on the day of occurrence at 1-30 p.m. Whereafter the dead body was removed and the F.I.R. Was promptly lodged with the police wherein the names of the witnesses are duly mentioned besides names of the assailants with specific roles which eliminates the possibility of any consultation and deliberation while the post-mortem examination of the dead body was conducted afterwards at 2-45 p.m. By the Board of Doctors and inquest report as well as other documents containing details of occurrence were signed by them, which is sufficient to prove that the F.I.R. Was lodged with promptitude; that all eye-witnesses are independent and during the cross-examination they were not even suggested any enmity or grudge to falsely implicate the appellants in the present case; that in this case a well-known politician was murdered and there was no possibility of any fabrication as the story of the occurrence was secured by the local as well as International media immediately which was published in the daily Newspapers on the next day; that the eye-witnesses are consistent on material points, whose statements are supported by the medical evidence and corroborated by the recoveries; that in the present case all the accused had acted in a brutal manner who firstly ambushed them for murdering the deceased while armed with deadly weapons and then assured before leaving the place of bursting the tyres of the jeep that the deceased should not be given medical aid to save his life, hence all the accused had shared common intention in furtherance of their common object for committing the murder of the deceased and deserve sentence of death in the peculiar circumstances of the present case. He relies upon Anwaar Hussain v. The State 2000 SCMR p.105. It is further contended that the acquittal of Sultan alias Sulla and Jahangir being based 'on surmises and conjectures is liable to be set aside by this Court as no valid reason has been given for their acquittal and the judgment to their extent is perverse as both the acquitted accused were specifically nominated in the F.I.R. Alongwith the convicts and the same evidence is available against them, hence their acquittal may also be converted to death sentence.
10. Ch. Pervaiz Aftab, Advocate, learned counsel appearing on behalf of the respondents Sultan alias Sulla and Jahangir has argued that the acquittal of the respondents is based on valid reasons and the witnesses had made improvements at the trial in order to ascribe any role to the respondents which has rightly been disbelieved by the learned trial Court. It is further contended that the criteria for interference and appraisal of evidence in appeal against conviction and appeal against acquittal is entirely different.
11. The learned State Counsel also opposes the appeal of conviction and supports the appeal against acquittal
12. We have heard the learned counsel for the parties and also perused the record with due care and caution: The occurrence in the present case had taken place on 29-9-1993 at 10-00 a.m. At Village Nusrat Pur which is six miles away from Police Station Tulamba. F.I.R. No,227 (Exh.P.A.) was recorded on the same day at 1-00 p.m. At Police Station Tulamba by Sahib Dad Khan, Inspector P.W.11. P.W.1 Ghazanfar Abbas, Patwari Halqa visited the spot at 3/4-00 p.m. And prepared the site plan. P.W.2 Munir Baqir, Constable who took the dead body to the mortuary during cross- examination clearly stated that he alongwith the Investigating Officer Sahib Dad Khan, Inspector P.W.11 went to the spot at 1-00 p.m. And the dead body was escorted to the mortuary at 2-15 p.m.
During cross-examination he stated that it was generally said that the complainant had lodged the F.I.R. P.W.4 Muhammad Jamal Nasir who had taken photographs of the dead body of the deceased on 29-9-1993 when it was lying on the ground and subsequently, when it was placed on the cot clearly stated during cross-examination that somebody from police station had come to his shop after 1-00 p.m., when he went to the spot and took the photographs till 1-45 p.m. The post- mortem was conducted by the Board of Doctors the same day at 2-55 p.m. And the inquest report as well as injury statement were produced at that time before the doctors. All these facts are sufficient to prove that the F.I.R. Was lodged with promptitude which eliminates the possibility of any deliberation or consultation for the fabrication of any story. The names of the convicts alongwith acquitted accused are duly mentioned in the said F.I.R. Besides the eye-witnesses. Khalid Mahmood complainant was the nephew the wife of the deceased. Shahid Shafique P.W.9 and Azhar Hassan P.W.12 according to the complainant alongwith the driver Ashiq were present in the same Pajero. The presence of the eye-witnesses alongwith the deceased and the complainant is quite natural as the deceased was on election compaign and it is usually observed that during election compaign candidates are always accompanied by their supporters alongwith near relatives as the candidates do not feel good in approaching the voters alone. The P.Ws. Have succeeded in establishing their presence at the time of occurrence and though all the three witnesses were subjected to lengthy cross-examination but nothing could be brought on record by the defence to doubt their presence at the spot at the time of occurrence. All the three witnesses are also consistent on the point that Khalid Mahmood went to the police station to record the F.I.R.
And when the police came at the spot the statements of both the witnesses (P.W.9 and P.W.10) were recorded. All the three witnesses have reiterated the story with each and every details at the trial. They had no previous or enmity to falsely implicate the accused in the present case and they have even not been suggested any motive for the false implication of the accused during cross- examination. They are consistent on material points and their statements are not contradictory to each other. Learned counsel for the appellant/convict has failed to point out any material contradiction in their statements regarding the manner in which the occurrence had taken place, the place and the time of occurrence. In such circumstances we do not find any illegality in the conviction of the three appellants recorded by the learned trial Court.
13. As far as contention of the learned counsel for the appellants that P.W.11 Sahib Dad Khan according to his own version had gone to the spot at 11-00 a.m. Where Tauqeer Shah told him that Malookas had encircled the deceased Ghulam Haider Wyne which is sufficient to cast doubt in the prosecution story is concerned, we are of the view that the possibility cannot be ruled out that immediately after hearing about the incident the police might have reached the place of occurrence as admittedly a well-known politician was murdered, but it is not sufficient to discard the ocular account furnished by independent and natural witnesses as the F.I.R. Was lodged with all promptitude at the police station, which eliminates the possibility of fabrication.
4. As regards the contention that the prosecution has not been able to prove any motive against the appellants, it is a matter of speculations and it is always not necessary to prove the motive. The witnesses cannot be expected to explain the feelings of the accused E persons at the relevant time and what they had actual grievance in their minds. Sometimes killings are made without any reasons only to cause harassm ent.
15. The medical evidence according to us is also not in contradiction with the ocular account. The injuries with blunt weapon could be due to the fall of deceased on the ground after pulling him out of the vehicle by the assailants.
16. The acquittal of two co-accused is not sufficient to discard the ocular account also to the extent of the convicts/appellants as they have been ascribed specific role at the trial and have failed to bring on record any motive for their false implication in the present case. Moreover, case of the three convicts is distinguishable from the other co-accused (since acquitted) as Zaman alias Zamani fired first fatal shot on Ghulam Haider Wyne deceased when the window panes were broken by Umar Hayat appellant. Muhammad Iqbal was attributed specific injury at the trial on the wrist of the deceased. In this case empty was recovered from underneath the dead body of the deceased from the place of occurrence and weapon recovered from Iqbal appellant subsequently was sent to the office of the Forensic Science Laboratory after about two months of the sending of the empty and report of the FSL is positive. Hence the improvement made to the extent of Muhammad Iqbal at the trial cannot be said to be dishonest as he was attributed general allegation of firing in the which has been specifically explained at the trial and the allegation against him is supported by the recovery of weapon of offence from him and the report of Foreasic Science Laboratory that the empty recovered from the spot was fired from the said weapon, hence the appellants cannot be treated alike the acquitted co-accused.
17. From the above discussion, we are of the considered view that they had shared common intention in the murder of the deceased. It was a target killing committed after premeditation. The appellants had firstly dug out a pit in the thoroughfare to waylaid the vehicle of the deceased and then committed the occurrence which is sufficient to show involvement of more accused than one.
It was a daylight occurrence and the appellants did not claim that they were not previously known to the P.Ws. The mere contention that the P.Ws. Did not receive any injury during the occurrence is not sufficient to discard their evidence when they have been able to prove their presence at the spot. Why they were not caused any injury was up to the psyche of the assailants which cannot be adjudged at this stage. Hence, the conviction of all the three appellants under section 302/34, P.P.C.
Is maintained, not under Qisas but under Ta'zir as according to us the prosecution evidence is not sufficient to meet the required standard provided under section 304, P . P. C .
18. Now, we come to the quantum of sentence. Zaman alias Zamani appellant has been attributed specific fatal fire-arm injury in the vital part (chest) of the deceased. He was not able to bring on record any mitigating circumstance calling for lesser punishment. It was a pre planned occurrence and the appellants had made all possible efforts that the deceased should not be given any first aid medical treatment as before leaving the place of occurrence they had also burst the tyres of the Pajero, the deceased and the witnesses were riding. Therefore, death sentence of Zaman alias Zamani appellant is maintained.
19. As far as Umar Hayat and Iqbal appellants are concerned, though it is proved that they had shared common intention in the occurrence, yet they were not attributed any fatal injury to the deceased, therefore, as an abundant caution their death sentence is converted to life imprisonment. However, sentence of compensation to all the three appellants is maintained but it is directed that in default of payment thereof they shall further undergo one year's R.I. The other sentences awarded under different charges are also maintained.
20. With the abovesaid .Modification in the impugned judgment of conviction and sentence this Criminal Appeal No,132 of 1995 is dismissed. The death sentence as regards Zaman alias Zamani appellant is confirmed, but to the extent of Umar Hayat and Iqbal appellants the same is not confirmed. All the sentences shall run concurrently and Iqbal and Umar Hayat appellants will be given benefit of section 382-B, Cr.P.C.
21. We are not inclined to accept Criminal Appeal No,133 of 1995 against acquittal as the learned trial Court has given valid reasons for the acquittal of both the respondents. No specific injury were attributed to Sultan alias Sulla and Jahangir on the person of the deceased by the witnesses in their statements before the police but at the trial improvement was made. We are not ready to accept such improvement in the statements of the witnesses. We do not find any illegality in the acquittal order and judgment is not perverse to this extent. The learned trial Court has rightly extended the benefit of doubt to them. It is also established principle that the criteria for interference in appeal against acquittal is entirely different than that of the appeal against conviction. The view adopted by the learned trial Court to the extent of acquittal of the respondents can be formed from the evidence on the record. Interference cannot be made merely on the ground that from the reappraisal of evidence another view other than adopted by the learned trial Court can also be formed, unless it is proved that acquittal was result of any miscarriage of justice.
Hence the appeal against acquittal has no merit and is dismissed.