1994 PLP 1797 (MLD)

Mukhtar and Pervaiz appellants herein alongwith Javed and Dose (since acquitted) were tried under section 302/307/109/34, P.P.C., by the learned Additional Sessions Judge, Bhalwal. The trial Judge vide his judgment dated 5-3-1990, convicted Mukhtar and Pervaiz under section 302/34, P.P,C and sentenced them to imprisonment for life plus fine of Rs. 30,000 each and is default five years R.I. whereas Javed and Dosa were acquitted. He also acquitted all the accused persons of the charge under section 307/34, P.P.C. The convicts have filed the present appeal, whereas Shamsher Khan complainant has filed two Criminal Revisions, viz. Criminal Revision No. 52d 1991, for setting aside the acquittal of Javed and Dosa and Criminal Revision No. 711 of 1991, for enhancement of sentence of the appellants to death. I propose to dispose of all the three matters by this judgment.

2. The prosecution case as disclosed in the F.I.R. Exh.PF lodged by Shamsher Khan (P.W.6) on 24-3-1987 at 2-00 p.m. at Police Station Kot Momin, is that on 24-3-1987 at about 12-00 noon, the complainant Shamsher Khan P.W.6 and his deceased uncle Muhammad All were enroute to then Dera from village Mateela. When they reached the bridge of Rajbah Chaukers known as 'Aliana' in the area of village Mateela, Mukhtar Ahmad appeII0 armed with a gun and Pervaiz appellant armed with a rifle came there on a motorcycle from the southern side of the said Rajbah. They got down from, motorcycle, parked it on the bank of the Rajbah and raised Lalkara that 011 would not spare them. Simultaneously, Mukhtar appellant fired from his bore gun which hit Muhammad Ali deceased on the right side of his chest followed by second fire by Muhammad Pervaiz which hit Muhammad Ali deceased on his neck from the front side. Mukhtar appellant repeated the fire which hit the deceased on the left posterior side of his chest, whereupon he fell down. Meanwhile, Javed (since acquitted) also appeared at the scene. He fired two ineffective shots at Shamsher Khan P.W. The occurrence was witnessed by Muhammad Hayat P.W.7 and Ahmad P.W.B. The appellants then rode away on their motorcycle towards their Dera. Muhammad Ali succumbed to the injuries at the spot. The motive for the occurrence was the marriage of Mst. Manzooran, first cousin of Mukhtar appellant with Muhammad Ali after her abduction about 18/19 years prior to the occurrence.

3. Leaving Muhammad Hayat and Ahmad P.Ws. to guard the dead body, Shamsher Khan P.W. went to Police Station Kot Momin and on his statement F.I.R. Exh.PF was recorded by Muhammad Siddique Alvi, S.I/S.H.O. (P.W.10). After recording the F.I.R. the said police officer proceeded to the spot, collected blood-stained earth from there vide memo. Exh.PG. He also collected two crime empties of .12 bore (P4 and P5) and one empty bullet P6 from the spot, vide memo. Exh.PH. He prepared injury statement Exh.PM and inquest report Exh.PN of Muhammad Ali deceased and despatched the dead body to the mortuary for post-mortem examination through Muhammad Akbar FC. On the same day i.e. 24-3-1987, Muhammad Akbar FC produced the last-worn clothes of the deceased, which were taken into possession vide memo. Exh.PC. He also recorded the statements of the witnesses under section 161, Cr.P.C. The Investigating Officer arrested the appellants and Javed on 18-4-1987. On the same day, Pervaiz appellant got recovered rifle P7 and Mukhtar gun P8 alongwith its licence from their respective residential houses, which were taken into possession vide memos. Exhs.PK and PL, respectively. The Investigating Officer also took into possession motorcycle through recovery memo. Exh.PJ, Rifle P9 produced by Javed (acquitted accused) vide recovery memo. Exh.PO. From the complainant side, on 20-6-1987, Muhammad Hayat P.W. Produced gun P3 of 12 bore, which was taken into possession vide memo. Exh.PD. Shamsher Khan P.W. also produced gun P4 on 26-6-1987, before the Investigating Officer, which was taken into possession vide memo. Exh.PE. As the guns produced by the witnesses were unlicensed, hence both the witnesses were challaned under section 13 of the Arms Ordinance, 1965. After completing legal formalities, the appellants and the acquitted accused were sent up for trial.

4. On 24-3-1987 at 5-30 p.m. Dr. Mazhar Rashid P.W.1 conducted post-mortem examination on the dead body of Muhammad Ali, who noticed five circular lacerated wounds, three lacerated wounds and one laceration thereon. The doctor opined that all-the injuries were caused by fire-arm and were ante mortem. Death was due to injuries 2 and 7 (reproduced below), whi4 according to the doctor were sufficient to cause death in the ordinary course of nature by causing severe haemorrhage and shock:-- (2) A circular lacerated wound, 1 c.m. x 1/2 c.m. going deep with slight blackening around lower part of right side of neck, 2 c.m. above the right clavicle. (7) A lacerated wound 1/2 c.m. x 1 c.m. going deep on the back of upper part of left side of chest on left scapular region, close to mid-line.

5. Pervaiz appellant in his statement under section 342, Cr.P.C. admitted that Javed accused is his brother whereas Mukhtar appellant is his paternal uncle and Dosa is his paternal-grandfather. He denied the motive, and stated that marriage of Mst. Manzooran with the deceased was a regular one. He denied the remaining prosecution allegations, professed innocence and stated that he had been involved in this case due to enmity with the P.Ws. and for that reason they have deposed against him. To the same effects is the statement of Mukhtar appellant. While pleading innocence he deposed that the complainant party was aggressor. They declined to produce any evidence in defence. However, at the instance of Dosa (acquitted accused) Muhammad Igbal appeared as D.W.1 to depose that Muhammad Hayat P.W. was a history?sheeter of Police Station Kot Momin and was challaned in different criminal cases.

6. Believing the prosecution evidence, corroborated by the medical evidence and the recoveries, the learned trial Judge convicted the appellants under section 302/34, P.P.C. and sentenced them as indicated above, whereas their two accused, namely, Javed and Dosa were acquitted.

7. The learned defence counsel vigorously contends that Shamsher Khan (P.W.6) and Hayat (P.W.7), the eye-witnesses, apart from being chance witnesses of the occurrence are the close relations of the deceased; hence their uncorroborated evidence cannot be relied upon. He next urged, the ocular version given by these witnesses is being falsified by the medical evidence. On the basis of the evidence of Muhammad Siddique Alvi (P.W.10), the Investigating Officer, learned defence counsel submitted that it is a case of two versions, the complainant party was the aggressor, which opened fire upon the appellants, who, in self-defence, also returned the fire; in that cross-firing the deceased, who is a close relation of both the parties, lost his life by the fire of Muhammad Hayat P.W.7, hence the conviction of the appellants is not sustainable in the eye of law. In the end, learned Counsel urged, even if, for the sake of arguments, the prosecution version is believed, still no offence under section 302/34, p y .C. is made out against the appellants.

8. The learned State Counsel supported the impugned judgment. The learned counsel for the complainant urged that the presence of the eye-witnesses is even admitted by the defence and their evidence gets further corroboration from the matching of crime empties with the weapons recovered at the instance of the appellants as per report of Fire-Arms Expert, Exh. PP. Learned counsel also challenged the acquittal of co-accused of the appellant as, on the ground that the learned trial Court has erred in law by acquitting Javed and Dosa, after accepting the evidence of the eye-witnesses, hence the revision petition be accepted. He also prayed for the enhancement of sentence of the appellants on the ground that they committed gruesome murder without any mitigating circumstance; hence they deserve the death sentence, which the normal penalty is provided under section 302, P.P.C.

9. I have carefully considered the abovementioned submissions of the learned counsel for the parties and have gone through the record with their able assistance. Admittedly, both the eye-witnesses are the residents of the locality, where the occurrence took place; hence they are not the chance witnesses of the occurrence. Over and above this, their presence at the spot is even not denied by the defence. The ocular version furnished by them, is getting further corroboration from the wedding of crime empties with the weapons recovered from the appellants. The two crime empties of .12 bore gun along with one crime empty of 7 mm, recovered from the spot on 24-3-1987, were sent to the Director Forensic Science Laboratory on 4-4-1987, whereas gun and 7 mm rifle recovered from Mukhtar and Pervaiz appellants, respectively, on 18-4-1987, were received in the Forensic Science Laboratory Centre on 26-4-1987, as deposed by Muhammad Hanif Naseem (P.W.11), Fire-arm Expert, thus this fact is sufficient to eliminate the chances of fabrication against the appellants; hence the trial Court rightly placed reliance on this evidence, as well, while convicting the appellants.

10. I have carefully examined the defence version, except the bare and obliging statement of the Investigating officer, Muhammad Siddique Alvi (P.W.10) there is no evidence, whatsoever to support this defence version. Neither Sikander-e-Azam nor any other person was examined by the defence to corroborate the defence plea, nor it? finds support from any direct or circumstantial evidence. No crime empties, other than the crime empties mentioned above, were found at the spot, when the Investigating Officer on 24-3-1987 for the first time made the spot inspection. If there had been cross?-firing, as alleged by the defence, then in all probability, the Investigating Officer would have recovered some more crime empties of different nature from the spot. The medical evidence fully supports the prosecution ease because the doctor rightly opined that the deceased died due to fire-aril, injuries of two different weapons, as is apparent from the measurement and dimension of the injuries received by the deceased. The contention of the learned counsel for the appellants that the deceased received injuries at the hands of Muhammad Hayat P.W.7, is devoid of force, because the occurrence took place in the broad daylight, which completely rules out the possibility of mistaken identification of the target. The eye-witnesses are also related to the accused party, hence in the normal course of the events they, in the absence of any strong animosity, have no earthly reason to falsely involve the appellants in the case. Resultantly, I find no force in this appeal, which is accordingly dismissed.

11. I have minutely gone through the reasons advanced by the learned trial Judge while giving benefit of doubt to Javed and Dosa accused and acquitting them and find that the impugned judgment is based upon proper appreciation of facts and law. The acquittal of Javed and Dosa cannot be said to be based upon misreading or non-reading of evidence on record or is unreasonable; hence Criminal Revision No. 52 of 1991, being devoid of force, is dismissed in limine. As the immediate cause of murder is shrouded in mystery, the learned trial Judge rightly refrained from imposing death penalty upon the appellants, while maintaining their conviction under section 302/34, P.P.C.; hence Criminal Revision No. 711 of 1991, is also dismissed in limine. N.H.Q./M-1618/L?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.