M. ZAFARULLAH, J.-Amir 45, Ahma. 40, Baksha 53, Shama 55 and Mukhtar alias Makha 35 were found guilty of the murder of Nafar Ali and Nazir deceased by Mr. Nafees Ahmad Bajwa, learned Additional Sessions Judge, Faisalabad vide his judgment dated 29th March, 1978. They were convicted under section 302/149. P. P. C. On two counts of murder. While Amir and Ahma were sentenced; to death, Baksha, Shama and Mukhtar were sentenced to imprisonment for life. Each one of them was also sentenced to a fine of Rs. 5,000 or in default to undergo R. I. For a period of 2 years. They were also convicted and sentenced to rigorous imprison--ment for a period of 2 years each under section 148, P. P. C. Half of the amount of fine, if realised, is to be paid to the heirs of the deceased in equal shares Two other accused persons Riasat and Roora were also charged with the same offences but were acquitted at the trial being given the benefit of doubt.
2. The appellants and the deceased as well as the P. Ws. Have des--cended from a common ancestor by the name of Mian Lehna whose tomb is known as Darbar Mian Lehna Shah. The two sides, however, have not been pulling on well together for some time. Nafar Ali deceased had abducted Mst Zulekhan, the daughter of Amir appellant three years before the present occurrence and a case was registered against eight persons of the complainant party including Nafar Ali deceased and Ilyas and Akbar P Ws. Another case has been registered against Amir appellant and others regarding the assault at Nafar Ali deceased three Sears before the present occurrence. Both these cases were pending when the present occurrence took place. On account of the tension between the parties Nafar Ali and Nazir deceased as well as Ilyas and Akbar P. Ws. On one side and Amir Ahmad, Baksha, Shama and Mukhtar appellants on the other side were facing proceedings in the Court of Resident Magistrate, Jaranwala under section 107/ I 51. Cr. P. C. And were due to appear before the Magistrate on 28March, 1975. On that day the two deceased and the P. Ws. Had come to the Court House of Jaranwala at 9-30 a. m. And when they were waiting at the seat of their counsel neat the Canteen, the two deceased were attacked by the appellants. Amir appellant was carrying a -12 bore carbine, Ahmed a revolver while Baksha. Shama and Mukhtar were armed with knives. Roora (acquitted) was also said to have been armed with a knife while Riasat (another acquitted accused person) was said to have been armed with a dang. Amir fired at Nafar Ali hitting him on his chest. His second fire hit Nafar Ali on the left elbow. Ahma in the meantime fired at Nazir hitting him in the chest. His second shot hit him in the abdomen. Amir fired at Nazir deceased also hitting him on the back. The two victims fell down and in that position, Baksha Mukhtar and Shama appellants and Roora gave them blows with knives and tried to remove their eyes Riasat is stated to have caused blows to them with Lathi. The assailants then left the place of occurrence and went to different directions.
3. Ilyas P. W. Reported the matter vide F. I. R. Exh PK at the Police station at 10.10 a. m. At a distance of three furlongs from the place of occurrence The Police came to the place of occurrence in about half an hour's time and prepared the necessary documents in respect of the dead bodies and sent them for post-mortem examination. The Police also took into possession from the place of occurrence 4 empty .12 bore cart--ridges, 10 wads and 6 pellets vide memo PN witnessed by Ilyas and Muhammad Ali P. Ws. As well as Muhammad Akram Khan S. I. Another empty cartridge of .32 bore revolver was taken into possession from the same place by the S. I. In the presence of the same witnesses vide memo. PO.
4. Amir. Ahma and Baksha appellants were arrested the same day from a village called Gullar at a distance of a mile and a half from the place of occurrence. -12 bore carbine P. 11 and two live cartridges -32 bore revolver P. 14, and a blood-stained knife P. 13, were taken into possession by the S. I. Vide memo PF, PH and PG respectively on the personal search of Amir, Ahma and Baksha appellants. These recoveries were witnessed by Abdullah Khan (not produced) and Meer Muhammad P. W.
6. Shama appellant, Riasat and Roora were arrested on 30th March, 1975. A lathi was recovered at the instance of Riasat while no recovery was made from Roora or from Shama appellant. Mukhtar appellant was arrested on 1st April, 1975. He led to the recovery of knife P. 19 which was taken into possession vide memo PR. This recovery was witnessed apart from the A. S. I.
By Ilyas and Akbar, the two eye-witnesses in the case. The weapons of offence were sent for examination The knife was found to be stained with human blood. The Revolver recovered from Ahma appellant was found wedded with the crime empty recovered from the place of occurrence.
No report has been available with respect to the carbine recovered from Amir appellant.
5. Dr. Ahmad Saeed conducted the. Post-mortem examination on the dead bodies of Nafar Ali and Nazir deceased and found the following injuries on their persons :--- Nazir:- (1)(a) Multiple fire-arm wounds of entry each measuring --" x --" x connected with wounds of exit
(b) over front of epigastrium 1----- left of middle line. There were corresponding holes in the shirt and buni,7n, There was blackening of' the shirt around these holes.
(b) Seven fire-arm wounds of exit over an area of 2" x 2" back of chest in centre middle part each measuring --" x --" and connected with (A). There were corresponding holes in bunian.
(2) Abrasion 1 --" x 1" back of left side of chest --" outer to middle line just above injury No. 1(B).
(3) A stab wound 1--" x --" h intestines coming out of the wound just below and to left of umbilicus.
(4) A lacerated wound 3" x ----- scalp deep left side of back of head.
(5) A lacerated wound 5" x 1--" scalp deep left side of head posterior part 5' above left ear.
(6) A lacerated wound 2--" x --" bone deep left side of forehead just below hair margin.
(7) A lacerated wound 2-- x --" scalp deep right upper corner of fore-- head.
(8) A lacerated wound 2--" x 1" bone deep which was fractured just above left eye-brow.th
(9) Incised wound 1" x --" eye-lid cut through middle of right upper eye-lid. The eye-ball was perforated.
(10) An incised wound 1" x --" x eye-ball perforated, inner end of left lower eye-lid.
(11) A lacerated wound --" x --" bone deep right side of nose.
Nafar Ali:
(1) Four fire-arm wounds of entry each 3/8" x 3/8 x over an area of 3" x 5" back of left elbow, a grazed wound 1" x --" x muscle deep back of left upper arm just above elbow. The bone of elbow joint were broken. Four pellets were removed from the wound. The margins of the wound were charred.
(2) A fire-arm wound of entry with charred margin 1" x 1" x front of left side of chest, just below left nipple. Two pellets were palpable under the skin on back of left side of chest.
(3) (a) A fire-arm wound of entry with charred margin 3/8" x 3/8" x connected with B on right cheek.
The bones of right side of face were broken.
(b) Wound of exit of pellet --" x --" connected with (A) on outer half of left eye'-brow, the bone was broken.
(4) An incised wound 1" x --" muscle deep right side of chin.
(5) Incised wound 1" x --" muscle deep front of chin.
(6) Incised wound 1" x --" lip cut through right angle of mouth.
(7) An incised wound --' x --' bone deep on bridge of nose.
(8) Incised wound 1" x --" x pinna cut through on upper part of right pinna.
(9) Incised wound 1" x --" bone deep on right side of head inner to right ear.
(10) An incised wound 1" x --" x eye-ball on the right upper and lower eye-lids.
6. From amongst the eye-witnesses cited in the F. I. R. Only Ilyas, Akbar and Muhammad Ali have been produced. Mst. Nooran, the were of Nafar Ali deceased and Amir son of Mansab were given up as unneces--sary. Ilyas and Akbar P. Ws. Have stated that they were present in the Court premises at about 9-30 a. m. Alongwith the two deceased being respondents in the proceedings under section 107/151, Cr. P. C. When the five appellants alongwith Riasat and Roora attacked Nafar Ali and Nazir deceased and caused their death. Muhammad Ali P. W. 9 has supported these two witnesses in all material details. Ilyas and Akbar were respon--dents in the case which was fixed before the Magistrate for that day. Muhammad Ali had visited their village the previous day as his in-laws were living in that village and then accompanied them to the Courts the following morning.
He himself was not a respondent in the case relating to the security proceedings. Riasat and Roora (acquitted accused) were not mentioned as respondents but were alleged to have accompanied the appellants to the Courts.
7. The case of the appellants is that of complete denial. The trial Court relied on the evidence of recoveries and found corroboration in the statements of Ilyas and Akbar P. Ws. From the testimony of Muhammad Ali P. W. Whom it found to be an independent witness.
8. Taking the evidence of recoveries first it may be observed that even though revolver recovered from Ahma has been wadded with the empty recovered from the place of occurrence, an objection can be taken to its correctness because of the fact that the crime empty and the weapon of offence were sent to the fire-arms expert together. Similarly the report regarding the carbine recovered from Amir appellant is missing. The recovery of knife from Mukhtar appellant was witnessed by Ilyas and Akbar P. Ws. The eye-witnesses of the occurrence. No recovery has been affected from Shama appellant. The knives recovered from Baksha and Mukhtar appellants as well as the shirt belonging to Ahma appellant were, however, found to be stained with human blood. The recoveries from the appellants, even though they are incriminating, are not such as to be safely relied on by themselves.
9. As regards ocular evidence, it has been argued that Ilyas and Akbar P. Ws. Are not worthy of reliance as they are inimically disposed towards the appellants. It has also been argued that Muhammad Ali P. W. Might not be present at the place of occurrence as he lives at a distance of about 20 koos from Jaranwala. Also Muhammad Ali P. W. Is related to the complainant.
10. Ilyas and Akbar P. Ws. Were mentioned as accused persons in the case of abduction of Mst.
Zulekhan daughter of Amir appellant. The enmity between these witnesses and the appellants is, therefore, obvious. The very existence of the security proceedings between the parties show that the tension between the parties was persisting. Interested that, Ilyas and Akbar P. Ws are, their presence at the place of occurrence cannot be easily excluded. They were respondents in the security proceedings and the case was fixed for that day. They also insist that their presence was marked by the Reader of the Court after the occurrence and that the Reader had come out of the Court room to mark their presence. In this regard it may be mentioned that even though the Reader has not been examined as a witness by the prosecu--tion the assertion of the appellants that they were marled present by the Reader could have been rebutted by producing a copy of tile proceedings in that Court. This has not been done. The assertion of the two-witnesses that they were marked present by the Reader after the occurrence remains unrebutted. As regards Muhammad Ali, it is not unusual for such a person to accompany the others, who were attending the Court that day. It is common knowledge that friends and relatives of the parties also accompany them to the Courts. Muhammad Ali's in-laws belong to the village of the complainant.
He visited them the previous day and accompanied the complainant to the Court house the following morning. Regarding the purpose of visit to Jaranwala he bas made two or three statements. He had stated that he came toy purchase cloth. He has also stated that he accompanied the com--plainant for reasons of their security. He has also stated that he had no particular business that day. This appears to be contradictory but, on the other hand, might all be true. The common factor in the statement is that he accompanied the complainant to the Courts.
He may have also intended to buy some cloth from Jaranwala as that is not unusual for persons visiting the city. A more important indication of his presence at the place of occurrence is avaiLahle from Exh. P. L. And P. M. The memos prepared by the Police for the purpose of taking blood--stained earth into possession from the place of occurrence. Muhammad Ali, P. W. Has been mentioned as a witness alongwith Ilyas P. W. It is not likely that Muhammad Ali could have been summoned from a distance of 20 koos. In time for preparation of the memos regarding taking into possession of blood-stained earth from the place of occurrence, Muhammad Ali, P. W. Is no doubt related to the com--plainant, but the relationship is not close. This may be seen from the fact Muhammad Ali is only a brother in-law of Amir (the given-up eye--witness), who in turn is cousin of Ilyas complainant.
11. Ilyas and Akbar P. Ws. Having old enmity with the appellants can be called interested witnesses.
Muhammad Ali P. W. Had no doubt accompanied the complainant party to the Court house but is not closely related to them. There is no evidence that Muhammad Ali had any direct enmity with the appellants. Although the fact that Muhammad Ali had accompanied the complainant would indicate that he was one of them, yet he cannot really be called an interested Witness, in the circumstances of the case. There is no reason, therefore, to brush aside his evidence on that ground. As regards 1lyas and Akbar it may be true that they are interested in securing conviction of the appellants and the rule of prudence requires that such evidence is supported by corroboration from independent sources. This rule, however, is not inflexible and reliance can be placed on the evidence of an interested witness if the circumstances of the case are such that the implication of innocent persons is excluded. This case does provide the circumstances that compel the Court to take serious notice of the evidence even of the interested witnesses. The appellants were required to appear before the Court that day in response to the proceed--ings under section 107/151, Cr. P. C.
The appellants in their statements under section 342, have no doubt denied their presence in the Court premises that day on account of fear of the opposite-party. It may be observed, however, that proceedings had not been drawn up under section 150, Cr. P. C. When only a report is made to the Magistrate, but under section 151, Cr. P. C. When the respondents are actually produced before the Magistrate in custody and released only on bond, ensuring their presence on all subsequent days of hearing A still more important piece of evidence indicating their presence in the Courts that day, is provided by the fact that Amir, Baksha and Ahma were arrested the same day from a place only a mile and a half away from the place of occurrence. If they had not come to attend the Court the more likely place for the appellants to be present would have been their own village situated within the area of Police Station Lundianwala and therefore, at some distance from Jaranwala. The occurrence took place in broad daylight and in the Court premises of Jaranwala where a large number of persons had witnessed the occurrence. Such a situation would itself deter a person from falsely implicating any innocent person. The witnesses and the Investigating Agency would, under the circum--stances, be fully aware that the occurrence took place before the eyes of so many people and it will be hard to get away with a false story.
12. Two of the accused persons, Roora and Riasat, have been acquitted. They have been given the benefit of doubt partly for the reason that they were not required to be present in connection with the security proceedings although it is not unlikely that they had accom--panied the appellants in the same manner as Muhammad Ali P, W. Bad accompanied the complainant. The fact that these two accuse;: were given the benefit of doubt does not by itself mean that the appellants had falsely implicated any one. The fact that all the fire' appellants were required to be present in the Court that day is a circumstance enough to support their actual presence at the place of occurrence. In the circumstances of the present case, therefore, it cannot be said that the complainant has falsely accused any one of the appellants of being implicated in the present occurrence.
13. The question of sentence has specifically been raised and it does require further consideration.
Mst. Zulekhan was abducted by Nafar Ali deceased and eight persons belonging to the complainant party were mentioned as accused persons in that case. She was the daughter of Amir appellant and close relative of the remaining appellants. This is not an offence that can be forgotten or forgiven easily. Although this does not justify committing of a murder yet the nagging reminder of a grave offence to family honour, is a mitigating circumstance and the sentence of death given to Amir and Ahma the father and uncle of Mst. Zulekhan is, therefore, not a proper sentence.
14. The result of the above discussion is that the appeal against the conviction is dismissed. The sentence of death on two counts awarded to Amir and Ahma appellants is reduced to that of imprison--ment for life on two counts and will run concurrently with the remaining sentences. The remaining sentences against all the appellants are maintained. The sentence of death to Amir and Ahma appellants on two counts is not confirmed.
Death sentence not confirmed.