P L D 1988 Lahore 576 (PLP)

IJAZ NISAR, J.‑‑Zaid Khan son of Fateh Khan (35) and Shah Fakhar‑uz‑Zaman son of Shah Sher Bukhsh (42) were tried for the murder of Muhammad Ali Shah deceased (52/53). Vide judgment date 24‑6‑1986 the learned Sessions Judge, Chakwal convicted them under section 302 P. P.C. and sentenced them to death plus a fine of Rs. 10, 00 each. In default to suffer two years' R.I. The fine was to be paid t the heirs of the deceased as compensation.

2. The convicted accused have filed this appeal which shall be disposed of alongwith the connected murder reference and Criminal Revision No.349 of 1987.

3. The occurrence had taken place on 11‑3‑1985 at 10.30 a.m. in the area of village Rawinda Shah Balawal, 8 kilometers from Police Station Lawa District Attock. Report Exh. PD was lodged by Ahmad All Shah PW. 6 brother of the deceased on the same day at 11.30 a.m. at Police Station Lawa recorded by Abdul Majeed, ASI P.W.12.

4. The prosecution case is that Manzoor Shah the real brother of Muhammad Ali Shah (deceased) was murdered in 1973 by Zaid Khar, accused and others. Zaid Khan was convicted and sentenced to 10 years' R.I plus fine. He was acquitted on appeal by the High Court. Fateh Khan father of Zaid Khan accused was also challaned in the said case but was acquitted. Later on in 1975 Fateh Khan (father of Zaid appellant) was murdered by Muhammad Ali Shah (deceased) and others. The deceased was sentenced to death but was, however, acquitted by the High Court in 1980. Besides the above the parties were also involved in other criminal cases. On the fateful day Ahmad Ali Shah PW.6 was returning from bus stand Danda Shah Balawal and when he reached near village pond he saw Muhammad Ali Shah deceased and his son Ali Raza P.W. (not produced) proceeding towards their house. When the deceased reached in front of the have of one Aqil Khan, Zaid Khan appellant armed with rifle and Shah Fakhar‑uz‑Zaman appellant carrying a gun suddenly appeared at the spot. Zaid Khan accused raised a Lalkara that he would avenge try murder of his father. On hearing this the deceased turned round and ran for his life Zaid Khut appellant fired at him hitting him on the of the head as a result of which he fell down with face upward. Thereafter Shah Fakhar‑uz‑Zaman appellant fired a gun not at him hitting on the right side of his chest. Zaid Khan appellant took out a knife and started inflicting knife blows on him on the back of his neck. Muhammad Akbar PW.7 who was on way to the shrine of Shah Balawal also witnessed the occurrence. On the alarm raised by the P.Ws the appellants fled away. Muhammad Ali Shah succumbed to the injuries instantaneously. Ahmad Ali Shah reported the matter to Police Station Lawa. After recording the F.I.R. Abdul Majeed ASI P.W.12 visited the spot and prepared the injury statement Exh. PH and inquest report Exh. PH of the deceased. He collected blood‑stained earth and despatched the dead body for post‑mortem examination. He arrested the appellants on 20‑3‑1985. On 30‑3‑1985 Zaid Khan appellant led to the recovery of unlicensed. 7 MM Rifle P.5 from his house which was taken into possession vide memo Exh.PF attested by Muhammad Zeman P.W.8 and Abdul Khaliq SA. P. W.

11. On 3‑4‑1985 Shah Fakhar‑uz‑Zaman appellant led to the recovery of his licensed gun P.6 from his house which was secured through memo Exh. PG attested by Mehr Khan PW.9 and Muhammad safdar S.I PW.10. It would not be out of place to mention here that no crime empties were recover from the spot with which the rifle or gun could match.

5. Dr.Syed Abid Hussam Shah P.W,5 conducted autopsy on the dead body of Muhammad Ali Shah deceased on 12‑3‑1985 and found the following injuries thereon‑ (1) A firearm wound x on right side of skull back side going forward and to the left. Margins were inverted entry wound. (2) A lacerated wound 1 x 1 x bone deep on back and skull in midline. (3) A firearm wound 1 x x brain deep on left side of bridge of nose, the pieces of bone were coming out of the wound. The margins were inverted exit wound on injury No.l. (4) A firearm abrasion 1" x 1/4" on outer side of left eye‑brow. (5) An incised wound 1" x on back of right side of neck. (6) A firearm wound x x chest cavity deep going back and slightly downwards, margins were inverted, entry wound, on front of right chest III' below and inner to the nipple. (7) A group of 4 firearm wounds each x on back of chest in area 4 x 4" margins inverted. Exit wound. (8) A firearm abrasion x on back and outer side of right arm middle. The brain was damaged through and through under injury No.

1. Injuries Nos.1, 3, 4, 6, 7 and 8 were caused by firearm. Injury No.2 was caused by blunt weapon, while injury No.5 was caused by sharp‑edge weapon. injuries Nos. 3 and 7 were exit wounds. Death was due to shock resulting Irvin injury to the brain, spinal cord and haemorrhage under injuries Nos.1 and . Stomach was full of undigested food. Bladder was half full of urine.

6. The appellants pleaded riot guilty , the charge and denied the prosecution allegations. Zaid Khan appellant admitted that Shan Fakhar‑uz‑Zaman appellant was distantly related to him but denied close friendship with him and stated that they were inimically disposed towards each other. Explaining his involvement he made the following statement: "On account of suspicion and enmity. The fact of the matter is that Muhammad Ali Shah (deceased) had a number of enemies. He met his death somewhere outside the village when he was armed with a gun and during the encounter With someone during the early hours of the morning he received the injuries. This. occurrence was not witnessed by any of the P;Ws. After daylight when it came to the notice of the relatives of the deceased, they kept the gun back and Carried the deceased in an injured condition to Talagang and reported the matter to the D.S.P. who contacted P,S. Lawa and the F.I.R. and the inquest report were prepared after the post‑mortem examination and it was in this way that two empty cartridges which were in the pocket of the deceased Were recovered." Shah FaKhar‑uz‑Zaman appellant stated that since he had differences with Zaid Khan appellant he could not join hands with him in the commission of the offence. No oral evidence was led by them in defence. However Zaid Khan appellant produced certified copy of the F1 , R No.16 of P.S Chakrala Exh. DB, certified copy of FIR NO.;J1 Of P.S. Chakrala Exh. DC, certified copy of the report of the Chairman Exh.DD, application for obtaining a copy in case Re: State v. Alam Khan Exh. DE, application form Exh.DF, photostat copy in case Re: State v. Alain Khan dated 23‑2‑1970 Exh. DG, photostat copy of order in case Re: State v. Haji Fateh Khan Exh.DH, original licence of Pistol Exh.DJ and original licence regarding .12 .bore gun Exh.DK in respect of Zaid Khan appellant,

7. To prove the. ocular account and the Motive the prosecution ,examined Ahmad Ali Shah P.W.6 and Muhammad Akbar P.W.7. 1,9 Recoveries of fire‑arms were proved by Muhammad Zaman P.W.8, ,Mehr Khan P.W.9, Muhammad Safdar S.1 PW.10 and Abdul Khaliq S.1~0 PW.11. Ahmad Ali Shah P.W.6 is brother of the deceased. He was, returning from bus stand Danda Shah Balawal where he had gone to purchase meat and when he reached near village pond he witnessed 'the occurrence. According to him the deceased was going ahead of him along with ‑his son Ali Raza P.W. (not‑produced.) and ‑was at a distance of 4/5 karams ahead of him when he was attacked in front of the have of one Akhtar, Muhammad Akbar P.W.7 lived at a distance of amount one, mile from village Danda Shah Balawal and was returning after paying homage at the shrine of Shah Balawal when he witnessed the occurrence.

8. Relying on the motive, the ocular testimony and the recoveries of fire‑arms at the instance of the appellants, the trial Court convicted and sentenced them as described above.

9. It is contended that Ahmad Ali Shah and Muhammad Akbar who furnished the ocular account were chance witnesses and nobody from the vicinity of the place of occurrence had been examined. Ahmad Ali Shah P.W.6 is ,said to be interested against the appellants having a motive to falsely involve them. There is no independent corroboration of the ocular testimony, it is added.

10. The motive is not disputed. Zaid Khan appellant admitted that the deceased had murdered his father who was convicted by the Court of Session but acquitted by the High Court. He also admitted that Manzoor Hussain Shah, real brother of the deceased was murdered A for which he alongwith others was challaned and convicted by the Sessions Court but later on acquitted by the High Court. Ahmad Ali Shah P.W.6 and Muhammad Akbar P.W.7 advanced reasonable explanations for their presence at the spot. Their testimony cannot be discredited merely on the ground that no witness from the locality was examined by the prosecution because public apathy in appearing as witnesses in serious cases like the present one is well known. In such circumstance a duty is cast on the Court to see whether the presence of a witness at the spot at the relevant time was probable and is his testimony supported by other circumstances. In the instant, case Ahmad Ali Shah P.W.6 has given a cogent explanation for his presence at the spot. He stands corroborated by Muhammad Akbar P.W.1 who an independent witness having no connection what over, with any of the parties. Both the eye‑ witness have evidence of a convincing nature and stand fully corroborated by the medical evidence. The seat of injuries and the weapons employed for causing them injuries fully support the ocular account. It would not have been possible for the eye‑witnesses to give a detailed account of the injuries had they been not present at the deceased had four types of injuries on his person and if the eye‑witnesses had any intention to falsely implicate anybody they could it roped in more persons from the accused side but they did not do ;0. 1t was a broad daylight incident and the eye‑witnesses could, not have faced difficulty in identifying tit e accused. There was no time ad the disposal of the complainant party to make deliberations because the F.I.R. was promptly lodged, with the necessary. The occurrence had taken place at 10.30 A.M. while the report was lodged at 11.30 A.M. the distance between the and the police station being 8 kilometers. The appellants being related could stand shoulder to shoulder with each other in doing away with, the deceased against whom they had a strong motive. In view of the availability of overwhelming evidence no adverse presumption can be drawn against the prosecution for The non‑availability of crime empties from the spot with which the firearms recovered from the appellants could match.

11. Having considered all the pros and cons of the case, we are of the view that the prosecution has succeeded in bringing home guilt to the appellants beyond all shadow of doubt. They were, 'therefore, rightly convicted. They are not considered entitled to any leniency in the matter of sentence because they acted in a cruel and brutal manner and committed a pre‑planned and pre concerted attack on the deceased after. Waylaying him in the broad daylight. Furthermore, private revenge cannot be considered as a mitigating circumstance. The death penalty awarded to. them was, therefore; quite proper and is accordingly maintained. In the result. the appeal fails and is dismissed.

12. The death sentences are confirmed. The revision filed by Mst. Safdar Sain widow of Muhammad AR Shah, deceased for enhancement of the fine of appellants is dismissed because both of them have been awarded death sentences with a fine of Rs.10,000 each which appears to be quite adequate. M.Y.H./Z-64/L Appeal dismissed.