1. MUHAMMAD KHURSHID KHAN, J.-Two brothers. Khan Bahadur and Muhammad Yousuf, and the latter's son Gul Bahadur, have been convicted by the Additional Sessions Judge, Mardan at Swabi, under section 302 read with section 34, Pakistan Penal Code, for committing the murder of their two co-villagers, namely, Sultan and Sardar, and under section 307 read with section 34 of the same Code for making murderous assault on the lives of Jamaldar and Taj Muhammad P. Ws. By firing at them with shot-guns, on 10th of September, 1977, at Deegarwela, in the area of village Ahed Khan, distant five miles from Police Station, Kalu Khan. They have been sentenced to death for the murders of the deceased persons, and have been sentenced to rigorous imprisonment for four years each under section 307 read with section 34, Pakistan Penal Code. They have also been sentenced to pay a fine of Rs. 1,000 each or in default of the payment of fine, to suffer further rigorous imprisonment for one year each. It has been directed that the fine, if recovered, shall be paid to the heirs of the deceased persons by way of compensation. The convicts have appealed against their convictions and sentences, while the trial Judge has made reference under section 371 of the Code of Criminal Procedure for the confirmation of death sentences passed on the accused. The appeal of the convicts is being disposed of by this judgment along with the reference for the confirmation of the death sentences awarded to them.
2. The facts on which the prosecution case is founded, briefly are, that Sultan deceased of this case was the father of Sardar deceased and Jamaldar P. W. After offering their Aser prayers in the village mosque on 10Septem--ber, 1977, all the three left the mosque for their hujra. On reaching in front of the shop of one Saqi (D. W. 1) they noticed the three accused sitting in the shop, all armed with shot-guns. They had hardly covered a distance of about thirty paces from the shopth when the three accused came out of the shop and followed them. Muhammad Yousuf accused was the first to fire at them. The shot so fired by him hit Sultan felling him on the ground. Thereafter, Gul Bahadur accused fired a shot hitting Sardar as a result of which the latter fell down. In the meanwhile, Taj Mohammad P. W. Who was then present close to the place of occurrence tried to intervene and asked Khan Bahadur accused to desist from firing but in vain. The said accused fired a shot causing injuries to Jamaldar and Taj Mohammad P. Ws. After the occurrence, all the three accused decamped and took refuge in the houses of Akram and Sanobar where they were beseiged by the villagers till the arrival of the police. Sultan and Sardar succumbed to their injuries at the spot. Their dead bodies and the two injured persons were carried in a tractor to Police Station, Kalu Khan, where one of the two injured persons namely, Jamaldar, lodged the First Information Report at about 7-45 p .m. The motive for the crime, as given in the report, is that about a year before the occurrence, Mst. Alhania wife of Sardar deceased was suspected of having illicit intimacy with Gul Bahadur accused.
3. The First Information Report, Exh. P. A. Was recorded by Sub-Inspector Habibullah Khan, Station House Officer, Kalu Khan (P. W. 6) to the dictation of Jamaldar. It was then read over to the latter and he thumb-- marked the same after admitting it as correct. The Sub-Inspector prepared the injury sheets of Jamaldar and Taj Mohammad, Exh. P. M. And Exh. P. N. Respectively, and referred them for medical examination and treatment under the escort of Foot Constable Fazli Qadar. He prepared Injury Sheet Exh. P. K. And Inquest Report Exh. P. K. 1 in respect of Sultan deceased and Injury Sheet Exh. P. L. And Inquest Report Exh. P. L. 1 of Sardar deceased and despatched their dead bodies for post-mortem examination under the escort- of Foot Constable Mumtaz, P. W.
7. The Sub- Inspector then proceeded to the spot. On reaching village Ahad Khan, the first thing he did was that he went to the houses of Sanobar and Akram. He arrested Muhammad Yousaf and Khan Bahadur accused from the former's house and Gul Bahadur accused from the house of Akram, and secured shot gun Exh. P. 1 along with an empty cartridge of '12 bore Exh. P. W. From Muhammad Yousaf accused, a shot-gun Exh. P. 3 from Khan Bahadur accused, and a shot-gun Exh. P. 4 along with a bandolier containing 11 cartridges of '12 bore Exh. P. 5 and a copy of licence Exh. P. 6 from Gul Bahadur accused, vide Memos Exh. P. C., P. D. And P. E. Since the shot--guns recovered from Muhammad Yousaf and Khan Bahadur accused were without licence, cases under section 13, Arms Ordinance, were registered against them. The Investigating Officer also took into possession blood- -stained earth from the places where the two deceased persons were shot dead as well as from the places where the two P. Ws. Were injured and made them into separate sealed parcels. He also took into possession three cardboard discs. Exh. P. 14 from the spot and made them into a sealed parcel. He prepared the site plan Exh. P. B. And recorded the statements of the prosecu--tion witnesses.
4. On 10th September, 1977, Jamaldar and Taj Mohammad P. Ws. Were examined by Doctor Muhammad Shah (P. W. 3) for their injuries. A number of fire-arm wounds were found on their person as are contained in the injury sheet Exh. P. M. And Medico-legal report Exh. P. M. 1 pertaining to the former and Injury Sheet Exh. P. N. And Medico-legal report Exh. P. N. 1 in respect of the latter.
5. The doctor handed over blood-stained shirt Exh. P. 7 of Jamaldar P. W. Bearing corresponding cuts to F. C. Fazli Qadar who, in turn, made over the same to the Investigating Officer.
6. The autopsy on the dead body of Sultan was conducted by Doctor Muhammad Shah (P. W. 3) on 11th of September, 1977, at 7-00 a.m. And the following injuries were found on the dead body:- Fire-arm entrance wound 2--" x 1" over medial and of right clavicle covering upper part of chest and lower part of neck. Just to the right of this wound was a fire-arm wound --' x ----- and just to the left of the big wound were three fire-arm entrance wounds --" X -- each distributed longitudinally. Five fire-arm exit wounds -- x --" each distributed over an area of 5' x 3" over posterior surface of left chest just lateral to mid spinal line. The entrance wounds had charring.
7. On opening the dead body, the walls under the wounds, pleurae, trachea, right and left lungs and blood vessels of right side of neck as well as oesophagus were found injured while right clavicle, sternum and first and second ribs were found fractured. Death, according to the doctor, was due to shock and haemorrhage produced by the injuries to vital parts of the body. Two pieces of cardboards were recovered from chest cavity of right side and pellet weighing 50 grains from posterior wall of left side of chest.
8. The same doctor performed the post-mortem examination on the dead body of Sardar and found the following injuries on external examina--tion:-
(1) F. A: entrance wound --' x --' over lateral aspect of mid part of right arm. Charring present.
(2) F. A. Entrance wound 5' x 2--' over medial aspect of right arm extending from the portion upwards. The muscles and the blood vessel of the arm were shattered.
(3) Five F. A. Wounds about --" x --" each side by side over right enterior exillary fold and lateral part of pectoral region.
(4) Three F. A. Wounds about --" X --' each side by side over medial part of right pectoral region.
9. On internal examination, walls of Thorax under the wounds, right pleura, right lung and blood vessels of right arm were found injured. In the opinion of the doctor, death had occurred due to shock and haemorrhage produced by injuries to the right lung and blood vessels of right arm.
10. After the post-mortem examination, a bottle containing two pieces of card boards and one pellet recovered from the dead body of, and a Khulqa and Jacket belonging to Sultan, and a bottle containing two pellets recovered from the dead body of, and a shirt and jacket belonging to Sardar, were handed over by the Doctor to F. C. Mumtaz (P. W. 7) who, in turn, made over the same to the Investigating Officer. A packet consisting of six sealed parcels containing blood-stained earth and clothes taken into posses--sion by the Investigating Officer was sent to Chemical Examiner for examina--tion. The report of the Chemical Examiner, Exh. P. O., received in this behalf disclosed that the items examined by him were stained with human blood.
11. The prosecution examined as many as seven witnesses at the trial to support its case. The accused in their respective statements denied the allegations that they had either murdered Sultan and Sardar deceased or had made an attempt on the lives of Jamaldar and Taj Mohammad P. Ws. By firing at them with shot-guns on the date, time or place of occurrence. They pleaded innocence and stated that they have been falsely implicated on account of enmity. In support of their statements, they produced one witness, Saqi Muhammad, adjacent to whose shop the incident resulting in deaths of Sultan and Sardar took place.
12. The trial Judge believed the prosecution evidence and rejected the defence evidence describing Saqi Muhammad D. W. As a turn-coat witness and held all the three accused appellants guilty of the offences for which they were charged, and convicted and sentenced them as aforesaid.
13. The first question that falls to be decided is, whether in respect of the deaths of Sultan and Sardar, an offence of wilful murder has, or has not been made out. In this context, reference may be made to the testimony of Doctor Muhammad Shah (P. W. 3) who performed post-mortem examination on the dead bodies. He found a number of fire-arm injuries and was of the view that the death, in both cases, was due to shock and haemorrhage caused by the injuries to vital parts of the bodies.
14. He was further of the view that the death, in the case of Sultan deceased, was instantaneous while in the case of other deceased, it happened within fifteen minutes of the receipt of injuries. From this medical evidence, it is established beyond doubt that whoever inflicted the said injuries had the intention to cause the deaths of the deceased person or at least intended to cause such bodily injuries as were in all probability sufficient in the ordinary course of nature to cause their deaths. In our view, it is clear that the offence of murder has been established in the case of deaths of Sultan and Sardar deceased.
15. The next question which calls for determination is whether the accused were responsible for intentionally causing the deaths of Sultan and Sardar, and for attempt the lives of Jamaldar and Taj Muhammad P. Ws. By firing at them. In order to fix the guilt on the accused, the prosecution bas relied on the evidence of two injured P. Ws. Namely, Jamaldar (P. W. 1) and Taj Muhammad (P. W. 2).
16. Of them, Jamaldar is son of Sultan, and brother of Sardar, deceased, while Taj Muhammad is distantly related to them in that Sultan deceased was the son of his cousin. None of them had any direct enmity, whatsoever, with the accused. No doubt, it was suggested to Taj Mohammad P. W. By the defence that his uncle and brother were challaned in security proceedings against Khan Bahadur accused as a result of dispute arising out of a wall, but this suggestion was categorically repudiated by the witness. We consider that there was no substance in the suggestion, and had there been any truth in it, the accused would have most certainly pro--duced a certified copy of the security proceedings. The fact that they were not able to do so clearly shows that the said suggestion had no substance in it. It follows, therefore, that Muhammad Yousaf P. W. Had no enmity, whatsoever with the accused and thus had no motive to implicate them falsely. What is more, they are the injured persons of this case. Thus their presence at the time of occurrence cannot be doubted. They have with one voice corroborated the prosecution story set out above and even the learned counsel for the appellants had to admit that there was not a single material discrepancy in their statements and even otherwise their statements were consistent. In the circumstances, their testimony cannot be put aside lightly." --On the contrary, the truth of the version offered by them is corroborated by independent sources and circumstances. In the first place, the assertion of the eye-witnesses that the accused participated in the incident in question finds support from the fact that the accused were beseiged by the villagers in the houses of Sanobar and Akram and were eventually arrested by the police from there. In the second place the assertion of the eye-witnesses that the accused had used shot-guns in the commission of the offence is borne out by the fact they were captured and arrested by the police with the shot-guns they were carrying which smelt of fresh discharge. In the third place there is a circumstance of great significance, which would suggest that the attack was launched by the accused. All the three accused, as stated more than once, were armed with shot guns. There was no arm or weapon lying at the spot, or by the side of the dead bodies. In this regard, there was not even a suggestion on the part of the defence that any arm or weapon was there or that it had been removed from that place after the occurrence. In the circumstances, we can feel no difficulty in coming to the conclusion that the deceased and injured persons of this case were all unarmed at the time of occurrence and that they could not possibly think of attacking the accused who were armed with shot-guns. In such a situation, the aggression could initiate only from the side of the accused.
17. Mr. Muhammad Shafique Khan the learned counsel for the appellants, however, raised a number of points before us. The first point raised was that in First Information Report Exh. P. A., the complainant had stated that Gharib Shah bad also reached the scene of occurrence but be was not produced at the trial to support the prosecution case. He urged with vehemence that the said witness, if produced at the trial, might have given evidence in favour of the defence, and, therefore, inference adverse to the prosecution should be drawn. To support the contention, that non-produc--tion of the eye-witnesses at the trial being necessary witnesses would lead to an inference adverse to the prosecution, the learned counsel for the appellant placed his reliance on Sirajul Mir and others v.
18. The State (PLD 1964 Dacca 420). Our attention has been drawn to the following observations of their Lordships:-- "26. Having regard to the circumstances discussed we feel that the non-examination of Abdur Rehman and the mere tendering of Jabbar Ali in the present case arose from oblique motive of the prosecution and further that their evidence was also essential for unfolding the narrative on which the prosecution was based. The mere tendering of Jabbar Ali was as good as not examining a person who was most competent to speak about the occurrence. We feel that the salient tests are only those of oblique motive and essentialness for unfolding the narrative on which the prosecution is based as propounded by the Privy Council. These are the tests and there should not be any other limits to the Prosecutor's discretion in the matter of examining and tendering of prosecution witnesses. What witnesses are essential and which motive is oblique, will depend upon the circumstances of each case and it is not possible to specify them. As a rule of prudence, however, a material witness should not be merely tendered but should be asked by the prosecution to give evidence. Tendering should be confined to witnesses of secondary importance only. If the witness is important, the prosecution should call him and examine him-in-chief and should not tender him, though he can make the examination-in---chief as brief as circumstances permit. If the witness is unimportant, the prosecution may tender him for cross-examination. If the prosecution withholds a witness on the ground of unreliability, some evidence of unreliability should be shown. When sufficient evidence has already been led, the tendering of a witness will not be treat--ed as withholding of such. a witness, unless it is from oblique motive."
19. The learned Assistant Advocate-General Who appeared for the State conceded that the prosecution did not produce Gharib Shah mentioned as eye-witness in-the First Information Report but contended that adverse inference could riot-be drawn against the prosecution in the circumstances of the present case, and in support of his argument has relied on Syed Mir Gul Shah v. State (PLD 1962 Posh. 91). It was urged by him that the authority cited on behalf of the appellants could not be stretched to cover the case now before us.
20. There is no doubt that at the trial, out of the eye-witnesses mentioned in the First Information Report, the prosecution abandoned Gharib Shah as unnecessary. Nevertheless, no adverse inference could be drawn for such failure because no oblique motive has been shown for with holding him. From the material available on the record of the case, it cannot possibly be said that his testimony would have necessarily supported the defence. On the other hand, a reference to the statement on cross-examina--tion of Jamaldar P. W. Would reveal that Gharib Shah was related- to him as well as the deceased persons of this case. In the absence of any thing to the contrary, the presumption would be that had he been produced in Court, he might have supported the prosecution case. It follows, therefore, that he was really unnecessary witness. The rule laid down in the cases of Sirajul Mir and others can have no application to the case before us, because in that case the rule with regard to inference adverse to the prosecution was found on the consideration that such an inference should be drawn where the witness is essential and he is withheld from oblique motive. This is not the position in the present case in which the witness, as stated above, was unnecessary and there was nothing to show that if produced at the trial, he might have given evidence in favour of the defence. This position apart, the production of Gharib Shah was even otherwise not necessary because the evidence led by the Prosecution was, in our view, sufficient to warrant the conviction of the accused. The authority referred to, and relied upon, by the learned Assistant Advocate-General, wherein it was held that the prosecution is under no obligation to produce those persons as prosecution witnesses whom it considers to be false or unnecessary, nor) can any adverse inference be drawn against the prosecution for dropping) such witnesses, appear to us to be on all fours with the present case. We, therefore, hold that the non-production of Gharib Shah as a witness at the trial being unnecessary would not lead to an inference adverse to the prosecution.
21. It was next contended by the learned counsel for the appellants that no doubt, in view of the overwhelming evidence on the record and the fact that the two eye-witnesses had fire-arm injuries on their person, their presence at the spot and the participation of the appellants in the occurrence, cannot be disputed, yet the version of the occurrence given by them could not be accepted as a gospel truth. He argued that there were certain facts which would suggest that these witnesses were not reliable and did not put forth the correct version in regard to the occurrence which seems to have taken place in a manner altogether different from the one given by the prosecution, and in the circumstances, the probabilities of the case would be more important to find out the factual position. In the first place it was said that these witnesses were not only interested as being related inter se as well as with the deceased persons of the case but were also inimical towards the accused. In the second place it was said that medical evidence in this case belies the eye-witnesses account and it is, therefore, doubtful if the witnesses had told the truth.
22. As regards the first point, the learned counsel for the appellants submitted that one of the eye- witnesses namely, Jamaldar, was the son of the deceased person, and the brother of another deceased person of this case, while the other eye-witness Taj Mohammad was related to them, and in this situation, they were interested witnesses. He further went on to say that they were also inimical towards the accused with the result that in view of the principle laid down in Wasihullah v.
23. Mirza Ali and others (PLD 1963 SC 25) and Bag Ali and 4 others v. State (PLD 1973 SC 321) exceptionally strong corroboration, by itself sufficient to establish guilt of the accused, was necessary. Such a corroboration, according to the learned counsel, was wanting in this case. That, in our opinion, goes much too far, it is well settled by authority that mere relationship of prosecution witnesses inter s and with the victim of the crime, does not make them interested witnesses in legal sense. It is also well settled that relationship by itself does no render "witnesses" interested unless they are shown to have some motive for falsely implicating the accused. If any authority is needed in support of this view, reference may be made to PLD 1963 Kar. 92 and PLD 1977 Pesh.
1. In the present case, the two eye-witnesses had no previous enmity with the accused and could have thus no motive for falsely implicating them. The authorities relied upon by the counsel for the appellants proceeded on their own facts and are clearly distinguishable.
24. They have some distinctive feature or other, which are not existing in the present case.
25. Stressing his point with regard to the medical evidence, the learned counsel for the appellants urged that the injuries suffered by Sardar deceased do not square up with the evidence of the eye- witnesses. He argued that the number of shots fired, as given by the eye-witnesses, were three but in point of fact, the shots fired could not be less than four, because according to the Post-mortem Examination Report, the injuries on the person of Sardar deceased, one of them having charring and the other having no such marks must have been the result of two shots, and could not be caused by one single shot as alleged by the eye-witnesses. The learned counsel stressed the point that the version of the witnesses that the distance between the deceased persons and their assailants was about 30 paces also stands belied by the medical evidence, according to which, the injuries on the person of Sardar deceased had charring marks and this was indicative of the fact that he had been fired at from a very close range.
26. There is no denying the fact that the doctor when examined at the trial was not put any question by the defence if the injuries on the person of Sardar deceased could be the result of more than one shot. It appears that such a question was not put to him for the reason that the defence expected unfavourable reply from him. It may be observed that out of the two entrance wounds one was over lateral aspect of mid part of right arm while the other was over medial aspect of right arm extending from the portion upwards. It appears to us that the injuries so suffered by the deceased could be caused by one single shot. The Additional Advocate General appearing on behalf of the State tried to, and did, clarify the position by a practical demonstration in Court and we feel no doubt in our minds that the injuries were the result of one shot. But even if it be assumed for the sake of arguments that post-mortem report indicated the firing of two shots, and that the said evidence runs contrary to the version given by the eye-witnesses on the point, it will not materially alter the position in favour of the defence. In this Context, it may be pointed out that the opinion of doctor that he had found charring around the first injury was not conclusive. From whatever range the deceased had been fired at, the distance between the gun and the lateral aspect of mid part of right arm would be shorter than the distance between the gun and the medial aspect of right arm. Therefore, it is understandable that only this first injury was found having charred margins whereas the other injury had no such charring. The eye-witnesses are unanimous that only one shot was fired at Sardar deceased. But even if we assume for the sake of arguments that two shots had been fired at Sardar deceased, that would not justify us to reject the testimony of the eye-witnesses, for the reason that they could commit a bona fide mistake in counting the number of shots fired, although we feel that the medical evidence in this case cannot out-weight direct evidence of eye-witnesses which is not deficient in quality. As regards the distance given by the eye-witnesses, it may be stated that on close examina--tion of the medical evidence it is very clear to us that there is no material conflict between it and the evidence of eye- witnesses. It is on record that two deceased persons were running and the accused were' firing at them while pursuing them. It is true that the eye-witnesses gave the distance as about 30 paces but it is not reasonable to take this evidence as accurate as any one witnessing the occurrence could form only a very rough idea of the distance between the victims and the assailants as it fluctuated when both were running. On the view of the matter we take, we attach no importance to the objection with regard to the distance given by the eye-witnesses.
27. The next contention advanced by the counsel for the appellants was that the trial Judge ought to have accepted the evidence of Saqi Muhammad D. W. Whose presence at the spot, at the time of occurrence, cannot be doubted. It is true that the occurrence took place near the shop of the defence witness when he himself was present there and he. Must have seen the occurrence. But that is not the end of the matter. It further requires to be seen if he was a truthful witness. The trial Court rejected his testimony describing him as a turn-coat witness, and we think rightly. It is evident that he was not only closely related to the accused-appellants but was also unworthy of credit because his statement recorded at the trial runs counter to his earlier statement recorded under section 164 of the Code of Criminal Procedure. It follows, therefore, that he was not a trustworthy person and as such, could not be depended upon.
28. With one more argument we must deal, which was pressed before us on more occasion than one during the course of arguments by the learned counsel who appeared for the appellants. It was said that the trial Court was in error in holding that the prosecution had succeeded in establishing motive on the part of the appellants for the commission of the offence charged with. Elucidating his point of view, the learned counsel submitted that the motive, as given by the Prosecution, was that a year prior to the present occurrence, Mst. Alhania wife of Sardar deceased was suspected of having illicit intimacy with Khan Bahadur accused, and in such a situation, the aggrieved persons to avenge the insult could be Sardar and his close relatives and not the accused. It was argued that the fact that the accused had no motive for the commission of the offence was a circumstance in their favour as it strengthens the presumption of their innocence. We are unable to subscribe to the view so expressed for more than one reason. The first is that motive is immaterial if the other evidence is sufficiently reliable, and in the instant case evidence, as discussed above, was sufficient reliable to warrant the conviction of the accused. The second is that the failure to discover the motive for an offence does not signify its non existence, and the last is that in the present case, there was ample materia on the record to show that the accused must have been after the lives of the deceased persons. In this connection, reference may be made to the statement of Khan Bahadur accused under section 342, Criminal Procedure Code, wherein he said that the deceased and Jamaldar P. W. Suspected him of illicit intimacy with Mst. Alhania and on that account, they were out for his blood. Whatever be the factual position, one fact is clear from this statement and that is that the accused, according to his own showing, apprehended death at the hands of the deceased and Jamaldar P. W. This, in our view, could provide a motive to the accused for doing away with the deceased arid Jamaldar P. W. Before they could cause any harm to the accused. It would thus be incorrect to suggest that, no motive has been discovered in this case for the commission of the offence..
29. In the result of the above discussion, we have come to the conclusion that on the evidence on record, the guilt of all the three accused-appellants under sections 302/34 and 307/34, Pakistan Penal Code, is proved beyond any reasonable doubt. As to the question of sentence, we are of the view that the capital punishment awarded to the appellants by the trial Court under section 302/34, Pakistan Penal Code, is, under the circumstances, a normal penalty required to be imposed upon them. The sentence awarded under section 307/34, Pakistan Penal Code, was also appropriate in the circumstances of the case.
30. We are informed by the counsel for the appellants that one of the appellants, namely, Khan Bahadur, has die. Since the said appellant died during the pendency of the appeal, his appeal has abated and is declared to have abated. The appeal on behalf of the other two appellants fails for the reasons stated above and is hereby dismissed. We, therefore, confirm the death sentence awarded to them.
31. M. A. K.