JAFAR AND 2 OTHERS Versus THE STATE

RAJA MUHAMMAD KHURSHID, J. --- The appellants Jafar and Abdul Majeed were convicted and sentenced to death plus a fine of Rs.2,000 each or in default to suffer further R.I. for two years on each count whereas. Ghulam Hussain alias Pappu appellant was convicted and sentenced to imprisonment for life and a fine of Rs.2,000 or in default to suffer further R.I. for two years on each count for the murder of . Zulfiqar and Bashir Ahmad deceased persons respectively vide the judgment, dated 30-5-19_91 passed by Mr. Mujahid Hussain Sheikh, the then learned Additional Sessions Judge, Toba Tek Singh.

2. A reference under section 374, Cr.P.C. for the confirmation of the death sentences aforesaid is also before us.

3. A case under section 302/34, P.P.C. was registered against the appellants for an occurrence which 'took place at about 12-00 O'clock in the noon on 31-7-1989 in the area of Chak No.763/G.B. Pindi Ghaziabad, Police Station Aroti, District Toba Tek Singh at the report of Mukhtar Ahmad, lodged on the same day at about 1-00 p.m., in which it was contended that the complainant alongwith his deceased sons namely Zulfiqar and Bashir Ahmad had been dealing in the business of sheep and goats. All three of them returned from their business and came to the hotel owned by Muhammad Sharif-for taking their meals. They found Rab Nawaz, Haq Nawaz and Yousaf already taking tea in the said hotel. Zulfiqar deceased went inside the hotel and laid himself on a cot. The complainant, and his other deceased son Bashir Ahmad occupied a bench in front of the hotel. Suddenly, the appellants namely Jafar Hussain, Abdul Majeed and Ghulam Hussain alias Pappu while armed with .12 bore pistols came there. Out of them, Jafar and Ghulam Hussain went inside the hotel. The first fire was made by Jafar hitting Zulfiqar deceased on his right eye. The second fire made by Ghulam Hussain hit on the left side of chest of the aforesaid Zulfiqar. Abdul Majeed appellant fired at Bashir Ahmad deceased on his right eye. The deceased tried to run away, whereupon, Abdul Majeed fired again which hit him on the back of chest. Both the deceased died on the spot. The appellants ran away from the spot while raising Lalkara that they had taken the revenge of the murder of their father Ameer Bakhsh. The occurrence was seen by Rab Nawaz, Haq Nawaz and Yousaf aforementioned in addition to the complainant. The bone of contention was the murder of Ameer Bakhsh, father of the appellants in which Zulfiqar deceased alongwith others were challaned but were acquitted on trial.

4. The prosecution relied upon the evidence of the eye-witnesses consisting of Mukhtar Ahmad (P.W.4) and Muhammad Yousaf (P.W.5). To support the eye-witnesses, reliance was placed on the recovery of the weapons of offence from the accused/appellants namely Jafar and Abdul Majeed. The two crime empties P.2 and P.3 recovered from the place of occurrence were found wedded with the pistols P.4 and P.5, recovered from Jafar and, Abdul Majeed aforesaid. In this regard, report Exh. P.U. from the Technical Services, Crime Branch Punjab, Lahore was placed on record. The medical evidence consisting of Dr. Ehsan-ur-Rashid (P.W.1) was produced in order to show that the deceased persons were done to death with the fire-arm weapons and that the injuries found on their persons corroborated the ocular account of the occurrence. The recovery of weapons of offence .P.4 and P.5 was proved through Noor Muhammad (P.W.3) and Mukhtar Ahmad (P.W.4). The Investigating Officer Zaka Ullah, S.-I. was examined as P.W.9.

5. The accused were examined under section 342, Cr.P.C. in which they took up the plea of false implication out of enmity with the complainant side and claimed to be innocent. All of them declined to appear in defence to disprove the allegations against them as required by section 340(2), Cr.P.C.

6. Learned counsel for the appellants contended that enmity between the parties was an admitted factor due to the murder of father of the appellants in which one of the deceased persons namely Zulfiqar was an accused; that the prosecution evidence was not only inimical but also interested to involve the appellants falsely in this case; that such evidence could not be implicitly relied upon without corroboration from a source of unimpeachable nature; that the occurrence took place in a hotel surrounded by shops in the presence of many independent persons and as such in the absence of independent witnesses, the case of the prosecution remains highly doubtful; that the recovery of the pistols was fabricated like the recovery of the empties from the spot; that the matching of the crime empties with the pistols recovered from Jafar and Abdul Majeed appellants would be of no avail because those were manipulated by the police in order to strengthen the prosecution case; that one piece of tainted evidence cannot support other piece of tainted evidence. In addition to that, it was alleged that the presence of the eye-witnesses was doubtful because if the complainant was found at the spot, he should not have escaped unhurt; that he was called to the spot after the occurrence and made a witness in the case; that the ocular account of occurrence was contradictory and hence unreliable; that one of the eye-witnesses namely Rab Nawaz though related to the deceased did not appear in the Court as he did not want to support a false case; that the evidence of the Draftsman would show that there was a bus-stop and shops around the place of occurrence which was located in a thickly populated area. As such, the prosecution has failed to search for disinterested and independent witnesses only because nobody would have come forward to support a false prosecution story. Lastly, it was contended that there was no entry in the inquest report of F.I.R. about the empties, which strengthened the belief that those were the result of fabrication.

7. The learned prosecutor contended that though one of the deceased persons was involved in the murder case of the father of the appellants but enmity would cut both ways. The motive was on the side of the appellants because they were to take the revenge of their father. The eye-witnesses were stated to be natural as one of them i.e.; the complainant was accompanying the deceased persons, whereas, the other namely Yousaf was already present in the hotel. The mere fact that both of them were closely related to the deceased persons would not take away their evidentiary value as they were supported by the circumstantial evidence such as recovery of the crime empties which was not only genuine but also wedded to the crime weapons recovered from Jafar and Abdul Majeed appellants. The medical evidence and prompt registration of the case further supported that the prosecution story was straightforward and genuine and did not admit any possibility of improvement or substitution.

8. We have considered the above arguments. First of all, it is to be seen whether the prosecution has been successful to prove its case against the appellants. In this respect, it may be pointed out that though the father of the appellants was murdered about two years prior to the occurrence in which one of the deceased namely Zulfiqar and others were challaned as accused, however, they were acquitted and as such, motive to take the revenge from the aforesaid Zulfiqar look to be very probable. The motive is proved through the evidence of the complainant Mukhtar Ahmad and Yousaf P.W. Even otherwise, the appellants must be feeling aggrieved and would have been eager to take the revenge after Zulfiqar, etc. were acquitted. All the three appellants, under the aforesaid motive brutally attacked and finished the deceased persons by firing at them. This is sufficiently proved through the eye-witnesses aforesaid. Now the question would arise whether the eye-witnesses should or should not be believed. In this respect, it is clear that the complainant is the father of the deceased persons, whereas, Yousaf P.W. i.e.; another eye-witness is the son of Zulfiqar deceased. Though they are closely related to the deceased persons but they would not nominate any wrong person in the case. Rather they would nominate the real offenders to bring them to book for the murder of their kith and kin. As such, the mere fact that they were related to the deceased persons or were related inter se would not make their evidence untrustworthy as their testimony smacks truth and fairplay. The statement of such type of witnesses could not be overlooked particularly when they were supported by the recovery of weapons of offence from the two accused which were later on found wedded to the crime empties recovered from the place of occurrence through their scientific analysis by Technical Services Bureau. There is nothing on the record to suggest that the crime empties were fabricated. In fact, there is evidence that those were recovered from the spot much earlier than the recovery of weapons of offence and also sent earlier. to the laboratory for comparison and test, whereas, the weapons of offence were sent later on. In such a situation, the recovery of crime empties is not only genuine but also a valuable piece of corroboration to ocular evidence against the appellants. The injuries found on the deceased persons also matched to the description given by the eye-witnesses regarding their seats and locale. In that way, the medical evidence also supported the eye?witnesses. There was no contradiction of any type between the medical evidence and the ocular account of occurrence, which rather go hand in hand to support that the occurrence had taken place in the manner stated in the F.I.R. The occurrence had taken place at 12-00 O'clock in the noon, whereas, the case was registered at 1-00 p.m. on the same day. The distance between the place of occurrence and the police station was about four miles. Keeping in view the distance and the circumstances under which the occurrence had taken place, it could be safely said that the F.I.R. was registered promptly and as such, there was no chance for deliberation or consultation to twist the prosecution version The lodging of F.I.R. promptly also provides corroboration 'to the ocular account of the occurrence.

9. In view of the above discussion, it can be said that the ocular account of occurrence given by the eye-witnesses is not only trustworthy but can be safely relied upon having been supported by the recovery of the weapons of offence from the accused/appellants which were found wedded with the crime empties picked up from the spot. The mere fact that there was no entry of empty in the inquest report or F.I.R. would not make the prosecution case doubtful because it might be a routine slip on the part of the police officials who take the things casually during the investigation due to lack of training or experience.

10. An objection was raised that since the occurrence had taken place in a crowded place surrounded by shops and bus-stop, therefore, the police should have produced independent witnesses to support the occurrence. The statement of the Investigating Officer at the trial shows that he made efforts to associate such type of evidence but the people were not prepared to come forward on the plea that they had not seen the occurrence. 1n such a situation, to look for independent witnesses would be rather an exercise in futility. It is usually noticed that the people do not wish to poke their nose in the bloody affairs of others as they know that they might have to pay heavy price, even with the risk of losing their lives and liberty, if they enter the witness-box against desperate criminals. In this case also no exception can be taken to the above observation and as such, the absence of the disinterested witnesses would in no way mar to the prosecution case particularly when the trustworthy ocular account of occurrence was available.

11. Likewise, it cannot be said that since no recovery of the weapon of offence i.e. .12 bore pistol was effected from Ghulam Hussain alias Pappu appellant, therefore, the case to his extent had become doubtful. In this regard, it was alleged that had he fired at Zulfiqar then there should have been no crime empty near the place of occurrence relating to the aforesaid deceased. The empty would only be ejected if the fire was made twice from the same gun and not if two different assailants had made two different fires from their respective pistols. However, there is no force in this argument because the recovery of a crime empty is only a corroborative factor. The recovery may have not been made from the aforesaid accused due to lapse on the part of the police or due to concession given to him by the Investigating Officer. This inference would stand fortified from the statement of the Investigating Officer who had adopted a concessional attitude when he was examined at the trial as P.W.9. He deposed that according to his secret enquiry, Ghulam Hussain alias Pappu accused was found to be present at the place of occurrence but had' never fired. In the earlier portion of the same statement, the Investigating Officer stated that the aforesaid Ghulam Hussain had stated in his first version before him that he -had gone to the spot with his brothers i.e.; the remaining two appellants in order to take the revenge of the murder of his father. In that situation, it cannot be believed that he would have gone without any weapon alongwith his brothers. On the contrary, the eye-witnesses have clearly stated that he had accompanied his brothers in furtherance of the common intention to kill the deceased persons in order to take the revenge of their late father. They also deposed that the fire made by Ghulam Hussain alias Pappu had hit Zulfiqar deceased at the right side of his chest, whereupon, the latter fell down from the cot. It is, thus, obvious that no exception can be taken to the participation of the aforesaid Ghulam Hussain alias Pappu in the murder of the deceased persons alongwith, his co-?accused namely Jafar and Abdul Majeed.

12. In view of our above discussion, we come to an irresistible conclusion that the offence under section 302/34, P.P.C. was proved against all .the appellants beyond any reasonable doubt. They were rightly convicted by the learned trial Court. The appellant Ghulam Hussain alias Pappu was about 14/15 years of age at the time of occurrence, even according to the statement of the Investigating Officer. As such, he was at the threshold of his, youth. It was, therefore, rightly considered as an extenuating ground for awarding lesser penalty of imprisonment for life to him. As a consequence, the appeal is dismissed. However, the appellant Ghulam Hussain alias Pappu shall be given the benefit of section 382-B, Cr.P.C.

13. The death sentence awarded to Jafar and Abdul Majeed appellants on two counts each is confirmed .

14. The Murder Reference No. 366 of 1991 is accepted accordingly.

N.H.Q./J-13/L ???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed