2002 PLP 1894 (YLR)

11. P.W.11 is Muhammad Inayat, S.I. before whom Javed Iqbal accused had made a disclosure. on 5‑6‑1993 and had then got recovered the rifle Exh.P.3 from his Dera and which he had taken into possession vide recovery memo. Exh. P.E. He had also prepared the site plan of the place of recovery which is Exh. P. E/ 1.

12. P.W.12 is Muhammad Zaman, Constable No.793 who had got the post mortem examination of the dead body conducted on 17‑5‑1993 and after the post mortem examination had handed over the last worn clothes of the deceased Shalwar P.5 and Kameez P.6 to the Investigating Officer and who had taken the same in possession vide memo. Exh.P.6 which was also signed by him.

13. P.W.13 is Aamer Mehmood who on 17‑5‑1993 had joined the investigation. He had attested the memo. Exh. PH by which the Investigating Officer had taken the blood stained earth into possession from the roof of Chobara/place of occurrence.

14. P.W. 14 is Barkat Ali, S.‑I. On 3‑6‑1993 in his presence Shaukat accused had made a disclosure and then had got recovered rifle 7 MM, Exh. P1 and four cartridges and which he took into possession vide memo. PC. He had also prepared the site plan of the place of recovery which is Exh. P.J.

15. P.W.15 is Muhammad Yousaf Bajwa, S. P. who in October, 1993 was posted as S.P., ,C.I.A. at Gujranwala when the investigation of this case was entrusted to him by the D.I.‑G. He deposed that the relatives of the accused had produced defence version on behalf of the accused but in his view the defence evidence was not reliable as the defence Witnesses were related to the accused. He stated that the investigation conducted by Muhammad Younas, Inspector was defective and so a report was made against him to the D.I.‑G. and the D.I.‑G. suspended him and that he had instructed the local Police to complete the investigation to remove the defects and to submit challan against all the accused named in the F.I.R. However, he had instructed the local police to get Nazir accused discharged in this case.

16. P.W.16 is Nazir Hussain Shah, Constable No.702. He is witness of the recovery of rifle 7 MM, Exh.P.8 which was got recovered by Ijaz accused from his Baithak. He stated that five bullets Exh.PK 1 /5 were recovered from the same and were taken into possession vide recovery memo. Exh. PK.

17. P.W.17 is Muhammad Younas, Inspector who on 17‑5‑1993 was posted as S.H.O. of Police Station Saddar, Mandi Baha‑ud‑Din. On the said day at 1‑30 a.m., in the night he recorded F.I.R. Exh. P.A. on the statement of Walayat Khan, P.W. Thereafter, he went to the Civil Hospital, Mandi Baha‑ud‑Din where the dead body of Babur Khan deceased was lying and prepared injury statement Exh. P.L. and inquest report Exh.P.M. He entrusted the dead body to Muhammad Zaman, Constable for getting the post‑mortem examination conducted. He recorded the supplementary statement of Walayat Khan and also the statement of Jafar Iqbal, Afzal and Akram P.Ws. He then went to the place of occurrence accompanied by the aforesaid witnesses and inspected the place of occurrence. He collected the blood‑stained earth and cotton from the spot and made it into a sealed parcel and secured the same vide memo. P.H. He prepared rough site plan Exh.P.N. of the place of occurrence. On the same day he again went to the Civil Hospital, Mandi Baha‑ud‑Din where Muhammad Zaman produced before him the last worn clothes, Shirt P.5 and Shalwar P.6 of Babur Khan deceased alongwith the post‑mortem report and other documents. He took the aforesaid clothes into possession vide memo. Exh. P.G.

18. P.W.17 further deposed that he searched for the accused but they could not be arrested till 22‑5‑1993 and on the said date i.e. 22‑5‑1993 he arrested Shaukat, Shafqat, Khalid Mehmood, Imtiaz, Akhtar Mehmood, Javed Iqbal and Ashfaq Ahmed at 9‑00 p.m. from the Dera of one Tauqir Ahmed in Lala Musa. He arrested Ijaz Ahmed accused on 24‑5‑1993 from his house. He arrested Ghulam Mehmood accused and one Nazir Ahmad on the night of 31‑5‑1993 from the Dera of Ghulam Mehmood and also obtained the physical remand of Ijaz Ahmed accused. He deposed that on 3‑6‑1993 Ijaz while in custody led to the recovery of 7 MM rifle P.8 and on unloading it he recovered 5 bullets from its Chamber. He took the rifle into possession vide memo. P.K. He prepared site plan of the place of recovery Exh. P.J. as well. On 5‑6‑1993, Ashfaq accused while in custody made a disclosure and then led to the recovery of a gun P.2 from his house which he took into possession vide memo. PD and prepared a rough site plan of the place of recovery Exh. P.D/1. He got prepared the site plan P.B. and P.B/1 from Mian Muhammad Siddique, Draftsman. Later on, he was transferred from the Police Station Saddar, Mandi Baha‑ud‑Din when the case was still under investigation.

19. P.W.1 is Walayat Khan complainant. He deposed that Babur deceased was son of his brother Mian Khan who was murdered on the night between 16/17‑5‑1993. He stated that on the said night around 12‑30 or 12‑45 a.m., he alongwith Babur deceased, Muhammad Afzal and Akram was present in the courtyard of Chobara of his brother Muhammad Azam. In the, meantime, he heard gun shot reports. Babur deceased got up from his cot and went to parapet wall of the said courtyard and asked from his cousin Jafar Iqbal P.W. as to who had fired. Jafar was then sleeping on the second storey of the said house. He i.e. P.W.1 saw Ijaz, Imtiaz, Akhtar, Ghulam Mehmood, Javed Iqbal, Shafqat, Khalid Mehmood, Shaukat, Afzaal and Ashfaq accused armed with guns and rifles standing on the roof of the house of Afzaal accused which was across the street. Ijaz and Shaukat accused raised 'Lalkara' that they would teach Babur Khan a lesson for getting a case registered against them. Then Ijaz and Shaukat simultaneously tired at Babur hitting on his head. The other accused also fired towards them but they were not hit. Afzal and Akram P.Ws. fired back in self defence tiring one shot each from their licenced guns. They also shouted that Babur had been hit and thereupon the accused went down from their roof. He deposed that they had identified the accused in the light of electric bulbs. He deposed that he carried Babur in injured condition to the Civil Hospital where they found that he had died of the injuries. Leaving the dead body there in the custody of Afzal and Akram and his son Sikandar, he went to the Police Station Saddar, Mandi Baha‑ud Din and lodged an F.I.R. Exh. P.A.

20. P.W.1 Walayat Khan also deposed that their enmity with accused had started with .the murder of Bashir Ahmed a 'Phoophizad' of Shaukat accused and that he alongwith his brothers Muhammad and Mian Khan (father of Babur deceased) was challaned but were found innocent. He also deposed that in 1971, Ashfaq Ahmad, a son of Ch. Ghulam Muhammad, Advocate was murdered and in the said case Shaukat accused Ghulam Mehmood and three others were challaned while his brother Mian Khan, the father of Babur Khan deceased appeared as an eye‑witness and that Ghulam Mehmood was acquitted in the said case by the High Court while Shaukat had absconded during the trial and that the said case is still pending against him in the Court of Mr. Afzaal Hussain Kazmi, Additional Sessions Judge, Mandi Baha‑ud Din.

21. P. W. 1 further deposed that on 2‑5‑1993, Babur Khan deceased and Muhammad P.W. were fired upon and injured by the accused (except Ghulam Mehmood) and Babur Khan deceased got a case registered in Police Station Saddar, Mandi Baha‑ud Din in respect of the said occurrence vide F. I. R. No. 133 of 1993 under sections 324/148 and 149 of Pakistan Penal Code. He deposed that the accused had murdered Babur Khan on that account.

22. P.W.2 Muhammad Akram is an other eye‑witness of the occurrence who narrated the same story about the occurrence as was narrated by P.W.1.

23. On the conclusion of the prosecution evidence, the statements of the accused were recorded under section 342, Criminal Procedure Code wherein they denied all the incriminating circumstances. In answer to the question as to why this case against them and why the P.Ws. had deposed against them, Ijaz Ahmad accused deposed that it was due to enmity. In answer to the same question, Shaukat Mehmood accused gave exactly the same answer. None of them, however, made statement on oath under section 340(2), Criminal Procedure Code. However, they stated that they will produce evidence in defence. On 17‑12‑1996, the learned defence counsel tendered in defence evidence a copy of the order dated 22‑10‑1995 passed in the case titled State v. Ashfaq Ahmed as Exh. D.G. copy of the order dated 22‑10‑1995 passed in the case titled as State v. Ijaz Ahmed, Exh.D.D., copy of the order dated 22‑10‑1995 passed in State v. Imtiaz Exh. D.E., copy of licence of Javed Akhtar, Exh. D.F., a licence of Afzaal Ahmed, Exh. D.H., a licence of Akhtar Mehmood, Exh. D.I. and closed the defence evidence of the accused.

24. On the conclusion of trial the learned trial Court acquitted Imtiaz Ahmed, Akhtar Khan, Ghulam Mehmood, Javed Iqbal, Shafqat, Khalid Mehmood, Afzaal Ahmed and Ashfaq Ahmed accused from all the charges in this case. However, it convicted Ijaz Ahmed and Shaukat accused/appellants under section 302/34, Pakistan Penal Code for committing 'Qatl‑i‑Amd' of Babur deceased and awarded them death sentence as 'Ta'zir They were also directed to pay Rs.20,000 each as compensation to the legal heirs of the deceased under section 544‑A, Criminal Procedure Code and in case of non payment of compensation to undergo further imprisonment for 3 months. Aggrieved of the said judgment, Ijaz Ahmad and Shaukat have filed this appeal (Crl. Appeal No.63 of 1997). The learned trial Court has also sent a reference (Murder Reference No.132 of 1997) for confirmation of sentence of death awarded to Ijaz Ahmed and Shaukat accused/appellants. The criminal appeal as well as the murder reference are both being disposed of through this judgment.

25. Arguments have been heard and record perused.

26. It has been argued by, the learned defence counsel that the statements of P. W. 1 and P.W.2 are not only inconsistent but unnatural and that their presence at the time of occurrence appears to be improbable and that it is not understandable as to how they were able to identify the accused in the darkness of night and how were they so sure that the fatal shots were fired by Ijaz and Shaukat accused appellants when there were at least 8 other culprits according to the prosecution story and when the eye‑witnesses had got up after hearing the shots which had already been fired. He has also argued that P.Ws. had effected improvements in their statements and had tried to till up the lacunas. He has also argued that the existence of motive in this case was also not proved and while in the F.I.R. the only motive which was stated was that on the night between 1/2‑5‑1993 on account of the previous grudge Ijaz and Shaukat had fired at their Dera and as a result of which Babur Khan and Muhammad Afzal had been injured and Babur Khan had got registered F.I.R. No.133 of 1993 in Police Station Saddar, Mandi Baha ud‑Din in that respect and that when on the night of the occurrence around 11‑30 p.m., Saqib Khan etc. were returning to the house from the Hospital, they were fired at near the house of Shaukat by Muhammad Azam etc. and as a result of which the screen of the car was smashed, although they themselves had escaped. However, while appearing in the Court as P.W.1, the complainant also trade mention of their enmity which had started with the murder of Bashir Ahmed, a 'Phoophizad' of Shaukat accused. In his statement before the Court, P.W.1 also made mention of the murder of Ashfaq Ahmed a son of Ch. Ghulam Muhammad, Advocate in 1971 and in which Shaukat accused, etc. had been challaned. He has argued that the prosecution had been trying all along to effect all possible improvements in its story and that in fact a wide net had been thrown to involve as many persons in this case as possible and that in this case as many as 10 persons had been got challaned out of whom 8 have been acquitted while on the basis of the same evidence the present appellants had been convicted and for which there was no lawful justification. The learned counsel for the appellants has further argued that there does not exist on record any report of Forensic Expert and as such the alleged recoveries of weapons of offence were inconsequential and without any legal importance and that the medical evidence was also in conflict with the ocular account as injury No.2 had been described as entry/exit wound. He has argued that in fact there was only one injury on the person of the deceased and that injury No. 2 was only the exit wound and which the Medical Officer has tried to describe as "continuous with exit wound of injury No. 1". He has referred to the cross‑examination of P.W.9, Dr. Asif Ali Khan in whose opinion the distance between the assailants and the deceased could be 6 feet to 20 feet and the accused could be on the back side of the deceased or back left side of the deceased. He has argued that the Medical Officer has made a futile effort to deny that there was only one wound of exit which was on the right side and that he has wrongly stated that the exit wound of injury No.1 was also entry/exit wound of injury No.2. He has also argued that the deceased was related to one Dr. Akhtar Mehmood and that the brother‑in‑law of P.W.9 is also a class fellow of Dr. Akbar Mehmood and it was at the distance of Dr. Akhtar Mehmood that P.W.9 had falsely recorded that injury No.2 was a composite wound being exit of injury No.1 and also entry/exit wound of another shot. He has argued that even P.W.9 had admitted that no metallic piece of the alleged second shot was recovered from the seat of injury No.2. 26‑A. The learned defence counsel also argued that investigation had been conducted dishonestly in collusion with the complainant party and that fake recoveries of alleged weapons of offence had been planted on the accused. He has argued that during the investigation it had been brought to the knowledge of the Investigating Officer that the deceased had received injuries at the hands of War Iqbal P. W. and it had also been found during the investigation by Younas, Inspector that Walayat Khan, Afzal and Akram P.Ws. were not present at the time of occurrence near the deceased and that they were present at their Dera at the relevant time. He has argued that the prosecution had failed miserably to prove the charge against the appellants and that they had been wrongly convicted and sentenced by the learned trial Court on capital charge and that conviction and sentence is liable to be set aside.

27. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court and has argued that there is sufficient evidence on record to justify the conviction of appellants on the charge under section 302/34, Pakistan Penal Code and there is no infirmity in the judgment of the learned trial Court and that the statements of the P.Ws. are consistent and fully warrant conviction of the appellants on the capital charge and as such the appeal filed by the appellants is liable to be dismissed.

28. We have carefully considered the arguments advanced from both sides.

29. So far as the conviction of the appellants under section 302/34, Pakistan Penal Code is concerned, we have adverted to the evidence on record. As already mentioned above the prosecution has examined P. W .1 and P.W.2 to prove the eye‑witness account of the occurrence. Both of them deposed on the same lines as indicated in the F.I.R. Both of them stated that Ijaz and Shaukat had fired on Babur deceased, hitting him on his head. However, it was not clarified as to which of them had fired first and who had fired the second shot. According to the post‑mortem report there were two injuries on the person of the deceased although injury No.2 was described as continuous with exit wound of injury No.1. In the course of cross examination P.W.2 Akram deposed that he had seen the accused for the first time after the deceased had been hit. It indicates that the eye-witness had not seen as to which of the appellants had fired the first shot and which of the second shot. In their statements under section 342, Criminal Procedure Code, both the appellants/accused had taken the plea that P.W.1 had deposed against them due to enmity. But they did not give any further explanation in that respect. According to the prosecution story, there were some other accused as well who were named in the F. I. R. But, as to why the fatal shots had been attributed to the appellants only has not been explained. If the P.Ws. had enmity with the appellants, they had enmity with the other accused as well. The appellants have not 'explained as to why they have been singled out. Even if the recovery of weapons of offence is excluded from the consideration on the ground that there does not exist on record any report of Forensic Science Laboratory, even then there is sufficient evidence on record to connect the appellants with the offence. It appears that there was thorough investigation but nothing favourable to the appellants had come on record even in the course of investigation.

30. The F.I.R. in this case was prompt and which excludes the possibility of consultation/deliberation. The ocular account in this case is furnished, as already mentioned above, P.W.1 and P.W.2 who appear to be reliable witnesses. The accused are residents of the same locality and the eye witnesses and the accused were known to each other. The existence of enmity between the complainant party and the accused party is not denied. The identification of the appellants is not in doubt. According to the prosecution story, two shots had been fired simultaneously by Shaukat and Ijaz hitting the deceased on his head and as a result of which he died while the other accused (who have been. acquitted by the learned trial Court) had allegedly started firing at the complainant party although the shots fired by them did not hit either the deceased or any of the eye witnesses. It was suggested to P.W.2 in the course of cross‑examination by the learned defence counsel that Jafar Iqbal, a cousin of the deceased, had fired a shot at the deceased as a result of which he had ultimately expired. However, the appellants have not made any attempt to produce any evidence in support of the said assertion. Even in the statements under section 342, Criminal Procedure Code, the appellants have not taken any such plea as such the defence version that the deceased had died as a result of shot fired by Jafar Iqbal is clearly misconceived.

31. The long‑standing enmity between the parties, previous litigation concerning criminal cases, the incident prior to the main occurrence (on the night) in which Saqib Khan etc. while returning from the hospital were fired at near the house of Shaukat and in .the course of which the screen of their car had been smashed indicate that the appellants did have the motive for the occurrence. Since the eye‑witnesses and the accused/appellants live in the same locality, the identification could not have been a problem in the light of the electric bulbs, even though it was night when the occurrence had taken place.

32. From the evidence on record it stands clearly proved and established that both the appellants had fired at the deceased with their respective weapons and had injured him in furtherance of their common intention and as a result of which he had died. As such the conviction of the appellants for the offence under section 302/34, Pakistan Penal Code by the teamed trial Court is upheld. However, so far as the sentence awarded by the learned trial‑Court is concerned, we feel that as specific injuries had not been attributed to the appellants and as there is no evidence on record as to which of the injuries had been caused by which of the appellants and as the occurrence had taken place during the night and as, keeping in view the principle of safe administration of justice, we feel that under the circumstances, the sentence of imprisonment for life would serve the interest of justice; Therefore, we are inclined to reduce the sentence of death awarded to the appellants by the learned trial Court to imprisonment for life. Consequently, we maintain the conviction of the appellants under section 302/34, Pakistan Penal Code but convert the sentence of death into imprisonment for life for each of the appellants: The appellants will also pay an amount of Rs.20,000 (Rupees twenty thousands only) each to the legal heirs of the deceased as compensation under section 544- A, Criminal Procedure Code and in case of non‑payment of compensation will undergo further S.I. for 3 months each. With this modification in the impugned judgment, the appeal (Criminal Appeal No.63 of 1997) is dismissed. The appellants will be given benefit under section 382‑B, Criminal Procedure Code.

33. The sentence of death awarded to Ijaz and Shaukat appellants is not confirmed.

34. The Murder Reference (No.132 of 1997) is answered in the negative. N.H.Q./I‑135/L Sentence reduced.