' ALI NAWAZ CHOWHAN, J.---Sajjad Raza, Abdul Ghafoor and Lal appellants were convicted by Mr. Zafar Hussain, Judge, Suppression of Terrorist Activities Court Multan Division Multan vide judgment dated 28-3-2000 in case F.I.R. No.591 dated 14-1-1995 registered under sections 148/149/302 P.P.C. At Police Station City Chiniot District Jhang and sentenced to death on five counts each under sections 302-B/149 P.P.C. With direction to pay compensation of Rs.l lac on five counts each to the legal heirs of the deceased, or in default the same shall be recovered from them as arrears of land revenue or to sufer six months R.I. Each on each count. They were further convicted under section 148 P.P.C. And sentenced to three years R.I. Each with a fine of Rs.5000 each, or in default to further undergo six months R.I. Each. By the same judgment Shafqat Hayat was acquitted of all the charges.
2. Briefly the prosecution case is that on 14-11-1995 at about 9.45 a.m. Umar Draz Bhatti, Nasir son of Walid Dad Bhatti, Sanaullah Bhatti, Sanaullah Muslim Sheikh, Noor Matela and Sarfraz were sitting in the Chamber of Ch. Muhammad Afzal Advocate along with his Munshi Muhammad Sarwar in the premises of Katchery of Tehsil Chiniot. In the meanwhile Sajjad Raza accused armed with kalashanikov, Abdul Ghaffor armed with rifle .222 bore, Lal accused armed with pistol trespassed into the said Chamber, when Soba and Sarfraz companions of the accused while variously armed with .12 bore repeaters and .7-MM rifles kept on standing outside the door of the said Chamber.
Sajjad Raza accused fired a burst with his kalashanikov which hit Ch. Muhammad Afzal, Nasir and Sanaullah on the different parts of their bodies. Abdul Ghafoor accused fired with his .222 bore rifle which hit Noor son of Ahmed Metala, Lal accused fired with his pistol which hit Muhammad Sarwar on his neck whereafter all the three accused started indiscriminate firing which landed on the different parts of the bodies of the said victims and during this process Umar Draz complainant and Sarfraz P.W. Received injuries. Sarfraz and Soba, the companions of the said accused while standing outside the door were raising alarm that they will not allow any body to come near the accused who were firing in the said Chamber. All the accused decamped from that place in their car No.888/LHF and went towards Tehsil Chowk. The occurrence was also witnessed by Abid Ali and Allah Ditta who were also present outside the Chamber of Ch. Muhammad Afzal Advocate. Nasir, Munshi Muhammad Sarwar, Noor Metala and Sanaullah died at the spot as result of the said injuries.
' The motive as stated by the complainant is that he had an old enmity of murders with Sajjad Raza accused and Muhammad Afzal Advocate used to pursue his cases and due to this grudge the accused had committed the murder of all the five victims and injured him and Sarfraz P.W. The complainant further stated that the occurrence was abetted by Amir, Zulfiqar, Sher and Shafqat.
3. To prove its case the prosecution examined as many as 26 witnesses. Abdul Sattar Head Constable P.W.1 drafted formal F.I.R. Exh.PA/1 on the basis of complaint Exh.P.A. He also deposed about the safe custody of five sealed parcels of blood stained earth, one sealed parcel containing bullets of kalashanikov, one sealed parcel of rifle .222 bore, one sealed parcel of bullets of repeater gun, one sealed parcel of bullets of .12 bore in the Malkhana of the police station . Abid Hussain Sherazi Draftsman P.W.2 prepared site-plan Exh. PB and Exh. PB/1 of the place of occurrence Muhammad Aslam HC P.W.3 escorted the dead body of Muhammad Nasir to the mortunary for autopsy. He produced before the Investigating Officer last worn clothes of the deceased vide memo. Exh. PC. Muhammad Nazir Ahmad constable P.W.4 escorted the dead body of Ch. Muhammad Afzal Advocate to the mortuary for autopsy. He produced before the Investigating Officer last worn clothes of the deceased vide memo. Exh.P.D. Nausher Khan constable P.W.5 transmitted the sealed parcels containing kalashanikov .222 bore rifle, .12 bore gun, Repeater, .30 bore pistol, five sealed parcels of empties and five sealed parcels containing blood stained earth to the respective offices. He also escorted the dead body of Noor Ahmad deceased to the mortuary for autopsy. He produced before the Investigating Officer last worn clothes of the deceased vide memo. Exh.P.E. Wali Muhammad constable P.W.6 escorted the dead body of Sanaullah deceased to the mortuary for autopsy. He produced before the Investigating Officer last worn clothes of the deceased vide memo. Exh.PF. Ghulam Ali constable P.W.7 escorted the dead body of Sarwar to the mortuary for autopsy. He produced before the Investigating Officer last worn clothes of the deceased vide memo. Exh.PJ.
4. Dr. Ayaz-ur-Rehman PW-24 conducted the post-mortem examination on the dead body of Nasir Ahmad and found the following injuries on his person:-
(1) A lacerated wound 1/2 cm x 1/2 cm margins were inverted on upper part of left side of neck just below the ear.
(2) Two lacerated wound 1/2 cm x 1/2 cm each with invested margins back and outer part of left shoulder (entry wound). Corresponding holes were present on Qamiz.
(3) A lacerated wound with everted margin and under line bone was fractured on right side of forehead (exit wound).
(4) A lacerated wound 2 and half cm x 2 cm on right side of head, margins were everted, under line bone were fractured.
(5) A lacerated wound 1/2 cm x 1/2 cm with everted margins on outer part of the right shoulder (exit wound), Corresponding holes were present on Qamiz.
' According to the doctor death in this case occurred due to haemorrhage both internal and external shock multiple fracture of bones and injury to vital organ (brain lung) resulting from injuries Nos.1 2, 3, 4 and 5 which were sufficient to cause death in the ordinary course of nature.
Injuries Nos.1 and 2 were wounds of entry while injuries Nos.3, 4 and 5 were exit wounds. Death was immediately and time between death and post-mortem examination was three to seven hours. Ex.
PJJ is the post-mortem report.
' On the same day the same doctor conducted post-mortem examination on the dead body of Noor son of Ahmad and found the following injury on his person:-- ' A lacerated wound 3/4 cm x 3/4 cm with inverted margins on the right side of the forehead (wound of entry) under line bone was fractured with a lacerated wound 2-0 cm x 10 cm on the right side of the head with underline bone fractures and brain matter coming out from the wound (with marginis everted (exit wound).
' According to the doctor death had occurred due to haemorrhage and shock because of multiple fractures of the skull and injury to the vital organ (brain) resulting from injury No.1 which was sufficient to cause death in the ordinary course of nature. The probable duration between injury and death was immediate and between death and postmortem examination was four to eight hours. Exh.PKK is the postmortem report.
' The same doctor on the same day conducted post-mortem examination of the dead body of Sanaullah and found the following injuries on his person:--
1. A lacerated wound 3/4 cm x 3/4 cm on the back of the left shoulder with inverted margins. This being a wound of entry, corresponding holes were present on the Qamiz. It has an exit wound being a lacerated wound 4 cm x 2 1/2 cm on the top of the left shoulder with everted margins and corresponding hole in the Qamiz.
2. A gutter shape lacerated wound 15 cm x 8 cm on the left side of the head back to the left ear under line bone was fractured and brain matter was coming out from the wound.
' In the opinion of the doctor death had occurred due to haemorrhage and shock due to fracture of the skull and injury to vital organ (brain) resulting from injury No.2 which was sufficient to cause death in the ordinary course of nature. Injury No.1 was simple. The duration between injuries and death was immediate and between death and post-mortem was within 5-8 hours. Exh.PLL is the post-mortem report.
5. Dr. Saifullah P.W.25 conducted the post-mortem examination on the dead body of Muhammad Afzal deceased. He found the following injuries on his person:--
1. A lacerated wound 11 x 5 cm x cranial cavity deep on the right side of head. Brain and meanings were coming out from the wound. By dissecting cranial bones were fractured into pieces. Blood was present in the cranial cavity.
2. A lacerated wound 8 x 1 cm into bone deep on top of head. Underlying bone was exposed.
' According to the doctor death occurred due to shock resulting from internal and external haemorrhage and injury to the brain. The injury No.1 was sufficient to cause death in the ordinary course of nature and was fatal to life Injury No.2 was Shajjah-Mudidah and was caused by blunt weapons. The probable time that elapsed between injury and death was immediate and between death and post-mortem examination with 1-2 hours. Exh.PMM is the post-mortem report.
' On the same day the same doctor conducted post-mortem examination on the dead body of Muhammad Sarwar deceased and found the following injuries on his person:--
(1) A lacerated oval wound of entry 1/4 x 1/4 cm on right deltoid regions. Underlying muscles were lacerated. Margins were everted. Corresponding holes on Qamiz were present.
(2) A lacerated oval wound 1/2 x 1/2 cm into thorax cavity deep on front of right side of chest.
Margins were everted.
' According to the doctor death in this case was due to shock resulting from internal and external haemmorhage as well as injury to vital organ lung. The injuries were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was immediate and between death and post-mortem within 2-3 hours. Ex.PNN is the post-mortem report.
6. Khan Muhammad P.W.2 identified the dead body of Muhammad Sarwar deceased at the time of post-mortem examination. Muhammad Akram P.W.5 identified the dead body of Muhammad Afzal deceased at the time of post-mortem examination. Muhammad Ali (P.W.6) identified the dead body of Muhammad Sarwar deceased. Ata Ullah (P.W.7) identified the dead body of Nasir Ahmad deceased at the time of postmortem examination.
7. The following were the eye-witnesses of the main murder event who did not support the case of the prosecution:-
(1) Umar Draz (P.W.23)
(2) Sarfraz (P.W.1)
(3) Soba Khan (P.W.3)
(4) Sanaullah (P.W.8)
' As all these witnesses failed to support the prosecution story they were declared hostile and were cross-examined. Sarfraz P.W.1 while narrating the facts of occurrence of murder had to say as follows whereas Soba Khan knew nothing about the occurrence and Khizar Hayat also took the same position:-- "About three and 1/4 years ago I have gone to attend the Court at Chiniot in connection with my case. Muhammad Afzal Advocate (deceased) was my counsel in that case. At about 10-00 a.m. I was sitting in the Chamber of Muhammad Afzal Advocate (deceased). Muhammad Afzal Advocate (deceased), his clerk Muhammad Sarwar deceased and four other persons were sitting there, including Umar Draz P.W. In the meantime five persons came there variously armed with Gun, kalashanikov and rifles. They started firing indiscriminately. As a result I, Umar Draz P.W. Sustained injuries. Muhammad Afzal Advocate Muhammad Sarwar and three others died there. I have seen the accused present in the Court, they were not the assailants."
8. Later on after the commission of the first occurrence while the accused-appellants were trying to escape they were chased by a police party who had learnt about the occurrence.
9. Zarar Ali S.-I. P.W.12 speaks of the encounter with the appellants during the chase in the following words:- "On 14-11-1995, I was serving as Sub-Inspector Police Station Rabwah District Jhang. Saeed Akhtar Inspector arranged the police party for the arrest of absconder constituted of Zafar Ali, myself and other police officials. We proceeded in an official vehicle. When at about 9-15 minutes an information was received on wireless set that car No.888/LHF white colour was aheading towards Rabwah in which five persons who had committed murder in Tehsil Court, Chiniot were present. We laid a Naka in front of Police Station Rabwah, on the metal road. In the meantime a car of the accused reached there. The accused after seeing the Nakabandi turned their car towards backside and tried to fled away. We chased the said persons for their arrest. The said accused started firing after getting down from the car towards us. We also fired in our defence. Three of the said persons ran into a nearby house. We surrounded the said house. Firing was exchanged between the police party and the said persons for about 10 minutes whereafter the said persons offered there arrest. We arrested the said persons. Sajjad Raza accused was holding a kalashanikov, Abdul Ghafoor, rifle .222 bore, while Lal accused was holding pistol. The Inspector took the above-mentioned weapons into possession after making them into sealed parcel.
Kalashanikov P.16 was recovered from Sajjad Raza, rifle .222 bore Exh.P.17 were recovered from Abdul Ghafoor and pistol .30 bore p.18 was recovered from Lal Din accused vide memos Exh.P.K., Exh.PY and Exh.P.Z. Respectively. From nearby bushes Soba out of the above person was found lying injured and from him Gun Repeater P.19 was recovered and taken into possession vide memo.
Exh.PAA. The car of the accused was also taken into possession vide memo. Exh.PBB. I and Altaf P.W.
Attested the memos."
' Saeed Akhtar Inspector Police (P.W.22) corroborated the testimony of Zafar Ali.
10. Amongst the formal witnesses Nazir Ahmad P.W.13 escorted the dead body of Ch. Muhammad Afzal deceased for autopsy. He produced before the Investigating Officer the last worn clothes of the deceased which were taken into possession vide memo. Exh.PCC. Nausher Khan constable P.W.14 transmitted four sealed parcels to the respective office for testing. He also escorted the dead body of Noor Ahmad deceased for autopsy and produced before the Investigating Officer the last worn clothes of the deceased through memo. Exh.PDD.
' Muhammad Aslam constable P.W.15 escorted the dead body of Muhammad Nasir deceased for autopsy and produced before the Investigating Officer the last worn clothes of the deceased vide memo. Exh.PEE. Abdul Sattar HC P.W.16 drafted formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A. He also deposed about the safe custody of five sealed parcels of blood-stained earth, one sealed parcel containing bullets of kalashanikov, one sealed parcel of rifle .222 bore, one sealed parcel of bullets of repeater gun, one sealed parcel of bullets of .12 bore in the Malkhana of the police station. Wali Muhammad constable P.W.17 escorted the dead body of Sanaullah deceased for autopsy and produced before the Investigating Officer the last worn clothes of the deceased through memo. Exh.PFF. Ghulam Ali P.W.18 escorted the dead body of Sarwar deceased for autopsy and produced before the Investigating Officer last worn clothes of the deceased vide memo.
Exh.PGG. Abid Hussain Sherazi Draftsman prepared the site-plan of the place of occurrence Exh.PHH. Muhammad Aslam P.W.20 deposed about the safe custody of sealed parcels containing kalashanikov, repeater, rifle .222 bore and pistol .30 bore in the Malkhana of the police station.
Abdul Hameed S.-I. P.W.21 stated that on 20-11-1995 Muhammad Aslam HC handed over to him 4 sealed parcels containing Kalashanikov, repeater, rifle .222 bore and pistol .30 bore which he handed over to the Moharrar on the same day intact. Muzaffar Hussain S.-I. P.W.26 recorded statement of the complainant, inspected the spot and prepared injury statements and inquest reports of Afzal Advocate, Nasir, Sanaullah, Noor and Sarwar Exh.PMM/2, Exh.PMM/3, Exh.PJJ/2, Exh.PJJ/3, Exh.PLL/2, Exh.PLL/3, Exh.PK/2, Exh.PKK/2, and Exh.PNN/2, Exh.PNN/3, prepared site-plan Exh.P00, secured bloodstained earth from all the places of five deceased vide memo. Exh.PPP, Exh.PQQ, Exh.PRR, Exh.PSS and Exh.PTT respectively, secured 5 wooden chairs vide memo. Exh.PUU, Exh.PVV, Exh.PWW, Exh.PXX and Exh.PYY, secured three empties of .30 bore pistol P-35/1-3 vide memo. Exh.PAAA, 4 empties of .222 bore rifle P-36/1-4 vide memo. Exh.PBBB, secured 5 cartridges p- 37/1-5 of .12 bore gun vide memo. Exh.PCCC, four empties of 7-MM vide memo. Exh.PDDD. The report of Chemical Examiner is Exh.PFFF, Forensic Science Laboratory is Exh.PGG and that of Serologist is Exh.PHHH.
11. The accused were examined under section 342, Cr.P.C. They denied the allegations and took the plea that they were falsely implicated in the case due to enmity. They neither appeared as their own witnesses under section 340(2), Cr.P.C. Nor produced any evidence in their defence.
12. This day time occurrence had taken place in the thick of the town but unfortunately in this case there is no eye-witness of the main occurrence of murders. The prosecution witnesses have resiled from their earlier position. Whether this was on account of fear or favour is a matter which remains unknown.
13. However, the appellants after the event and while they were escaping were chased by the police who came to know of the occurrence immediately. This led to an encounter in the city of Rabwah where one of the assailant was killed while the others were apprehended.
14. The learned counsel appearing on behalf of the appellants wanted us to separate these two events and also to believe in the possibility that the people who were apprehended at the time of the encounter may be different than the assailants in the murder case.
15. But keeping in view the circumstances of the case, the factum of chase by the police immediately after the occurrence and the death of one of the assailants at the hands of the police during the encounter this plea of the learned counsel for the appellants seems to be too naive and rudimentary to be believed. Incidentally it may be mentioned that even in their statements under section 342, Cr.P.C. No such probability has been pointed out by the appellants in their pleas. We are, therefore, of the view that the persons who were apprehended immediately after the chase and during police encounter were those who were involved in the murders.
16. But as the eye-witnesses in the murder case have resiled leaving no one to inform us about the respective roles of the assailants or as to what may have exactly transpired at the venue of the murders, this keeps the actual scene of murder obscure from our eyes and, as such, the roles played by each of the assailants, therefore, we do not even know who fired and killed and who did not and who were the assailants who actually committed these gruesome murders in the thick of the town and in the vicinity of the Courts. Even the devil has to be given his due and, therefore, while upholding the order of conviction of the appellants we reduce their sentences from death to life imprisonment and we . They will also be entitled to the benefit under section 382-B, Cr.P.C.
17. The next question is whether their sentences of plural counts will run concurrently or consecutively. As they are being sentenced to life imprisonment and as a person can be sentenced to life imprisonment only once we hold that their sentences shall run concurrently. The quantum of fine as ordered by the learned trial Court shall remain intact. The appeal is disposed of accordingly.
Sentence reduced.