' MUHAMMAD AHSAN BHOON, J.--- Criminal Appeal No,319 of 2001 is directed against the judgment, dated 29-9-2001 passed by the learned Additional Sessions Judge, Rawalpindi whereby Abdul Hussain, Muhammad Younis and Muhammad Yousaf appellants were convicted and sentenced as under:--- Abdul Hussain Under section 302(b)PPC Death sentence and to pay compensation of Rs.100000 under section 544-A Cr.PC to legal hairs of deceased Zafar Mehmmood in default whereof to further undergo six month S.I.
Under section 302(b)PPC Imprisonment for life and to pay compensation of Rs.50000under section 544-A Cr.PC to the legal hairs of Nusrat Mehmood Deceased in default whereof to further undergo six month S.I.
Under section 324PPC 7 Years R.I. and to pay a fine of Rs.20000in Default whereof to further undergo six Month Muhammad Younis Under section 302(b)PPC Death sentence and to pay Rs.100000 under section 544-A Cr.PC to the legal hairs of Zafar Mehmood Deceased in Default whereof to Further undergo 6 month S.I.
Muhammad Younis Under section 302(b)PPC Death sentence and to pay compensation of Rs.100000 under section 544-A Cr.PC to the legal hairs of deceased Nusrat Mehmood in default whereof to further undergo six month S.I.
' The learned Additional Sessions Judge, Rawalpindi has sent Murder Reference No,79 of 2002 for confirmation of death sentence of all the appellants or otherwise. We propose to dispose of both the matters through this judgment.
2. The prosecution story in brief as narrated by the complainant in F.I.R. (Exh.P.D.) is that on 24-8- 1999 at 6-15 p.m. He along with Aurangzeb came out from his house to see their lands whereas his son Zafar Mehmood was going ahead and other sons Nusrat Mehmood and Khalid Mehmood had gone to cut the grass from the land of Muhammad son of Allah Ditta. When Zafar Mehmood reached near the land of Muhammad Tazarab, accused Abdul Hussain armed with .12 bore gun, Mst. Mahfooz Begum empty-handed, Muhammad Yousaf armed with .12 bore gun, Muhammad Asif armed with .12 bore gun and Muhammad Younis armed with .12 bore gun, in consultation with one another, while extending abuses came there. Mst. Mehfooz Begum raised a Lalkara that they should not go alive and Abdul Hussain accused made a fire with .12 bore gun which hit on the neck of Zafar Mehmood who fell down. Muhammad Younas accused made a fire which hit him on the head of Zafar Mehmood. All the accused by raising Lalkaras ran towards the complainants' other sons.
Nusrat Mehmood, on seeing the accused ran away to save his life. Then Muhammad Yousaf accused fired at him from his back which hit on the back of his head. He fell down and while he was in falling position, the accused Abdul Hussain made a fire which hit on his right thigh. The complainant, Aurangzeb and his daughter Mst. Surraya Bibi ran towards the accused while making hue and cry and then the accused Muhammad Yousaf, Asif, Younis and Mst. Mehfooz Begum ran away on seeing them whereas Abdul Hussain accused came forward to them raising Lalkara and fired upon Aurangzeb which hit on his abdomen. Then he made Second fire which hit on the right arm of his daughter and when he was just loading the gun, the complainant, and Aurangzeb caught hold of him and snatched the gun which was broken. Khalid Mehmood also reached there and gave beating to Abdul Hussain. The occurrence was witnessed by Aurangzeb, Khalid Mehmood and Mst. Surraya Bibi besides the complainant. Zafar Mehmood and Nusrat Mehmood succumbed to the injuries at the spot while Aurangzeb was shifted to the hospital in injured condition. The motive behind the occurrence was stated to be previous litigation between the parties. .
3. After due investigation report under section 173, Cr.P.C. Was submitted to the learned trial Court.
Charge was framed against the appellants who denied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The appellants were examined under section 342, Cr.P.C. In reply to question "why this case is against you and why P.Ws. Have deposed against you" Muhammad Yousaf Khan appellant replied as under:--- "P.Ws. Are related to each other and with specific motive they have involved me in this case."
' In answer to aforesaid question Abdul Hussain appellant replied as under:--- "This case was registered against me by distorting the factual position of the case. Actually I was assaulted and during course of receiving injuries, I fired upon complainant party to myself and this right is granted to me under section 100, P.P.C."
' In answer to aforesaid question Muhammad Younas appellant replied as under:--- "P.Ws. Are related to each other and with specific motive they have involved me in this case. I was involved in this case being a brother-in-law of Abdul Hussain."
' Neither they opted to appear as their own witnesses in disproof of the allegation levelled against them as required under section 340(2), Cr.P.C. Nor did they adduced defence evidence. The learned trial Court after hearing the parties, passed the above said convictions and sentences which are being assailed through this criminal appeal.
4. We have heard the learned counsel for the parties and gone through the evidence with their able assistance.
5. The time, date and place of occurrence is not denied by the parties but the plea was taken by the appellant Abdul Hussain that he alone committed the occurrence in self-defence.
6. First of all we would like to take up the case of appellants Muhammad Younas and Muhammad Yousaf. According to F.I.R. As well as statements of eye-witnesses Qurban Hussain complainant (P.W.7) and Aurangzeb (P. W.8) before The learned trial Court Muhammad Younas was attributed the role of causing fire-arm injury with .12 bore .Gun on head of Zafar Mehmood deceased but the sole injury on the head of Zafar Mehmood deceased was injury No,2, according to the medical evidence furnished by Dr. Mushtaq Ahmad (P.W.4) is an exit wound. For facility of reference injuries sustained by Zafar Mehmood deceased are reproduced below:--
(1) Entry wound 4 x 4 c.m. Front and center of neck.
(2) Exit 5 holes each 8 x 8 c.m. In a circle covering 4 x 4 c.m. On back of neck.
(3) Entry 1 x 1.2 c.m. On left shoulder above clevical.
(4) Exit 1 x 1.5 c.m. On back of left shoulder and 6 c.m. From entry wound.
(5) Entryl.2 x 1.2 c.m. On back of right chest upper part with burning.
(6) Entry 1 x 1 c.m. On lateral aspect of right shoulder and fracture of humerus.
(7) Lacerated wound touching fire-arm 2.5 x 1.5 c.m. On overtex.
(8) Entry and exit 5 x 1 c.m. On right shoulder.
(9) Abrasion 3.5 x 2 c.m. Just below left eye.
8. The above description of injuries would show that the ocular account furnished by both the eye- witnesses is contrary to medical evidence qua the appellant Muhammad Younas, who was attributed role of causing injury with .12 bore gun on back head of Nusrat Mehmood deceased.
9. Although the role attributed to appellant Muhammad Yousaf is corroborated by the medical evidence but both the eye-witnesses P.W.7 and P.W.8 were not only closely related to the deceased but admittedly they have also enmity with the accused party. Qurban Hussain complainant is father of both the deceased, whereas Aurangzeb (P.W.8) is son-in-law of the complainant, so their evidence in a case of capital punishment has to be taken into consideration with utmost care and caution as ocular testimony coming from the mouth of closely related witnesses having animus with the accused require some further corroboration to ensure that they were speaking the truth but in the present case, same lacks to the extent of Muhammad Younas and Muhammad Yousaf as recovery of licensed gun was effected at the behest of appellant Muhammad Yousaf that too without any empty from the spot as the only two empties were taken into possession by the Investigating Officer on unloading the gun of co-convict Abdul Hussain, but nothing recovered at the instance of Muhammad Younas, so except the above oral testimony of the eye-witnesses no further corroborative evidence is available against said two appellants also and any recovery without report of Forensic Science Laboratory would be of no worth. It is not a universal rule that each and every word coming from the mouth of injured person is true account of the occurrence.
Reliance is placed on Altaf Hussain v. The State PLD 2000 Lah.
216. The relevant observations appearing at page 219 is reproduced as under:--- "Believability and acceptability of a witness depends on numerous factors, being injured is just one of them. The injury on the person of a witness does not transform his nature, or his attitude, or mentality. This would make him more vindictive. The injury primarily proves one fact only, and that is, that he was present at the scene of crime but it by no stretch of imagination, proves him to be right or truthful. Where a witness is biased, and inimical towards the opposite party his testimony has to be scrutinized with care and corroboration of prosecution case in all of its material aspects as required. The principles and guidelines for assessment of evidence were that different constituent factors of prosecution case must support each other and no single factor would suffice for recording conviction unless the same was corroborated in material respects by other constituent factors or elements. In serious case entailing harsh sentences a single factor, in itself, would provide too narrow a foundation to base conviction of an accused. Evidence of witnesses of fact, who were injured in the incident, is just one factor or fact of prosecution case. Viewed in isolation, it might give impression of a plausible story to an untrained mind, but examined in a proper ambience, its seamy side would become palpable immediately."
' Both the appellants Muhammad Younas and Muhammad Yousaf Were declared innocent during all the investigations. It would be relevant to quote here the last three lines of the cross- examination of Qurban Hussain complainant, father of the deceased (P.W.7) who deposed in the following words:--- "It is correct that except Abdul Hussain, all the accused were declared by the police local, by the A.S.P. Gujar Khan as well as by the Investigating Officer or Range Crimes, Rawalpindi."
10. Similarly Mushtaq Ahmad S.-I./Investigating Officer (P.W.9) also deposed in categorical terms that according to his investigation appellants Muhammad Younis and Muhammad Yousaf along with two others i,e, Muhammad Asif and Mst. Mehfooz (acquitted accused) were not present at the spot at the time of occurrence and they were declared innocent. Although it is a settled proposition of law that police' opinion is not binding upon the Court yet at the same time it cannot be thrown away. Reliance is placed on Muhammad Naeem alias Gogi v. The State 1990 PCr.LJ 1607. The relevant observation is reproduced below:--- "Opinion expressed by police although is no proof of innocence I_ or guilt of accused, yet the factum of impact of such an opinion cannot be thrown away to winds altogether."
11. So in view of above discussion, we are of the considered view that the ocular account is without independent corroboration to the extent of appellants Muhammad Yousaf and Muhammad Younas, so prosecution has failed to establish its case beyond any shadow of doubt against them.
The appeal to their extent is accepted and their conviction and sentences are set aside. They are acquitted of the charge and shall be released forthwith if they are not required in any other criminal case. Murder Reference to their extent is answered in negative.
11(sic). As far as the case of Abdul Hussain appellant is concerned, he took a specific defence/plea in his statement under section 342, Cr.P.C. As reproduced above, according to which he committed the occurrence in self-defence when he was attacked by the complainant party but we have found that none of the injuries suffered by appellant Abdul Hussain was with any fire-arm rather all the injuries were result of blunt weapon and the said injuries were duly explained by the complainant in the F.I.R. That when he opened attack the P.Ws. Attracted to the spot and gun was snatched from Abdul Hussain accused and in that process the "butt" of gun was also broken and Abdul Hussain accused/appellant was also caused injuries by the complainant and P.Ws. and it was deposed by Aurangzeb (P.W.8) during his cross-examination that when Abdul Hussain was in process to reload his gun after firing at deceased Nusrat Mehmood he could not succeed in the reloading as the same was broken and Mushtaq Ahmad S.-I./Investigating Officer(P.W.9) when visited the spot he found Abdul Hussain accused lying there unconscious in injured condition and also took into possession "Gathra" P.8 containing 9 live cartridges, double-barrel gun P.1 lying at the spot near his person which was broken as barrel and butt were lying separately and on unloading the same two empties cartridges P.2 and P.3 were recovered which were taken into possession vide memo. (Exh.P.A.).The first visit and first inspection of the Investigating Officer on the spot is quite relevant when immediately after the occurrence he collected the corroborative evidence against the said appellant and another important corroborative piece of evidence is report of Forensic Science Laboratory (Exh.P.V.), according to which both the empties sent to the Fire-arm Expert were found fired from the gun of Abdul Hussain appellant which is a strong corroborative piece of evidence against him, so it is a case wherein principle of sifting grain from the chuff would be applicable. We may observe here that it is settle proposition of law that there is always three types of evidence i,e, wholly reliable, the other one wholly unreliable, and third one, partly reliable and partly unreliable, and this case falls within the third category wherein the prosecution evidence is partly reliable so same is to be appreciated with care and caution in view of the pitched enmity existing between the parties and the only such evidence wherein apart from the ocular account, other strong independent corroborative evidence is available that can be taken into account for the purpose of conviction and sentence.
12. As far as the arguments of learned counsel for the appellants that the apprehension of death or attack could not be measured at golden scale, that to what degree one could apprehend danger to his life. There is no cavil with that proposition but the defence plea taken by Abdul Hussain appellant is not borne out from the evidence rather the evidence of prosecution is more convincing as far as appellant Abdul Hussain is concerned as it was quite natural when two real sons of the complainant were fired at and done to death, complainant (P.W.7) being, father, Aurangzeb (P.W.8) being brother-in-law of the deceased along with other P. Ws. (not examined) came on the spot for the rescue of their nearer and dearer ones and when they snatched the gun from the accused then in heat of passion it was quite natural that they would have caused maximum injuries to Abdul Hussain appellant and if they had any firearm weapon in their hands they must have fired upon him but the only weapon of offence which was used by the appellant had already stood broken during the process of snatching from the accused, so that appeals to reason that thereafter he was given injuries by the P.Ws. So keeping in view the whole evidence apart from the ocular, medical evidence further strong corroboration in the shape of positive report of Forensic Science Laboratory qua weapon of, offence used, by him and presence of injuries on his person is available against him so we are of the considered view that the prosecution has proved its case beyond any shadow of doubt against Abdul Hussain appellant.
13. In view of above discussion, the appeal to the extent of Abdul Hussain appellant is dismissed and his conviction and sentence is K. Maintained. Murder Reference to his extent is answered in affirmative. Criminal Appeal is partly allowed.