' ABAIDULLAH KHAN, J.-By his judgment dated the 4th of January 1979, the learned Additional Sessions Judge, Sargodha, convicted Muhammad Afzal, son of Sultan Ali, Deve by caste, aged 28 years, and his servant, Hamid, son of Inayat, Kashmiri by caste, aged 19 years, residents of Chak No, 37/SB, Tehsil and District Sargodha, under section 302/34 of the Pakistan Penal Code for committing murder of Tasneem Akhtar, son of Bashir Ahmad (P. W. 8), aged 23/24 years, and under section 307/34 of the Pakistan Penal Code for committing murderous assault upon Hamid Ahmad (P. W. 9) who is not related to the deceased. Muhammad Afzal was sentenced to death and a fine of Rs, 5,000 or in default of payment thereof to rigorous imprisonment for a year and Hamid was sentenced to imprisonment for life and a fine of Rs, 1,000 or on failure to pay the same to six month's rigorous imprisonment on the first count of their conviction. The aforesaid amount of fine, if realized, was directed to be paid to the father of the deceased as compensation. In respect of conviction under section 307/34 of the Pakistan Penal Code, Muhammad Afzal was sentenced to three year's rigorous imprisonment and a fine of Rs, 1,000 or in default of payment thereof to six month's rigorous imprisonment and Hamid was sentenced to three year's rigorous imprisonment and a fine of Rs, 500 or in default of payment of the same to three months' rigorous imprisonment.
The sentences were directed to run concurrently. The convicts have come up in appeal to this Court.
2. Muhammad Ashraf, aged 50 years, brother of Muhammad Afzal, appellant, who was tried along with the appellants on the same charge, was, however, acquitted by the learned trial Judge.
3. Bashir Ahmad, complainant, has filed Revision Petition (No, 244 of 1979) for enhancement of fine imposed upon Muhammad Afzal appellant, and of the sentence of imprisonment for life awarded to Hamid appellant to death as well as against the acquittal of Muhammad Ashraf. Murder Reference (No, 51 of 1979) for confirmation of death sentence of Muhammad Afzal, appellant, is also before us. This judgment will dispose of the convicts' appeal, murder reference and the complainant's revision petition.
4. The motive behind the commission of murder of the deceased and murderous assault upon Hamid Ahmad was that six years before the present occurrence Tasneem Akhtar deceased had murdered Muhammad Aslam, brother of Muhammad Afzal appellant and Muhammad Ashraf acquitted accused. The complainant party in that case got a house and eight and a half acres of land as blood money and compromised the dispute. However, due to the grudge that they bore on account of murder of Muhammad Aslam, the appellants and their acquitted co-accused allegedly murdered Tasneem Akhtar and injured Hamid Ahmad.
5. The occurrence, as set out in the first information report Exh. P E which was lodged at 1-00 p.m., by Bashir Ahmad (P. W. 8), father of the deceased, on the 14th of March 1977, at Police Station Bhagtanwala, which is 11 miles away from the spat, and was recorded by Atta Ullah Khan, Sub- Inspector of Police and Station House Officer, P. W. 10, took place in the following manner. On the 14th of March 1977, at 11-00 a.m., Bashir Ahmad (P. W. 8), along with his son, Tahir Ahmad (P. W. 12), and one Manzoor, was at his dera situate in the area of Chak No, 37/SB and his deceased son, Tasneem Akhtar, was preparing grafts of lemon, when all of a sudden the appellants and Muhammad Ashraf acquitted co-accused armed with '12 bore guns came close to the deceased.
Muhammad Ashraf raised a lalkara that he would not escape alive and fired at the deceased who started running. The appellants and Muhammad Ashraf began chasing him and kept on firing.
Bashir Ahmad (P. W. 8), Tahir Ahmad (P. W. 12) and Manzoor ran after the assailants and implored them to desist. While running the deceased passed by the dera of Nazir Ahmad Langrial and turned towards the dera of Bashir Ahmad Langrial. Hamid Ahmad (P. W. 9) and Fazal Ahmad, who were present on the way near the dera, saw the deceased being chased and fired at by the assailants. At last the assailants practically overtook the deceased near the dera of Bashir Ahmad Langrial. Shot fired by Muhammad Ashraf hit the deceased in the "Mk and he fell down. Muhammad Ashraf placed his gun on the left temple of the deceased and fired a shot which of course injured him badly. The shot fired by Muhammad Afzal hit the deceased on the left elbow. Hamid fired a shot at the deceased and it hit him on the right wrist. Thereafter the three assailants fired many shots though no details are given. The deceased expired at the spot. The assailants then challenged the complainant, Tahir Ahmad and Hamid Ahmad. In a bid to save their lives Tahir Ahmad and Hamid Ahmad ran towards the village. The appellants pursued them and near the sugarcane field of Raja Hanif they fired upon them. Tahir Ahmad escaped unhurt but Hamid Ahmad was injured. Afzal, Aslam and other inhabitants of the village, who had come out of their houses, saw the occurrence. Seeing the people the assailants made good their escape. Hamid - Ahmad was removed to the District Headquarters Hospital, Sargodha. Bashir Ahmad went to Police Station, Bhagtanwala where he reported the matter two hours after the occurrence.
6. Atta Ullah Khan (P. W. 10) went to the spot, prepared injury statement of the deceased, Exh. P. F.
Inquest report in respect of his death Exh. P. G. And despatched the dead body to mortuary for post-mortem examination. He collected from the place of occurrence blood-stained earth, made it into a sealed parcel and took in his possession vide memorandum, Exh. P. H. He picked up four pellets from the spot and took them in his possession after having covered them into a sealed packet vide memorandum, Exh. P. P. J. He also picked' up two crime empty cartridges, Exh. P. 9/1-2, from the place of occurrence, covered them into a sealed parcel and took them in his possession vide memorandum, Exh. P. K. Exhs. P. H., P. J. And P. K. Were attested by, besides Atta Ullah Khan (P.
W. 10), Tahir Ahmad (P. W. 12) and Eazal Ahmad.
7. Atta Ullah Khan (P. W. 10) arrested the appellants and the acquitted co-accused on the 21st of March 1977. The investigation of the Case was transferred tq Hamid Nawaz, Inspector of Police, P. W.
13, on the 24th of March 1977. While in police custody Muhammad Alm] appellant led to the recovery of 12 bore gun, Exh. P. 7, from inside his house on the 29th of March 1977. Haruki Nawaz (P.
W. 13) made the gun Exh. P. 7, into a sealed parcel and took it in his possession vide memorandum, Exh. p.m. Whose attesting witnesses were Muhammad Siddique (P. W. 11) and Khan Muhammad.
The same day Hamid appellant got recovered 12-bore gun, Exh. P. 8, from underneath the heap of cotton sticks lying in the courtyard of his house. Like the other gun it was also covered into a sealed packet and taken possession of by Hamid Nawaz (P. W. 13) ride memorandum, Exh. P.M. Which was attested by the same recovery witnesses.
8. There is nothing on the record as to what recovery was made from or at the instance of Muhammad Ashraf, the acquitted accused. As a matter of fact the Police on investigation found him to be innocent.
9. According to the report of the Government Examiner of Fire-arms, Exh. P. Q. (at page. 11 of the paper book), one of the crime empty cartridges picked up from the spot by Atta Ullah Khan (P. W.
10) was found to have been fired from the gun, Exh. P. 7, recovered at the instance of Muhammad Afzal appellant.
10. Earth collected from the spot was found by the Serologist, vide his report, Exh. P.
0. (at page 10 of the paper book), to be stained with human blood.
11. Doctor Inamul Haque, Medical Officer, District Headquarters Hospital, Sargodha, P. W. 7, performed autopsy on the dead body of Tasneem Akhtar deceased on the 15th of March 1977, at 8- 30 a.m., and found the following injuries thereon :- "(1) A gunshot wound of entrance 2" x 3/4" on the left jaw in front of left ear. Upper jaw, lower jaw and all the teeth were broken, lower jaw was broken on both the sides. Tongue was injured. Bone below the nose was also broken.
' There was charring and blackening in the ear and around the wound in the area of 3-1/2 x 3'. The card and some pieces of pellets were removed from this wound.
(2) At the left angle of the mouth there was a wound of exit 1' x 1/2' of No, I and a small gun-shot fire-arm wound of exit on the left lower lip at the chin 1/4' x 1/2".
(3) Wounds of exit of No, I on the right cheek at the right angle of the mouth 2-1/4" X 1/2', on the right cheek 3/4' x 1/2', on the outer side 1/4' x 1/2", at the lower lip on the chin 1/4" x 12". At the lower lip on the chin 1/4" x 1/2".
(4) Wound of exit at the middle of the left upper arm, elbow-joint, and middle of left forearm 6-1/2" a 3k'. All the muscles, bone of the upper arm (Numerous) and ulna bone of the forearm (radious) were fractured.
(5) Wound of entrance at the inner side of the left elbow-joint 4-1/2 a 2' of gun-shot fire-arm wound and gatta was removed from this wound. This was a wound of entrance of No, 4 (wound of exit).
(6) Gunshot wound of entrance on the left side of back of chest below the shoulder blade 1-1/4' x 3/4' deep to the thorax cavity.
(7) A gunshot wound on the inner side of the left arm just near the armpit at the front border 1/2' ar 1/4' deep to the chest cavity.
(8) A gunshot wound on the left side of the chest 3-1/2 lateral side of the nipple towards the armpit x 1/2" deep to the muscle.
(9) A wound of exit on the right shoulder below the clavical on the front side 1/2" x 1,2", this can be wound of exit No, I. .
(10) A contused mark at the right upper arm 3" x 2'.
(11) A gunshot fire-arm wound of entrance 21' x 1 r on the outer side of the middle of the right forearm.
(12) A guhshot fire-arm wound on the inner side of the right forearm w x 2*.
(13) two circular scars of wounds 1/2' X 1/2' at a distance of one inch from each other on the left side of the abdomen. A piece of pellet was removed from the 2 inches medial side of the abdomen."
' All the visceras of the scalp, skull, vertebra, membrane, brain and spinal cord were healthy. The pleura was injured. All the visceras of abdomen were healthy. Mouth and tongue were injured.
There was semi-digested food material present in the stomach. Small intestines were empty and healthy. Large intestines contained some faecal matter, Urinal bladder was empty. All the injuries were ante-mortem. In the opinion of the Medical Officer death had occurred due to shock and haemorrhage as a result of multiple injuries caused by gunshot. Each of the injuries Nos, 1 and 6 was sufficient to cause death in the ordinary course of nature. Probable time between causing of injuries and death was assessed by the Medical Officer to be immediate or within half an hour and between death and post-mortem examination within 24 hours. Exh. P. D. Is the copy of the post- mortem examination report and Exhs. PD/1 and PD/2 are diagrammatic sketches indicating location of injuries.
12. Doctor Muhammad Firdos. Medical Officer, District Headquarters Hospital, Sargodha, P. W. 5, examined Hamid Ahmad (P. W. 9) on the 14th of March 1977, at 3-00 p.m., and found the following injuries on his person :- AI) A contused circular wound of entrance 3/8' x 3/8' going deep on the back of right buttock. Mark was present on dhoti and was signed.
(2) A contused circular lacerated wound of entrance 1/2' x 1/8' x muscle deep on the back of right leg in its middle 1/3rd.
(3) A circular wound of exit 1/2' x 1/4' muscle deep x on the outer side of back of right leg with margins of laceration."
All the injuries were caused within 4 to 5 hours as a result of fire-arm shots. Exh. P. B. Is the copy of the medical examination report.
13. The appellants and their acquitted co-accused denied their participation in the commission of alleged crime. The appellants disowned recoveries of guns, Exhs. P. 7 and P. 8, at their instance.
Muhammad Afzal said that the recovery of gun, Exh. P. 7, had been planted on him and that the crime empty was fabricated by the police from the gun supplied by the complainant party.
Muhammad Afzal and Muhammad Ashraf said that they had been falsely implicated due to enmity. Hamid appellant's defence was that he had been falsely involved due to party faction in the village. Muhammad Ashraf, the acquitted accused, examined in defence Iftikhar Ahmad, Head Constable, Police Station, Bhagtanwala, who produced the register of the Police Station for the year 1945 and a copy of First Information Report No, 46, dated the 6th of June 1945, Exh. DD, indicating registration of case at the instance of one Mirza Khan, but the case on investigation turned out to be false. Evidence adduced in defence by Muhammad Ashraf is of little use to the appellants.
14. The learned trial Judge believed the ocular evidence produced by the prosecution against the appellants and found corroboration as against Muhammad Ashraf appellant in the matching of the crime empty cartridge found at the spot with the gun, Exh. P. 7, recovered at his instance. He formed the view that Muhammad Afzal must have a grudge against the deceased for the latter having murdered the former's brother. The result of Police Investigation declaring Muhammad Ashraf to be innocent and absence of any recovery from him influenced the mind of the learned trial Judge for acquitting him. He thought that the eye-witnesses viz-a-viz Hamid appellant were independent and on that score their testimony in respect of him needed no corroboration. Any way he considered the recovery of gun, P. 8, at his behest to be sufficient corroboration of the evidence of the eye-witnesses. Therefore, he convicted the appellants.
15. In appeal the learned counsel for the appellants contended that the ocular evidence of the occurrence was not worth placing reliance upon as it was of highly interested nature and it was not corroborated by any independent evidence. In these circumstances, the learned counsel submitted, the appellants could not be held guilty on the basis of biased testimony of the prosecution witnesses. It is true that the eye-witnesses in this case are not disnterested persons.
Bashir Ahmad (P. W. 8) is the father and Tahir Ahmad (P. W. 12) is the elder brother of Tasneem Akhtar deceased. Hamid Ahmad (P: W. 9) is their partyman. Their evidence implicating Muhammad Ashraf, the acquitted accused, has not been found true. Therefore, the rule of caution requiring corroboration from an independent and unimpeachable score will have to be applied before accepting their testimony at face value.
16. The occurrence took place in broad daylight. The appellants were the residents of the same village where the eye-witnesses lived. Therefore, the appellants' identity could not have been mistaken by the eye-witnesses. The learned counsel tried to make much capital out of the absence of any independent witness. He maintained that the occurrence took place in the fields during day time and it was inconceivable that no other unconnected person was present in the fields to witness the assault carried out by the appellants. It is possible that some other persons might have seen the appellants launching the fatal attack upon the deceased. However, in view of the previous blood feed between the parties none would have loved to come forward, for obvious fear of cultivating life long enmity with the appellants and their family, to speak the truth at the bar.
It is not uncommon in the rural society for people to shun giving evidence against an accused for quite often a courageous truthful witness has to pay heavily afterwards in the sense that the party against whom he appears retaliates sometimes in most undesirable and unpleasant manner. In these circumstances to sum up courage to appear as witness in the Court against an accused is by no means an easy task. So reason for non-appearance of any disinterested person to bear testimony to the eye-witness account of the occurrence in this case is understandable.
17. Learned counsel for the appellants argued that a period of no fewer than six years had elapsed since murder of Muhammad Aslam brother of Muhammad Afzal appellant, at the hands of the deceased had taken place, the parties had compromised the dispute and had lived peacefully during all this period and consequently any grievance on account of murder of Muhammad Aslam, if there had been any, had vanished and, therefore, the appellants could not be said to have any motive to murder the deceased. He submitted that in such a situation the alleged motive set up by the prosecution having found to be false the evidence of the prosecution witnesses should be scrutinised with utmost care. He referred to the rule enunciated by the Supreme Court in Ilabibullah v. State (1) in support of his contention. It. Is difficult to concede the contention of the learned counsel that commission of murder by the deceased of the brother of Muhammad Afzal appellant would not have furnished a motive for the murder of the deceased. The ill-feelings developed by Muhammad Afzal might have subsided for some time but cannot be said to have been completely extinguished. Therefore, we would like to proceed to examine the evidence on the premises that the acrimonious feelings generated by the murder of Muhammad Aslam by the deceased motivated the appellants do away with the deceased and injure Tahir Ahmad (P. W. 12) who was involved with them in litigious affairs.
18. Quoting the observations made by this Court in Muhammad Munir v. State (2) the learned counsel urged us to insist upon independent and strong corroboration of the testimony of the interested eye-witnesses for recording finding of guilt against Muhammad Ashraf who has earned acquittal. We are in agreement with the learned counsel that for holding the acquitted accused as guilty, who had been implicated by the same eye-witnesses who gave evidence against the appellants, a strong independent corroboration of the ocular evidence will be necessary.
19. Bashir Ahmad (P. W. 8), Hamid Ahmad (P. W. 9) and Tahir Ahmad (P. W. 12) substantially described the occurrence and what the appellants and their co-accused did in the terms mentioned in the First Information Report and referred to above. Hamid. Ahmad (P. W. 9) received gunshot wound and was injured at the hands of the appellants. His presence is well-marked at the time and scene of occurrence. These eye-witnesses attributed causing of fatal injuries to the deceased to Muhammad Ashraf the acquitted accused. Muhammad Afzal appellant was ascribed the specific part of firing at and injuring the left elbow of the deceased. Specific shot fired by Hamid appellant was said to have hit the right wrist of the deceased.. Injury No, o found on the body of the deceased was not specifically attributed to any one of the appellants or their acquitted co- accused.
(1) PLD 1969 SC 127 (2) PLD 1978 Lab. 938
20. The most important piece of evidence lending corroboration to the testimony of the eye- witnesses in the case,of Muhammad Afzal appellant is the recovery of the crime empty cartridges from the spot, of the gun, Exh. P. 7, at his instance and matching of one of the aforesaid crime empty cartridges with Exh. P.
7. None of the crime empties was found to have been fired from the gun, Exh. P. 8, which Hamid appellant got recovered. Therefore, corroboration in his case is not forthcoming. Corroboration was also found lacking in respect of Muhammad Ashraf, the acquitted accused, from whom no recovery of any incriminating article was effected.
21. By comparison of the facts of the cases Saee v. State (1), Pehlwan v. State (2), Mumtaz Ahmad v.
State (3) and Talib Hussain v. Fazal Hussain (4) with those of the instant Case the learned counsel for the appellants tried to show that the recoveries of the crime empties and the gun, P. 7, could not be treated as genuine. He pointed out that as in Saee v. State the place where the crime empties were found lying was not shown by Muhammad Shard pat wart (P. W. 4) in the site plan prepared by him and further the attesting witness of the recovery memorandum, Exh. P. K. Was no other than the eye-witness to the occurrence, namely, Tahir Ahmad (P. W. 12). In Pehlwan v. State the recovery of the weapon of offence, a hatchet, sought to be proved by the complainant and the Investigating Officer was brushed aside as ingenuine. In Mumtaz Ahmad's case compliance with the provisions of section 103 of the Code of Criminal Procedure was not found to have been secured inasmuch as instead of procuring attestation of respectable inhabitants of the locality where the recovery took place residents of distant places were imported to witness and attest the recovery proceedings and, therefore, the recovery of the weapon of offence and of the blood-stained clothes at the instance of the accused was not believed. In Talib Hussain v. Fazal Hussain the First Information Report contained' elaborate details of the occurrence and, therefore, absence of any reference to crime empties ' therein was considered as one of the factors to reach the conclusion for not accepting their recovery as set up by the prosecution. The First Information Report in the instant case does not give meticulous details covering every facet of the occurrence. Muhammad Sharifpatwari (P. W. 4) prepared the site elan, Exh. P. A. a week after the occurrence had taken place. He was to indicate various locations in the plan as told by the witnesses. It is possible that some one might not have pointed out to him the place where the crime empties were found lying before they were picked up by the police. Nevertheless such place was indicated by the Investigating Officer in the plan and explained in his Note No,
4. The presence of the crime empty cartridges at the spot finds mention in the inquest report prepared by the Investigating Officer soon after the occurrence. As would be presently' noticed these crime empties were deposited in the malkhana of the Police Station from where they were despatched to the Forensic Science Laboratory, Lahore, before Muhammad Afzal appellant was arrested.
22. Apart from questioning the authenticity of the recovery of the empty cartridges from the place of occurrence and of the gun, Exh. P. 7, at the behest of Muhammad Afzal appellant' the learned counsel maintained that as the recovery witnesses produced by the prosecution were no other
(I) PLD 1974 Lah. 184 (2) 1975 P Cr. L J 1096 . (3) 1974 P Cr. L 137 (4) PLD 1976 SC 518 than close relatives of the deceased the so-called corroboration could not be described as independent. The recovery of the crime empties. Exh. P. 9/1-2, was attested by Tahir Ahmad (P. W.
12), an eye-witness of the occurrence, and Ata Ullah Khan (P. W. 10), the Investigating Officer. Haji Muhammad Siddiq (P. W. 11), maternal uncle of the deceased, and Hamid Nawaz (P. W. 13), the other Investigating Officer, have borne testimony to the recovery of the gun, Exh. P. 7, effected at the instance of Muhammad Afzal appellant. No doubt Tahir Ahmad (P. W. 12) and Muhammad Siddiq (P. W. 11) are not disinterested witnesses and the proof of recoveries on the basis of their evidence alone cannot be accepted as requisite corroboration yet the evidence of the Investigating Officers in this behalf cannot be easily brushed aside. They were quite fair in conducting investigation of this case. They declared Muhammad Ashraf, acquitted co-accused of the appellants, to be innocent. They did not plant a gun matching with a crime empty picked up from the spot upon Hamid appellant. It has not been shown that they were inimically disposed towards the appellants or that they had any motive falsely to involve them in the case. There is no proof of their manipulating the investigation in a partial manner. Hence it would be legitimate to bank up their testimony for proving the recovery of the Crime empties, Exh. P. 9/1-2 from the place of occurrence as also of the gun, Exh. P. 7, from the house of Muhammad Afzal appellant at his instance. The proposition that recovery can be proved by evidence of Investigating Officer alone has been endorsed by this court as also by the Supreme Court in, among others? Islamul Haq v. State (1), Khaqan v. State (2) and Mumtazuddin v. State (3). Therefore, in the circumstances of the case the recovery of the crime empties from the spot and of the gun, Exh. P. 7, at the instance. Of Muhammad Afzal appellant are established beyond doubt.
23. Referring to Ghulam Kadir v. State (4) and Piaremlan v. State (5) the learned counsel urged us to disbelieve the recovery of the gun Exh. P. 7, as it had been effected by the police eight days after the arrest of Muhammad Afzal appellant. He also invoked the aid of Talib Hussain v. Fazal Hussain
(6) to persuade us to exclude from consideration the report of the Firearms Expert which confirms firing of are of the crime empties collected from the spot from the gun, Exh. P.
7. The pertinent facts relating to the point in issue of the cases cited by the learned counsel are distinguishable from those of the present case. In Talib Hussain's case the crime empties collected from the spot and the gun recovered from the accused the same day remained in the custody of the police till a a week thereafter when they were despatched to the Fire-arms Expert. It was alleged by the accused in his examination under section 342 of the Code of Criminal Procedure that the crime empties had beep prepared by the police from his gun after its recovery. It was mainly in view of the fact that the crime empties and the gun were in the custody of the police who had the opportunity of dealing with them that it was observed by the Supreme Court that the possibility of fabrication could not be wholly excluded and it would not be safe to rely upon the report of the expert to connect the accused with the commission of crime.
(1) 1974 P Cr. L J 6 (2) PLJ 1975 Cr. C. (Lab.) 402
(3) PLD 1978 SC 114 (4) 1978 P Cr. L J 316
(5) 1978 P Cr. L 7 369 (6) PLD 1976 SC 518
24. What happened in this case was that after picking up the crime empties, Exh. P. 9/1-2, from the spot on the 4th of March 1977, Ata Ullah Khan covered them into a sealed parcel and sent them through Munawar Hussain constable, P. W. 1, to Police Station Bhagtanwala where they were duly deposited by Iftikhar Hussain, Muharrir Head Constable, P. W. 2, on the 16th of March 1977. Two days later Iftikhar Hussain (P. W. 2) handed over the parcel, containing the empty cartridges, Exh. P. 9/1-2, to Naurang Khan constable (P. W. 3) for delivering the same in the office of the Forensic Science Laboratory, Lahore. Naurang Khan carried the parcel of the crime empties to the Laboratory which returned the parcel with certain objections to be removed by the police before it could be accepted. Naurang Khan brought back the parcel and made it over to Iftikhar Hussain (P. W. 2) on the 21st of March 1977. After removing the objections Iftikhar Hussain again gave the same parcel to Naurang Khan (P. W. 3) on the 25th of March 1977, for taking it to the Laboratory. Naurang Khan delivered the price at its destination the same day. Muhammad Afzal appellant was arrested on the 21st of March 1977, and got the gun, Exh. P. 7, recovered on the 29th of March 1977. Hamid Nawaz (P. W. 13) made the gun into a sealed parcel that very moment. The gun was sent to the Laboratory on the 21st of April 1977. It means that the crime empty cartridges, Exh. P. 9/1-2, and the gun, Exh. P. 7, never remained together in the possession of the police. As a matter of fact the crime empties had been despatched to the Laboratory three days before Muhammad Afzal appellant was apprehended. But for the objections raised by the Laboratory the crime empties would have been out of reach of the police on the 18th of March 1977. In any case the police had no opportunity of fabricating the crime empties. Non-matching of a crime empty with the gun, Exh. P. 8, recovered at the instance of Hamid appellant would point to the absence of any fabrication by the police in respect of gun, Exh. P. 7, or the crime empty which matched with it. Had the police been bent upon padding the evidence, it would have gone to the length of manufacturing evidence not only in respect of matching of empty cartridge with the gun, Exh. P. 8, which Hamid appellant got recovered but also would have implicated Muhammad Ashraf, the acquitted accused. Fairness of the investigation already commented upon excludes any possibility of planting of recovery of the gun, Exh. P. 7, by the police upon Muhammad Afzal appellant or of fabricating the crime empty which matched with it.
25. In Ghulam Kadir v. State the recovery of the gun, which was delayed by two days after the arrest of the accused, was attested by a chance witness of the occurrence which took place at night and was found to a unwitnessed one. It was observed that the witnesses had utilized the opportunity by giving the names of the accused after due deliberation whereas the crime was an act of only one man. It was in these circumstances that apart from other prosecution evidence the recovery of gun was looked upon with suspicion.
26. In Piaremian's case the occurrence had taken place in broad day light in a busy place but no independent and disinterested witness lad been produced by the prosecution. Motive assigned to the accused was adjudged to be weak and far-fetched. The only confirmatory evidence relied upon against the accused was the recovery of a revolver without any crime empty from the spot which took place after three days of the arrest of the accused and was considered on the evidence brought on the record and taking into account place (open space) and manner of recovery and absence of any independent person to witness it to be involuntary and doubtful.
27. In view of what has been said above the recovery of crime empt cartridges from the spot and the gun at the instance of Muhammad Afza appellant and matching of one of the crime empty cartridges with the gun clearly constitute strong corroboration of the ocular testimony o the eye- witnesses and link Muhammad Afzal appellant with the commission A of the murder of the deceased as also of murderous assault upo Tahir Ahmad (P. W. 12). The medical evidence furnishes added support in this behalf. In these circumstances Muhammad Afzal appellant was rightl convicted of the commission of murder of the deceased and murderous assaul upon Tahir Ahmad (P. W. 12) and we maintain the conviction.
28. However, mere recovery of gun, Exh. P. 8, at the behest of Hamid appellant does not connect him, in the absence of matching of a crime empty with it, with the commission of the alleged crime attributed to him. In his case independent corroboration of ocular testimony is wanting. Therefore, his conviction recorded by the learned trial Court cannot be maintained and the same is accordingly set aside. He is acquitted of the charge levelled against him. His appeal is accepted.
He shall be set at liberty forthwith if his detention is not required in any other case.
29. There was total absence of corroborative evidence in the form of any recovery in case of Muhammad Ashraf. He could not be linked In any manner with the commission of alleged crime.
He was rightly acquitted and we endorse his acquittal.
30. The question of award of sentence to Muhammad Afzal appellant for his commission of offence of murder has received our anxious consideration. According to the prosecution evidence brought on the record the only specific role ascribed to him is of injuring the right elbow of the deceased with the shot fired by him. It was Muhammad Ashraf, the acquitted accused, who was assigned the specific part of firing at the deceased by placing his gun close to the temple and also shooting at his chest thereby causing him fatal injuries. The specific injury attributed to Muhammad Afzal was simple in nature. He was not specifically alleged to have caused any fatal injury. As Muhammad Ashraf was not found to have actually fired at the deceased the fatal injuries attributed to him must have been caused by some one whose identity has not been disclosed in the evidence. There might be another assailant whom we do not know and who got away. The hard fact remains that on the basis of the evidence produced by the prosecution Muhammad Afzal cannot be fixed with the responsibility of causing specific fatal injury to the deceased.
31. Learned counsel for the complainant argued that participation of Muhammad Afzal appellant in the commission of premeditated murder of the deceased rendered him liable to be visited with the normal sentence of death on his conviction under the capital charge even though he might not have been proved to have caused fatal injury to the deceased. He invoked the aid of what has been laid down in Khairdi Khan v. Crown (1), Fateh Khan v. State (2), Shaheb Ali v. State (3) and Abdur Rashid v. Umid Ali (4) in support of his contention. He drew our attention to
(1) PLD 1951 Lah. 322 (2) PLD 1963 SC 89
(3) PLD 1970 SC 447 (4) PLD 1975 SC 229 the view expressed by this Court in Khairdi Khan's case that where the murder is premeditated and was committed with the intention to kill, all acting with that intention must be sentenced to death unless there be some other extenuating circumstances and referred. To the remarks made by the Court as reproduced below while commenting upon the inadequacy of reasons given by the learned Sessions Judge for awarding lesser penalty:- "If the reasons given by the learned Sessions Judge were to be accepted, it would mean that where a gang of assassins organise themselves into a firing squad and riddle their victim with bullets, none would get the capital sentence if the number of bullets striking the deceased is one less than the number of gunmen. And the same would be the result if any one of the several bullets fails to strike heart or any other vital organ."
' It may be useful to state in brief the facts of Khairdi Khan's case for the purpose of appreciating the significance of the High Court decision therein. The accused, Khairdi Khan and Dilawar Khan, were brothers, Jahandad was their father-in-law and. Sher Muhammad was Jahandad's son.
Jahandad was 60 years of age and Sher Muhammad was 20 years old. They acted in concert in putting the two brothers, Sher Bahadur and Khan Bahadur, to death. It was not clear which of the accused inflicted fatal injuries to the deceased. The reasons given by the learned Sessions Judge for not awarding the usual sentence of death were that Jahandad was an old man of 60 and Sher Muhammad was a young man of 20 who might have acted under the influence of his elders and it was not clear which of the appellants had inflicted fatal injuries. Further the learned Sessions Judge was of the view that in such a case of joint responsibility all the accused were to be treated alike in the matter of sentence and that they were all entitled to the benefit of lesser penalty. It was in this background that the High Court observed that though withholding of normal sentence of death from Sher Muhammad because of his youth and of the possibility of his having acted under the influence of his father and elder cousins was understandable the mere fact that a man who had taken part in a premeditated murder was an old man of 60 was no ground for taking a lenient view and in such a case of premeditated murder all sharing the common intention must be sentenced to death unless of course some other extenuating circumstances justified award of lesser penalty.
Sentence of Khairdi Khan, Dilawar Khan and Jahandad Khan was enhanced to death although Sher Bahadur was allowed to suffer the lesser sentence of transportation for life. The settled principle of making distinction in respect of a particular accused for giving him lesser sentence in view of extenuating circumstances was no doubt left undisturbed.
32. In Fateh Khan's case the deceased had been brutall done to death under a preconceived plan.
The number of injuries as noticed by the Medical Officer at the time of post-mortem examination on his dead body was 52 out of which 13 were incised wounds, 20 contusion marks, 5 contused wounds, 12 abrasions and 4 punctured wounds. Pleura, lungs, peritoneum, diaphragm and spleen had been punctured and ribs fractured. Though the principle of imposing lesser penalty in view of vicarious liability of a particular accused or the fact that he had not given the fatal blow was recognized yet in the circumstances of the case where a number of persons had inflicted a large number of injuries with the intention of causing death so that each contributed towards the death of the deceased it was not considered necessary for the purpose of imposing the maximum penalty to determine who gave the fatal blow. The last para. Of the judgment which is pertinent to the point in issue, may be reproduced below :- "While in the circumstances of a case the fact that a particular accused has not given the fatal blow or that his liability is only vicarious, may be a good ground for imposing the lesser penalty, in a case like the present where a number of persons inflict a large number of injuries with the intention of causing death so that each is contributing towards the death of the deceased, it is not necessary for the purpose of imposing the maximum penalty to determine who gave the fatal blow. In such a case all those accused to whom the Court attributes the intention of causing death in a brutal manner should (in the absence of some other circumstance justifying the imposition of the lesser penalty) be awarded the maximum penalty. It may be that in the case of a particular accused, although he too has caused some injury to the deceased the Court is not satisfied, having regard to all the circumstances that be shared such intention, but if it is so satisfied there is no need of proof of further facts in order to justify a sentence of death. In fact generally in cases of the kind with which we are dealing it will be difficult to determine who caused the fatal blow unless we were to rely on the statement of an interested witness who may have his own motive for attributing the fatal blow to a particular accused. If only those who inflicted the fatal injury are to be awarded the maximum penalty no one of the accused may in such cases. Be liable to such penalty. In the present case there is no reason to attribute to any of the persons who took part in this assault any intention other than that of causing death in a brutal manner. We are not, therefore, inclined to interfere with the sentence imposed by the High Court and dismiss his appeal."
33. In Shaheb Ali's case though the Supreme Court did not approve of the award of lesser penalty to two of the co-accused of the condemned appellant before it yet it reduced his sentence to lesser punishment in order to give him treatment at par with his co-accused. As is evident from the judgment all the three accused in the case had attacked the deceased concertedly and relentlessly under a preconceived plan. It was in these circumstances that the Supreme Court remarked that :- "When the guilt of several accused persons concerned in a murder crime is proved to be equal and indistinguishable, it would be wholly illogical to pick on just one person out of the lot to pay by his life for the murder of the deceased and to spare the others. If several persons combine to destroy one human life dastardly and with a deliberate design with no extenuating circumstances to mitigate the offence of any one of them, the long arm of the Law, according to its dictates, must reach all of them sternly and remorselessly in an equal manner."
34. In Abdur Rashid v. Umid Ali reduction in sentence of death was sought in view of lapse of six years and the accused's expectancy of survival but the Supreme Court did not agree. This decision does not deal with the point involved in the instant case.
35. As obseryed by the Supreme Court in, among others, Gul Ahmad v. Masan: Khan (1) cited by the learned counsel for the appellants authorities of that Court by and . Large proceed on peculiar facts of, each case and great care and caution was needed in their invocation. The decision in each case referred to by the learned counsel for the complainant was based on the special set of facts and circumstances obtaining therein. No general rule can be detected therefrom to apply to the facts of the present case so as blindly to sentence Muhammad Afzal appellant to death.
Indisputably recognition of the powers of the Court to give lesser sentence to an accused on his conviction of murder if there exist mitigating circumstances in his favour .Is apparent even from the perusal of the cases cited at the bar on behalf of the complainant.
36. Learned counsel for the appellants banked upon Mst. Nuran v. Nura (2), Shera v. State (3), Sibtain Shah v. State (4), Hadi Bux v. State (5), in support of his submissions relating to reduction of sentence of Muhammad Afzal appellant. Though Shera v. State does not properly fit in with the facts of the present case and it may be inapt to apply the reasoning adopted therein to alter the sentence yet the other three cases go a long way to tilt the balance in favour of Muhammad Afzal appellant for reducing his sentence. In Shera's case murder was a sequal of old blood feud and revenge for murder of the accused's brother. The sentence of death in the circumstances was changed to imprisonment for life. In the instant case the parties had effected a compromise and c had been living peacefully without immediate apprehension of commissio of any mischief on the part of the other. Nothing untoward had taken place shortly or immediately before the occurrence justifying the action of the appellants to despatch the deceased to death. Therefore, for the sheer reason of avenging his brother's death the appellant could not ask for reduction in his sentence.
37. In Mst. Nuran's ease, Nura along with his son had been tried for tripple murder and sentenced to death on three counts. Nura was one of the assailants of Admeera and Allah Ditta but there was no evidence for Admeera and Allah Ditta having suffered any injury as a result of his firing. He did not attack Mst. Nazir Elahi deceased. For that reason this Court reduced - his sentence of death to transportation for life on each count though his conviction under section 302/34, P. P. C. Was maintained. In appeal before the Supreme Court grievance was made to the effect that there' was no justification for this Court to reduce sentence of death awarded by the learned trial Judge to Nura for each of the two murders of Admeera and Allah Dittah on which he had been found guilty.
One of the grounds that prevailed with the Supreme Court for not enhancing sentence of Nura was that the prosecution had not positively established that it was Nura who had fired the fatal shots on either of the two deceased persons.
38. In Sibtain Shah v. State death of the deceased had occurred due to two stick blows given by the two accused but it was not clear as to whose blow had proved fatal. The extreme penalty was held not called for icy the circumstances and the death sentence awarded to both the accused by the trial Judge was reduced to imprisonment for life.
(1) 1977 SCMR 27 (2) PLD.1975 SC 174
(3) 1976 P Cr. L J 1028 (4) 1978 P Cr. L J 490
(5) PLD 1977 Kar. 1
39. In Nadi Bux v, State none Of the witnesses stated for definite that the fatal shot sustained by the deceased had been fired by the condemned appellant and the identity of the individual responsible for causing the fatal injury was not, discovered. The sentence of death was not confirmed and was reduced to imprisonment for life.
40. As has already been noticed Muhammad Afzal appellant is not stated to have caused fatal blow to the deceased; the only specific part he is alleged to have played was of causing simple 'injury to the right elbow of the deceased. He may be vicariously liable for the murder of the deceased but keeping ,in view the quantum of actual physical harm he is specifically said to have done to the deceased, he should not be awarded the extreme penalty. His is a case eminently fit for imposition of lesser penalty. Therefore, while maintaining his conviction under section 302/34 of the Pakistan Penal Code, we reduce his sentence of death to imprisonment for life. The death sentence given to him by the learned trial Judge is not confirmed. His conviction under section 307/34 of the Pakistan Penal Code and the sentence received by him in respect thereof are left undisturbed. With the exception of above alteration of his sentence, from death to imprisonment for life, hi appeal is dismissed. Sentence of fine remains unaltered. The sentences will run concurrently.
41. In view of the above discussion Criminal Revision (No, 244 of 1979) is dismissed.