This is an appeal preferred by Allahdad Sher Khan and Dost Muhammad sons of Noor Khan and Muhammad Aslam and Muhammad Aqil sins of Ahmed Khan, from the judgment dated 29-5-1978 passed by the Session, Judge, Rawalpindi and Ex Officio Additional Sessions Judge, Mianwali convicting and sentencing the appellants after their trial for the murder of Muhammad Naeem deceased and murderous assault on Abdul Ali complainant. They were sentenced each under section 302/149, P. P. C. To imprisonment for life and to pay a fine of Rs. 2,000, each or in default in payment thereof to undergo further rigorous imprisonment for one year, under section 307/149, P. P.
C. To rigorous imprisonment for seven years each and under section 148, P. P. C. To rigorous imprisonment for three years each. The judgment stipulates that the sentences of imprisonment shall run concurrently and that a sum of Rs. 5,000, out of the fines, 1f realised, shall be paid to Ahmed Saeed, P. W., son of the deceased.
2. Alongwith the appeal I have also heard in limine a revision application filed by Abdul Ali complainant praying that the normal penalty of death be imposed on each of the appellants and tine imposed on them be also enhanced.
3. The occurrence giving rise to the case against the appellants took place in village Ghund; Dakhh Kundian, Tehsil and District Mianwali on 13-6-1974 at about late deegarwela. Abdul Ali, complainant was at that time sitting on the platform in front of his baithak, while at a little distance towards the North, the appellants armed with rifles and guns were standing at the platform of one Sultan Mehmood. Muhammad Naeem, deceased his son Ahmed Saeed, Muhammad Zahid, Abdul Aziz and Gulsher, P. Ws. Came from Kundian and as they reached the platform of Abdul Ali's baithak, Sher Khan appellant gave lalkara and at that very moment the appellants fired from their rifles and guns hitting Muhammad Naeem at the chest, flank and legs at which he fell down on the ground.
As Abdul Ali went forward to lift him, Muhammad Aslam appellant fired from his .12 bore gun which hit him at the right knee at which he also fell down. At the hue and cry raised by the --witnesses, the appellants shouting lalkara and firing in the air, fled towards the North. The deceased expired at the spot. Abdul Ali was taken to the Police Post Kundian on a cot where he made his statement Exh.
P. D. At 7-45 p. m. The same day alleging as above and adding as motive the fact that about three months before, Sher Khan appellant had been beaten by Shera and Abdul Rehman's which he suspected had been at the instigation of the deceased. His statement became the basis for the formal F. I. R. (Exh. PD/1) recorded at the Police Station Saddar, Mianwali.
3-A. In the course of the investigation, blood-stained earth was recovered from the place of the occurrence. Eight pellets Exhs. P. 11 to P. 18 and one lead bullet Exh. P. 19 were recovered from the walls near the scene of the occurrence. The Police also recovered from the spot an umbrella, P. 6., turban, P. 7, a pair of shoes P. 8/ 1-2 and some other articles all belong to the deceased. The appellants were arrested on 18-6-1974. On 26-6-1974 gun, P. 20 was recovered at the pointing of Aslam and gun, P. 21 at the pointing of Sher Khan appellant from the field of their father Ahmed Khan where they had been lying buried. On 29-6-1974 the Police secured the licensed rifle P. 22 alongwith its licence P. 23 and gun P. 24 with its licence P. 25 produced by Muhammad Khan, brother of Muhammad Aslam and Muhammad Aqil appellants. On 19-7-1974 Muhammad Khan brother of the appellants produced gun P. 26 alongwith its licence P. 27.
4. Abdul Ali who was medically examined on 13-6-1974 at 11 p. m. Was found to have suffered the following injuries:-
(1) A gunshot wound --' x ----- on the anterior aspect of right knee joint 1' below the patella (probing not done). It is wound of entry of gunshot,
(2) A gunshot wound 3/8' x 2/8' on the anteromedial aspect of right knee joint 2(r' medial to Injury No. 1. (Probing not done as it might cause haemorrhage). It is wound of entry of gunshots.
Cuts corresponding to the injuries were found on his cloth. The injuries which were of the duration of 4 to 6 hours had been caused by fire-arm. The X-ray showed that there was no bony lesion or foreign body seen in the injured knee. The injuries were, thereupon, declared to be simple.
5. The post-mortem examination of the deceased conducted by the Medical Officer, District Headquarters Hospital, Mianwali, on 14-6-1974 at 11 a. m. Disclosed the presence of as many as 20 items of injuries all over the person of the deceased, being wounds of entry or exit caused by fire- arm. Death in the opinion of the Medical Officer had been due to shock and haemorrhage as a result of injuries to the lungs, aorta, liver and spleen which were individually sufficient to cause death in the ordinary course of nature. The death had occurred immediately on receipt of the injuries and had preceded the post-mortem examination by 16-20 hours. A number of pellets were recovered from the dead body which were put in a packet and made over to the Police.
6. The prosecution examined as many as 18 witnesses of which Abdul Ali, complainant (P. W. 9), Muhammad Zahid (P. W. 10), Abdul Aziz (P. W. 11) and Ahmed Saeed (P. W. 12) are the eye-witnesses.
The fifth eye--witness, i.e., Muhammad Gulsher was given up as having been won over by the defence. The post-mortem report was proved by Dr. Ghulam Rasool (P. W. 15). Dr. Aftab Iqbal who had examined the injuries of Abdul Ali was not available having gone abroad and as such the medico legal report given by him was proved by Mian Hayat Ali, Dispensar (P. W. 17).
7. The appellants who had pleaded not guilty to the charge, denied the allegations and stated that they had been falsely implicated at the instance of Ghulam Muhammad Qureshi. Ex-Chairman, on account of enmity due to party faction. They examined Muhammad Siddique, Moharrir Head Constable as D. W. 1 through whom they proved certain F. I. Rs. To support the assertion of enmity.
8. The learned trial Judge found that there was little evidence to support the motive asserted by the complainant and as such disbelieved the same. As to the ocular evidence he held that the visit to Kundian by Muhammad Zahid and Abdul Aziz, P. Ws. Was highly doubtful and that they could not be relied upon but the other two, namely, Abdul Ali and Ahmed Sated were natural witnesses who had seen the occurrence and whose evidence was corroborated by the medical testimony. As to the recoveries he felt that as no crime empty bad been recovered from the spot, the recovery of the fire-arm was immaterial and of no consequence. He, however, observed that recovery of lead bullet P. 19 shows that rifle had been used during the incident. He accordingly held all the appellants guilty but considered them deserving of the lesser penalty for the reason that no motive had been proved and that it was not known as to which of the appellants' shot had hit the deceased.
9. During the hearing of the appeal the attack was directed mainly to the ocular testimony which is the mainstay of the prosecution. Basing upon the conflict between the medical and the ocular testimony in regard to the distance from which the shots had been fired, it was urged that none of the ocular witnesses had in fact seen the occurrence. Abdul Ali, complainant stated: "At the time of the occurrence the accused were towards our north at a distance of about 9 or 10 karams."
The Investigating Officer (P. W. 18) had similarly stated: "It is correct that in the Inspection Note I had mentioned that the accused had fired at the deceased from a distance of 11 karama."
The site plan also shows the distance between Point No. 1 where the deceased had fallen and Point No. 2 from where the shots had been fired, to be 10 karams. The medical officer, however, stated: "It is correct that there was blackening on the holes of the shirt of the deceased corresponding to entry wounds, and that the said blackening indicates that the deceased had been fired at from a distance of less than 6 feet."
"No blackening or scorching is found, if the fire-arm is discharged from a distance of more than four feet. . . Blackening range begins where the scorching range ends . . . . At a distance of one to three feet small shot make a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot enter as one mass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed, with unconsumed grains of powder. On the other hand, at a distance of feet the central aperture is surrounded by separate openings in an area of about two inches in diameter made by a few pellets of the shot which spread out before reaching the mark.
The skin surrounding the aperture is not blackened or scorched, but is tattooed to some extent. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter, but without causing blackening, scorching or tattooing of the surrounding skin. At a distance of about 50 feet a pattern measuring about 14 inches from a fully choked barrel and about 28 inches from an unchoked barrel are produced,"
However, the commentary concludes that: " . . . It is not easy to give a definite opinion about the distance from which a fire-arm was discharged. According to Taylor no general rule can be laid down."
10. The difficulty is because in estimating the distance we have to take into account many factors besides the pattern of the injuries, for example, the quality and length of the cartridge used, the weight of powder charge the type of powder, the pressure, the length of the barrel of the fire-arm and in case of a gun the degree of choke, if any. In the absence of information in regard to these factors, it is neither possible nor safe to give any precise estimate of the distance. In the case in hand, most of the wounds of entry are by single pellet except injury No. 6 where four pellets have entered within an area of 3 x 2' and Injury No. 11 which is two wounds of entry. Even then it cannot be said if they had come from the same shot respectively. The pattern of the injuries, therefore, does not fully support the medical opinion as to the distance from which the shots could be said to has been fired. It is also to be noted that the presence of blackening discussed by Modi is in relation to the skin of the body and not to the clothes of the victim. There is nothing in the medical evidence to show the presence of any blackening on the skin around the wounds of entry. The fact that the - pellets had sufficiently spread out is also supported by the recovery of as many as 8 pellets from different points of the walls near the place of the occurrence. According to Burrard: "The wads can also provide useful confirmatory evidence of the range . . . The overshot card wad, when one is used, separate from the shot charge and rest of the wadding first of all, and seems invariably to have dropped clear of the shot charge before a range of 6 feet is reached. This being so, the presence of an overshot card wad in a wound provides very strong presumptive evidence that the shot was fired from less than 6 feet; while the absence of the overshot card wad suggests that the shot was fired from more than 6 feet (The Identifica--tion of Firearms and Forensic Ballistic, Edition 1951, pages 73 and 74).
There is no evidence of any wad having been found on the person or the clothes of the deceased or at the scene of the occurrence. In such situation it is apt to refer to Burrard again when he says:- "The truth is that once the `unburnt powder grain' range has been exceeded it is utterly impossible to say whether a shot was fired from 5 yards or 20, and that any opinion formed on the appearance of the wound can only be regarded as a pure guess" (ibid p. 75)
The medical opinion in regard to the distance from where the shots had been fired, cannot therefore be taken to be a safe-guide and, as such, I am no inclined to accept the contention that there is any serious discrepancy present in this regard between the ocular and the medical testimony. I am also no persuaded to doubt the presence of Abdul Ali on account of any such discrepancy because he himself had received injuries in the same firing.
11. Learned counsel for the appellants drew attention to the statement of Abdul Ali, complainant that "The deceased had received the shots while facing the accused" and contended that, that position was not compatible with the location of the injuries particularly injuries No. 6 (entry) and 7
(exit) and injuries Nos. 11 (entry) and 12 (exit). Injury No. 6 is on the posterio-lateral aspect of the right buttock in its upper part while injury No. 11 is on the antro-lateral aspect of the right chest. The contention I am afraid postulates a static posture on the part of the deceased throughout the period he received the injuries, which cannot be accepted. He must have reacted at the sight of his around assailants and buckled and twisted under the impact of the shots and thus exposing parts of his body to the shots which he would not do had he remained in a fixed stance. It is also to be noted in this connection that according to ocular account, the deceased had been fired at from the right side when he was about to enter the baithak. It, therefor, cannot be said that the deceased had been squarely facing his assailant at that time.,
12. It was next urged that the ocular evidence consists only of Abdul Ali (P. W. 9) and Ahmed Saeed (P. W. 12), as the other two, namely, Muhammad Zahid and Abdul Aziz, P. Ws. Have been held to be unreliable by the trial Court. The trial. Court bad held the presence of Muhammad Zahid and Abdul Aziz to be doubtful. The reason given is that Muhammad Zahid had first stated "I had gone to Kundian on the day of occurrence for shopping. I had gone there alone at about 9 or 10 a.m. I purchased five seers of desi-sugar and two packets of tea. After making the said purchases I went to the house of my in-laws at Kundian and slept there till peshi-prayer", and then had proceeded to add, "I then went to the bazar and made the purchases. I had not made any purchases before going to the house of my in-laws". According to the trial Court, this made his visit to Kundian highly unnatural and unbelievable" and "this contradiction is indicative of the fact that he is not a truthful witness and is narrating a false story". As to Abdul Aziz, the trial Court noted his statement that he had purchased two drums of diesel oil at Kundian which he had loaded on the camel of one Said Muhammad Qureshi and directed the camel driver to take the same to his tube-well, and held: "It is strange that after purchasing diesel oil the P. W. Did not accompany the camel driver to his tube-well. Ordinarily he should have taken the camel driver to his tube-well and should not have stayed back at Kundian."
The witness had also stated that he bad on his way back stopped at a wayside hotel to take tea and had remained there for 20/30 minutes when the deceased accompanied by Ahmad Saeed had arrived. On this the trial Court observed.--- "Moreover, if he had to take tea it should have taken him five/ten minutes in doing so and he should not have stayed there for 20/30 minutes. It appears as if he was waiting for the deceased and other P. Ws. To become an eye-witness of the occurrence."
I am not inclined to agree with the trial Court that on the basis of its reasoning, the witnesses could be termed to be unreliable. Khundian was a nearby town only 1-- miles away and as such the people of the surround--ing villages would gravitate there for their shopping. A small point like whether Muhammad Zahid had made his purchases before or after going to his in-laws or why Abdul Aziz had not accompanied the camel driver or why he had spent 20/30 minutes for taking tea is hardly material. It is also to be seen that Muhammad Zahid had immediately corrected himself. The witnesses were testifying nearly three years after the occurrence and as such the small points as mentioned above should not be held to discredit them. Both of them belong to the same village where the occurrence had taken place. I, therefore, do not agree that their presence is to be doubted.
13. The credibility of the eye-witnesses was assailed on the ground that being inter-related and interested witnesses they should not be believed in the absence of strong corroboratory evidence becoming available. It is to be noted that Abdul Ali---s sister was married to the deceased who was even otherwise a first cousin of his (Abdul Ali---s) father. Ahmad Saeed is the son of the deceased. Abdul Aziz is a step brother of Abdul Ali and the deceased was his step maternal uncle.
No near relationship was shown to exit between the complainant party and Zahid P.W. But on the basis f the statements of Abdul Ali and Gul Muhammad, P. W. 7, it was brought out that Mst. Irfan, the daughter of the maternal uncle of Zahid is the were of Gul Muhammad who by his own admission was 'distantly' related to the accused. However, when the occurrence is taking place at the baithak of the complainant, the relationship, if any, of the ocular witnesses with the complainant is neither unexpected nor a disqualification.
14. On the question of enmity, my attention was adverted to the statement of Abdul Ali that "Khizar Hayat who had been beaten by Sher Khan and Muhammad Aslam accused is the son of the sister of the mother of Ghulam Muhammad Qureshi, Ex-Chairman, Union Council, Kundian" and to that of Ahmed Saeed that "We belong to the party of Ghulam Muhammad Qureshi, Ex-Chairman, Union Council, Aliwali. The accused belong to the opposite-party". In this connection copy of the F. I. R.
Filed by Sher Khan in respect of the alleged beating given to him on 28-2-1974, i.e., about 3-- months before the occurrence was furnished as Exh. P. E. In which Sher Khan attributed the beating to enmity with the said Ghulam Muhammad Qureshi adding that it was at the latter's instance that Khizar Hayat had brought a case against him (Sher Khan) and Aslam under section 324, P. P. C. The alleged incident relating to the beating of Sher Khan had in fact been made the basis of motive by the prosecution. According to the complainant, the appellants had suspected that the beating had been at the instigation of the deceased. This was only a suspicion in the mind of the complainant party and although no specific evidence bad been led to support such suspicion, the fact remains that Sher Khan himself had brought a case under section 307, P. P. C. In which he had blamed Ghulam Muhammad Qureshi to be the person behind the attack and the prosecution evidence shows that the complainant party was on the side of this Ghulam Muhammad Qureshi while the appellants belonged to the opposite-party. I, therefore, do not agree with the trial Court that the prosecution has altogether failed to establish motive. In The State v. Rab Nawaz and another (PLD 1974 SC 87), it was observed "However that may be, in criminal cases motive more often than not, remains shrouded in uncertainty. To the complainant, it is generally a matter of speculation, for it is a fact within the special knowleged of the accused. Even motiveless crime is not known. Therefore, the mere fact that the prosecution case as to motive has disbelieved by the Courts below is no reason for disbelieving direct evidence on the main incident, which has to be judged on its own merits, and if such evidence is creditworty, it can form a valid basis for conviction, obscurity of motive notwithstanding."
'In the present case, however, the subsistence of strained relations is in fact "asserted by both sides.
15. The question now arises whether on account of the existence of unfriendly relations, it becomes absolutely necessary to look for corroboration before giving the ocular witnesses any credibility, which corroboration according to the appellant's counsel is not available. No empty having been recovered at the instance of the appellants, the guns and the rifle could not be linked with the crime. The opinion tendered by the Director, Forensic Science Laboratory, vide Exh. P. S. Was: "The mutilated bullet part marked as 'B' contains only the nozal inside lead of the bullet. The portion of the bullet which can help to determine its bore is missing. It is therefore, not possible to determine its exact bore. The eight lead pellets can be fired from any smooth bore weapon."
The medical evidence does support the ocular testimony in regard to what caused the death of the deceased but not in regard to who caused it. But even if the witnesses be interested, there is no rule of law which makes the acceptability of their evidence dependent upon the availability of corroboration. It is only a matter of caution that such corroborator evidence is looked for. There may be cases in which the circumstance would fully justify the acceptance of ocular testimony of interested witnesses even in the absence of corroboration qua the accused. This is a case in which one of the eye-witnesses, i.e., Abdul Ali, complainant had himself received injuries from firearm in the occurrence and it was his baithak where the occurrence had taken place and where he had been sitting at that time. We can, therefore, safely give him the credit of having seen the occurrence and, in the broad daylight, of having recognized and identified the assailants. The report about the occurrence had been lodged promptly by the injured himself in which he gave a full account of the occurrence, mentioned the presence of the other ocular witnesses and named all the assailants. He is corroborated by the other ocular witnesses. In such situation the ocular testimony can be accepted even though coming from interested witnesses, notwithstanding the absence of corroboration. The principle had been discussed in Niaz v. The State (PLD 1960 SC 387), in the following words:- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implica--tion, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corrobora--tion. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from Independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corrobora--tion, for, substitution is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundation for it . . . . . . . . .--- PLD 1976 SC 452), it was held "In case of broad daylight occurrence like this, where all the accused were specifically mentioned in a promptly lodged report and the revision disclosed therein received full support from the medical evidence, it would not be necessary to look for corroboration and even excluding the evidence of motive or that of recoveries, the rest of the evidence would be good enough to bring home the guilt to the accused."
"There is no doubt that the witnesses were interested in the prosecution of the accused and inimical against them. But that fact alone is not sufficient to altogether discard their evidence. It has to be properly sifted and weighed with the necessary care aid caution before rejecting the chaff and accepting the grain in the light of the facts of each case."
The same principle had again been reiterated in Roshan and others v. State (PLD 1977 SC 557): ". . There is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of the interested witness. Secondly, if the presence of a witness is proved beyond doubt and no other in--dependent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting when this Court has upheld the conviction of the accused based entirely on the testimony of the `interested' witness."
16. It was also submitted on behalf of the appellants that the fact that a large number of them was involved, goes to show that the complainant party was interested in roping in as many members of the family of the accused party as possible. It is pointed out that three brothers of one family and two of another, both families themselves being related to each others, have been involved. But we must appreciate that the number of injuries sustained by the two victims being 22 it cannot be said that it was the work of one person. Two kinds of weapons having been used, any suggestion that it was the Work of one person is easily repelled. Nor can we say with any certainty that it was the work of two or three persons and none more. The large number of injuries could as well be the work of five persons as has been stated on oath by the witnesses. That number is neither far-fetched nor incompatible with the facts of the case.
17. I am, therefore, satisfied that the guilt of all the accused has been brought home to them and that they have been rightly convicted of the offences.
18. As regards the sentence, may now advert to the complainant's revision petition in which a prayer has been made to enhance it to death plus a higher amount of fine. The reason for giving the lesser penalty, adopted by the trial Court is to my mind not open to any serious objec--tion.
There are many authorities to support that reasoning. In Barkat and 3 others v. The State (1969 P Cr.
L J 518), a Division Bench of this Court held: "Since it is not possible to ascribe the fatal injury to any one particular appellant or appellants, lesser penalty may be inflicted on all of them."
Similarly in State v. Muhammad and another (1976 P Cr. L J 489), a Division Bench of the Sind High Court observed: "As for the sentence, we are reluctant to impose the death penalty for the reason that only one injury was fatal while the three others were simple in nature and it is not known as to who caused it.
We would, therefore, sentence them to transportation for life . . . ."
The fine of Rs. 2,000, imposed on each of the appellants is adequate in the circumstance. The revision petition is, therefore, liable to dismissal.
19. In the result of the above discussion, I dismiss the appeal of the appellants as also the revision petition filed by the complainant.