' ABDUL SHAKOOR PARACHA, J.--- Muhammad Bashir alias Pervez and Muhammad Ejaz son of Faiz Ahmad appellants impugn the judgment dated 29-6-1998 passed by Additional Sessions Judge, Jhelum whereby they were found guilty under section 302, P.P.C. In case registered vide F.I.R. No,93, dated 6-6-1997 under sections 302/148/ 149/109, P.P.C. At Police Station Pind Dadan Khan, District Jhelum and were sentenced as follows:--
(i) Muhammad Bashir alias Pervez and Muhammad Ijaz under section 302(b), P.P.C. For committing Qatl-e-Amd of Mst. Riaz Begum. They were sentenced to life imprisonment as Ta'zir. They were further ordered to pay compensation of Rs,50,000 to the legal heirs of the deceased.
(ii) Muhammad Bashir alias Pervez and Muhammad Ijaz under section 302(b), P.P.C. For committing Qatl-e-Amd of Najam Khan. They were sentenced to life imprisonment as Ta'zir. They were further directed to pay compensation of Rs,50,000 to the legal heirs of the deceased.
(iii) Muhammad Bashir alias Pervez and Muhammad Ijaz under section 302(b), P.P.C. For committing Qatl-e-Amd of Zumard. They were sentenced to death as Ta'zir. They were further directed to pay compensation of Rs 50,000 to the legal heirs of the deceased.
' Remaining accused Muhammad Nawaz, Haq Nawaz, Muhammad Iltaf, Muhammad Riaz, Muhammad Aslam, Iftikhar Ahmad, Faiz Ahmad and Sardar Khan were acquitted from the charge Murder Reference is also before us for confirmation of death sentence awarded to Muhammad Bashir alias Pervez and Muhammad Ejaz appellants. Both the appeal and the Murder Reference are being disposed of through this consolidated judgment.
2. Brief facts of the case are that on 6-6-1997 at 8-00 a.m. In the area of Village Kotla Shah Kamir situated within the jurisdictional limits of Police Station Pind Dadan Khan at a distance of 1-1/2 miles on the western side of the police station the above mentioned accused formed themselves to an unlawful assembly and in consequence of the instigation and abetment caused by the accused Faiz Ahmad and Sardar Khan all of them committed rioting and in prosecution of common object of the said unlawful assembly, they committed Qatl-e-Amd of Najam Khan (25), Zumarad Khan
(22) both sons of Suba Khan, and Mst. Riaz Begum wife of the accused Muhammad Bashir (about 20 years) by causing fire-arm injuries. At the time of occurrence, the accused Haq Nawaz, Muhammad Iltaf, Iftikhar Ahmad, Muhammad Bashir and Muhammad Ejaz were allegedly armed with Pacca rifles while the accused Muhammad Nawaz, Muhammad Riaz, and Muhammad Aslam were empty-handed. The accused Faiz Ahmad and Sardar Khan had allegedly abetted and instigated the occurrence.
3. The case was registered vide F.I.R. No,93 dated 6-6-1997 under sections 302/148/149/109, P.P.C. At Police Station Pind Dadan Khan, District Jhelum on the statement Exh.P.B. Of Raja Zahoor Hussain, complainant on the basis of which F.I.R. Exh.P.B./1 was recorded by P.W.19 Munawar Iqbal, A.S.-I. Who had reached the place of occurrence on receiving an information about the same. On the day of occurrence P. W.15 Raja Zahoor Hussain, resident of village Sohetra and driver by profession had gone to the house of his Phuphi, who was married to Suba Khan and was residing at Village Kotla Shah Kamir. At that time, P.W.15 Raja Zahoor Hussain was on his way to Pind Dadan Khan and had gone to inquire about the health of his said Phuphi after parking his Hi-ace vehicle on road side.
When he reached there, he found P.W.16 Muhammad Ashraf and the given up P.W. Jahan Khan. At 8-00 a.m. His Phuphizad Najam Khan (deceased) left the house as he had to carry the meals of Zumarad Khan (deceased) to the Baila of River Jhelum. When Najam Khan deceased reached near the Valve of water supply situated on the northern side of the village the complainant along with P.W.16 Muhammad Ashraf and given up P.W. Jahan Khan also came out of the house and within their sight, the accused Haq Nawaz, Muhammad Iltaf, Iftikhar Ahmad Muhammad Bashir alias Pervaiz and Muhammad Ejaz accused armed with Pacca rifles, along with the empty-handed accused namely Muhammad Aslam, Muhammad Riaz and Muhammad Nawaz came out of the house of accused Faiz Ahmad while raising Lalkara. The accused Muhammad Iltaf fired at Najam Khan hitting him on his back. The second shot was fired by Iftikhar Ahmad hitting Najam Khan on the backside near the left scapula. The third shot was fired by the accused Haq Nawaz hitting Najam Khan on the left wrist. On sustaining these injuries, Najam Khan fell down whereafter the accused Muhammad Bashir alias Pervaiz fired a shot hitting Najam Khan on left side of his chest.
Thereafter the accused Muhammad Ejaz fired a shot hitting Najam Khan (deceased) on the left upper arm. Then the accused Muhammad Iltaf fired another shot hitting Najam Khan on the left upper arm. As a result of these injuries, Najam Khan died at the spot. Thereafter, the accused Muhammad Nawaz raised a Lalkara that Mst. Riaz Begum be also eliminated, whereupon Bashir alias Pervaiz and Muhammad Ejaz accused went running to the door of the house of the accused Faiz Ahmad and while standing in the door, they fired one shot each hitting Mst. Riaz Begum at her abdomen and arm who fell down and succumbed to the injuries. Thereafter the accused Muhammad Bashir alias Pervaiz etc. Numbering 8 fled away towards the Baila of River Jhelum while brandishing the weapons possessed by them. In the Baila Zumarad Khan deceased was irrigating his field. P.W.17 Khushi Muhammad and P.W.18 Muhammad Hayat had gone to the Baila for grazing their animals and within their sight, the accused Muhammad Ejaz, Muhammad Bashir alias Pervaiz caused fire-arm injuries to Zumarad Khan who died at the spot. Whereafter all the accused numbering 8 fled away towards the Baila of River Jhelum. All the three murders were committed in consequence of abetment caused by the accused Faiz Ahmad and Sardar Khan.
4. Motive of the occurrence was that 8/9 months prior to the occurrence, Suba Khan had asked the hand of Mst. Riaz Begum (deceased) for his son Najam Khan (deceased). Although Mst. Riaz Begum (deceased) was willing and happy on this proposal yet the proposed marriage could not be settled despite efforts and the accused Faiz Ahmad contracted marriage with his nephew Muhammad Bashir alias Pervaiz accused. Afterwards Najam Khan deceased had quarrelled with the accused several times, therefore, accused bore grudge against the deceased Najam Khan and murder was a result of the grudge nourished by them.
5. P.W.19 Munawar Iqbal, A.S.-I. After recording the statement Exh.P.B. Made by P.W.15 Zahoor Hussain, complainant, took up the investigation of the case. First of all, he examined the dead body of Najam Khan (deceased) and prepared inquest report Exh.P.J. And injury statement Exh.P.J./1 and entrusted the dead body of Najam Khan deceased along with the said papers to P.W.6 Muhammad Aslam constable for P.M. Examination. Thereafter, he prepared the inquest report Exh.P.S. And the injury statement Exh.P.S./1 regarding the dead body of Mst. Riaz Begum and entrusted the same along with the said papers to P.W.5 Khizar Hayat for P.M. Examination. He also recorded the statement of P.Ws. Under section 161, Cr.P.C. And inspected the site. He secured the blood-stained earth vide recovery memo. Exh.P.T. After making the same to a sealed parcel. He also secured four empty cartridges P.15/1-4 and live bullet P.16 vide recovery memo. Exh.P.P. After making the same to a sealed parcel. Thereafter he secured bloodstained earth vide recovery memo. Exh.P.U. From the place of murder of Mst. Riaz Begum. He also secured two empty cartridges P.18/1-2 vide recovery memo. Exh.P.V. He also prepared rough sketch of the place of murder of Najam Khan and Mst. Riaz Begum Exh.P.W. And Exh.P.X. He prepared the inquest report Exh.P.K. Of Zumarad Khan and entrusted the same to P.W.3 Zafar Ullah Khan along with the said papers for the purpose of P.M. Examination. He secured the blood-stained earth vide recovery memo. Exh.P.R. He also secured the empty cartridge P.16 vide recovery memo. Exh.P.Q.
6. On 7-6-1997, P.W.11 Akhtar Hussain, Inspector took Patwari and Draftsman to the place of occurrence and got the same inspected in accordance with the pointation of the P.Ws. Both of them took the rough notes and afterwards on 12-6-1997, P.W.9 Muhammad Bashir Patwari produced site plan of the place of murder of Zumarad Khan Exhs.P.F. P.F./1 and Exh.P.F./2. On the same day, P.W.20 Muhammad Sharif, Draftsman produced the site plan Exhs.P.L., P.L./1 and P.L./2 pertaining to the place of murder of Mst. Riaz Begum and the site plan Exhs.P.M., P.M./1 and P.M./2 pertaining to the place of murder of Najam Khan. He recorded the statements of the Patwari and Draftsman under section 161, Cr.P.C. And searched for the accused.
7. On 18-6-1997, accused Muhammad Ejaz and Muhammad Bashir alias Pervaiz appeared before P.W.11 Akhtar Hussain, Inspector and were arrested by him. Afterwards on 26-6-1997, he arrested the remaining accused. On the disclosure of Muhammad Bashir alias Pervaiz led to the recovery of .7 mm rifle P.13 from room of his Dera situated in Baila which was lying in a iron box and was taken into possession vide recovery memo. Exh.P.N. Thereafter accused Muhammad Ijaz first made disclosure and then led to the recovery of .7 mm rifle P.14 from the same room of the Dera.
8. On 6-6-1997 at 4-15 p.m. P.W.1 Lady Doctor Saeeda Kausar, T.H.Q. Hospital Pind Dadan Khan conducted the P.M. Examination on the dead body of Mst. Riaz Begum wife of Muhammad Bashir accused. She found following injuries on her person:--
(1) Fire-arm wound oval in shape 2.5 c.m. x 1.5 c.m. Below the tip of left scapula. Margins were inverted and blackened. That was entry wound.
(2) Fire-arm wound on the lateral side of right breast, 3 c.m. In diameter. Margins were overted and fat was protruding out of wound. That was exist wound.
(3) A fire-arm wound about 1.5 c.m. In diameter in the right lumber area about 4 c.m. Above the right anterior iliac spine. Margins were inverted and blackened. That was entry wound.
(4) A fire-arm wound of about 3 c.m. In diameter present on the left sub-costal region. Margins were overted and omentum and intestines were protruding through the wound. That was exit wound.
(5) A fire-arm wound 1.5 c.m. In diameter on the lateral surface of left upper arm about. 11 c.m.
Above the elbow joint. Margins were overted and blackened. That was entry wound.
(6) Fire-arm wound, 3 c.m. In diameter on the medial side of left upper arm about 9 c.m. Above the elbow joint. That was exit wound: ' In the Opinion of Doctor injuries Nos.1 and 3 were sufficient to cause death in ordinary course of nature individually. Death had occurred due to severe haemorrhage by injury No,1 and shock from all the injuries. All the injuries were ante-mortem in nature caused by fire-arm. Probable time that elapsed between injuries and death was immediate and probable time that elapsed between death and P.M. Examination was within 12 hours.
9. On the same day at 1.15 p.m. P.W.10 Dr. Muhammad Zafar Iqbal, M.O., T.H.Q. Hospital, Pind Dadan Khan conducted the P.M. Examination of Najam Khan son of Suba Khan and he observed following injuries on his person:--
(1) A wound of entry on the outer side of left upper arm 24 c.m. From left shoulder tip and 6 c.m.
From left elbow. On probing it was going deep to injury No,2. It was 3/4 x 3/4 c.m.
(2) A wound of exit on the inner side of left upper arm, 1 c.m. Above the level of injury No,1 and it was conciding the injury No,3.
(3) A wound of entry 2-1/2 c.m. From left nipple and left side from the left nipple. It was 1-1/4 c.m.
3/4 c.m. It was shallow on the left side and going deep on the right side. It was continuous with injury No,4.
(4) An elliptical shape wound of exit on the front of centre of chest. It was deep on the left side and became shallow on the right side. It was 6-1/2 c.m. x 2-1/4 c.m. It was 7 c.m. Below the upper margin of sternum (in the opinion of the doctor the above 4 injuries were continuation of injury No,1 by the same bullet).
(5) A wound of entry on the right shoulder on its outer side. It was 6 c.m. Below the top of the shoulder. It was 3/4 x 3/4 c.m. Bone under the wound was fractured. On probing, it was continuous with injury No,6.
(6) A wound of exit on the inner side of right arm 6 c.m. From upper margin of elbow. It was 1-1/4 c.m. x 1 c.m.
(7) At the level of injury No,6, and coinciding with it a wound of entry on the right side of chest. It was 5 c.m. To the right from the right nipple and on probing it was going deep. It was 1-1/2 x 1 c.m.
(8) A wound of exit on the back of left chest adjacent to the shoulder margin. It was 9-1/2 c.m.
Below the upper margin of clavicle. It was 12 c.m. From the central line on the back. It was 3 c.m. x 1- 1/2 c.m. On movement of the dead body profusely blood came out of the hole. On probing, it was going deep.
(9) A wound of entry on the front of chest in between the injuries Nos.3 and 4. It was 2 c.m. From the injuries Nos.4 and 3 c.m. From the left nipple. It was 1/2 c.m. x 1/2 c.m. And going back.
(10) A wound of exit on the back of chest 1-1/2 c.m. From the central line to the right side. It was 3/4 c.m. x 3/4 c.m. And going deep on probing.
(11) 7 c.m. To the right side from the injury No,8 on back of chest and 5 c.m. From the central line to the left. A wound of entry 3/4 x 3/4 c.m. Blackening around the wound in an area of 1-1/2 c.m.
Around the wound was pre-se and on probing it was going deep.
(12) A lacerated wound on the back of left elbow.` It was 5-1/2 c.m. x 4-1/2 c.m. And in this area tissues had blast away and bones under the wound were fractured.
' In the opinion of the doctor, the death was due to massive haemorrhage from the major blood vessels of the thorax and shock due to injuries Nos.7, 8, 9, 10 and 11 which were sufficient enough to cause death individually and collectively in ordinary course of nature. Time between injuries and death was immediately after the injuries. Time between death and post-mortem examination was 2 to 12 hours.
10. On the same day, at about 3-00 p.m. The said Doctor also conducted the P.M. Examination on the dead body of Zumurd Khan son Of Suba Khan and he found the following injuries on his person:--
(1) A lacerated wound on the front of left side of chest 3 c.m. Below the clavicle and 8-1/2 c.m. From the left nipple. It was 2 c.m. x 1-1/4 c.m. The bone (rib) under the wound was fractured. It was a wound of entry.
(2) A wound of exit on the back of chest 2 c.m. Right from the central line and 13 c.m. From the root of neck. It was vertically 6 c.m. And horizontally 2-1/2 c.m.
(3) A wound of exit on the right and upper part of scapular region 1-1/2 x 1-1/4 c.m. On the back of right chest. It was 9 c.m. From central line and 8-1/2 c.m. From injury No,2. Scapular bones under the wound were fractured in pieces.
(4) A wound of entry on the palm of right hand in between the thumb and right index finger. It was 1/2 c.m. x 1/2 c.m.
(5) At the same side on the back of the palm there was wound of exit 3/4 c.m. x 3/4 c.m. There was no bone fracture as it was in soft tissues.
' In the opinion of doctor, an injury Nos.1-3 was cause of damage of major blood vessels of thorax and profuse massive haemorrhage and shock and leading to death, which were sufficient enough to cause death in ordinary course of nature. Time elapsed between injuries and death was immediate and time between death and post-mortem was 2 to 12 hours.
11. After the investigation, police submitted report under section 173, Cr.P.C. In Court. The 'accused were charged for offence under sections 302/148/149/109, P.P.C. On three counts of rioting and Qatl-e-Amd of Najam Khan, Mst. Riaz Begum and Zamurd Khan. All the accused pleaded not guilty and claimed trial.
12. In order to prove the case, prosecution examined twenty witnesses in all. The evidence of the prosecution is consisting of motive; ocular account consisting of Raja Zahoor Hussain P.W.15, Muhammad Ashraf P.W.16 who had witnessed the murder of Najam Khan, Khushi Muhammad P.W.17 and Muhammad Hayat P.W.18 who were the witnesses of murder of Zamurd Khan in Baila; Medical evidence consisting of statement of Lady Doctor Saeeda Kausar P.W.1, who conducted the P.M. Of Mst. Riaz Begum deceased, statement of P.W.10 Dr. Muhammad Zafar Iqbal, who conducted the P.M. Examination of Najam Khan, copy of P.M. Examination report is Exh.P.G. And Zamurd Khan, copy of P.M. Examination report is Exh.P.H.; Recovery of .7 mm rifle. P.13 from Muhammad Bashir alias Pervaiz accused-appellant which was taken into possession vide recovery memo. Exh.P.N. And recovery of .7 mm rifle P.14 from Muhammad Ejaz accused-appellant which was taken into possession vide recovery memo. Exh.P.O., recovery of empty cartridges P.15/1-4 and live bullet P.16 vide recovery memo. Exh.P.P., recovery of blood-stained earth vide recovery memo. Exh.P.T. From the place of murder of Najam Khan, bloodstained earth vide recovery memo. Exh.P.U. From the place of murder of Mst. Riaz Begum and recovery of two empty cartridges P.18/1-2 vide recovery memo. Exh.P.V.; report of chemical examination Exh.P.Z. And of Serologist Exh.P.Z./1 as well Forensic Science Laboratory Exh. P. AA.
13. The statements of the accused under section 342, Cr.P.C. Were recorded. All the accused except Muhammad Bashir alias Pervez pleaded innocence and, denied the allegation levelled against them in the prosecution evidence. They denied their participation in the occurrence and even presence at the place of occurrence. They stated that they have been falsely involved in this case on account of their relationship with Muhammad Bashir alias Pervez who had committed the murder of his wife Mst. Riaz Begum and Najam Khan out of Ghairat. Muhammad Bashir alias Pervaiz appellant also pleaded innocence to the extent of murder of Zamurd Khan. So far as the murder of Mst. Riaz Begum and Najam Khan is concerned, he replied to a question "why this case is against you and why the P. Ws. Have deposed against you" he replied that, "Mst. Riaz Begum, my wife and Najam Khan deceased had illicit relations with each other. They had tried for their marriage. On 6- 6-1997, at 4 a.m., I saw Mst. Riaz Begum and Najam Khan in objectionable position and I lost my control and committed the murder of Najam Khan and Mst. Riaz Begum there and then. At that time, no other accused or any witness was present there. The complainant subsequently, fabricated the F.I.R. In connivance with the police, I myself went to the police station after the occurrence and surrendered myself and I was the first man who informed the police about this occurrence. During the investigation on the spot, the information about the murder of Zumrad Khan was received and the police and the complainant instead of searching for the real culprits of the murder of Zumrad Khan has falsely roped me and my co-accused in this case. It is just co-incident that on the same day, the dead body of Zumrad was found lying in the Baila. However, I do not know who murdered him. Zumrad Khan had so many enemies in the Ilaqa and it is common information that he was murdered by some unknown assailants. They deemed it easy to involve me and my co-accused in that murder also instead of searching for the real culprits. I swear in the name of God that my above statement is correct. If I am taking the full responsibility of murder of two persons, I understand, there is no difference to take the responsibility of third 'murder. I am innocent and do not know about the murder of Zumard Khan, so I cannot say who had murdered him. During the investigation of this case all of my co-accused were found innocent by the police.
Hundred of people had appeared in our defence even at the spot. I have committed the murder of Mst. Riaz Begum, Najam Khan out of Ghairat and all the P. Ws. Are related inter se".
14. After hearing the learned counsel for parties, learned trial Court proceeded to convict the appellants as aforesaid. Where, the co-accused were acquitted, hence this appeal.
15. Learned counsel for appellants contends that the plea of motive set up by the prosecution has not been proved on the record, it is well-settled principle of law that prosecution need not to set up a motive for the crime, but once it has set up a motive and if it fails to establish it, it is the prosecution that suffers; further that the reason for visiting the house of Suba Khan given by P. W.15 Raja Zahoor Hussain was that his wife had told him that his Phuphi was ill was not mentioned in the complaint Exh.P.B.; further that 8-00 a.m. Was neither the time for taking meal by Najam Khan deceased for his brother Zamurad Khan at Baila; nor glass or other utensils containing food was recovered from the place of occurrence. Complainant and P.W.16 Muhammad Ashraf had stated that they hid themselves behind the house and the tree whereas no roof and tree have been shown in the site plan. On the above said reason, learned counsel for appellants contends that the witnesses were not present at the scene of occurrence; further that medical evidence is in conflict with the ocular account; Adds that recoveries of .7 mm rifles Exhs.P.13 and P.14 from Muhammad Bashir alias Pervaiz and Muhammad Ejaz appellants were jointly made, therefore, is not helpful for the prosecution; further contends that if the evidence of the prosecution is rejected then the statements of the accused-appellants has to be accepted in toto which shows that he committed the murder of Mst. Riaz Begum and Najam Khan under the sudden and grave provocation out of Ghairat and case falls under section 302(c), P.P.C.
16. Learned State Counsel assisted by the learned counsel for complainant contends that three persons have been murdered in a very brutal way; the case has been proved against the appellants beyond any shadow of doubt; the time of occurrence was 8-00 a.m. Which has been proved on the record; further that though P.W.15 Raja Zahoor Hussain and P. W.16 Muhammad Ashraf who had witnessed the murder of Najam Khan, P.W.17 Khushi Muhammad and P.W.18 Muhammad Hayat who were the witnesses of the murder of Zamurd Khan in Baila were related to the deceased but the relationship of witnesses with the deceased per se is no ground to reject their testimony; ocular account is corroborative with the medical evidence furnished by P.W.1 Dr. Saeeda Kausar and P.W.10 Dr. Zafar Iqbal; recovery of .7 mm rifle P.13 and P.14 respectively were effected from Muhammad Bashir alias Pervaiz and Muhammad Ejaz appellants along with the recovery of empty cartridges P.15/1-4 and live bullet P.16 along with recovery of blood-stained earth from the place of murder of Najam Khan and Mst. Riaz Begum report of Chemical Examiner Exh.P.Z. And of Serologist Exh.P.Z./1 as well Forensic Science Laboratory Exh.P.AA. Were in positive; further that occurrence has been admitted by Muhammad Bashir alias Pervaiz who pleaded innocent to the extent of murder of Zamurd Khan. There is no proof of the fact that Muhammad Bashir alias Pervaiz had committed the murder of Mst. Riaz Begum and Najam Khan on sudden provocation out of Ghairat.
17. We have heard the arguments of the learned counsel for parties and perused the record with their assistance.
18. The first point which needs determination in this case is that what was the time of occurrence/murder of Mst. Riaz Begum, Najam Khan and Zamurd Khan deceased. The case of the prosecution is that the occurrence took place at 8-00 a.m. Whereas, the case of the accused/defence is that occurrence did not take place at 8-00 a.m. As alleged by the prosecution but in the early hour of the morning when it was still dark. In the complaint Exh.P.B. Though the time of occurrence as 8-00 a.m. Had been mentioned but to our mind the same was inserted later on.
Both Zafarullah Khan P.W.3 and Khizar Hayat P.W.5 stated that dead body was entrusted to police at 8-00 a.m. Muhammad Aslam P.W.6 stated that he left the police station for the place of occurrence at 7-45 a.m. Meaning thereby that the occurrence had not taken place at 8-00 a.m. As alleged by the prosecution. Besides, that nobody from the complainant-side went to lodge the report/F.I.R. P.W.1 Dr. Saeeda Kausar conducted the post-mortem on the dead body of Mst. Riaz Begum at 4-15 p.m. Similarly P.W.10 Dr. Zafar Iqbal conducted the post-mortem examination of Najam Khan and Zamurd Khan on the same day at 3-00 p.m. According to them, "rigor mortis of the dead body were fully developed in all limbs" Modi says that "rigor mortis developed from 3 to 6 hours". P.W.1 Dr. Saeeda Kausar opined that probable time that elapsed between injury and death was immediate and probable time that elapsed between death and P.M. Examination was within 12 hours. Similarly, P.W.10 Dr. Zafar Iqbal, opined that time between injuries and death of two deceased and P.M. Examination was 2 to 12 hours. Therefore, it can safely be concluded that the occurrence did not take place at 8-00 a.m. As alleged by the prosecution.
19. This was the own case of the prosecution that Mst. Riaz Begum was willing and happy on the proposal of her marriage with Najam Khan deceased and the accused Faiz Ahmad contracted her marriage with his nephew Muhammad Bashir alias Pervaiz accused. In view of the above, motive was available to Najam Khan and not to Muhammad Bashir alias Pervaiz because he was successful in getting marriage with Mst. Riaz Begum. Therefore, motive part of the story has not been proved on the record. Besides that, there is no evidence of quarrel between deceased Najam Khan with the accused Muhammad Bashir alias Pervaiz appellant, neither any report to this effect was lodged by the either party nor any independent witness has been produced to substantiate the contention that Najam Khan had quarrelled with the accused several times. In case reported as Mangio v. The State 1976 PCr.LJ 243 it has been ruled that, "It is not always for the prosecution to set up a motive for the crime. But once it has set up a motive and if it fails to establish it, it is the prosecution that suffers".
20. Raja Zahoor Hussain P.W.15 is resident of village Sahotra which is situated at a distance of 1/2 miles. Similarly, Muhammad Ashraf P.W.16 had his Dera in Baila. Both were therefore, chance witnesses. They were also closely related to the complainant. In case reported as Zafar Hayat v. The State 1995 SCM R 896 it has been ruled that, "chance witnesses if corroborative evidence is not available to support his statement, the same has to be excluded from consideration". In case reported as Noor Muhammad and 3 others v. The State 1973 PCr.LJ 891 it has been held that, "chance witness closely related to the deceased assumes special significance. No reliance could be placed on their testimony in the absence of unimpeachable corroboration". In case of Mumtaz Khan v. The State 1984 PCr.LJ 407 it was held that, "Chance witness cannot be relied upon without .Any corroborative piece of evidence". The occurrence allegedly took place at 8-00 a.m. But report Exh.P.B. Was lodged through Raput No,9 at 10-20 a.m. There is about two hours and twenty minutes delay in lodging the F.I.R. Both the witness had neither gone to lodge the report nor stated any reasons in the complaint for not lodging the same. P.W.19 Munawar Iqbal, A.S.-I. Stated that, "on 6- 6-1997 he was posted at Police Station Pind Dadan Khan. On the same day, on receipt of information regarding the occurrence he along with other police officials went to village Kotla Shah Kameer at the place of murder of Najam Khan deceased where Zahoor Hussain complainant met me". In cross-examination, he stated that, Mohrrir had told him that he received telephonic call that a murder has been committed in Kotla Shah Kameer. He had not mentioned this fact that Moharrir had given him the information in Karvi Police. The question arises that when Moharrir had received the telephone call that a murder had committed in Kotla Shah Kameer why the F.I.R. Was not lodged. It is the case of the prosecution that Najam Khan was taking meal of Zamurd Khan to Baila.
P.W.15 Raja Zahoor Hussain stated that Najam Khan was taking the meal of Zamurd Khan to Baila.
He tied the loaves in a piece of cloth, a silver pot having Lussi and a glass of silver but no utensils i,e, piece of cloth, silver pot having Lussi, or glass of silver were recovered from the place of occurrence. He further stated that at the time of when Mst. Riaz Begum having been hit, the complainant was on the roof top of house of Suba Khan at a distance of 7/8 Karams. Site plan Exh.P.L. Point No,3 is that roof of house of Suba Khan from where the P.W.16 Muhammad Ashraf and P.W.15 Raja Zahoor Hussain-complainant had witnessed the occurrence but this fact of seeing the occurrence from the house of Suba Khan has not been mentioned in the complaint Exh.P.B. The case of the prosecution is that Raja Zahoor Hussain P.W.15 was used to ply the Hi-ace No,5205 for taking and dropping the passengers. He had no driving licence. He stated that if he is asked he can produce the same but the admitted fact is that he did not produce the licence in Court. He further stated that Hi-ace Pick-up driven by him was purchased by him on instalment and its ownership has not yet been transferred to him. He could not produce any receipt evidencing the payment of instalments. He did not produce the driving licence during the investigation of the case or any other evidence regarding the ownership of the vehicle before the. Investigating Officer. He did not know that how many days prior to the occurrence his Phuphi was suffering from fever.
21. P.W.16 Muhammad Ashraf is Khalazad of the deceased of Najam Khan as his mother and the mother of deceased Najam Khan were sisters. He is also chance witness because he resides at Baila. He stated that he Went to the house of Suba Khan at 7-00/7-15 a.m. At that time, Suba Khan his wife, Najam Khan deceased and other children were also present in his house. Zamurd Khan deceased was not present in the house at that time. Prior to his arrival, none else except,the inmates of the house were present there. He further stated that he remained present in the house of Suba Khan for 10/15 minutes. During this time nobody had come in the house of Suba Khan. He excluded the presence of P.W.15 Raja Zahoor Hussain who had already-stated that he reached the house of Suba Khan at about 7-30 a.m. Though he claimed to be an eye-witness but he did not go to lodge the report. He stated that when first shot was fired they took shelter behind the house and a tree but we find no house or tree' in the site plan Exh,P.M. Which was regarding the murder of Najam Khan. The police had reached the place of occurrence after half an hour of Najam Khan having been murdered. Normally the delay in lodging the F.I.R. Is not fatal if the explanation has been given by the complainant or the prosecution to report the matter in time. Here the police saccording to the witnesses, had arrived at 8-20 a.m. But the report was not lodged till 10-20 a, m.
22. Before we proceed further to discuss the ocular account consisting of Khushi Muhammad P.W.17 and Muhammad Hayat P.W.18 along with the medical evidence/post-mortem report of Zamurd Khan prepared by Dr. Muhammad Zafar Iqbal P.W.10 along with his statement, we feel it proper to discuss the above said ocular account furnished by two witnesses Raja Zahoor Hussain, P.W.15 and Muhammad Ashraf P. W.16 along with the medical evidence available on the record. Prosecution case is that the accused Muhammad Iltaf fired at Najam Khan hitting him on his back. The second shot as fired by Iftikhar Ahmad hitting Najam Khan on the backside near the left scapula. The third shot was fired by the accused Haq Nawaz hitting Najam Khan on the left wrist. On sustaining these injuries, Najam Khan fell down whereafter the accused Muhammad Bashir alias Pervaiz fired a shot hitting Najam Khan on left side of his chest. Thereafter the accused Muhammad Ejaz fired a shot hitting Najam Khan (deceased) on the left upper arm. Then the accused Muhammad Iltaf fired another shot hitting Najam .Khan on the left upper arm. As a result of these injuries, Najam Khan died at the spot. Sequence of the fire attributed to the different accused would show that the accused allegedly fired six shots hitting Najam Khan on his different part of body. Doctor in his cross-examination stated that there were four bullet injuries on the dead body of Najam Khan and remaining four were wounds of exit. While narrating the description injury No,4 the Doctor noted that, "in my opinion the above 4 injuries were continuation of the injury Nol. By the same bullet". The doctor further opined that injury No,11 had been caused with a maximum distance of 3 feet as there was blackening around the wound. But no injury from three feet has been shown in the site plan Exh.P.M. Besides, that only four empty cartridges P.15/1-4 were taken into possession.
23. According to the prosecution version, Muhammad Bashir alias Pervaiz and Muhammad Ejaz appellants went to the door of the house of Faiz Ahmad accused and while standing in the door, they fired one shot each hitting Mst. Riaz Begum at her abdomen and arm who fell down and succumbed to the injuries. According to the site plan Exh.P.C. Regarding place of murder of Mst.
Riaz Begum point No,1 where Mst. Riaz Begum was murdered and from this place the blood-stained earth was taken by the police. Point No,2 from where Muhammad Bashir alias Pervaiz appellant made fire upon Mst. Riaz Begum and two empty cartridges of .7 mm rifle were recovered by the police, the distance between Point No,1 to Point No,2 is 30 feet. Now the examination of the Injuries Nos.1, 3 and 5 which are entry wounds are stated to be "margin were overted and blackened". Now it is established principle of law that blackening can occur on the wound if the shot is from within three feet. Allegedly two fire shots were made by Muhammad Bashir alias Pervaiz and Muhammad Ejaz appellant hitting Mst. Riaz Begum at her abdomen and arm but the medical evidence shows that there were three entry wounds and three exit wounds. Keeping in view of the ocular account furnished by complainant P.W.15 Raja Zahoor Hussain, Muhammad Ashraf P.W.16 and medical evidence, we are constrained to hold that medical evidence is in complete conflict with the ocular account.
24. As regard to the murder of Zamurd Khan, prosecution produced Khushi Muhammad P.W.17 and Muhammad Hayat P.W.18. They remained at the spot in Baila and did not come to the village or to report the matter to the police. Khushi Muhammad l.W.i7 is related to Muhammad Hayat P.W.18 as his son is married with the daughter of Muhammad Hayat P.W.18 who is real brother of Mst. Feroze Bibi, mother of the deceased Najam Khan and Zamurd Khan. Khushi Muhammad P.W.17 stated that on the day of occurrence, he and Muhammad Hayat P.W.18 had gone together to the Baila and left his house at 6/6-30 a.m. He further stated that Muhammad Hayat P.W.18 had gone with him on his asking as it was time for grazing the animals. This witness has been contradicted by Muhammad Hayat P.W.18 who stated that Khushi Muhammad P.W.17 met me along with his cattle at a distance of 1/1-1/2 acres from my house on my way to Baila. Similarly, they have contradicted each other on the question of taking meals. Khushi Muhammad P.W.17 stated that while leaving for the Baila, we took our meals and water along with us and we had to remain there till evening. On the day of occurrence, we have taken our meal from which were carrying by me and Muhammad Hayat separately. Whereas, Muhammad Hayat P.W.18 stated that, "I used to take my meal in the morning at my home and have my meals in the evening in the home when I come back to my house". He also stated that, "police had reached the place of occurrence at about 10-00 a.m. And at that time myself and Khushi Muhammad P.W.17 were there". Whereas the prosecution case as stated by the complainant Raja Zahoor Hussain and the police is that, the police reached at the place of occurrence early in the morning. The case of the prosecution is that Khushi Muhammad P.W.17 and Muhammad Hayat P.W.18 had gone to the Baila for grazing their animals and within their sight the accused Muhammad Ejaz and Muhammad Bashir alias Pervaiz caused fire-arm injuries to Zamurd Khan who died at the spot. Khushi Muhammad P.W.17 stated that, "the accused Muhammad Bashir alias Pervaiz accused-appellant fired first shot hitting the deceased Zamurd on left side of his abdomen under the chest. At about the same time, accused appellant Muhammad Ejaz fired at deceased Zamurd Khan hitting him on the arm again on the hand which he had placed on the injury". P.W.18 Muhammad Hayat stated that, "Muhammad Ejaz and Muhammad Bashir alias Pervaiz fired shots with their respective weapons hitting Zamurd Khan deceased who fell down and succumbed to the injuries". The statements of both these P. Ws. Do not corroborate with the medical evidence furnished by P.W.10 Dr. Muhammad Zafar Iqbal who conducted the post-mortem examination of Zamurd Khan. Both the accused were allegedly armed with Pacci rifles. P. W.10 Dr. Muhammad Zafar Iqbal stated that the dimension of injury No,1 found on the dead body of Zamurd Khan was 2 c.m. x 1-1/4 c.m. And there was no injury on the dead body of Najam Khan which could be of same dimension. Injury Nol. Which was wound of entry on Zamurd Khan shows that the dimension of injury was 2 c.m. x 1-1/4 c.m. Whereas, injury No,4 is a wound of entry on the palm of right hand in between the thumb and right index finger and was 1/2 c.m. x 1/2 c.m. Doctor further stated that maximum dimension of the injuries found on the dead body of Zamurd Khan in the post-mortem report Exh.P.G. Was 3/4 c.m. x 3/4 c.m. This can lead to one conclusion that not only the persons who caused injuries to Zamurd Khan were armed with different type of weapons but also that the injury caused to Najam Khan by the accused were also having different type of weapons than culprits who caused injury to Zamurd Khan were different accused. In case reported as Saindad and 2 others v. The State 1972 SCM R 74 it was ruled that, "medical evidence inconsistent with account of occurrence as given by eye-witnesses.
' Empties seized but no weapons recovered. Accused in circumstances, given benefit of doubt and acquitted".
25. The case of the prosecution is that on 20-6-1997 Muhammad Bashir alias Pervaiz made disclosure that he can lead to the recovery of gun thereafter A.S.-I. Also interrogated Muhammad Ejaz who made disclosure that gun is also lying at the Dera of his co-accused Muhammad Bashir alias Pervaiz and he can lead to the recovery of the said gun. The A.S.-I. Along with 2/3 police officials, the witnesses and both the accused Muhammad Bashir alias Pervaiz and Muhammad Ejaz left the police station for recovery purposes. The accused persons took the police to the Dera of Muhammad Bashir alias Pervaiz in Baila. First of all Muhammad Bashir alias Pervaiz led to the recovery of gun P.13 from room of his Dera situated in Baila which was lying in an iron box and was taken into possession vide recovery memo. Exh.P.N. After making two sealed parcels the said recovery memo. Was signed by the witnesses. Thereafter, Muhammad Ejaz led to the recovery of gun P.14 from the same room of the Dera lying in the earthen container (Bharola) and was taken into possession vide recovery memo. Exh.P.O. The said recovery memo. Was signed by the witnesses. While in cross-examination, he stated that at the time of recovery from the accused- appellant Muhammad Bashir alias Pervaiz P.W.12 Fazal Dad. Hafiz Safdar (given up) and Muhammad Ejaz had gone inside the room along with the police party. Meaning thereby that there was joint recovery from both the accused which F is not permissible under the law. It has been held in case reported as Nazeer and 2 others v. The State PLD 1989 Kar. 466 that, "joint and simultaneous recovery of weapons are of no value". In thi G case the Investigating Officer had not procured the attendance of independent witnesses Failure to do so would cast doubt on the factum of recovery as held in case of Sultan and others v. The State H 1987 SCM R 1177.
26. By discussing the above said evidence of the prosecution, we have led to the conclusion that not only the eye-witnesses were chance witnesses and closely related but also they were not present at the scene of occurrence. Their testimony has been found to be intrinsically unsound.
Besides, the occurrence having taken place in village, some evidence should have been available independently of such interested and uninspiring witnesses. The medical evidence was also found to be inconsistent. The recoveries have also been disbelieved.
27. Therefore, after excluding the entire prosecution evidence against the accused, the question for determination is whether there is plausible defence of the accused to be considered in juxta- position of the prosecution evidence or when the evidence is rejected, the statement of the accused is to be accepted as a whole or exculpatory part of the statement could be excluded from consideration and his conviction can be based on the exculpatory statement. There is no doubt that the statement of an accused recorded under section 342, Cr.P.C. May be taken into consideration but the Court cannot select, out of the statement, the passage which goes against the accused. Such statement must be accepted or rejected as a whole. In case reported as Faiz and another v. The State 1983 SCM R 76 it has been ruled that, "statement of the accused to be taken into consideration in entirely where conviction sought to be passed J entirely on such evidence". In case reported as Sultan Khan v. Sher Khan and others PLD 1991 SC 520 while interpreting section 342, Cr.P.C. The Honourable Supreme Court ruled that, "statement of an accused under section 342, Cr.P.C. Has to.Be taken into consideration in its entirety and not merely the exculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which K supplements the prosecution case and in such a condition, the exculpatory part if proved to be false may be excluded". In case reported as The State v. Muhammad Hanif and 5 others 1992 SCM R 2047 it was held that, "!Where the prosecution evidence stands rejected in its totality, the statement of the accused has to be accepted in totality and without scrutiny". In case reported as Muhammad Amin v Muhammad Khan and others 2002 SCM R 1473 it has been ruled that, "on excluding the prosecution evidence from consideration there was no option for the Court except to decide the fate of the case on the statement of accused. When the prosecution evidence stood rejected in totality then the statement of the accused had to be accepted". In the present case, the accused in their statement under section 342, Cr.P.C. Have given their version. All the accused except Muhammad Bashir alias Pervaiz pleaded innocence and denied the allegation levelled against them. They denied their participation in the occurrence and even presence at the place of occurrence. They stated that they have been falsely involved in this case on account of their relationship with Muhammad Bashir alias Pervaiz appellant who had committed the murder of his wife Mst. Riaz Begum and Najam Khan out of Ghairat. Muhammad Bashir alias Pervaiz appellant also pleaded innocence to the extent of murder of Zamurd Khan. So far as the murder of Mst; Riaz Begum and Najam Khan is concerned, he replied that, "Mst. Riaz Begum, my wife and Najam Khan deceased had illicit relations with each other. They had tried for their marriage. On 6- 6-1997 at 4-00 a.m. I saw Mst. Riaz Begum and Najam Khan in objectionable position and I lost my control and committed the murder of Najam Khan and Mst. Riaz Begum there and then. At that time, no other accused or any witness was present there".
' There is no other direct or indirect evidence connecting the accused-appellant Muhammad Bashir alias Pervaiz with the commission of murder of Zamurd Khan as such. Exculpatory part of the statement of the accused cannot be excluded. The statement has to be taken into consideration as a whole and plea advanced by the accused-appellant Muhammad Bashir alias Pervaiz has to be accepted in totality. This being so, we partly accept this appeal to the extent of Muhammad Ejaz appellant. He is given benefit of doubt under section 382, Cr.P.C. And is acquitted from the charge of committing murder of Mst. Riaz Begum, Najam Khan and Zamurd Khan. He shall be released forthwith if not required in any other case. Whereas, the appeal to the extent of Muhammad Bashir alias Pervaiz appellant is dismissed and he is sentenced to life imprisonment for committing Qatl- e-Amd of Mst. Riaz Begum as Ta'zir. He shall pay compensation of Rs,50, 000 to the legal heirs of the deceased. He is also sentenced to life imprisonment for committing Qatl-e-Amd of Najam Khan as Ta'zir. He shall pay compensation of Rs,50,000 to the legal heirs of the deceased. However, prosecution has failed to prove the case against the appellant Muhammad Bashir alias Pervaiz appellant for committing Qatl-e-Amd of Zamurd Khan, therefore, his conviction and sentence recorded by the trial Court is set aside. He is acquitted from the charge of committing murder of Zamurd Khan deceased. Since Muhammad Bashir alias Pervaiz appellant has confessed his guilt of committing Qatl-e-Amd of Mst. Riaz Begum and Najam Khan in a brutal way though under provocation out of Ghairat, therefore, to our mind, he is not entitled for the benefit of section 382-B, Cr.P.C.
' Murder reference is answered in negative.