2001 P Cr (PLP)

10(a) A wound of entry 1 c.m. x I c.m. in antro‑lateral aspect of left thigh. 10(b) A wound of exit 1‑1/2 c.m. x 1‑1/2 c.m. on medial side of left thigh. 11 (a) A wound of entry 1 c. m. x 1 c. m. on medial‑side of left foot. 11 (b) An exit wound 1‑1/2 c. m. x 1 c. m. on lateral side of left foot. 12 (a) An entry wound 1 c.m. 1 c.m. on outer side of middle of right leg. 12(b) An exit wound of the same 1 c.m. x 1‑1/2 c.m. on medial side of right thigh. 13(a) An entry wound 1 c.m. x 1 c.m. on medial side of right knee. 13(b) An exit wound 1‑1/2 c.m. x 1‑1/2. c.m. in front of right knee. According to Medical Officer all the injuries were ante‑mortem and were caused by tire‑arm weapons. The Medical Officer had tendered in evidence copy of post‑mortem examination report as Exh. P.J. According to witness the probable time between infliction of injuries and death was 2 minutes and time between death and post‑mortem examination was about five hours. P.W.I Muhammad Saleem, Draftsman had prepared site plans Exhs. P.A. and P.A./1. P. W.2 Shafqat Hussain. Constable had escorted the dead body to the mortuary and later had produced last‑worn clothes of the deceased before the Investigating Officer. P.W.3 Raza Khan. Moharrir had kept parcels of crime property in safe custody. P.W.4 Mian Muhammad, Constable had transmitted parcels of crime property to the Office of Chemical Examiner and the Forensic Science Laboratory at Lahore. P.W.5 Qaiser Rata. A.S.I. was Station Clerk of police station and had registered formal F.I.R. Exh. P.C./1. P. W.6 Zafar Yar had identified the dead body at the time of post -mortem examination. P.W.7 Muhammad Abbas, Constable had witnessed recovery of spent casing which was produced by Muhammad Aslam, Constable, before Ghulam Abbas Shah, S.I. P.W.l

3. Muhammad Aslam had fired one shot at the accused while they were escaping from the Court premises after commission of the offence. P.W.8 Sarfraz had testified about the recovery of pistols Exh. P.5 and Exh. P.6 at the instance of Muhammad Bahadur and Khuda Dad accused. P.W.9 Abdul Qayyum had witnessed the recovery of four empty casings Exh. P.7 to Exh. P.10 recovered from the place of occurrence which were taken in possession by the police vide memos: Exh. P.G. and Exh. P.H. P.W.11 Haji Ali Shan uncle of the deceased had accompanied the deceased to the Court and had lodged complaint Exh. P.C. at the police post. He re‑affirmed the narrative contained in the F. I. R. P.W.12 Sultan Mahmood brother of the deceased was the second eve‑witness of the incident. He corroborated the testimony of complainant. Both the witnesses admitted that the deceased was involved in 16/17 criminal cases. They denied that they were not present at the spot or that they had involved the accused on account of enmity. P.W.13 Ghulam Abbas Shah, S.I. had recorded the complaint Exh. P.C. at 9‑55 a.m. on the day of occurrence and had carried out investigation initially. He had given the details of investigation conducted by him as noted above. P. W. 12 Sh. Faiz Muhammad, Inspector had arrested the accused and had completed the investigation. He admitted that according to his investigation, Sher Muhammad, accused, accompanied his co‑accused to the Court and was in league with them but had not taken part in the shooting at the deceased. P.W.15 Muhammad Rafique, D.S.P. P.W.15 had also partly investigated the case. The accused in their statements recorded under section 342, Cr.P.C. denied the prosecution case against them and pleaded their false involvement in the case. Muhammad Bahadur accused, in reply to the question. "why this case against you''" took the following stand:‑‑ "My relative Inayat had divorced the sister of Ali Shan complainant, and he was inimical towards our family. Moreover, Habib‑ur -Rehman and others wanted to pressurize me to resile from my evidence in the case relating to the injuries caused to me by Habib ur‑Rehman and others but I had refused to do so. On account of these grievances. Ali Shan and Habib‑ur‑Rehman etc. got me falsely involved in this case." Trial Court's verdict Trial Court after conclusion of trial observed that the prosecution case against the accused stood fully proved on the strength of testimonies of witnesses who were naturally present at the place of occurrence and the first information report was lodged very promptly and convicted all the accused .under section 302/34, P.P.C. and sentenced them to rigorous imprisonment for life with a tine of Rs. 10,000 each, and in default to further undergo rigorous imprisonment for one year each. Trial Court also directed the convicts to pay compensation amounting to Rs. 25,000 each to be paid to the legal heirs of the deceased. In the event of default the convicts were to further undergo rigorous imprisonment for six months. Khuda Dad convict filed Criminal Appeal No. 1077 of 1992, Muhammad Bahadur tiled Criminal Appeal No. 1069 of 1992, Sher Muhammad tiled Criminal Appeal No. 1079 of 1992. Haji Ali Shah complainant tiled Criminal Revision Petition No. 94 of 1993 for enhancement of sentence awarded to the convicts, which was admitted, to hearing on 28‑3‑1993. The defence The learned counsel for Muhammad Bahadur and Khuda Dad contended that they were involved in the case on account of previous enmity, that deceased had considerable criminal history and could have been done to death by any of his enemies, that complainant and witnesses were not present with him and they were brought from village Hadali to be set up as false complainant and witnesses and both the appellants were involved in the case on account of suspicion and previous enmity only. It was submitted that evidence of recovery did not go against the appellants in any manner and this was a factor which further destroyed the prosecution case, It was also contended that medical evidence also did not support the prosecution case as according to ocular account the assailants and the deceased faced one another and in that position the deceased could have received injuries on the front of the chest only while the position revealed by the medical evidence was otherwise. Learned counsel for Sher Muhammad on the other hand submitted that he was complainant in the case in which Aziz Ullah and Habib‑ur -Rehman accused were allowed anticipatory bail by the Court and that matter was fixed for further proceeding on the day of occurrence and Sher Muhammad had gone to the Court in that connection and his presence in Court premises was adequately explained by him and the same was not for the purposes of assault on the deceased. It was submitted that disappearance of Sher Muhammad from the Court premises was quite natural and this was due to fear of reprisals by the complainant party and that his innocence was established in the course of several investigations and all the Investigating Officers had opined that he was present in the Court but had not taken part in shooting at the deceased. It was contended that appellant was resident of Ghuggo Mandi, District Vehari and had gone to his ancestral village in order to look after his ancestral house only and otherwise had no connection with the in‑fighting between the parties and he was involved in the case on account of previous case registered at the instance of appellant against Aziz Ullah and others. Learned counsel for the complainant and State submitted that the appellants had committed the offence right inside the Court premises just opposite the Court of Additional Sessions Judge, which indicated that they were desperate criminals and had committed the offence in a premeditated manner knowing fully well that Aziz Ullah would be an easy target for them it was submitted that Aziz Ullah deceased was on pre‑arrest bail in criminal case registered against him at the instance of Sher Muhammad appellant and was declared innocent in investigation and that he attended the Court at 9‑15 a.m. as was indicated by the order, dated 2‑11 -1991 passed by Additional Sessions Judge, Khushab Exh. P.R. and shortly thereafter was shot to death at 9‑30 a.m. and criminal case was registered very promptly at the police station wherein full details of the incident were given by the complainant and roles played by the accused were also specified by the complainant which showed that criminal case was registered without premeditation and did not involve any fabrication. It was submitted that post -mortem examination was conducted within five hours of the incident and this was a factor which further substantiated the prosecution claim regarding prompt lodging of the first information report. It was submitted that the complainant and witnesses were naturally present with Aziz Ullah and their presence in the Court premises stood established beyond any shadow of doubt and they had testified confidently against the appellants and their testimony did not suffer from am flaw. It was submitted that the trial Court believed the prosecution case fully but then laboured for reasons to award lesser punishment to the convicts who did not deserve any mercy or leniency in the matter of sentence on account of choice of venue and the manner in which they committed the offence right in front of Court of Session and prayer was made that sentence awarded to convicts be enhanced to one normally prescribed for the offences. We have heard the learned counsel for the parties and have examined the entire record with care. Our conclusions follow. The eternal trio of a criminal case the perpetrator, the victim, and the witnesses, in this episode, are co‑villagers. Of the accused‑convicts, Muhammad Bahadur and Sher Muhammad are distantly related to Haji Ali Shan and the deceased while Khuda Dad also belonged to the same brotherhood all being Tiwanas. There was history of family feud between the parties. The occurrence was result of that clan‑in‑fighting and claim of the prosecution in this regard if viewed in the light of code of honour followed in the region, appears to be correct. The most recent of incidents between the parties was the one where Muhammad Bahadur was injured at the hands of Azizullah and others as is alleged in F.I.R. Exh. P.T. the case registered at the instance of Sher Muhammad accused‑convict. Azizullah and Habib‑ur -Rehman were on anticipatory bail in the case. The bail application of Azizullah and another was posted for further proceedings in the Court of Additional Sessions Judge. Khushab at Jauharabad. Haji Ali Shan, an uncle of Ariiullah and Sultan Mahmood, brother of Azizullah claim that they alongwith others had accompanied him from their village Hadali, located 5/6 miles away from the Courts on that day. Azizullah appears to be at the centre of many controversies as is shown by cross‑examination to which Ali Shah P.W.II was subjected and that leads to the inference that he was an important man in the clan. It is quite usual and natural, according to the mores of the rural community, for the kith and kin of an accused to stand by his side on such occasions. The claim of the complainant and other witnesses that they had accompanied Azizullah on 2‑11‑1991 to Court of Additional Sessions Judge, Jauharabad is a bona fide claim and is supported not only by the evidence but also the attending circumstances of the case. The bail application of the accused was taken up by the Additional Sessions Judge at 9‑15 a.m. (Exh. P.R.). Due to non‑production of record by that time, hearing of the matter was adjourned for a short while. The case of the prosecution was that Azizullah and others proceeded to chamber of their lawyer when the accused armed with pistols emerged and started tiring at Azizullah who was hit by as many as 13 shots/bullets and lost his life. Haji Ali Shan, complainant reported the matter to police post where the complainant Exh. P.C. stood scribed by 9‑55 a.m. The complaint is fairly detailed account of the incident. Ali Shan complainant could not have been brought from the village by that time nor could have been in a position to have narrated the incident with that depth in case he was not present at the spot. The shooting had taken place at a public place‑‑‑the Courts, in the view, of a large number of public functionaries and member of the public Many public functionaries had been associated with the investigation and they had by and large supported the prosecution case. We conclude by the weight of evidence that occurrence had taken place at the time and to the manner as claimed by the prosecution. The ocular account given by witnesses is quite candid forthright and confidence‑inspiring. The witnesses did not make material improvements in their statements and their testimonies have bees; found to very believable. The complaint Exh. P.C. stood scribed at the police post by 9‑55 a.m. i.e. within 25 minutes of the occurrence. The promptitude in lodgement of the first information report per se is not a guarantee of truthfulness of its contents. But where a first informant/complainant has no time to reflect upon the incident, has no occasion to sit with family members to mull over the occurrence in order to weave a tall story whereby he could assign roles of his choice to his enemies, the F.I.R. narrative can be considered to a fairly true account of the incident. The incident in this case took place in the Court premises when the Courts were in session. The public's eyes were focused on the matter. The police post was located nearby and the complainant as such was under a compulsion to have come out with his version straightaway. Therefore, we accept the prosecution story to be, by and large, quite near to truth. It was urged before us that the deceased was a criminal having been involved in a large number of cases and could have been shot to death by any of his enemies. The' deceased, according to Sultan Mahmood P.W.12 was involved in 16/17 criminal cases but nature of those cases shows those to be outcome of rivalry or enmity within the clan otherwise his vice did not appear to source of deceased's livelihood or sustenance. Circumstances, sometimes, force people to become brave, bully, brute or savage or spearhead of the clan and as consequence, a choice target of the adversaries. Azizullah appeared to be such a prime target. The argument that the convicts were substituted for the real assailants has not been supported or substantiated by any circumstance existing on record. We have not been shown any other person more inimical to the deceased than the convicts or who had more immediate score to settle with the deceased other than the convicts. The plea of substitution is banal and is not supported by any aspect of the evidence. It was also contended before us that the medical evidence ran counter to ocular version inasmuch as the injuries on the back could not have been received by the victim in case he was facing the assailants. The argument is too naive to be considered. A living organism under attack is not a fixed target and has to react. Forceful impact of high velocity bullets causes involuntary and convulsive movements of the body and points of impact of the bullets or missiles can be unusual. The medical evidence has, rather, been found to be fully supporting the prosecution case. It showed that at least two 30 bore pistols (automatic or semi‑automatic) were employed by the attackers due to which 13 entry wounds were caused on the body of the victim. The report of the Forensic Science Laboratory, Exh. P.P. does not affect adversely the case of prosecution. The pistols recovered from the accused were found to be in working order but due to damaged percussion caps of recovered empty casings, those could not be wedded with the pistols. The report was not in terms that empty bullet casings recovered from the spot did not match with the pistols. In any criminal case, the Court‑‑‑the trial Court or the Appellate Court, is required to find that the evidence, which includes prosecution evidence as well as defence evidence, when considered with inferences deducible from record, enabled it to be sure of the truth and accuracy of that evidence, and in consequence, of guilt of the accused. (The State v. Muhammad Iqbal and 4 others) 2001 PCr.LJ 376 at p.384. We, after assessment and evaluation of entire evidence on record, are satisfied about involvement, in the commission of offence and consequential guilt, of Muhammad Bahadur and Khuda Dad accused‑convicts‑appellants. They are convicted under section 302(b) read with section 34, Pakistan Penal Code, 1860. Case of Sher Muhammad convict‑appellant, however, has been found to be distinguishable from that of other accused. In the course of investigation, it was found that he had come to the Court alongwith other accused. He was complainant in the case in which Azizullah was accused and had interest in the outcome of the bail application tiled by him. He was found to be privy to the commission of offence only but on basis of statements of witnesses recorded by P.W.14 particularly that of the Naib Court of the Court of Session, where the occurrence had taken place, it was concluded by at least two Investigating Officers that he had not taken part in actual shooting at the deceased and only two accused had fired at the victim. Therefore, for safe administration of justice, we are inclined to extend benefit of doubt to him and acquit him of the charges. The sentence We have noted with concern that the trial Court after concluding that prosecution case against the accused stood fully established, groped for reasons to award lesser sentence to the convicts. Non‑specificity of injuries to the accused is hardly a ground for awarding lesser sentence to a convict. That would tantamount to nullification or dilution of provisions of section 34 or 149, Pakistan Penal Code. The law or the precedent do not require that the witnesses should allocate each injury to any particular accused. If participation and involvement of an accused in the commission of homicide is established, he is to be awarded the normal penalty prescribed by the law. E The accused had slain a man at the portals of justice. They showed utter disregard for the law, the Courts and the civil society. They had pre‑planned the attack and had attacked the deceased when he was present under the aegis of a Court of justice. The choice of venue and the manner in which offence was committed by the accused showed them to criminals to the cores of their hearts. They did not deserve any leniency in the matter of sentence. The sentence of rigorous imprisonment for life, awarded to Muhammad Bahadur and Khuda Dad convicts is enhanced to sentence of death. They shall be hanged from necks till they are dead. They shall also pay compensation amounting to Rs. 25,000 each to legal heirs of the deceased. In case of default, the amount shall be recovered from the convicts as arrears of land revenue. Criminal appeals tiled by Muhammad Bahadur and Khuda Dad are dismissed. The appeal filed by Sher Muhammad is allowed. Revision petition filed by the complainant is also allowed. N.H.Q./A‑200/L Order accordingly.