1. Bashir A. Mujahid, J.--After having been tried in case FIR No, 306 dated 22.7.1994 u/s registered U/S 302/324/34 PPC at P.S. Saddar, Kamoke, Arif Baig appellant was convicted under Section 302(b)
2. PPC, for causing death of Shahbaz and sentenced to death. He was also ordered to pay compensation of Rs. 30,000/- u/S. 544-A Cr.P.C. to the legal heirs of the deceased, in default thereof to undergo six months. SI. He was further convicted under Section 324/34 PPC for causing injury to Sultan Mehmood and sentenced to five years RI and also order to pay Rs. 10,000/- as compensation u/S. 544-A Cr.P.C. He was also convicted under Section 324/34 PPC for causing injury to Sarfraz Khan and sentenced to five years RI, with a fine of Rs. 10,000/- as compensation u/S. 544-A Cr.P.C. to be paid to the injured PW, in default thereof to undergo SI for six months. He was also ordered to pay fine of Rs. 5000/-, in default thereof to undergo six months SI. Intizar Baig, co-accused was convicted under Section 324/34 PPC and sentenced to five years for causing injuries to Nadeem Tariq with a fine of Rs. 10,000/- to be paid to the injured PW as compensation u/S 544-A Cr.P.C., in default thereof to undergo six months SI. Intizar Baig was also convicted under Section 324/34 PPC and sentenced to five years FI for causing injuries to Shahzad Faisal, PW and also ordered to pay Rs. 10,000/-as compensation to the injured u/S. 544-A Cr.P.C., in default thereof to undergo six months SI. Intizar Baig was also ordered to pay fine of Rs. 5000/-, in default thereof to undergo six months SI. Benefit of Section 382-B Cr.P.C. was, however, extended in their favour. All the sentences were ordered to run concurrently.
3. Through the same judgment co-accused Sarfraz Baig and Ishtiaq Baig were acquitted of the charge.
4. The brief facts of the case are that FIR No, 306 dated 22.7.1994 (Ex.PA/1) was registered at P.S. Saddar, Kamonke at 12.35 p.m. by Allah Ditta, SI PW, on the basis of statement Ex.PA of Khushi Muhammad, PW2 recorded by Muhammad Sadiq, Inspector PW12 at 11.55 a.m. at Eminabad Morr, alleging therein that the complainant was cultivator and resident of Haveli Diwana. Accused Sarfraz Baig son of Iftikhar Baig and Ijaz Khan son of Muhammad Rafiq were resident of the same locality, Shahbaz son of Ghaus who was real nephew of the complainant and was living with him after death of Ghaus Muhammad, brother of the complainant. The house of Sarfraz Baig was also situated in the same lane which leads to the house of the complainant. Arif Baig and son Sarfraz Baig and Ijaz Khan son of Muhammad Rafiq were depositing savings in committee. Intizar Baig, Sarfraz Baig and Ijaz Khan, Sarfraz Khan, Sultan s/o Muhammad Siddiq had a quarrel in the after noon a day before over distribution of committee amount but they were separated due to intervention of Muhammad Siddiq son of Karim Bakhsh and Muhammad Akbar son of Hashim Ali.
5. Arif Baig, appellant at the time of departure had threatened the deceased Shahbaz for taking revenge.
6. On the day of occurrence at 8 a.m. Sarfraz Khan son of Muhammad Rafiq, Sultan Mehmood son of Muhammad Siddiq were returning to their house from bazaar. Shahbaz son of Ghaus Muhammad was also following them a few paces, Arif Baig armed with rifle .222 bore, Intizar Baig armed with pistol .30-bore alongwith Sarfraz Baig and Ishtiaq Baig who had way laid. Sarfraz Baig and Ishtiaq Baig raised lalkara to teach lesson to Shahbaz for causing insult on previous day. Arif Baig fired a shot from his .222 rifle which hit at the back of head of Shahbaz, deceased. Sultan Mehmood tried to intervene but he was fired at by Arif Baig on left side of his chest. Sarfraz Baig raised alarm who was also fired at by Arif Baig on his right thigh. Nadim Tariq and Shahbaz were also attracted to the spot. Intizar Baig fired hitting Nadeem Tariq on right chin and Shahzad Faisal on his left shoulder.
7. The occurrence was also witnessed by Sadiq son of Barkat Ali. Shahbaz, Sultan, Sarfraz Khan, Shahzad Faisal were removed to Civil Hospital, Gujranwala in injured condition where Shahbaz succumbed to the injuries on the way to hospital. Sultan, Sarfraz Khan and Shahzad Faisal were medically examined and their Medico Legal Reports Nos, 3113, 3114, 3116 and 3117 were produced before Muhammad Sadiq, Inspector PW12.
8. Muhammad Sadiq, Inspector PW12 after recording the statement Ex.PA sent the same to the police station for registration of formal FIR and he himself arrived at Civil Hospital, Gujranwala alongwith Khushi Muhammad, complainant and prepared the injury statement of Shahbaz deceased through memo Ex.PJ and inquest report Ex.PK and sent the dead body for post-mortem examination. Thereafter, he arrived at the place of occurrence and prepared the rough site-plan of place of occurrence through memo Ex.PM and collected the blood-stained earth through memo Ex.PB which was attested by Khushi Muhammad, PW2. Thereafter he recorded the statements of the PWs under Section 161 Cr.P.C. On 23.7.1994 he took the last worn clothes of the deceased into possession produced before him through memo Ex.PC. On 30.7.1994 he went to Services Hospital, Lahore where he recorded the statements of Sultan, Sarfraz Khan by moving applications Ex.PN and Ex.PO to M.S. Services Hospital, Lahore whether these witnesses were fit to make statements. Earlier he had also visited the Services Hospital on 23.7.1994 to record their statements but at that time M.S. Services Hospital state that the PWs were not fit to record their statements. On 8.4.1994 he arrested Arif Baig who while in police custody led to the recovery of .222 rifle alongwith 5 live bullets P2/1-5 which were taken into possession through memo Ex.PD. After completion of the investigation he submitted the challan.
9. The trial Court framed the charge which was denied by the accused and they claimed trial.
10. During the trial the prosecution examined as many as 12 witnesses to prove the guilt of the accused.
11. Dr. Riasat Ali, MO PW-7 on 23.7.1994 conducted the post-mortem examination on the dead body of Shahbaz son of Ghaus Muhammad and found the following injury on his body: "A lacerated wound on top back in front of head in centre with fractured frontal parietal occipital bones in centre and brain matter coming out of bone.
12. Dr. Muhammad Fiaz, MO PW-10 on 22.7.1994 medically examined Shazad Faisal son of Muhammad Jamil and found the following on his person: "A fire-arm lacerated wound of entry 2 x 1% cm going deep in front of left upper arm part."
13. On the same day the same doctor also medically examined Sultan Mahmood son of Muhammad Siddiq and found the following injuries on his person:--
1. A fire-arm lacerated wound of exitcm x 1 cm going deep on outside of left chest lower part. 16 cm below left nipple. 19 cm from midline.
2. A fire-arm lacerated wound entry (1/2) cm x z cm going deep on back of left chest lower part.
14. On the same day he also medically examined Nadeem Tariq son of Muhammad Jamil and found the following injury on his person: "A fire-arm glancing wound 6 x 3 cm muscle deep on back of right leg upper part." Khushi Muhammad complainant was examined as PW-2. He supported the version of the FIR and narrated the motive for the occurrence. He was real paternal uncle of the deceased and stated that the deceased was residing with him during the days of occurrence. Sultan Mehmood, PW-2 and Sarfraz Khan, PW-4 were also injured witnesses in the same occurrence. They supported the story of the prosecution as narrated by the complainant. They also narrated the fact that they received injuries at the hands of the accused in the same occurrence. Akbar Ali, PW-1 supported the motive part of the occurrence and narrated the quarrel outside of his house one day prior to this occurrence between Sarfraz Baig, Arif Baig, Intizar Baig accused on one side and Sultan Mahmood, Sarfraz Khan and Ijaz Khan on the other side. Talib Hussain, PW-6 was recovery witness of licensed .222 rifle P1 and pistol .30-bore P3 got recovered by Arif Baig and Intizar Baig in his presence which were taken into possession through memo Ex.PE which was attested by him and Muhammad Hanif, PW. Arif Hussain Iyaz, Draftsman was examined as PW-8 who scaled the site- plan of the place of occurrence. Riasat HC PW-9 escorted the dead body of Shahbaz deceased for post-mortem examination. Allah Ditta, ASI, PW-11 recorded the formal FIR Ex.PA/1.
15. The prosecution evidence was closed by tendering in evidence report of Chemical-Examiner Ex.PQ and that of Serologist Ex.PR. After close of the prosecution evidence statement of Arif Baig, accused/appellant was recorded under Section 342 Cr.P.C. wherein he denied the allegations and claimed his innocence and false involvement due to previous enmity and political rivalry. The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal. While the trial Court has sent up murder reference for conformation of death sentence.
16. Intizar co-convict challenged his conviction and sentence through Crl. Appeal No, 775/1997 but the same was withdrawn.
17. Learned counsel for the appellant has made the following submissions in support of his appeal:--
(i) That the FIR was not registered at police station and it was based on the statement Ex.PA recorded by Muhammad Sadiq, Inspector at Morr Eminabad which shows that the case was registered after preliminary inquiry with deliberation and consultation.
(ii) That the post-mortem examination was conducted on the next day which shows that the inquest report and other police papers were not prepared and the post-mortem examination was delayed awaiting for receipt of the police papers.
(iii) That the motive is not proved. Ijaz Ahmad who had the dispute over amount of 'committee' has not been examined by the prosecution.
(iv) That Khushi Muhammad, PW-2 is real uncle and step father of the deceased and Sultan Mehmood, PW-3 is sister's son of the complainant and works at a distance of 40/50 miles from the place of occurrence. The statement of Sarfraz Khan, PW-4 was recorded under Section 161 Cr.P.C. after 8 days of the occurrence and Tariq Nadeem, PW-5 was a chance witness; the testimony of these PWs i.e. eye-witnesses have not been corroborated from any independent source and they are not truthful witness.
(v) That the blood-stained earth was taken into possession by the only from one place where deceased was injured and not from the places where the PWs received the injuries and their blood-stained clothes were also not taken into possession which shows that the injuries on these PWs namely, Sultan Mehmood, PW-3, Sarfraz Khan, PW-4 and Nadeem Tariq, PW-5 were fabricated.
18. Khushi Muhammad was not injured which shows that he had not witnessed the occurrence and was subsequently introduced. The witnesses are inimical as prior to the instant occurrence the appellant was caused injuries by the complainant party and one shot on each PW has been attributed to make the case doubtful.
(vi) That no empty as taken into possession from the spot, therefore, recovery of licensed rifle from the appellant does not corroborate the prosecutions story.
(vii) That according to the medico legal report three bones were fractured which shows that the injury was caused with blunt weapon. Moreover, bullet or metallic pieces were not recovered from the body which means that the fatal injury was not caused by rifle.
(viii) That two co-accused have been acquitted by disbelieving the same evidence.
19. Lastly learned counsel for the appellant in alternate has argued that it is not a case of capital punishment and he prays for lesser sentence on the ground that-- (a)motive has not been proved by not examining Ijaz Khan and has placed reliance on-- 2000 SCM R 400 (Gul Khan and another vs. State)
20. 2002 SCM R 99 (Feroze Khan vs. State)
21. 2003 SCM R 98 (Jehanzeb and another vs. State & others)
22. 2003 SCM R 1164 (Mirza Zaheer Ahmad vs. State)
23. (b)According to the prosecution story the appellant acted on the lalkara of his father Sarfraz Baig, therefore, he was under the command of his father and by placing reliance on-- 1993 SCM R 155 (Zia Ullah vs. The State)
24. 1995 SCM R 256 (Mrs. Hafeezan Bibi vs. Muhammad Tufail and others)
25. 1999 SCM R. 396 (Nazir Ahmad vs. The State) it has been argued that the capital punishment is not called for.
26. (c)Nothing has been brought on record that how the occurrence was initiated. The accused were sitting in front of their own house where the deceased and the PWs arrived and they might have caused some kind of provocation, on which, the occurrence took place, therefore, it has been prayed that the sentence be altered from death to imprisonment for life.
27. The appeal has been opposed by learned counsel for the State who has supported the impugned judgment.
28. We have given our due consideration to the contentions raised by learned counsel for the parties and also examined the record as well as case law referred to at the bar.
29. The occurrence took place at 10 a.m. on 22.7.1994 day light and matter was reported to the police station at 12.35 p.m. According to Dr. Muhammad Fiaz, PW-10, Shahzad Faisal, Sultan Mehmood, Sarfraz Khan and Nadeem Tariq were examined at 10.40 a.m. before the statement of Khushi Muhammad was recorded by Muhammad Sadiq, Inspector PW-12 and the medico legal reports were produced before the I.O. and their numbers have been duly mentioned in the statement Ex.PA of Khushi Muhammad. All these facts lead us to believe that the matter was report to the police promptly nominating the appellant with specific role and there was no chance for deliberations or consultations. According to the complainant a quarrel took place between Intizar Baig, Arif Baig and Sarfraz Baig on one side and Ijaz Khan, Sarfraz Khan, Sultan Mehmood on the other side but they were separated and Arif Baig, appellant left the place while extending the threats that he will take revenge for his insult. It is also stated by the complainant in the FIR that on next day at 10 a.m. the accused way laid in front of their house when Sarfraz Khan, PW-4, Sultan Mehmood PW-3 were going towards their houses. Shahbaz deceased was behind them and they were attacked by the accused. Although the motive was not against Shahbaz deceased but as he was going alongwith Sarfraz Khan and Sultan Mehmood, therefore, he received the fatal shot at the hands of Arif Baig, appellant. Sarfraz Khan and Ijaz Khan both had dispute over payment of committee with the appellant and Sarfraz Khan has been duly examined as PW-4 and he alleged the motive even the defence plea was that the appellant was injured by the complainant party, therefore, the argument of the learned counsel that the motive urged has not been proved and sentence be altered, has no force. Sultan Mehmood, PW-3 and Sarfraz Khan, PW-4 were seriously injured and they were referred to Services Hospital, Lahore where according to Muhammad Sadiq, Inspector PW-12 he approached the Medical Superintendent through written application for recording their statements on 23.7.1994 but it was reported by the Medical Superintendent that they were not fit to make their statements. Thereafter, on 30.7.1994 he again went to Services Hospital and recorded the statements of Sultan Mehmood and Sarfraz Khan under Section 161 Cr.P.C. The fire-arm injury received by Sultan Mehmood, PW-3 was on his chest while on Sarfraz Khan was on outer side of his upper side of right thigh and due to grievous fire-arm injuries they were referred to Services Hospital, Lahore and the fire-arm injuries on Nadeem Tariq, PW-5 was on the back side of right leg which were attributed to Intizar Hussain. All the three PWs namely, Sultan Mehmood, PW-3, Sarfraz Khan, PW-4 and Nadeem Tariq, PW-5 received grievous fire-arm injuries and those cannot be self- suffered or fabricated and their presence at the spot cannot be doubted. Sultan Mehmood, PW-3 is the complainant but has no previous enmity with the accused party to be termed as inimical or interested witnesses. By mere relationship with the complainant or the deceased is no ground to discard his testimony. Sarfraz Khan, PW-4 and Nadeem Tariq, PW-5 are independent witnesses. they have furnished sufficient explanation for their presence at the spot, therefore, they are truthful witnesses and there is no material contradiction in their statements. If the I.O. has not taken the blood-stained earth from the places where they were caused injuries or not taken their blood- stained clothes into possession may be due to inefficiency of the I.O. but the presence of the injured PWs cannot be doubted. We also do not find any contradiction in the medical evidence or the ocular account. The medical evidence fully corroborates the ocular account furnished by Sultan Mehmood, PW-3, Sarfraz Khan, PW-4 and Nadeem Tariq, PW-5 and the prosecution case is established beyond any shadow of doubt and we do not find any reason to interfere in the conviction recorded against the appellant.
30. As far as prayer for reduction in sentence is concerned, as we have already concluded that the motive has been narrated by Sarfraz Khan, PW-4 and it is settled law that the weakness or absence of the motive is no ground for awarding lesser punishment. The case law referred to by awarding lesser punishment. The case law referred to by learned counsel for the appellant on this point is distinguishable. The appellant alongwith his co-accused way laid the complainant party and launched attack. The appellant participated in the occurrence duly armed with rifle and caused successive injuries to the deceased and the PWs, therefore, he does not deserve any leniency under the cover that the occurrence took place at the spur of the moment and that he might have acted under the command of his father. It was a pre-planned deliberate attack launched after they way-laid, duly armed, by sharing common intention, therefore, question of acting under command of father does not arise. We do not find any mitigating circumstance for awarding lesser sentence. Resultantly, the appeal is dismissed. The conviction and sentence is maintained.
31. Murder Reference No, 160/1998 is answered in affirmative.