' SAEEDUR REHMAN J.-The appellants, Malik (aged, 30 years), Gaman alias Ghulam Muhammad (aged, 24 years) and Yaqub (aged, 35 years) were convicted by a learned Additional Sessions Judge at Sheikhupura of an offence under section 302 read with section 34 of the Pakistan Penal Code for causing the death of Amir Khan deceased. For this offence Malik and Gaman appellants were sentenced to death while Yaqub appellant was ordered to undergo imprisonment for life.
They were also asked to pay fine of Rs, 4,000 each, or, in default, to receive rigorous imprisonment for six months. The appellants have preferred a joint appeal against their conviction and sentence while the learned Additional Sessions Judge has also made a reference to this Court under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed upon Malik and Gaman appellants. This judgment will dispose of both these matters.
2. The parties were residents of Chak Nara within the jurisdiction of and at a distance of eight miles from Police Station Chuharkana, District Sheikhupura. It was the case of the prosecution that some three years before the occurrence, Abdul Hay father of Gaman and Yaqub appellants was murdered. For that murder Bata, Sada and Haider, close relations of Amir Khan deceased, were challaned. About a month before the occurrence, the appellants informed the deceased through Ahmad (P. W. 8) and Tahira (P. W. 11) that as they had since learnt that he was behind the murder of their father and also pursued the case, they would avenge the murder. On the day of occurrence, that is 23rd June, 1972, Nazar Hussain (P. W. 9) together with his father Amir Khan deceased and nephew Muhammad Hussain was present at their' dera in the village, while his brother Ghulam Ali (P. W. 10) had gone to the village kharas for milling wheat. At about 4 p. m. The deceased accompanied by Muhammad Hussain also went towards the kharas. After half an hour, he too, proceeded towards the village. On his way, he met Tahira (P. W. 11) in front of the village mosque.
While they were still talking, they saw the deceased along with Muhammad Hussain coming from the side of the kharas. The deceased started talking with one Mathela outside his house. In the meantime the appellants variously armed arrived there. Yaqub was carrying a rifle, Gaman a gun and Malik was armed with a pistol. Yaqub appellant exhorted his companions to kill the deceased.
Gaman and Malik appellants rushed forward and simultaneously fired at the deceased hitting him on the abdomen and the chest, and he fell down. Just then, Ghulam Ali (P. W. 10) also arrived.
Mathela took shelter behind the wall of his house. Nazar Hussain (P. W. 9) raised an alarm and called his brothers for help. The appellants ran towards the village. Nazar Hussain (P. W. 9) ran to his dera and brought a gun. When he tried to remove the deceased who was still alive, the appellants came back and again started firing and he too, returned the fire. The appellants fled away when the people gathered there. The deceased was removed to his house but he died shortly thereafter. Nazar Hussain (P. W. 9) on the same day at 7. 30 p. m lodged F. I. R. Exh. P A at the Police Station recorded by Moharrir A S I Abdul Hameed (P. W. 2).
3. Dr. Muhammad Yusaf, the Medical Officer D H Q Hospital Sheikhupura, on 24th June, 1972 at 10 a. m., performed the post-mortem examination of the deceased and found two fire-arm injuries. Of these, one comprised nine pellets wounds of entry in an area of 3" x 2" on the abdomen and the other a bullet wound of entry 2" x 1" on the chest. The seventh and eighth cartilages had been found to be partially fractured, the left lung injured and lower dorsal vertebra perforated. A bullet and two pellets were removed from the wounds. He opined that the death had occurred due to shock and hemorrhage on account of the injuries which were sufficient in the ordinary course of nature to cause death.
4. The case was mainly investigated by S.
1. Mukhtar Ahmad (P.W. 16) who, at the relevant time, was the S.H.O. Of the Police Station. He arrested Malik appellant on 28th June, 1972. A. S. I. Muhammad Amin (P. W. 15), on 13th July, 1973, took over the custody of Yaqub appellant from the C. I. A. Staff Sheikhupura. Malik Abdul Hameed (P. W. 17) who was the S. H.
0. Of the said Police Station in April 1973, arrested Gaman appellant on 1st April, 1973.
5. The appellants pleaded not guilty to the charge and denied the allegations against them. They attributed false implication due to enmity and party faction. They led no evidence in defence.
6. The case of the prosecution rests entirely upon the ocular account provided by Nazar Hussain (P.
W. 9), Ghulam Ali (P. W. 10) and Tahira (P. W. 11). Muhammad Hussain and Mathela also cited in the F. I. R. As eyewitnesses were given up by the prosecution as being unnecessary. Nazar Hussain (P.
W. 9) and Ghulam All (P. W. 10) were closely related inter seas also to the deceased. Thus they were real brothers while the deceased was their father. Tahira (P. W. 11) was not related on either side.
The appellants too, were closely related inter se; Thus Gaman and Yaqub appellants were real brothers. They were the sons of Abdul Haq while Malik appellant was his cousin. Nazar Hussain (P.
W. 9) has admitted that even before the murder of Abdul Haq, enmity existed between the parties.
In this view of the matter, the testimony of Nazar Hussain (P. W. 9) and Ghulam Ali (P. W. 10) shall have to be scrutinized with extra care and caution.
7. The eye-witnesses made consistent statements at the trial fully supporting the prosecution case as given in the F. I. R. The learned counsel for the appellants contended that they were chance witnesses and their claim to have witnessed the occurrence was doubtful. He argued that Nazar Hussain (P. W. 9) had no specific purpose to visit his uncle's house, Ghularn Ali (P. W. 10) would not have left the kharas without completing the work in hand and Tahira (P. W. 11)'s claim to have gone to the mosque was belied by the fact that he did not offer his prayer in congregation for which purpose he had gone there. But we do not find ourselves in full agreement with the learned counsel.
8. The dera and the adjacent house of the complainant party are situated in the village abadi towards its south. The place of occurrence lies outside the house of Mathela at a short distance towards north and the village Bazar runs by its side. The houses of the appellants are placed further north about two killas away. The house of Amir Khan, uncle of Nazar Hussain (P. W. 9), is located about one and a half killas from the dera towards north and in between lies the village mosque while the kharas is situated at a distance of two killas towards south. Site plan Exh. P F prepared by S. I. Shahbaz Khan (P. W. 13), though not accord in to scale, also giv3s a fair idea about the location of the places. Thus it will be seen that all the relevant places are situated closeby within a radious of about two killas.
9. There was nothing unusual about the visit of Nazar Hussain (P. W. 9) to his uncle's house only at a short distance. Nor, there must be a specific purpose to visit such a near relation in close vicinity.
Having seen the appellants shooting at the deceased, he ran to his house to fetch the gun with a view to retaliate. No doubt, Ghulam Ali (P. W, 10) admitted that when he saw Nazar Hussain (P. W. 9), for the first time, he was armed with a gun. But this is not inconsistent with the claim of Nazar Hussain (P. W. 9), for, earlier, Ghulam Ali (P. W. 10) had only heard his alarm and he might not have noticed him before he ran for the gun. Therefore, it cannot be said that he was not a natural witness. However, in view of his close relationship with the deceased and the previous enmity between the parties, we do not consider it safe to accept his testimony without independent corroboration which is lacking.
10. Ghulam Ali (P. W. 0) was in the midst of milling the wheat. It was unlikely that he would have left before finishing the job particularly when none else was present to look after the kharas. The cattle could have been fed a little while later or by someone else. The place of occurrence was not visible from the kharas. Tahira (P. W. 11) had stated before the police that the witness reached the scene of occurrence after the arrival of Nazar Hussain (P. W. 9) with the gun. Therefore, the possibility that he did not see the occurrence and only arrived at the spot after hearing the gunfire cannot be precluded. Thus, no reliance can be placed upon his testimony and we shall keep the same from consideration as well,
11. After having excluded the testimony of the two witnesses we are left with the evidence of Tahira (P. W. 11). He is not related on either side. The mere fact that he is a caste-fellow of the complainant party is of no consequence, for he is even a caste-fellow of the A appellants. There was nothing on the record to show that he had any motive to falsely implicate the appellants on a capital charge.
He is, therefore, quite an independent witness. He resided in the vicinity. There was nothing unnatural about his going to the village mosque and offering his prayer singly and not in a congregation. The place of occurrence was hardly 27/28 karams away and was visible from outside the mosque. The occurrence took place in broad daylight and right in the abadi. The appellants also resided in the vicinity and, therefore. The question of mistaken identity simply does not arise. His statement to the extent that two kinds of weapons were used at the deceased also B finds support from the medical evidence. We are, therefore, of the view that the prosecution has fully established its case against Gaman and Malik appellants.
12. As regards Yaqub appellant, his presence at the scene of occurrence, however, appears to be doubtful. He was allegedly armed with a rifle and also exhorted his companions to kill the deceased but he himself did not fire at him. No doubt, it was not necessary that he, too, should have fired at the deceased, yet once he was taking the leading role and exhorting his companions, it was doubtful if he would have lacked behind particularly when he carried a more formidable weapon and there was nothing to prevent him. In this view of the matter, w0C think that a reasonable doubt is cast on his presence at the scene of occurrence. We, therefore, give him the benefit of doubt and acquit him
13. We are not unmindful of the fact that Tahira (P. W. 11) has implicated Yaqub appellant as well.
But we are also aware that the maxim "falsus in uno falsus in omnibus" has all along been discarded by the Courts in this country. Similarly the rule that integrity of a witness is indivisible has not been endorsed by the superior Courts of this country without reservation as one of universal application. The 9 Courts are thus under a duty to sift the grain from the chaff in each case in the light of its own particular circumstance. It was so laid in Tawib Khan v. The State (1).
14. As regards Gaman and Malik appellants, we are satisfied that they have rightly been convicted under section 302, P. P. C. By the learned Additional Sessions Judge. We, therefore, uphold their conviction. However, the question of sentence requires some serious consideration. It was the case of the prosecution itself that Abdul Hag was murdered by close relations of Amir Khan deceased who not only pursued the case but was also being accused of having his hand in the murder. In Anjam Shah v. The State (2) the Supreme Court reduced the sentence of death to one of transportation for life when the avenging the murder of a father was considered as a mitigating circumstance. That was a case from the Frontier Region. In a subsequent case from the Punjab,
(I) P 13 1970 SC 13 (2) PLD 1967 SC 185 ' Zulfigar and others v. The State (1) Mushtaq Hussain J. (now C. J.) observed as follows :- "It is a matter of tradition and even family duty in the Punjab to avenge the murder of the father.
Such murders are committed out of sense of honor and self-respect." ' and reduced the sentence of death to one of transportation. In the instant case Gaman appellant was the son of Abdul Hag. Malik appellant was his cousin and we do not find any material difference between his cases as he too must be smarting under the same grievance. We are, therefore, of the view that the interest of justice will be served if their sentence of death is reduced to one of imprisonment for life and order accordingly. The sentence of death imposed upon Gamin and Malik appellants are not confirmed.
' The appeal and the reference are disposed of accordingly. Order accordingly.