1. Appellants Talib Hussain and Khalid Mahmood alias Kala have filed criminal appeal No. 425 of 2012/BWP challenging their conviction and sentence. They were tried by learned Additional Sessions Judge, Bahawalnagar in a private complaint titled “Khalid Hussain v Talib Hussain and 2 others” arising out of case FIR No.106/2010 dated 28.04.2010 under sections 302, 34, 109 PPC registered with police station Khhichi-wala, District Bahawalnagar and on conclusion of trial they were convicted vide judgment dated 15.12.2012 (impugned herein) and sentenced as under:
(i) Each of appellants convicted under section 302 PPC for committing qatl-i-amd of Muhammad Asif, Muhammad Amir Naseer and Mst. Rashida Bibi and sentenced to death on three counts. They were directed to pay an amount of Rs.6,00,000/- each as compensation under section 544-A Cr.P.C. to the legal heirs of deceased (Rs.2,00,000/- each deceased) and in default in payment whereof, delinquent convict to further undergo S.I. for eighteen months on each count.
Co-accused Muhammad Arif was acquitted. Complainant challenged his acquittal through PSLA No.03 of 2013. All the above matters will be disposed of by this consolidated judgment.
2. Khalid Hussain (PW-2) got registered above mentioned FIR, which was investigated by CW-3 Muhammad Aslam SI. However, dissatisfied with investigation conducted by police, complainant preferred to file private complaint titled “Khalid Hussain Vs. Talib Hussain and 2 others”. As per private complaint, complainant was resident of Chak No.165/7-R. On 27.04.2010 at about 09:00 P.M., his son Muhammad Asif and relative Amir Naseer told the complainant that they were going to see their friend at Chak No.168/7-R and will return soon. Complainant got worried when they did not return. He alongwith his brother Muhammad Ramzan (given up PW) and Bashir Ahmad (PW-3) went in search of Muhammad Asif, etc, on a motorcycle. At about 02:30 A.M., they reached in Izafi Basti Chak No.168/7-R and saw Muhammad Asif, Amir Naseer and one unknown girl on a motorcycle coming from Chak No.168/7-R. All of sudden, two persons emerged from watercourse and made indiscriminate firing with their rifles on Muhammad Asif, etc. Said two persons were identified in the light of motorcycle as Talib Hussain and Khalid Mahmood (appellants). Muhammad Asif, Amir Naseer and unknown girl fell from motorcycle and succumbed to the injuries at the spot, whereas accused fled away.
It was alleged that accused (appellants) were abetted by Muhammad Arif (since acquitted), which fact was told to complainant by Munawar Hussain and Rehmat Ali PWs.
3. Post mortem examination on the dead body of Muhammad Amir Naseer was conducted on 28.04.2010 at 10:30 A.M. by Dr. Muhammad Anwar (PW-1), who observed following injuries:
1. Two lacerated and penetrating wounds on the right side of face at the lateral corner of right eye, each 1.1 CM x .5 CM, margins inverted, no burning or blackening present.
2. A lacerated wound of about 3 CM and 1 CM wide on the right lateral corner of forehead, bone below is broken into pieces.
3. A lacerated wound of about 4 CM x 1.5 CM about 6 CM above the right ear anteroposterior in direction.
4. A lacerated wound of about 3 CM x 1 CM on the front of forehead above the medial part of the right eye, bone below is broken.
5. A lacerated wound of about 3 CM x 1 CM just above the right eye, transverse in direction.
6. A lacerated wound of 2 CM x .5 CM behind the right ear up down in direction.
7. A lacerated wound of about .8 CM x .5 CM on the lateral aspect of right shoulder. Metallic particle was removed from this hole.
8. A lacerated wound of 5 CM long and 1 CM wide antero-posterior in direction on the lateral aspect of skull about 3 CM above the right ear.
9. A lacerated and penetrating wound of about 2.5 CM x 2 CM behind the left shoulder, margins averted. No burning or blackening present.
As per opinion of PW-1, cause of death was injuries No.1 to 6 and 8 which were caused by firearm weapon. Injury No.7 was also caused by firearm which was entry wound corresponding to injury No. 9 (exit). Probable time between injuries and death was about one to three minutes and between death and post mortem was 8 to 10 hours.
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