2002 PLP 2350 (YLR)

(v) That trial of both the F.I.Rs. was consolidated by the learned trial Judge and the matter was decided through a single judgment, which offends the relevant provisions of section 367, Cr.P.C. In the end, they prayed for clean acquittal of the appellants.

12. On the contrary, learned counsel for the State submits that there is absolutely no defect or flaw in the trial proceedings and the appellants stood rightly convicted by the trial Court on the strength of overwhelming evidence. He also submits that ocular account was fully confirmed by the medical evidence and guilt of the appellants stands confirmed by the abscondance evidence. He supports judgment of the trial Court.

13. Ms. Yasmin Sehgal, learned Assistant Advocate‑General, who was present on Court's call submits that as far as objections regarding consolidated trial and convictions of the appellants through single judgment is concerned, learned counsel for the appellants has raised these objections for the first time. Said objections were neither raised before the trial Court nor in their appeals. She submits that both the incidents took place within fifteen minutes and places of occurrence are situate at a short distance from each other, and that objections raised by the learned counsel for the appellants are washed out in view of the provisions of sections 239 and 537, Cr.P.C. It was next submitted that only thing which is to be seen is whether any prejudice accrued to the cause of the appellants or not. The only answer to this question would be that no prejudice has occasioned to the cause of the defence. She paced reliance on case, Ahmad Hassan and another v. The State (2001 SCMR 505).

14. We have consciously heard and soberly considered respective arguments of learned counsel for both the sides and perused the record with their able assistance.

15. We have very carefully studied both the crime reports. Both the incidents took place because of a definite motive. Motive part of the occurrence has been fully described by Muhammad Farooq (P.W.18) and Din Muhammad (P.W.20) not only in the crime reports, but also before the trial Court. Both the appellants asked for nude video cassettes from Ijaz Ahmed deceased about two days prior to the occurrence, but he gave them flat refusal that he did not deal in nude video cassettes, so the same could not be provided to them. The appellants took it as their insult. Consequently, a quarrel took place between Muhammad Ashiq and Ijaz Ahmad, on one side, and the appellants, on the other side. . The appellant depicted a persistent attitude. They indulged into exchange of hot words and grappling. People of the locality timely intervened and separated the two sides. Motive part of the occurrence has been duly supported by Muhammad Bashir Butt (P.W.13), Muhammad Farooq (P.W.18) and Din Muhammad (P.W.20). All the eye‑witnesses have corroborated each other. Muhammad Bashir Butt (P.W.13) had no earthly reason to wish maximum harm to the appellants by deposing falsely against them. Likewise he had no interest in the complainant side to support them without there being any justification. He is an independent witness. There is nothing to doubt credibility of his evidence. All the witnesses were subjected to a lengthy cross‑examination qua motive, but their testimony remained unshaken. Motive has rightly been relied upon by tile trial Court.

16. The Standpoint adopted by the accused is that Muhammad Ashiq, Ijaz Ahmad deceased aid Liaqat Ali P.W., were dealing in narcotics. They had been laying information about their nefarious activities before the police. They alleged their false involvement in this case. The question is that they have beets brutally murdered in a barbaric manner by the appellants. If this standpoint is taken to be true then Ijaz Ahmad and Muhammad Ashiq should have killed the appellants. This explanation on the part of the appellants is just absurd, ridiculous and fantastic one.

17. The prosecution has produced Din Muhammad (P.W.20) and Aadil Ali (P.W.21) to establish charge regarding Qatl e‑Amd of Muhammad Ashiq deceased. Din Muhammad (P.W.20) is admittedly father of Ijaz Ahmad deceased and husband of maternal aunt of Muhammad Ashiq deceased. His visit to the shop of Muhammad Ashiq deceased on the day of occurrence is natural and believable. Them; is nothing to disbelieve this assertion of the prosecution. He was a close relative of Muhammad Ashiq deceased, so he could go to his shop for his personal work. Presence of Aadil Ali (P.W.21) at the spot cannot be denied, Muhammad Ashiq deceased was a Sweet Meat Seller and Aadil Ali (P.W.21) used to prepare sweets at his shop. His presence at his‑ shop was by all means natural and cannot be doubted as such. This witness admits of presence of Din Muhammad (P.W.20) at the spot at the time of occurrence, Aadil Ali (P.W.21) has furnished full facts and circumstances revolving around this occurrence. He has furnished names of the accused, the weapon possessed at that time and the way it was used by Muhammad Raliq appellant. Fire‑arm injuries were found available by the examining doctor on the person of Muhammad Ashiq deceased. Aadil Ali (P.W.21) is an independent natural witness. He has wholeheartedly supported the prosecution version. His testimony rings true and in confidence‑inspiring. He bore no grudge, grouse, malice or spite against the appellants to depose falsely against them. Both these witnesses have been rightly believed by the trial Court.

18. Now we would like to dilate upon facts and circumstances revolving around Qatl‑e‑Amd of Ijaz Ahmad alias Jajji. Muhammad Farooq, (P.W.18) and Muhammad Amin (P. W.19) came forward to depose against the appellants. Muhammad Farooq‑complainant (P. W.18) no doubt is brother of Ijaz Ahmad deceased. The video cassettes shop actually belonged to Ijaz Ahmad deceased and Riaz Ahmad, another brother of Muhammad Farooq‑complainant. His presence at the shop cannot be doubted. There can be no controversy with regard to their presence at the shop. Muhammad Amin (P.W.19) was available with Muhammad Farooq‑complainant when occurrence of the alleged incident took place. He is an independent witness. He is not related to the complainant side. This witness also had motive to depose falsely against the appellants. He too has furnished true and detailed account of the occurrence. All those events, which happened in his presence and personally observed by him, have been narrated by him in his statement. He in clear cut manner supported accusations brought against the appellants. The way the appellants arrived at the spot, the way they acted there, and then learned from the spot after accomplishing their ignoble design has been described in minutest possible details by the witnesses. Both these witnesses corroborated each other on all material facts. They agree in their testimony. They had means for gaining correct information and they had no interest in concealing truth or bring false charge of Qatl‑e‑Amd against the appellants.

19. Our study and scrutiny of entire material reveals that the witnesses of both the incidents faired well in furnishing all the relevant fact and circumstances with much exactitude. These incidents could not have remained unnoticed. If it was an unwitnessed occurrence and the appellants had not committed the crime of murders imputed to them, then they should have staged a protest against it at all levels. Nothing could be done by the appellants to demonstrate their innocence in the matter. No reason is forthcoming as to why they should have been maliciously and falsely implicated in this case. In our judgment, they are cent per cent guilty. These murders have been committed out of elaborate planning and in furtherance of common intention of both the appellants. The appellants created a panicky and sensational situation by resorting to tiring at both the places of occurrence.

20. Photographic narration of injuries by the witnesses in such‑like situation is hardly possible. If there is any slight variation in between the ocular account and the medical evidence, that would be immaterial. Medical evidence establishes that both the deceased suffered injuries by the discharge of afire‑arm. Injuries can hardly be described by scientific precision by the witnesses in such like situations Medical evidence fully supports the ocular account.

21. There is no material dispute with regard to the material facts like, time, date and place of occurrence. In this case, the learned trial Judge has rightly discarded recovery evidence. We find that Abdul Rashid alias Sheeda Mota‑appellant could he arrested by the police, on 26‑11‑1993, whereas Muhammad Rafiq alias Billa appellant could be arrested on 5‑12‑1993. The murder events had happened on 20‑9‑1993. The appellants did not make themselves available before the investigating agency. They hibernated themselves somewhere to avoid their possible arrest. They were rightly got declared as proclaimed offenders. In this case, their absconsion is a strong circumstance corroborating ocular evidence to prove guilt of the appellants.

22. Now we would like to address our answer to the objections raised by learned counsel for the appellants at the very outset. The fact remains that the first occurrence took place on 20‑9‑1993 at 5‑45 p.m. within the territorial jurisdiction of Police Station Peoples Colony, Gujranwala. Muhammad Ashiq, nephew of Din Muhammad complainant fell a prey to the brutality committed by the appellants. The matter stood reported at police at 7‑00 p.m. by the complainant. . This is a prompt and straightforward F.I.R. containing all the material details regarding the murder incident. The appellants after accomplishing their ignoble design and for a common motive immediately went to the shop of Ijaz Ahmad, where they killed him. The place of occurrence fell within the territorial jurisdiction of Police Station Sabzi Mandi, where the occurrence stood reported by Muhammad Farooq (P.W.18), brother of the deceased on 20‑9‑1993 at 6‑30 p.m. The F.I.R. was recorded expeditiously eliminating all chances of deliberations and conference on the part of the complainant side. The distance between the two places is small and both the incidents were committed within short span of fifteen minutes. Motive is same in both the cases and accused arc also the same. The second murder was committed during course of same transaction. The provisions of section 239, Cr.P.C. are reproduced below:‑‑

239. What persons may be charged jointly.‑‑‑The following persons may be charged and tried together, namely:‑‑ (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence; (c) persons accused of more than one offence of the same kind, within the meaning of section 234 committed by them jointly chin the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving, or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last named offence; (f) persons accused of offences under sections 411 and 414 of the Pakistan Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and (g) persons accused of any offence under Chapter XII of the Pakistan Penal Code relating to counterfeit coin, and persons accused of any others offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence, and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges. "

23. We find that both the murders were committed in consequence of same transaction. ' Learned counsel for the appellants have failed to demonstrate any prejudice caused to them either in the investigation or conduct of trial. Sufficient reasons have been given by the learned trial Judge while passing order, dated 5‑12‑1994 whereby trial of both the cases were consolidated. This order reads as under:‑‑ "The case is fixed for evidence. But the accused allegedly committed a murder on the same day in the same transaction in the area of Police Station Peoples Colony. The deceased in both the cases are related to each other. The other case has been fixed for evidence on 22‑12‑1994. This case also be adjourned to the same date because both the cases are to be consolidated and their joint trial is to be held. P.Ws. present be bound down. The S.H.O. Police Station Sabzi Mandi and Police Station Peoples Colony, Gujranwala be summoned for 7‑12‑1994 to effect the service of the P.Ws. positively. Muhammad Rafiq accused has expressed his inability to engage defence counsel. To meet the ends of justice, Akhtar Hussain, Advocate is appointed as his counsel in both the cases to defend him on the State expenses." Then on 22‑12‑1994, the learned trial Judge passed following order:‑‑ "In the light of the previous order, dated 5‑12‑1994, both the cases are consolidated and joint trial of the accused shall be held in case F.I.R. No.281 of 1993 as provided under section 239, Cr.P.C. Because both the accused persons have committed the murders of Muhammad Ashiq and Ejaz Ahmad alias Jajji deceased in the course of the same transaction and the nature of offences is also similar. " Thereafter, the trial Court framed consolidated charge for both murders and put the same to the appellants, to which they pleaded not guilty. They did neither raise any objection at the time of passing of orders regarding consolidation of the trials, nor at the time when charge was put to them. Even this objection was not raised at the time of filing the appeals. It is also pertinent to mention here that when they were examined under section 342, Cr.P.C., questions with regard to two murders were put to them, which are reproduced as under:‑‑ (I) ABDUL RASHID: "Q. No.3. It is in .the evidence that on 20‑9‑1993 at 5‑40 p.m. you were driving Motorbike whereas Muhammad Rafiq you co‑accused holding a .222 rifle and was sitting on the rear seat of Motorbike, you stopped Motorbike in front of Sweets Shops of Muhammad Ashiq deceased situated near Approach Road Nigar Railway Crossing and then your co accused Muhammad Rafiq in the furtherance of common intention tired at Muhammad Ashiq who sustained injuries on his different parts of his body in the presence of the witnesses and thereafter you and your co‑accused decamped while firing and creating harassment from the place of occurrence on Motorbike. Muhammad Ashiq was lifted to the Hospital who succumbed to the injuries on way to the Hospital and thereby you committed Qatl‑e Amd of Muhammad Ashiq. What have you to say about it? Ans. It is incorrect, I was not present at the place of occurrence. Q.No.4. It is in evidence that after injuries Muhammad Ashiq deceased, you and your co‑accused reached the Video Cassettes Shop of Ejaz deceased situated in Asghar Colony, Gujranwala at about 6 p.m. when your co‑accused Muhammad Rafiq alias Billa was driving Motorbike. You were sitting on the rear seat of the Motorbike holding .222 rifle your co‑accused stopped the Motorbike near the shop of Ejaz deceased and you both alighted from the Motorbike, Muhammad Rafiq alias Billa your co‑accused hurled abuses to Ejaz deceased and you in furtherance of your common intention in the presence of witnesses fired shots with your .222 rifle which hit Ejaz deceased, who died due to these injuries and you and your co‑accused decamped while firing and creating harassment from the place of occurrence on the. Motorbike alongwith .222 rifle after committing Qatl‑e‑Amd of Ejaz deceased. What have you to say about it? Ans. It is incorrect." (II) MUHAMMAD RAFIQ alias BILLA: "Q.No.3. It is in the evidence that on 20‑9‑1993 at 5‑45 p.m. your co accused Abdul Rashid alias Moota was driving Motorbike whereas you were holding a rifle .222 and was sitting on the rear seat of Motorbike, your co‑accused stopped Motorbike in front of Sweets Shops of Muhammad Ashiq deceased situated near Approach road Nigar Railway Crossing and then you in the furtherance of common intention fired at Muhammad Ashiq who sustained injuries on his different parts of his body in the presence of the witnesses and thereafter you and your co‑accused decamped while firing and creating harassment from the place of occurrence on Motorbike. Muhammad Ashiq was lifted to the Hospital who succumbed to the injuries on way to the Hospital and thereby you committed Qatl‑e Amd of Muhammad Ashiq. What have you to say about it? Ans. It is incorrect, I was not present at the place of occurrence. Q.N0.4. It is in evidence that after injuring Muhammad Ashiq deceased, you and your co‑accused reached the Video cassettes shops of Ejaz deceased situated in Asghar Colony, Gujraimala at about 6‑00 p.m. when you were driving Motorbike and your co‑accused Abdul Rashid alias Moota was sitting on the rear seat of the Motorbike holding .222 rifle. You stopped motorbike near the shop of Ejaz deceased and you both alighted from the motorcyle. You hurled abuses to Ejaz deceased and your co‑accused Abdul Rashid alias Moota in furtherance of your common intention in the presence of witnesses fired shots with your .222 rifle which hit Ejaz deceased, who died due to these injuries and you and your co‑accused decamped while tiring and creating harassment from the place of occurrence on the motorbike alongwith .222 rifle after committing Qatl‑e‑Amd of Ejaz deceased. What have you to say about it'?. Ans. It is also incorrect." In view of the above situation, we are of the firm view that joint trial of both the cases is legal and the leaned trial Judge. was right in disposing of these two cases through single judgment. Objections raised by learned counsel for the appellants are accordingly overruled.

24. For all these reasons, we dismiss these appeals while maintaining convictions and sentences awarded to the appellants by the trial Court. Their death sentence is accordingly confirmed.

25. We find that the learned trial Judge while passing order with regard to payment of compensation to legal heirs of the deceased, directed that in default thereof, the appellants shall undergo rigorous imprisonment for two years each under each count, which is not legal. We accordingly order that it' the appellants tail to pay compensation to legal heirs of the deceased, they will undergo simple imprisonment for six months each under each count. Appeal dismissed. N.H.Q./M‑1353/L