Muhammad Nawaz Abbasi, J.--These connected jail petitions have been directed against the judgment dated 18.10.2002 passed by a Division Bench of Lahore High Court, Lahore whereby the appeals filed by the petitioners against their conviction and sentence of death under Sections 302(b) PPC and sentence of imprisonment for different terms under Sections 324/109 and 392/34 PPC and also under Section 148 PPC awarded to them by the Special Court established under Suppression of Terrorist Activities Act, 1975, at Sheikhupura, were dismissed.
2. The occurrence in the present case had taken place at 4.30 p.m. on 22.7.1996 in the area of Bara Ghar, District Sheikhupura and case was registered on the same day on a written report lodged by Muhammad Aslam, complainant (PW-16) wherein he stated that, Irfan Aslam, his son, was going on Honda motorcycle towards his sheller and when he reached near Adda Bara Ghar Chowk Bucheki, Muhammad Suleman armed with rifle, Nazeer armed with .222 rifle, Ashiq and Khadim Hussain alias Saddi armed with .12 bore guns, after snatching the motorcycle from him, directed him to instruct his father for payment of Rs. 50,000/- as Jagga Tax for release of motorcycle. Irfan Aslam brought the incident to the notice of his father, Muhammad Aslam, at his sheller in presence of Muhammad Ashraf, Shamshad Ahmed his paternal uncle (deceased), Muhammad Asghar the driver of his father, Muhammad Riaz and Muhammad Shafi, Meanwhile Muhammad Suleman, Muhammad Mansha, Naik Muhammad, armed with rifles, Ashiq and Saadi armed with .12 bore guns and Nazir armed with .222 bore rifle alongwith four unknown persons, reached there in a wagon and Muhammad Mansha while raising lalkara, that why jagga tax was not being paid, fired a shot which hit Shamshad (deceased) on his left flank and simultaneously Suleman fired a shot with rifle which hit him on his left eye. The second shot fired by Mansha hit Muhammad Ashraf (deceased) on his left thigh whereas one shot each fired by Saadi and Muhammad Ashiq with their gun also hit Muhammad Ashraf. The accused then made indiscriminate firing as a result of which Muhammad Asghar, driver of the complainant also sustained injuries. The motive for the occurrence was non-payment of Rs. 50,000/-demanded by the accused from complainant as Jagga Tax and this motive was proved through the direct evidence. Shamshad Ahmed (deceased) having sustained injuries, died at the spot whereas Muhammad Ashraf and Muhammad Asghar in injured condition, were taken to Allied Hospital, Faisalabad, and Muhammad Ashraf also succumbed to the injuries in the Hospital. Muhammad Sharif, S.I. (PW 23) after registration of the case, inspected the spot, prepared inquest report and injuries statement of Shamshad, deceased, and despatched his dead body for post-mortem examination to Tehsil Headquarters Hospital, Nankana Sahib. The Investigating Officer collected crime empties Of .7 mm rifle and .12 bore gun from the spot, in presence of Fateh Muhammad and Abdul Majeed and also secured blood stained earth from the two places. Dr. Khadim Hussain (PW-14) having conducted post-mortem examination of the deceased on 23.7.1996 observed the following injuries on his person:-- "1. A lacerated punctured wound through and through 3 x 2 c.m. on the left eye.
2. A wound of entry size 1/2 x 1/2 c.m. on the left side on the front of lower abdomen.
3.A wound of exit 2x2 c.m. on the back of waist, 6 c.m. lateral to the mid-line of back bone."
In the opinion of doctor, the injuries were caused with fire-arm and injury number 2 was fatal to the life.
3. The medical examination of Muhammad Ashraf (deceased) conducted by Dr. Muhammad Javed (PW 21) revealed the following injuries on his person:-- "A fire-arm wound of entry with blackly stained inverted margin 1/2 x 1/2 c.m. on the upper part of the inner side of the right thigh with a grazing lacerated wound of size 1/2 x 1/2, cm. On dorsum of penus, with the fire-arm would of exit of size 5x3 c.m. with everted margin on the upper part of posteriolteral side of the right thigh, bleeding profusely. Corresponding holes were present on shalwar and condition of the patient was serious.
4. Muhammad Asghar, driver of the complainant, an injured witness, who was medically examined by the same doctor on the same day, sustained five injuries of the following description:--
1. A fire-arm wound of entry 1/2 x 1/2 c.m. on the left eyebrow.
2. A fire-arm wound 1/2 x 1/2 c.m on front of right side of chest 4 cm from right nipple with inverted margin.
3. A fire-arm wound 1/2 x 1/2 c.m. with inverted margins of left side of chest 4 c.m. froth the left nipple.
4. A fire-arm wound 1/2 x 1/2 cm on the left side of front of abdomen with inverted margins, corresponding holes were found on kameez.
5. A fire-arm wound 1/2 x 1/2 cm on inner side of left leg with inverted margin. Fair less."
5. The Investigating Officer, after seeking permission of Dr. Khalid, resident Registrar of Allied Hospital, Faisalabad (PW-18), recorded statement of Muhammad Ashraf (deceased) under Section 161 Cr.P.0 and this statement of Muhammad Ashraf on his death on the next day in the hospital, was treated his dying declaration. The post-mortem examination of the dead body of Muhammad Ashraf was conducted by Dr. Khadim Hussain (PW-14) and following injury was traced on his person:-- "A wound of entry lx1 c.m. size on the dorsum of the penis of left side and exit wound 1/2 x 1/2 c.m. on the basis on the right side of tarsum of the penis and entry wound 1/2 x 1/2 c.m. on the medial and entrails part of the right thigh. On upper part at the level of 4 c.m. beloW the inguinal ligament in mid line."
6. The injury was caused with fire-arm which was found fatal to life. The accused in custody, except Mansha and Muhammad Ashiq, who were declared proclaimed offender led to the recovery of weapon of offence. The prosecution in addition to the ocular account, mainly placed reliance on the medical evidence, absconsion of two accused and recoveries of crime empties as well as weapon of offence, Muhammad Asghar, an injured witness was given up by the prosecution as won over, and he was called as Court witness whereas, Muhammad Shafi and Riaz were given up as unnecessary.
The petitioners in their statements under Section 342 Cr.P.C. denied the charge and pleaded false implication but did not prefer to make statement under Section 340(2) Cr.P.C.
7. The learned trial Judge having believed the eye-witness account furnished by Muhammad Aslam, complainant (PW-16) and Irfan Aslam (PW-17), duly supported by the medical evidence and motive held the petitioners namely Muhammad Suleman, Khadim Hussain, Naik Muhammad, Nazir Ahmed alias Jeera, Muhammad Ashiq and Muhammad Mansha guilty of the charges and awarded them sentence as under::-- Death on two counts as tazir Section 302 read with Section 149 PPC With a fine of Rs. 1,00,000/- each on each count and in default of payment of fine to undergo R.I. for two years each.
(a)Under Section 148 PPC RI for 3 years each with a fine of Rs. 20,000/- each and in default of payment of fine to undergo R.I for six month each.
(b)Under Section 324/109 PPC RI for 10 years each with a fine of Rs. 10,000/- each and in default of payment of fine to undergo R.I for one year each.
(c)Under Section 392 read with Section 34 PPC RI for 10 years each with a fine of Rs. 20,000/- each and in default of payment of fine to undergo R.I for one year each.
8. The High Court while dismissing their appeals maintained the conviction and sentence on the above charge awarded to them by the trial Court.
9. The learned counsel for the petitioners, has contended that Muhammad Asghar, driver of the complainant, an injured and a star witness of the occurrence, was not produced by the prosecution rather was examined as Court witness and he having denied the correctness of the prosecution version firmly stated that he as well as two deceased were caused injuries by unknown culprits and none of the petitioner participated in the occurrence. The learned counsel argued that the trial Court as well as the High Court has neither properly attended the evidence of this most important and natural witness nor appreciated that motive for the occurrence set up by the prosecution was not proved beyond reasonable doubt and petitioners had no other reason to commit the crime, therefore, the failure of the prosecution to prove the motive would reflect upon the correctness of the allegation against the petitioners. Learned counsel vehemently contended that concurrent findings of the two Courts regarding guilt of the petitioner being in utter disregard to the principle of appraisal of evidence was badly suffering from serious factual and legal infirmity and in support thereof, argued, that presence of two eye-witnesses namely Muhammad Aslam and Irfan Aslam was highly doubtful as none of them sustained a single injury as a result of firing of the accused and further Muhammad Riaz and Muhammad Shafi, who were closely related to the complainant, were not examined and their non-production would strongly suggest that they were not prepared to support the prosecution. Learned counsel lastly argued that in view of the findings of two Courts that fatal injuries were caused to the deceased by Muhammad Suleman and Mansha, the sentence of death awarded to all the petitioners was not justified.
10.The essential questions requiring determination in the present case would be (a) The petitioners did or did not participate in the occurrence and the two deceased as well as Muhammad Asghar, an injured witness, sustained injuries at the hands of unknown culprits, (b)
What was the effect of non-production of Riaz and Shafi, the two eye-witnesses of the occurrence, and whether evidence of Muhammad Asghar, an injured witness, who was given up by the prosecution as won over and was examined as Court witness on the request of the accused was reliable (d) whether the statement of Muhammad Ashraf, deceased, recorded by Sub-Inspector in the hospital in injured condition with permission of the doctor, who had also declared him fit to make statement, would acquire the status of dying declaration (e) The motive set up by the prosecution was or was not proved and whether occurrence did not take place in the manner as stated by the prosecution.
11.Learned counsel for the complainant, assisted by the learned State counsel, has contended that since Muhammad Riaz, injured witness, was not produced by the prosecution having been won over by the defence; therefore, his evidence was unworthy of any credence to be relied upon and must have been brushed aside. The second contention of learned counsel was that prosecution was not bound to produce all witnesses cited in the calendar of witness, therefore, non-production of two eye-witnesses, named in the FIR, would not be fatal to the prosecution to draw an adverse inference. The third contention of learned counsel was that the two eye- witnesses despite being real brother and nephew of the deceased. had no enmity or malice against the petitioners to falsely implicate them in the case of capital punishment and were quite independent and reliable witnesses. The mere relationship of the witnesses with deceased without any background of any enmity with the accused may not be sufficient to discard the evidence of the natural witnesses.
The third contention was that except the motive of Jagga tax there was no other reason for the accused to commit the crime and witnesses have also no enmity or malice against them for their false implication in the murder case. Lastly learned counsel argued that notwithstanding the role assigned to the individual accused, they having participated in the occurrence have committed the crime in furtherance of their common object, therefore, they having shared vicarious liability were equally responsible for the murder of two deceased therefore, the sentence of death awarded to them was quite in accordance with law.
12. There is no cavil to the proposition that the testimony of a hostile witness or a witness, who was not examined being won over was either produced by the defence or was examined as Court witness, must not be left out of consideration for mere reason that he did not support the prosecution rather the evidence of such a witness must be considered with utmost tare and caution. The testimony of a witness who speaks in the different tune at different times is certainly not reliable unless strong confirmatory evidence of independent character is available on record.
Similarly, the sole testimony of an interested witness without independent corroboration may not be confidence inspiring to be relied upon for conviction. The rule of independent corroboration is a rule of abundant caution which is followed in the interest of safe criminal administration of justice and is not a mandatory rule of law to be necessarily applied in each case. In the present case the defence having challenged the presence of the eye-witnesses namely Muhammad Aslam and Irfan Aslam at the scene of occurrence has questioned truthfulness of their evidence mainly on the ground that none of them sustained a single injury in the occurrence despite direct and indiscriminate firing made by the accused. The incident took place at the Sheller of the complainant and the presence of the complainant and his son at their Sheller was not questionable and their testimony was also not suffering from any inherent defect:
13. The perusal of record would show that the learned trial Judge as well as the learned Judges of the High Court having made detail scrutiny of the evidence in the light of principles relating to appreciation of evidence, have concluded that the petitioners were guilty of the charge and both the Courts placing reliance on the ocular account furnished by the natural witnesses of the occurrence held the petitioners guilty and we have found that concurrent findings of guilt of petitioners was not suffering from any legal or factual infirmity. The contention of the learned counsel for the petitioners that except Muhammad Asghar, an injured witness, who has not supported the prosecution, there was no other reliable evidence on record to establish the charge, has no substance. The presence of Muhammad Aslam and his son Irfan Aslam at their sheller from where the blood stained earth and empties were recovered, was quite natural and mere fact that they did not sustain injury in the occurrence, would not be a valid reason to discard or exclude their evidence from consideration. The deposition of these natural witnesses seeking ample support from recovery of crime empties of .12 bore gun and 7 MM rifle from the spot, the medical evidence and the motive for the occurrence was found reliable and confidence inspiring, therefore, the minor discrepancies and infirmities in their evidence pointed out by the learned counsel would have no material effect on the credibility of their evidence. In addition to the ocular account of unimpeachable character, the prosecution was also equipped with the statement of Muhammad Ashraf (deceased) which was recorded by the Investigating Officer on the day of occurrence with permission of doctor, who had declared the injured fit to make statement. The Investigating Officer has stated that he recorded the statement of deceased under Section 161 Cr.P.C at the time when he was facing struggle for life and even if this statement of deceased is not treated as his dying declaration the same would certainly provide a strong corroborative circumstance to the ocular account. However, even with the exclusion of this statement of the deceased from consideration, the charge against the accused stood proved beyond reasonable doubt on the basis of direct evidence of the natural eye-witnesses duly supported by the medical evidence and motive for the crime. We having examined the record with the assistance of learned counsel for the parties, have not been able to find out any substance in the contention of the learned counsel for the petitioners that the concurrent findings regarding guilt of petitioners arrived at by the two Courts were not based on sound principles of criminal administration of justice. The reliability of ocular account furnished by the quite natural and truthful witnesses seeking corroboration from independent source was above H board and we have not been able to find out any lacuna in the prosecution evidence to create a slight doubt qua the guilt of the petitioners. The minor discrepancies and the contradictions in the statements of the witnesses have no importance because the guilt or innocence of a person is judged on the basis of overall circumstances of the case and conclusion of the evidence. In the light of the prosecution evidence, facts in the background and circumstances leading to the happening of the occurrence we do not find any legal or factual defect in the conclusion regarding guilt of the petitioner. However, while keeping in view the role assigned to the individual accused we deem it proper to consider the question of sentence.
14.This is established on record that all the petitioners in furtherance of their common object armed with deadly weapons participated in the occurrence and committed the crime but we find that in the FIR Khadim Hussain alias Saddi and Muhammad Ashiq were attributed the role of firing one shot each with their respective weapons to Muhammad Ashraf, deceased and Irfan Aslam (PW-17) also deposed on the same lines, whereas Muhammad Aslam (PW-16), the lodger of First Information Report has simply assigned them the general role of indiscriminate firing at the scene of occurrence.
15.The medical evidence also revealed that Muhammad Ashraf, deceased sustained only one injury on thigh which punctured the main vessel and caused extensive bleeding as a result of which he lost his life. Similarly Naik Muhammad and Nazir Ahmed alias Jeera are attributed general role of firing at the scene of occurrence. In view thereof the case of above named four accused is distinguishable to that of the petitioners namely, Muhammad Mansha and Muhammad Suleman who have been attributed specific role of causing fire-arm injuries to the two deceased which proved fatal to their lives and consequently the sentence of death awarded to Muhammad Suleman and Muhammad Mansha on two counts is maintained as such under 302(b) PPC, whereas the sentence of death awarded to Khadim Hussain, Muhammad Ashiq, Naik Muhammad and Nazir Ahmed alias Jeera on two counts is reduced to life imprisonment on each counts and they shall also be entitled to benefit of Section 382-B Cr.P.C. The different sentences awarded to all the petitioners on all other charges are maintained. These jail petitions to the extent of Khadim Hussain, Muhammad Ashiq, Naik Muhammad and Nazir Ahmed alias Jeera are converted into appeals and with the above modification of their sentences, are partly allowed whereas the jail petition of Muhammad Mansha and Muhammad Suleman is dismissed and leave is refused.