IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Jail Appeal No.D-38 of 2013
PRESENT:
Mr. Justice Naimatullah Phulpoto,
Mr. Justice Aftab Ahmed Gorar,
Appellant : Rafiq Sodhar and 02 others, through Mr. Habibullah G. Ghouri,
Advocate.
Respondent : The State, through Mr. Khadim Hussain Khooharo, Deputy
Prosecutor General.
Date of hearing: 25-02-2015. Date of Judgment: .04.2015.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Through this criminal jail appeal judgment dated 05.07.2013, passed by learned Judge, Anti-Terrorism Court, Naushehro Feroze in Special Case No.69/2012, re State Vs. Rafiq Sodhar and others, arising out of Crime No.08/2010 of Police Station Mehar, District Dadu, has been challenged by the appellants Rafique, Dost Muhammad alias Dosoo and Nawaz alias Niazo, all by caste Sodhar, whereby the appellants were convicted under Section 302(b), 149, PPC read with Section 7(a) of the Anti-Terrorism Act, 1997 and sentenced to R.I. for life each and to pay fine of Rs.30,000/- each, in case of default in payment of fine it was ordered that they shall undergo simple imprisonment for two months more. The appellants were also directed to pay compensation of Rs.250,000/- (Rupees Two Lac and Fifty Thousand) by each to the legal heirs of both deceased under Section 544-A, Cr.P.C; in case of default they were ordered to suffer S.I. for four months more. All the sentences awarded to accused were ordered to run concurrently and benefit of Section 382-B, Cr.P.C was also extended to the accused.
2. The brief facts of prosecution case as disclosed in F.I.R are that complainant Muhammad Saleem lodged F.I.R. on 19.01.2010 at 1530 hours, alleging therein that his father Mukhtiar Ahmed (now deceased) was Manager of Land lord Syed Rashid Sibtain. Accused Arbab Sodhar had demanded “Bhatta” from the father of the complainant about one month prior to this incident, in case of non-payment he issued threat that Mukhtiar Ahmed and his landlord, namely, Syed Rashid Sibtain would be murdered. Deceased Mukhtiar Ahmed narrated such demand of bhatta of accused Arbab Sodhar to his landlord Rashid Sibtain, to which Rashid Sibtain refused to pay ‘Bhatta’ to the accused persons. It is alleged that accused Arbab and his accomplices were annoyed with deceased persons. On 19.1.2010 complainant, his uncled Ashfaque Ahmed and Kamdar Mahboob Ali were asked by Mukhtiar Ahmed to purchase some articles from Mehar town. It was further told to them that Mukhtiar Ahmed and his landlord Rashid Sibtain would reach in car after getting CNG filled in. It is alleged that complainant, Mahboob Ali and Ashfaque Ahmed after purchasing the articles returned at Nanak Bypass Mehar, where it is stated that Mukhtiar Ahmed and Syed Rashid Sibtain came in the car at Qazi Arif Road, where all of sudden it is stated that 10 persons emerged from both sides of the road and encircled the car. Accused standing at the left side of the car were identified by the complainant party as Arbab, Dost Muhammad and Mehmood, all three armed with repeaters, appellant Rafiq Ahmed and Nawaz alias Niazo, both armed with pistols, while at right side of the car accused persons, who were identified, were Abdul Ghafoor alias Koro, Sadiq, both armed with repeaters, Asif Ahmed, armed with pistol, Naban and one unidentified person, whose face was opened, armed with Kalashnikovs. It is alleged that accused Rafiq Sodhar challenged the father of the complainant and Rashid Sibtain and made straight firing upon them. Fires hit to Rashid Sibtain and he fell down. It is alleged that accused Arbab Sodhar fired from his repeater at Syed Rashid Sibtain, which hit him. Accused Abdul Ghafoor alias Karo fired from his repeater at Mukhtiar Ahmed, which also hit him. Accused Sadiq fired from his pistol, which hit to the father of the complainant and Rashid Sibtain. Both eye-witnesses made effort to use their licenced weapons, but it is stated that accused Asif Ahmed, Naboo and one unidentified accused fired upon the father of the complainant, which hit him. Accused Dost Muhammad, appellant Mehmood and Nawaz alias Niazo also made straight fires upon Rashid Sibtain. Both injured fell down. In the indiscriminate firing of accused, it is alleged that accused appellant Rafiq also received the firearm injuries. It is alleged in the F.I.R. that cash of Rs.80,000/- of the victims, licenced weapons and mobile phones of complainant’s father and Rashid Sibtain were taken away by the accused persons and they drove away on their motorcycles by taking injured accused Rafique Sodhar. Complainant party took the injured persons to the hospital, where they succumbed to the injuries. Complainant then went to police station and lodged his F.I.R, it was recorded on 19.01.2010, at 1530 hours, vide crime No.08/2010, for offences under Sections 302, 149, PPC, read with Section 7(a) of the Anti-Terrorism Act, 1997 at Police Station Mehar.
3. After registration of the F.I.R, investigation was entrusted to ASI Shaman Ali Khoso on 19.01.2010. Investigation officer inspected place of wardat situated on Fareedabad link road, collected blood-stained earth in presence of the mashirs. He had also collected 13 empty cartridges of 30-bore, 10 empties of SMG and 06 empties of the pistol, which were sealed at spot in presence of the mashirs. Investigation officer had also secured Toyota Car No. ATH 999 in the damaged condition from the place of occurrence. Such mashirnama was prepared in presence of mashirs Mushtaq Ahmed and Saeed. Investigation officer had also received custody of injured accused Rafiq Ahmed alongwith pistol recovered from him. He sealed the same. Separate F.I.R. under Section 13(d) Arms Ordinance was registered against accused Rafique. Investigation officer recorded statements of P.Ws Mehboob Ali and Ashfaque Ahmed under Section 161, Cr.P.C. HC Yasin handed over clothes of both the deceased, namely, Rashid and Mukhtiar Ahmed to the investigation officer on 19.1.2010. He prepared mashirnama in presence of the mashirs. Thereafter, investigation was transferred from him to Inspector Imamuddin. Investigation officer has stated that he had sent blood-stained clothes of both the deceased and blood-stained earth to the Chemical Examiner for report and received positive report. He had also sent sealed live bullets, pistol and empties to the Ballistic Expert for report and received positive report. On the conclusion of usual investigation challan was submitted against the accused Rafique, Dost Muhammad alias Dosoo, Nawaz alias Niazoo,. Accused Arbab, Rustam, Asif, Mahmood, Sadiq, Abdul Ghafoor alias Karo and Naboo were shown as absconders. After completion of legal formalities, they were declared as proclaimed offenders.
4. A formal charge against accused Rafiq, Dost Muhammad alias Dosoo and Nawaz alias Niazo was framed at Ex.5 for offences under Sections 6(2)(a) r/w S. 7(a) of Anti-Terrorism Act, 1997, and also r/w S. 302/149, PPC. Accused pleaded ‘not guilty’ and claimed to be tried. At the trial prosecution has examined PW-1 complainant Muhammad Saleem at Ex.10, he produced copy of F.I.R. at Ex.10/A, receipt of dead bodies at Ex.10/B, PW-2 Ashfaq Ahmed at Ex.11, PW-3 Mushtaq Ahmed at Ex.12, he produced Danistnama and memo of inspection of dead body of deceased Mukhtiar Ahmed at Ex.12/A and 12/B, Danistnama and memo of inspection of dead body of deceased Rashid Sibtain at Ex.12/C and 12/D, memo of inspection of place of incident and recovery at Ex.12/E, PW-4 Tapedar Heeranand at Ex.13, he produced sketch of place of vardat at Ex.13/A, PW-5 ASI Muhammad Bux at Ex.14, he produced death certificate of PW deceased Mehboob Sodhar at Ex.14/A and his affidavit at Ex.14/B, PW-6 HC Ghulam Yaseen at Ex.15, he produced memo of securing clothes of both the deceased at Ex.15/A, PW-7 SIP Ayaz Ali at Ex.16, he produced memo of arrest of accused Rafiq Sodhar and recovery of one unlicenced pistol at Ex.16/A, PW-8 Dr. Rasool Bux at Ex.17, he produced postmortem report of deceased Rashid Sibtain at Ex.17/A, lash chakas form and police letter at Ex.17/B and 17/C, postmortem report and lash chakas form of deceased Mukhtiar Ahmed at Ex.17/D and 17/E. PW-9 HC Abdul Latif at Ex.18, he produced roznamcha entry No.15 at Ex.18/A, PW-10 ASI Shaman Ali at Ex.19, he produced police letter at Ex.19/A, chemical examiner’s report at Ex.19/B and ballistic expert report at Ex.19/C, PW-11 SIP Muhammad Anwar at Ex.20, he produced memo of formal arrest of accused Dost Muhammad and Nawaz alias Niazo at Ex.20/A. Thereafter, Deputy District Prosecutor, ATC, Naushehro Feroze, closed the prosecution side vide his statement at Ex.22.
5. The statements of accused Rafiq, Dost Muhammad and Nawaz alias Niazo were recorded under Section 342, Cr.P.C at Ex.23 to 25. All the three accused denied the prosecution allegations of committing double murders and stated that prosecution case was false. Accused have also denied that by their firing at the car in the use of the deceased persons damage was caused to it. It has also been denied that accused persons had taken away cash of Rs.80,000/- and two mobiles belonging to the deceased persons from the car. Accused Rafiq was specifically asked that he had received firearm injury in the incident, what he has to say? He replied that it is false. Accused persons have also replied that reports of the Ballistic and Chemical Experts have been managed by the complainant. Accused Rafiq has denied that while he was injured, 30 bore unlicenced pistol and five live bullets were recovered from the magazine of his pistol. Accused have shown ignorance regarding the recovery of blood-stained clothes of both the deceased by the investigation officer in presence of mashirs. Accused Rafiq has claimed his ignorance regarding report of the Ballistic Expert in respect of pistol and empties recovered from his possession. All the accused persons have replied that P.Ws are interested and investigation officer has not cited any legal heir of deceased Rashid Sibtain in this case as witness. All the accused declined to examine themselves on oath in disproof of prosecution allegations. All the accused persons to a question “What else you have to say?”, replied that they have been falsely implicated in this case at the instance of PW Mehboob Ali Sodhar, who is P.W in this case as accused Rafiq and Ali Nawaz had lodged F.I.Rs against him.
6. After considering the evidence available on record, the learned trial Court convicted the appellants as mentioned above under the impugned judgment. The appellants being dis-satisfied with the said judgment, have preferred the present appeal.
7. Sole point for determination in this appeal is whether the appellants were rightly convicted by the learned Judge, Anti-Terrorism Court, Naushehro Feroze for the offences with which they are charged.
8. Mr. Habibullah G. Ghouri, learned advocate for the appellant has argued that Pws were chance witnesses and closely related to one deceased. It is contended that ocular evidence lacks independent corroboration. It is further contended that recoveries were highly doubtful. It is further submitted that there are material contradictions in the evidence of the prosecution witnesses and prosecution has failed to prove its case against the accused beyond any reasonable doubt. Lasted he argued that case was not triable under the provisions of Anti Terrorism Act, 1997. He has relied upon the cases of Muhammad Afzal and others v. S.H.O and others reported as 1999 P.Cr.L.J 929, Ch. Bashir Ahmed v. Naveed Iqbal and 7 others PLD 2001 Supreme Court 521, Mohabbat Ali and another v. The State and another 2007 SCMR 142 and Tariq Mehmood v. The State and others 2008 SCMR 1631.
9. On the other hand Mr. Khadim Hussain Khooharo, learned D.P.G., argued that eye-witnesses were not the chance witnesses but they were present at the time of incident and their evidence is corroborated by the medical evidence as well as other pieces of evidence. He has further argued that accused persons had motive to commit the crime. Lastly, it is argued that there is no material contradiction in the prosecution case and trial Court has rightly recorded conviction and sentence. In support of his contentions he relied upon the cases of Noor Muhammad v. The State and another reported as 2005 SCMR 1958, Khalid Saif Ullah v. The State 2008 SCMR 688 and Farooq Khan v. The State 2008 SCMR 917.
10. We have given our due consideration to the arguments advanced by the learned Counsel for the parties and found that the case of prosecution is based upon following pieces of evidence.
1. Ocular evidence.
2. Medical Evidence.
3. Motive.
4. Recovery.
5. Positive Ballistic/Chemical Reports.
11. To prove the unnatural death of deceased Rashid Sibtain and Mukhtiar Ahmed, prosecution has examined Dr. Rasool Bux at Ex.17. He has deposed that on 19.1.2010 SHO PS Mehar sent two dead bodies of Syed Rashid Sibain son of Syed Kamal Shah and Mukhtiar Ahmed son of Abdullah Soomro for their postmortem examination and reports. He started postmortem examination of deceased Syed Rashid Sibtain at about 4.30 p.m., and finished it at 6.30 p.m. M.O found rigor mortis over body. Postmortem lividity was also found on the dead body. From the external examination of dead body of Syed Rashid Sibtain, M.O found following injuries :-
From the internal examination, M.O found fracture of 5th rib, heart and left lung were also damaged. Stomach contained undigested semi solid food particles, while urinary bladder was found empty. All other organs were found healthy.
From external as well as internal examination of dead body of Syed Rashid Sibtain, M.O. was of the opinion that death of deceased was caused by discharge from the firearm and it was caused damage to the vital organs. Probable duration between death and postmortem was about 1 to 1½ hours and time between injuries and death was instantaneous. M.O. issued such postmortem report, which he has produced at Ex.17/A.
12. Medical officer started postmortem examination of deceased Mukhtiar Ahmed son of Abdullah Soomro at about 6.40 p.m., and finished it at 8.40 p.m. M.O found rigor mortis over body. Postmortem lividity was also found on the back of body.
From the external examination of dead body of deceased Mukhtiar Ahmed M.O found following injuries :-
1. Firearm punctured type of wound 1 cm in diameter on right side of chest below clavicle bone and inverted margins (wound of entrance).
2. Firearm lacerated wound 2 cm in diameter on back of right side of chest posteriorly on upper part and averted margins (wound of exit).
3. Firearm punctured type of wound on tip of right shoulder joint 3 cm x 2 cm (wound of entrance) and exit.
4. Firearm punctured type of wounds on right upper arm 6 in numbers each measuring 1 cm in diameter with wounds of entrance and exits and fractures of right humorous bone in pieces.
From the internal examination, M.O found the left lung was damaged and there was fracture of right clavicle bone. Stomach contained undigested food particles.
From the external as well as internal examination of the dead body M.O. was of the opinion that death of deceased Mukhtiar Ahmed was result of the firearm injuries which caused damage to the vital organs. Death was instantaneous. Probable duration between injuries and death was instantaneous and the time between death and postmortem was 04 hours. He issued such postmortem report and produced the same at Ex.17/D. In the cross-examination M.O has replied that both deceased had received firearm injuries.
13. Eye-witnesses of incident in their evidence have also deposed that both deceased had received firearm injuries. In the cross-examination efficiency and integrity of the M.O. have not been questioned. Death of deceased persons by firearm injuries has also not been disputed. We, therefore, hold that both the deceased died their unnatural death by means of firearm injuries as described by the M.O. Therefore, unnatural death of deceased persons is proved.
14. In order to prove that who had caused death of both deceased persons, prosecution has relied upon the evidence of following witnesses.
Complainant Muhammad Saleem has narrated the entire episode of incident and stated that deceased Mukhtiar Ahmed was his father and another deceased, namely, Syed Rashid Sibtain was their landlord and his father was his Manager. Syed Rashid Sibtain deceased owned 300 acres land. Accused Arbab Sodhar had issued threats to the father of the complainant and asked him to inform his zamindar Syed Rashid Sibtain to pay the ‘bhatta’ to the accused persons. The land of deceased Syed Rashid Sibtain is situated near the house of accused Arbab Sodhar. He has also deposed that accused had issued threats to his father, not to cultivate the aforesaid land until ‘bhatta’ is paid to the accused. Complainant’s father narrated demand of ‘bhatta’ to zamindar deceased Syed Rashid Sibtain, to which he refused to pay ‘bhatta’. On 19.1.2010, he has further deposed, that his father and zamindar Syed Rashid Sibtain informed Ashfaq Ahmed, uncle of the complainant, and P.W Mahboob Ali to purchase some household articles and to reach at bypass. After doing the needful, complainant party reached at Qazi Arif Road, where his father and Sabtain had already reached in a Car. It is stated that suddenly 10 persons appeared and surrounded them. He identified them as Arbab Ali, armed with repeater, Rafique Ahmed, armed with pistol, Nawaz alias Niazoo, armed with pistol, Dost Muhammad @ Dosoo, armed with repeater and Mehmood, armed with repeater. They all were on left side of the car of zamindar Rashid Sibtain. On the right side of the car, Abdul Ghafoor alias Karo armed with repeater, Asif, armed with pistol, Sadiq, armed with repeater and Naban, armed with Kalashnikov, were standing and one muffled face person was also present there and he was carrying also Kalashnikov. Complainant has deposed that accused Rafiq Sodhar challenged his father and Rashid Sibtain to face dire consequences and started firing upon them. Fires hit to Rashid Sibtain. Fire of accused Arbab hit to Rashid Sabtain. He further deposed that accused Abdul Ghafoor alias Karo, Sadiq and others also started firing at the father of the complainant. Both received firearm injuries. He has deposed that his father and Rashid Sibtain tried to use their licenced weapons lying in the vehicle, but on account of firing they could not do so. Complainant has deposed that accused Rafiq also received firearm injuries on his head at the hands of co-accused. Accused took cash from the pocket of his father and zamindar Rashid Sibtain as well as licenced weapons and took away accused Rafiq in the injured condition with them on four motorcycles. He brought his father and Rashid Sibtain to the hospital and proceeded to the police station for lodging report by leaving P.Ws Ashfaq Ahmed and Mehboob Ali with injured persons. Complainant came to know at police station that both injured had expired. He lodged such F.I.R. He identified accused Rafiq, Nawaz alias Niazoo and Dost Muhammad in Court.
In the cross-examination complainant has denied the suggestion that he had not witnessed the. He has also denied the suggestion that he has deposed falsely against the accused at the instance of P.W Mahboob Ali.
P.W Ashfaque Ahmed is eyewitness of the incident and brother of one deceased Mukhtiar Ahmed. He has narrated the entire incident by disclosing the facts in detail and stated that on 19.1.2010, his brother deceased Mukhtiar Ahmed and land lord Rashid Sabtain informed him, complainant and Mehboob Ali to bring some house hold items and reach at by-pass. Thereafter, they reached at Qazi Arif Road where deceased and Zamindar Rashid Sabtain had already reached in a Car. He saw that ten accused persons suddenly appeared there and surrounded them. They were identified by P.W Ashfaque and others. He has further deposed that appellant Rafique Sodhar had issued threat to his brother Mukhtiar Ahmed and Rashid Sabtain to face the dire-consequences on refusal of ‘bhatta’ and started firing and fires hit to Rashid Sabtain. Accused Arbab fired which hit to Rashid Sabtain. Accused Abdul Ghafoor, Karo, Sadiq and others fired which hit to his brother and he received injures. He has stated that his brother and Rashid Sabtain attempted to fire from the licensed weapons lying in the vehicle but they could not succeed in such attempt as accused made more fires upon them. In the result of the firing both deceased received injuries and accused took away cash from their pockets as well as licenced weapons in the incident. It is stated that accused Rafique also received injuries at the hands of his accomplice. All the accused drove away on their four motorcycles. Witness clearly identified accused present in Court. Thereafter, complainant lodged the F.I.R of the incident. Eye-witness has denied the suggestion for deposing falsely against the accused.
P.W Mushtaque Ahmed acted as mashir of the inquest report of deceased Mukhtiar Ahmed and Syed Rashid Sabtain and stated that inquest reports were prepared in his presence. Co-mashir was Saeed Ahmed, he has also deposed that mashirnama of the place of the incident and recoveries were prepared in his presence. Co-mashir was same. He has also deposed that police collected blood-stained earth from the place of wardat. Ten empties of K.K, 5 white colour empties and 8 red colour empties of 12 bore and 6 empties of pistol were recovered from the place of incident and sealed at spot. Car registration No.ATH-999 Toyota Corrolla was also inspected in presence of above named mashirs, its wind screen and mirrors were broken. Blood-stains were found on the seats of the Car. He has also produced photo-graphs of Car. He was cross examined in which he has admitted that prior to this incident accused had lodged an F.I.R against PW Mehboob. In the cross examination, he has denied the suggestions that accused has been falsely implicated at the instance of Mehboob.
P.W Heeranand, Tapedar prepared the sketch of the place of incident in which all the relevant points have been high-lighted. Muhammad Bux ASI has been examined by the prosecution to bring on the record that P.W Mehboob had expired on 03.12.2011.
HC Ghulam Yaseen had taken both the dead bodies to the Taluka Hospital Mehar for post mortem examination and report. Thereafter, he handed over dead bodies to their relatives and deposited their clothes with the Investigation Officer.
SIP Ayaz Ali has stated that on 19.1.2010, he was posted as SHO PS Mehar. He left Police Station along with his staff when police party reached at Bus stop Sheehan jo Daro, he received wireless message from the Police Station that accused Rafique, Arbab and others have committed murders of Syed Rashid Sabtain and Mukhtiar Ahmed Soomro who were going to Khoondi village. Police party proceeded to the place of incident situated at Qazi Arif Road where SIP received spy information that accused Rafique Ahmed had received injuries and he has been shifted by co-accused to Qasim Shah grave-yard and remaining accused had gone to call doctor for his treatment. Police party reached at said grave-yard where found accused Rafique was lying injured. He was arrested by SIP Ayaz Ali and his personal search was conducted. One unlicenced pistol with five live bullets was recovered from his possession. There was fresh smell of firing in the barrel of the pistol. Accused Rafique was arrested in presence of mashirs. Pistol was sealed thereafter accused and case property were brought to the police station where a case under section 13(d) Arms Ordinance was registered against the accused on behalf of State. He has denied the suggestion that pistol has been foisted upon the accused.
HC Abdul Latif and PC Wazir Ali had acted as mashirs of arrest of accused Rafique Sodhar and recovery of pistol and bullets from his possession.
PW ASI Shaman Ali has carried out investigation in this case. He has deposed that on 19.1.2010, he received copy of the F.I.R of this case for investigation. He visited place of wardat in presence of the mashirs and collected blood-stained earth and sealed it in two separate parcels. He has also collected 30 empties cartridges of 12 bore, out of which five were of white colour and 8 were of red colour. 10 empties bullets were of SMG and six empties of pistol were also recovered and the same were sealed separately. He found at the place of wardat Toyota Corolla Car No.ATH-999 in the damaged condition. He prepared such mashirnama in presence of the mashirs. On the same day he received custody of accused Rafique Ahmed and one sealed pistol and case was registered under section 13(d) Arms Ordinance. I.O also received mashirnama of arrest and recovery of accused Rafique who was injured and wanted in this case. I.O referred accused Rafique Ahmed to the Medical Officer for his examination, treatment and certificate. I.O recorded 161, Cr.P.C statements of P.Ws Mehboob Ali, Ashfaque Ahmed He had also sent blood-stained earth and clothes of both deceased to the Chemical Examiner and received positive reports which he has produced in the evidence. In the cross examination, he has replied that he had not recorded evidence of independent persons of the locality as they were not eyewitness of the incident. Moreover, they were not prepared to give evidence against the accused. He has denied the suggestions that he had not conducted fair investigation in this case. It was entire prosecution evidence which has been brought on record.
15. We have carefully heard the learned Counsel for the parties and scanned the entire evidence. Complainant Muhammad Saleem has categorically stated that the present accused being armed with deadly weapons committed murder of both the deceased persons and F.I.R was promptly lodged at Police Station Mehar. Other eyewitness Ashfaque Ahmed has provided elaborate details about the manner in which a gruesome blood bath had taken place on road during day time and also role played by appellants in the said unfortunate incident. Both eyewitnesses had absolutely no ill-will or animosity against the accused so as to prompt them to falsely implicate them in this grave offence. Eye witnesses had no relationship with one deceased Syed Rashid Sabtain. With regard to the contention of learned defence counsel that both the eye witnesses i.e. complainant Muhammad Saleem and P.W Ashfaq Ahmed are closely related to deceased Mukhtiar Ahmed. It is settled principle of law that mere relationship with the deceased in the absence of established hostility or any other motive to depose falsely against accused would not be sufficient to hold them to be interested witnesses and their testimony would not be discarded on this ground alone. In the present case, it has not been established that there was previous enmity between the complainant party and accused persons. Generally it is observed that close relatives of the deceased would not allow the real murderer to go escort free and to falsely implicate somebody else in place of the original culprit. Even otherwise substitution is a rare phenomenon as held by Honourable Supreme Court in the case of Ijaz Ahmed v. The State PLD 2009 SC 99. There is also no force in the contention of learned defence counsel that P.Ws had not sustained injuries who were under attack and near to the deceased persons. It is not necessary in every case that all the persons who are under attack from firearms ought to have received injuries and mere fact that P.Ws did not receive injuries would not make their presence at the place of incident doubtful. Said eyewitnesses have given probable cause of their presence at the place of occurrence as such they can not be termed as chance witnesses. Ocular account is consistent and inspired confidence on all material points. Contradictions in the prosecution evidence as pointed out by defence counsel are minor in nature and insignificant having no material bearing upon the fate of case. Evidence of eyewitnesses is fully corroborated by the medical evidence. Demand of ‘Bhatta’ and recoveries of incriminating articles, ballistic expert’s positive report further corroborate the same. The report of ballistic expert has been produced at Ex-19(c). Appellant Rafique was arrested in injured condition. It is the case of prosecution that accused Rafique sustained firearm injury in the incident at the hands of his accomplice. Said accused Rafique in his statement recorded under section 342, Cr.P.C could not explain such injuries received by him. Motive as set up by the prosecution regarding demand of ‘Bhatta’ from deceased Syed Rashid Sibtain was although not admitted by the appellants in their statements recorded under Section 342, Cr.P.C, yet in the cross-examination it has not been specifically denied, motive was thus proved by the prosecution. No defence evidence has been led. Defence plea is that accused persons have been falsely implicated at the instance of P.W Mehboob, such plea has not been substantiated by cogent material. On the contrary it has come on record through evidence of P.W Mushtaque Ahmed that accused prior to this incident had committed murder of daughter of P.W Mehboob. As per record, evidence of P.W Mehboob could not be recorded by the trial Court as he expired before his evidence on 03.12.2011. Present case is one of callous, brutal and merciless butchery of two innocent persons in cold blood in a premeditated and calculated manner. Learned trial Court in this double murder case has taken a lenient view and awarded lesser punishment without assigning the reasons.
16. For the aforesaid facts and reasons, we are clear in our mind that prosecution has proved its case against the appellants and learned trial Court did not commit any illegality in recording the conviction against the appellants for the offence of murder of two deceased persons and the judgment dated 05.7.2013 did not suffer from any inherent defect. The trial Court has rightly appreciated the evidence in accordance with settled principle of appraisal of evidence. As such, no interference is required by this Court and the judgment dated 05.7.2013 is upheld. Consequently, appeal merits no consideration and the same is dismissed.
JUDGE
JUDGE
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