MANZOOR HUSSAIN SIAL, J.-Muhammad Akram, his brother Abdur Rehman's, Muhammad Nawaz and Abdul Sattar were tried under sections 302 read with 34, P. P. C., by Sessions Judge, Sargodha, for causing murder of Fatah Khan, on the roadside near village Chah Kaura, Police Station Shahpur Saddar, District Sargodha. The trial Judge vide his judgment dated 18-6-78 acquitted Abdur Rehman's, Muhammad Nawaz and Abdul Sattar accused, but convicted Muhammad Akram under section 302, P. P. C. And sentenced him to death and further directed him to ay a sum of Rs. 10,000 as com--pensation to the heirs of the decease or in default to suffer rigorous imprisonment for a period of six months.
2. Muhammad Akram assailed the order of his conviction by means of this appeal, whereas the trial Judge also made reference under section 374, Cr. P. C. To this Court for confirmation of the death sentence awarded to the appellant. We propose to dispose of the appeal and murder reference by this judgment.
3. The prosecution case as disclosed by Mehr Muhammad Police Constable P. W. 9 in his statement (Exh. P. F.) lodged at Police Station. Shahpur Sadder on 12-3-76 at 9-10 a.m. And recorded by Ch. Asghar Ali Sub-Inspector P. W. 11 is as follows:-- Mehr Muhammad, the complainant with Karam Dad and Mian Muhammad Foot Constable, on 12- 3-76 taking Fateh Khan and three other under-trial prisoners in their custody from Shahpur lock-up and fort producing them in Sargodha Courts, boarded Bus No. SG. 8360 of Khan Transport Company. The under-trial prisoners were seated on the three seaters immediately in front of the seats in the gallery of the bus. In this way, each three seater was occupied by two under trial prisoners with one constable. There were 13/14 other passengers in the bus and four out of them occupied other seats of the gallery. After the passengers had obtained their tickets, one of the four passengers who was sitting in. The gallery rose up and occupied a seat near the exit door of the bus. At about 8-30 a.m., when the bus reached near Chah Kaura, the three passengers sitting in the gallery suddenly rose up. One of them had a carbine while the other had revolvers. They fired at Fateh Khan under-trial prisoner hitting him on the head, upper part of the neck and on the right side of the back. The person sitting near the exit opened the door and called the accused to run out. The driver stopped the bus. The passengers started running out in panic. Mehr Muhammad and other constables stood up for apprehending the culprits. Mehr Muhammad caught hold of Muhammad Akram, and snatched revolver from him, while ;other constables after sufficient struggle with other accused could disarm them only, and they succeeded in snaking good their escape Muhammad Bakhsh (not produced) and Muhammad Ramzan P. W. 11 who were also with the other passengers disclosed the names of the accused. Fateh Khan succumbed to his injuries in the bus.
4. The motive for the crime was that one and a half months prior to the occurrence, Muhammad Hayat Lambardar of village Uttian had been murdered in the Court premises at Sargodha wherefore Latif, a real brother of Fateh Khan deceased and Jaffar were challaned. Muhammad Akram who was related to Muhammad Hayat deceased, with his brother Abdur Rehman's (acquitted accused) and his party-men joined to avenge his murder by killing Fateh Khan.
5. Ch. Asghar Ali Sub-Inspector P--- W. 13 after recording F. I. R. On 12-3-76, on the statement of Mohr Muhammad at the Police Station, went to the place of occurrence. He found Muhammad Akram accused In the custody of Karam Dad and Mian Muhammad Foot Constables. The dead body of Fateh Khan was lying in the bus. He examined the dead body, prepared injury statement (Exh. P. Q.), inquest report (Exh. P. R.) and des--patched the dead body to the mortuary under the escort of F. Cs., Abdul Haq and another for post-mortem examination. He took into possession revolver P. 8 vide Memo. Exh. P. H. Containing four live bullets and one empty, and another revolver P. 7 vide Memo. Exh. P. G. Containing four live bullets and one empty. He also took into possession a Carbine P. 9 vide memo. Exh. P. K. Which contained one empty. The above-mentioned articles were produced by Karam Dad F. C. P. W. 10 before the Investigating Officer. He also scrapped blood from the place where the dead body was lying in the bus and secured vide-memo. Exh. P. K. He also took into possession vide memo. Exh. P. S. Empties P. 10 and P. 11 produced by Mian Muhammad F. C. He arrested Muhammad Akram appellant.
6. On the same day at 5-30 p.m., Dr. Ghulam Haider Shah, Medical Officer P. W. 4 performed autopsy on the dead body of Fateh Khan and noticed following injuries:---
(1) A rounded fire-arm wound with inverted edges measuring 3/4' x 3/4' deep to the internal cavity situated on the middle lower part of back of head.
(2) A circular fire-arm wound 1/4' x 3/4" with inverted edges blackened in colour on the upper middle part of right side of back, which was a wound of entrance.
(3) Three wounds of exit measuring 1/2" x 1/3" 2/3"x 1/3', and 1/2' x 1/2' situated on the front of upper part of right side of chest. Bullet was found under Injury No. 1, another was found under Injury No. 3.
There were wounds of exit. There were two holes in front of shirt which corresponded to Injuries Nos.
1 and 3. There was also a hole on the back of the shirt, which corresponded to injury Nos. 1 and 3.
There was also a hole on the back of the shirt, which corresponded to Injury No. 2.
(4) A contusion 1/2' x 3/4' about 1--' below under injury No. 2.
(5) A lacerated wound measuring 1/3 x 1/6' x 1/6'; another --' x 1/6' 1/8' situated on the back of head 1--' from injury No. 1.
On dissection he found that under Injury No. 1, the bullet had entered the head fracturing the occipital bone and damaging the lower part of the brain, from which two pieces of round shape wads were secured. He also found a bullet there and extracted it. From injuries mentioned at No. 3.
Pellets were recovered. He observed that under Injury No. 3 the right clavical was fractured.
7. The appellant pleaded not guilty when examined under section 342, Cr, P. C. He denied his participation in commission of the crime. He repudiated his arrest by police from the spot and asserted that he was arrested from his house. He stated that he was falsely implicated in the case due to enmity for being distantly related to Muhammad Hayat deceased in the previous murder case. He however, led no evidence in defence.
8. The learned trial Judge believed the ocular evidence particularly furnished by Mohr Muhammad F. C., the complainant and his companion Karam Dad F. C. He found Its corroboration from medical evidence the evidence of recoveries and convicted the appellant.
9. Learned counsel for the appellant contended that ocular evidence led by the prosecution is this cast It, not worth reliance for the conviction of the appellant on a capital charge, It was submitted that Muhammad Ramzan P, W. 11 was a liar as he manifestly made false deposition and suppressed even his close relationship with the deceased. Regarding the evidence of Mehr Muhammad and Karam Dad P. Ws,, it was conceded by the learned counsel that they were undoubtedly present on the sterns of occurrence but the version given by there was not plausible.
He pointed out that their evidence was in conflict with medical evidence. According to him, the firearm injuries suffered by the deceased were the result of a single gunshot. It was stated that they being police officials were keen to implicate some one to save their own skin because one of the under-trial prisoners died in their custody. It was also submitted that Mehr Muhammad claimed to have over--powered Muhammad Akram appellant and snatched front him Revolver P. 7 whereas Karam Dad and Muhammad Ramzan P. Ws. Stated that the revolver so snatched was P. E.
10. Learned counsel for the State, on the other hand, submitted that the presence of Mehr Muhammad and Karam Dad P. Ws. On the spot being established, their unalloyed version of the incident was worth reliance as it was consistent and corroborative with other evidence on material points. He pointed out that the medical evidence did not run counter to the ocular evidence. It was stated that Injury No. 1 on the body of the deceased was a bullet wound shot by revolver or rifle. In support of his submission, he pointed out the recovery of empty bullet from the revolver and a piece of bullet.
11. We have carefully evaluated the evidence on the record in the light of the submissions made by learned counsel for the parties.
The ocular version of the occurrence was furnished by Mehr Muhammad, Karam Dadi Foot Constables and one Muhammad Ramzan P. W.
11. Muhammad Ramzan P. W. Was a chance witness of the occurrence but proved closely related to the deceased despite his denial. We are of the view that his testimony inspired no confidence as it appeared not only discrepant on material points but unbelievable. The learned trial Judge rightly rejected his evidence and after-scanning his evidence, we also feel like discarding the same. It appears that he was not present at the scene of occurrence and might have been summoned during preliminary investigation for supplying information regarding the absconding accused before lodging the F. I. R. Or thereafter. This is evident from the fact that full particulars of the absconding accused found mention in the F. I. R.
When the complainant had professed that he did not know them before the occurrence.
We are, therefore, left with the evidence of Mehr Muhammad and Karam Dad P. Ws. Both of them are consistent that they were present in the bus while the deceased was in their custody when the accused including the appel--lant fired on Fateh Khan deceased and further that the appellant was over--powered and disarmed by Mehr Muhammad, the complainant. The trend of the cross- examination of the eye-witnesses also suggested that the appellant was one of the passengers who tried to run out of the bus at the relevant time. The appellant, however, changed his stand later and stated that he was arrested from his house.
12. The eye account of the incident given by Mehr Muhammad and Karam Dad P. Ws. Successfully stood the test of cross-examination. Their evidence inspired implicit confidence. These witnesses being independent and disinterested, their presence on the scene of occurrence coupled with the arrest of the appellant red-handed, proved his participation in the crime beyond reasonable doubt. The incident took place in the broad daylight and the appellant was apprehended on the spot. There was, therefore, no question of mistaken identity of the culprit.
13. We are clear in our mind that the deposition of these witnesses who had no animus against the appellant and circumstances of this case manifestly establish involvement of the appellant in the occurrence. We can safely rely on their evidence without looking for further corroboration, nevertheless we find that the nature and dimension of injury No.1 and recovery of a piece of bullet therefrom would show that it was not a gunshot wound. This view finds further support from the fact that the empty recovered from the chamber of Revolver P. 8 was found fired from it. The ocular version given by afore--mentioned witnesses was therefore, not in conflict with the medical evidence. In our view, the injuries suffered by the deceased cannot be the result of one gunshot as contended by the learned counsel for the appellant.
14. The discrepancy regarding the recovery of revolver pointed out in their evidence to be P. 7 or P. 8 was not material because it could be due to lapse of memory.
We, therefore, observe that if the presence of an independent witness is proved beyond doubt on the scene of occurrence, his evidence inspires con--fidence, and there is no other corroborative evidence available, it would result in clear miscarriage of justice to insist upon independent corroboration. If that was the rule, then it would be easy for the accused to destroy the corro-- borative evidence and get scot-free regardless of the quality of ocular evidence provided by independent witnesses. We, therefore, hold that it depends on the facts and circumstances of each case to uphold the conviction of the accused based entirely on testimony of independent witnesses. The instances arc not lacking where this Court passed orders of conviction depending entirely on the testimony of independent witnesses even in the absence of corroborative evidence provided the ocular evidence depicted truth and inspired confidence.
15. The appellant also had n motive for murdering Fateh Khan deceased because it is on record that a couple of months prior to the occurrence, Muhammad Hayat Lambardar a relation of the appellant was murdered wherefore Latif real brother of the deceased was challaned. The appellant in his statement also made reference to the same incident and attributed his involvement in the case due to that enmity.
16. We find no extenuating circumstance to take lenient view in favour of the appellant as he accomplished his disdainful design to murder Fateh Khan, when he was handcuffed, and rendered helpless to protect himself in polio custody. We feel that if normal penalties are not awarded to the culprits for the commission of offences in such like daring and dastardly fashion, it may tend to encourage others to repeat similar occurrences and endanger safety of travelling public on the High Ways.
17. For the reasons recorded above, we are satisfied that the prosecution has established the case against the appellant, causing murder of Fateh Khan deceased beyond reasonable doubt and the learned trial Judge rightly held him guilty therefor and awarded normal penalty of death. We, therefore, confirm and maintain appellant's conviction and sentence and dismiss his appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.