2009 SCMR 493 (PLP)

CH. EJAZ YOUSAF, J.

These appeals by way of leave are directed against common judgment, dated 6-12-2007 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby appeals filed by the appellants against their convictions and sentences recorded by the Additional Sessions Judge, Kharian as well as revisions filed by the complainant for enhancement of sentences were dismissed and murder reference sent by the trial Court was answered in the affirmative to the extent of Naseer Ahmad and Muhammad Younas Shah, appellants, whereas to the extent of Gulraiz Akhtar, appellant, it was answered in the negative.

2. Facts of the case, in brief are that on 7-3-2002 complaint (Exh.P.F.) was lodged by one Raja Shamshad Hussain with Police Station Kharian Saddar, wherein it was alleged that on the said date at 8-00 a.m. the complainant along with his real brother Haji Muhammad Riaz was sitting on their tube-well and talking to each other when in the meantime Younas Shah son of Malik Shah and Naseer Ahmad son of Muhammad Bashir both armed with .7 mm rifles came at the spot. Younas Shah raised a Lalkara that Haji Riaz be taught a lesson for litigation whereupon Younas Shah made a direct fire on his brother but missed the target. The second fire was made by Naseer Ahmad from his .7 mm rifle which hit his brother at the back on the left side. It was claimed that the occurrence was also witnessed by Raja Manzoor Hussain and Raja Ghazanfar Ali, who were present in their lands, nearby. After the occurrence the accused persons fled away towards "Baila". The complainant took his brother in injured condition to the hospital at Kharian but he succumbed to the injury, in the way. Motive for the murder as alleged was previous litigation between the parties. On the stated allegation, formal F.I.R. No.84 of 2002 was registered at the said police station under section 302/34, P.P.C. and investigation was initiated in pursuance thereof. It would be pertinent to mention here that the complainant, on the same day, submitted another application stating therein that Muhammad Ishaque son of Raqam Dad, has told him that on 20-1-2002, he i.e. Muhammad Ishaque along with Qamar Zaman son of Muhammad Taj, had gone to Thotha Rai Bahadar. When they passed through the street wherein Mehr-un-Nisa's house was situated, they heard some conversation. On- hearing the name of Haji Riaz they became curious and on peeping through a partly opened window, saw that Naseer Ahmad, Gulraiz Akhtar, Shams Tabraiz alias Shebi, Mehr-un-Nisa' and Younas Shah were hatching conspiracy to murder Haji Riaz, whereupon, they tried to inform Muhammad Riaz and the complainant but could not do so as they, at the relevant time, were at Islamabad. As a result of the application, section 109, P.P.C. was added in the F.I.R. On completion of investigation the accused persons namely (i) Mehr-un-Nisa, (ii) Naseer Ahmad, (iii) Gulraiz Akhtar and (iv) Muhammad Younus Shah were challaned to the Court for trial. Charge was accordingly framed to which the accused persons pleaded not guilty and claimed trial. At the trial, the prosecution in order to prove the charge and substantiate the allegations levelled against the accused persons examined 19 witnesses in all, whereafter statements of the accused persons were recorded under section 342, Cr.P.C. In their above statements all the accused persons denied the allegations and stated that they were falsely implicated in the case due to political rivalry. They, however, failed to lead any evidence in their defence or to appear themselves as their. own witnesses in terms of section 340(2), Cr.P.C. After hearing arguments of the learned counsel for the parties, the learned trial Court convicted the accused persons and sentenced them to the following punishments:

Naseer Ahmad and Younas Shah Under section 302/34, P.P:C., Death each with direction to pay compensation of Rs.50,000 each to the legal heirs of deceased under section 544-A, Cr.P.C. or in default thereof to suffer 6 months' R.I. and to pay Rs.50,000 each to the complainant or in default thereof to suffer 6 months' R.I. Gulraiz Akhtar Under section 109 read with section 302/34, P.P.C. Death as Ta'zir with direction to pay compensation of Rs.50,000 to the legal heirs of deceased under section 544-A, Cr.P.C. or in default thereof to suffer 6 months' R.I. and" to pay Rs.50,000 to the complainant or in default thereof to suffer 6 months R.I. Mst. Mehr-un-Nisa Under section 109 read with section 302/34, P.P.C., life imprisonment with direction to pay compensation of Rs.50,000 to the legal heirs of deceased under section 544-A, Cr.P.C. or in default thereof to suffer 6 months' R.I. and to pay Rs.50,000 to the complainant or in default thereof to suffer 6 months' R.I. Benefit of section 382-B, Cr.P.C. was, however, extended to all the accused persons.

3. Gulraiz Akhtar and Mst. Mehr-un-Nisa filed Criminal Appeal No.316 of 2003, whereas Naseer Ahmad and Muhammad Younas Shah filed Criminal Appeal No.184/J of 2003 before the Lahore High Court, Lahore. Murder Reference No.142 of 2003 was also sent by the trial Court for confirmation of the death sentences. The complainant Raja Hussain also filed Criminal Revision Petitions Nos.238 and 239 of 2003 for enhancement of the sentences also the compensation. All the appeals and revisions were heard together and dismissed by the High Court, vide the impugned judgment. The convictions and sentences recorded against all the accused persons were maintained with the exception that the sentence of death inflicted on Gulraiz Akhtar was reduced to imprisonment for life with benefit of section 382-B, Cr.P.C.

4. Learned counsel for the appellants has contended; that since witnesses were closely related to the deceased, therefore, their testimony could not have been believed; that in the absence of any plausible explanation presence of the eye-witnesses at the place of occurrence was doubtful; that medical evidence was in conflict with the ocular evidence inasmuch as only one shot was attributed to Naseer Ahmed appellant, whereas three fire-arm injuries were found on the dead body and that the alleged motive was also not proved.

5. Sardar Khurram Latif Khan Khosa, learned Advocate Supreme Court while appearing on behalf of the appellants in Criminal Appeal No.41 of 2008 contended that the accused persons, namely, Gulraiz Akhtar and Mst. Mehr-un-Nisa were not named in the F.I.R.; that P.W.7 and P.W. were related inter se hence their testimony was of no value; that the alleged conspiracy regarding murder of the deceased was though hatched 47,days prior to the occurrence yet, neither any information with regard thereto was passed on to the complainant or any other member of the family, nor any attempt in this regard was made which leads to the conclusion that the story was concocted later on in order to falsely implicate the afore-named appellants. He maintained that in the absence of any corroboratory evidence the appellants could not have been convicted for the offence.

6. Dr. Babar Awan, learned counsel appearing for the complainant, on the other hand while controverting the contentions raised by the learned counsel for the appellants has submitted that presence of both the eye-witnesses at the place of occurrence could not have been doubted as they were related to the deceased; that testimony of both the eye-witnesses could not have been discarded on the basis of mere relationship as they were not inimical towards the accused persons; that F.I.R. was lodged promptly wherein not only specific roles were attributed to each of the accused persons but names of the witnesses were also mentioned and it was clarified that they had seen the occurrence as they were at the relevant time working in their respective lands; that the statements of eye-witnesses were duly corroborated by the recovery pf weapons as well as the medical evidence. Further, the evidence of conspiracy was credible hence, the accused persons were rightly convicted for the offence.

7. Mr. M. Saddique Khan Baloch, learned Deputy Prosecutor: General Punjab, while adopting the arguments made by Dr. Babar Awan learned counsel for the complainant added that since guilt of the appellants was fully brought home at the trial, through independent and reliable evidence, therefore, the impugned judgment was unexceptionable. In answer to the question as to why the information regarding conspiracy allegedly hatched with regard to murder was not conveyed to the complainant party by PWs.7 and 8, he submitted that since the deceased and the complainant both, at the relevant time, were away to Islamabad, therefore, needful could not be done. He, however, not denied that the statements of P.Ws.7 and 8 under section 161, Cr.P.C. were recorded with a delay of 47 days.

8. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone also through the record of the case, minutely.

9. The prosecution case rests on the ocular evidence, account whereof, at- the trial, was furnished by P.W.17 Manzoor Hussain and P.W.18 Raja Shamshad Hussain, who is also complainant of the case, and brother of the deceased Raja Riaz. The evidence of conspiracy rendered by P.W.7 Muhammad Ishaque and P.W.8 Qamar Zaman, recovery of empties, the medical evidence the recovery i.e. .7 mm rifle P.9, vide Exh.P.J. at the instance of appellant Naseer Ahmad license whereof was in the name of co-accused Younas Shah; the recovery of another .7 mm rifle at the instance of Younas Shah, vide Exh.P.H.; the report of the Forensic Science Laboratory, i.e. Exh.P.Z. and the evidence of motive.

10. Learned Judges in the High Court having found that it was a broad-daylight murder and F.I.R. Exh. P.1./1 was lodged promptly wherein both Muhammad Younas Shah and Naseer Ahmed appellants were duly nominated for committing murder of the deceased excluded the possibility of any fabrication or false implication. It was held that testimony of both the eye-witnesses i.e. P.Ws.17 and 18 being coherent and corroboratory inter se on all material points could not have been disbelieved merely because of relationship with the deceased. It was also found that there was no discrepancy between the ocular and the medical evidence. The evidence regarding conspiracy was also disbelieved however, the learned Judges felt that Gulraiz Akhtar appellant having not participated in the main offence and charged for abetment only, the sentence of death inflicted on him was on the higher side and thus, required reduction. Accordingly his sentence of death was reduced to life imprisonment.

11. In order to ascertain as to whether or not there is substance in the contentions raised by the learned counsel for the appellant we have ourselves carefully gone through the record of the case. In the instant case, the occurrence took place at 8-00 a.m. on 7-3-2002 whereas F.I.R. was lodged at 9-05 a.m. on the same day with Police Station Kharian Saddar at the distance of 8-1/2 miles from the place of occurrence, hence there was hardly any delay. In the F.I.R. names of both the accused persons, namely, Muhammad Younas Shah and Naseer Ahmed were mentioned and it was disclosed that both the appellants armed with .7 mm rifles directly fired at the deceased. Initially, while raising Lalkara that deceased would be taught a lesson for litigation, Younas Shah fired at the deceased but it missed the target. Later on Naseer Ahmad fired which landed at the back of the deceased on the left side. It was also stated in the F.I.R. that in addition to the complainant, the occurrence was also witnessed by Raja Manzoor Hussain and Raja Ghazanfar Ali who were working in their respective lands, at the relevant time and had also seen the accused persons fleeing. Both the complainant as well as P. W.17 Raja Mansoor Hussain while appearing in the witness-box not only supported the prosecution version but confirmed in unequivocal terms that it were the aforementioned accused persons who were responsible for murder. Both the aforenamed P.Ws. were subject to lengthy cross-examination but nothing damaging to the prosecution and favourable to the defence was elicited from them, hence their testimony was rightly believed by both the Courts below and since both the parties were previously known to the aforenamed eye-witnesses, therefore, possibility of mistake identity of the accused persons has to be ruled out.

12. It has been contended by the learned counsel for the appellants that ocular evidence was at variance with the medical evidence inasmuch as a single effective shot was attributed to the accused persons by the eye-witnesses whereas as per post-mortem report at least three injuries were found on the person of the deceased. P.W.16 Dr. Muhammad Iqbal Alvi, while appearing before the Court in his testimony had described the following three injuries:

(1) Fire-arm wound of entry 4 x 1 c.m. on left lower chest with inwarted edges (posteriorly). (2) Fire-arm wound of exit 2 x 2 c.m. 4 c.m. below left nipple. (3) Fire-arm wound of entry 2 x 1 c.m. on left upper forearm interior aspect. It would be pertinent to mention here that the injury No.1 which was declared as sufficient to cause death of the deceased in the ordinary course of nature, is an "entrance" wound whereas injury No.2 is corresponding exit wound and the injury No.3 is at the arm of the deceased which was caused by a fragment of the bullet. Pictorial diagram which was exhibited at the trial Court as Exh. P. K./1 shows that injury No.3 was the corollary of injury No.1 as the bullet after passing through and through the body cavity struck in the arm. P.W.16 in his testimony has specifically stated that he had recovered the bullet from the posterior aspect of left forearm lying subcutaneously, thus, to us, there was no conflict between the ocular account and the medical evidence, rather ocular evidence was corroborated by the medical evidence, inasmuch as both the eye-witnesses are unanimous on the point that only one fire made by Naseer Ahmad remained effective whereas, the other fire made by Muhammad Younas Shah missed the target.

13. Another fact which cannot be lost sight of is that empties recovered from the place of occurrence wedded with the weapons recovered on the pointation of both Naseer Ahmad and Muhammad Younas Shah appellants. Report of Forensic Science Laboratory Exh. P. Z. is explicit in this regard. It may be mentioned here that the crime weapons were sent to the Laboratory after the empties recovered from the spot had already been dispatched to the Laboratory which fact, at the trial, was confirmed by P.W.2 Safeer Afzal and P.W.4 Muhammad Afzal, thus, ample support was lent to the prosecution version of the evidence of recoveries as well. Further, recovery of empties as alleged, at the very outset, too, was not challenged by the defence, hence it further, strengthens the prosecution case. Findings in the impugned judgment, therefore, to the extent of Naseer Ahmad and Muhammad Younas Shah, appellants in our view, are unexceptionable.

14. However, in our view, evidence regarding conspiracy allegedly hatchet between Naseer Ahmad, Gulraiz Akhtar, Shams. Tabraiz alias Shebi, Meh-un-Nisa and Younas Shah, having been received 47 days prior to the occurrence by both P.Ws. 7 and 8 and not conveyed to the complainant party, well in time enabling them to protect themselves, requires careful scrutiny. As per prosecution version, the complainant on the day of occurrence had met P.W. Muhammad Ishaque, who in turn, had disclosed to him that on 20-1-2002, he i.e. Muhammad Ishaque, had to go along with P.W. Qamar Zaman to Thotha Bahadar' in connection with domestic affairs. While passing through the street wherein Mst. Mehr-un-Nisa's Baithak was situated, he heard some conversation wherein name of the deceased was mentioned whereon, they became curious and on peeping through the window of the said Baithak, which according to the P.Ws. was partly opened, they saw in the electric light that Naseer Ahmad, Gulraiz Akhtar, Shams Tabraiz alias Shebi, Mehr -un-Nisa and Younas Shah were hatching conspiracy to murder Haji Riaz. Though P.W.7, at the' trial, has stated that he had planned to inform Muhammad Riaz, yet since he, i.e. the deceased, at the relevant time, was at Islamabad, therefore, the information could not be conveyed. Although the above information received from P.W.7 was conveyed to the police by the complainant through supplementary statement on the same day but the question arises if the information in question was received by the P.Ws. so early, as to why it was not conveyed to the deceased party prior to the occurrence? The explanation offered by the prosecution in this regard that since the deceased was away to Islamabad at the relevant time, therefore, the information so received could not have been passed on to him, is far from satisfactory. It has not been explained by the prosecution that if the deceased himself was not available as to why the information in question was not conveyed to any other member of his family or relative or any friend. It does not appeal to reason that in these days when numerous sources of communication are available, the P.Ws. were incapacitated to do the needful. Thus, the only logical inference possible to be drawn from the "omission" so made is that the plea of conspiracy was introduced as an afterthought. It is also not believable that the "Conspiracy" was being hatched at night in a Baithak on the road side with an open window, thereby affording opportunity to both the witnesses not only to hear the conversation but also peep through the same and identify and recognize the participants in the electric light without being detected themselves. All these factors heavily militate against the bona fide of the prosecution qua the plea of conspiracy.

15. Upshot of the above discussion is that Criminal Appeals Nos.42 and 261 of 2008 are dismissed. Convictions and sentences recorded against the appellants, namely Naseer Ahmed and Muhammad Younas Shah, vide the impugned judgment, are maintained. However, Criminal Appeal No.41 of 2008 is allowed and the appellants, namely, Gulraiz Akhtar and Mst. Mehr-un-Nisa are acquitted of the charges, they shall be released forthwith, if not required in any other case. N.H.Q./G-6/SC Order accordingly.