M. S. H. QURESHI, J.-Appellant, Khaqan, was tried along with co-accused Muhammad Aslam by the Sessions Judge, Campbellpur, under section 302/34, P. P. C. For the murder of Ali Akbar Shah deceased, and under section 307/34, P. P. C. For murderous assault on and causing injury by revolver shot to Maqsum Ilahi P. W. In the result of the trial, co-accused Muhammad Aslam was acquitted on the benefit of doubt but appellant, Khaqan, although he, too, was acquitted under section 307, P. P. C., was convicted under section 302, P. P. C. And sentenced to death. He has appealed. His death sentence is also before us for confirmation in a reference made under section 374, Cr. P. C. During the pendency of the appeal, Sajawal Shah, the complainant in the case filed Cr.
R. No. 130/ 174 praying for setting aside the acquittal of Muhammad Aslarn and for 'a direction for his re-trial under section 302/34, P. P. C. The hearing of arguments in the Appeal and the Reference was completed on 18-4-1974. The Cr. R. Was heard on 3rd and 4th July, 1974. By this judgment we now propose to dispose of the Appeal, the Reference and the Revision.
2. Some five or six years before the occurrence, Ali Akbar Shah deceased, along with his two brothers, had been sentenced to rigorous imprisonment for seven years in connection with the murder of Ghulam Murtaza, younger brother of the appellant. He had been released on parole on 5-11-1970. At the time of the occurrence, he was in the employment of Ch. Muhammad Asif P. W., at Rawalpindi.
3. On 6-10-1971, the deceased, accompanied by his brother-in-law, Sajawal Shah, and the latter's younger brother, Hazur Ali Shah P. Ws., boarded bus No. R.I.B. 2465, at Rawalpindi, for going to village Kamra. Maqsum Ilahi P. W. Boarded that bus at Hassan Abdal for going to Campbell--pur. At Hatian Khaqan, appellant and Muhammad Aslam co-accused also got into same bus and took their seat. Immediately the bus reached Kamra Bus Stand and as Ali Akbar Shah got up from his seat to alight from the bus, the two accused also got up. The appellant took out his revolver and aimed at the deceased. On seeing this, Maqsum Ilahi P. W., who was nearby, caught hold of the appellant's hand in which he held the revolver, but, in the struggle, the revolver went off and fell down on the floor of the bus, the bullet hitting Maqsum llahi on the left leg. The appellant thereupon took out a sickle and co-accused Muhammad Aslam a chhuri, which they respectively had with them, and began to inflict injuries therewith on the deceased. The passengers of the bus ran helter-skelter out of the bus on account of fear. In the process, Hazur Ali Shah received injury by striking his forehead against the window of the bus. Maqsurn Ilahi had already got down in the injured condition. The culprits kept every one off by their threats, and after inflicting the injuries on the deceased, got down from the bus and went through the fields towards village Bahadur Shah. The deceased died immediately in the bus. Sajawal Shah found a blood--stained revolver-Licence Book bearing a photograph of the appellant lying in the bus near the dead body. He took the Licence Book to Campbellpur Sadar Police Station where he lodged report.
4. Shabbir Hussain the S. H. O. Who recorded the F.
1. R. Recovered the Licence Book (Exh. P. 9) and bus ticket (Exh. P. 10) from the complainant. He reached the spot at 2-15 p.m., and from within the bus recovered a trigger-guard (Exh. P. 7) and sheath (Exh. P. 8). On the same day, at 4 p.m., Abdul Latif Sub-Inspector assisted by Muhammad Sadiq A. S. I. Arrested the appellant from his house and recovered a bandolier (Exh. P. 13) containing a revolver (Exh. P. 11), which had its trigger-guard missing and nineteen rounds of ammunition (Exh. P. 12/1-19). He also recovered from the appellant's possession shirt (Exh. P. 14), Shalwar (Exh. P. 15), and Dhoti (Exh. P. 16) which had been freshly washed and hung up for drying in the sun but blood-stains were visible on them. They also recovered at the pointing of the appellant from his residential kotha, sickle (Exh. P. 17) which was blood-stained. Muhammad Aslam was also arrested the same afternoon and shirt (Exh. P. 18) and Shalwar (Exh. P. 19) both bloodstained, were recovered from his person. From the pocket of his shirt (Exh. P. 18), a bus ticket (Exh. P. 20) was also recovered. Muhammad Aslam then led to the recovery of blood-stained Chhuri (Exh. P. 21) from his house. The presence of human blood on the blood- stained articles so recovered from the appellant and the co-accused was confirmed by the Serologist.
5. The post-mortem examination conducted on the person of the deceased on 7-10-1971, at 10 a.m., disclosed the presence of forty-six injuries, almost all incised and scattered all over the body. The pleura on the right side was .Injured. The trachea was cut. The right lung had cut. The left lung was punctured. The pericardium and the liver were also cut. Death, in the opinion of the doctor, had been due to the puncture of the left lung and the heart, the cutting off of the trachea and the resulting haemorrhage. All the injuries had been, according to him, by sharp-edged weapon.
6. The Medical Officer had, earlier, on 6-10-1971, at 8-00 p.m., examined Hazur Ali P. W. And found two abrasions, --x --each, on the left forehead, which were simple and caused by blunt weapon.
7. On the same day, i.e. 6-10-1971, at 1-30 p.m., the doctor had also examined Maqsum Ilahi P. W.
And had found a lacerated wound on his left thigh in the middle on the front. The wound was bleeding and measured --x -- . The margins were blackened. There were corresponding tears but injury was declared to be simple on 11-10-1971.
8. The prosecution case rested mainly on the ocular testimony and circumstantial evidence. The ocular testimony was furnished by Sajawal Shah (P. W. 14), Hazur Ali Shah (P. W. 15) and Maqsum Ilahi (P. W. 16). The latter made some deviations from his earlier statement with the result that the statement before the committal Court was transferred as evidence under section 288, Cr. P. C. The spot recoveries were proved by Sakhi Sarwar Shah (P. W. 8). The recoveries from the appellant and the co-accused were proved by Muhammad Sadiq A. S. I. (P. W. 9) and Abdul Latif S 1. (P. W. 10). Mr. Muhammad Aslam Supervisor, Reclamation and Probation, Rawalpindi Division (P. W. 12) proved the fact that the deceased, who was under a sentence of rigorous imprisonment for seven years, had been on parole at the time of the occurrence. Ch. Muhammad Asif (P. W. 3) testified that the deceased, who was on parole, was under his employment and that on learning of the deceased's death, he bad informed the Parole Officer telegraphically. Both the appellant and co-accused Muhammad Aslam had pleaded not guilty to the charges. The appellant admitted that the deceased, along with his brothers, had been convicted and sentenced in connection with the murder of his brother Murtaza. He admitted the ownership of the revolver but added that he had produced the same complete with the triggerguard and the licence before the police, at about 10 p.m., on 6-10-1971, in his village Bahadur Khan, that the triggerguard had been detached by the Police later, and that the licence was fictitiously shown to have been recovered from the bus. In response to the question as to why the witnesses had deposed against him, he stated that Sajawal Shah and Hazur Ali Shah had deposed on account of their relationship with the deceased and that Maqsum Ilahi had deposed under pressure of the police. He further stated that he and Muhammad Aslam, after their arrest, had been taken by Thanedar to the hospital and shown to Maqsum Ilahi and that it was for that reason that no identification test had been held. The learned trial Judge acquitted Muhammad Aslam co-accused simply on the ground that he had no direct motive for the murder and that Maqsum Ilahi P. W., the only independent witness, did not inspire confidence.
He, however, found the case well established against the appellant for the murder and convicted and sentenced him accordingly.
9. Ch. Nazir Ahmad Khan, Advocate, appearing for the appellant urged that the F.
1. R. Had been recorded after some investigation, that the ocular testimony of Maqsum Ilahi was not reliable, the witness having been declared hostile, that the other two eye-witnesses were not present at the spot, and, in any case, they being interested witnesses, their evidence required to be corroborated and that the recoveries not having been proved through independent and local witnesses, could not furnish the required corroboration. He also urged that on these grounds as well as on the ground that on the basis of nearly the same evidence the co-accused had been acquitted, the appellant, too, deserved acquittal.
10. The contention that F. I. R. Had been recorded after some inves--tigation proceeds from the following admission made by Maqsum Ilahi P. W.
"When I came to the P. S. It was 12-30 p.m. And I reported the matter to the Police. Police obtained my signatures on the report lodged by me". Since the F. I. R. Had been entered at 1-30 p.m., the Police, it was brought out, had, at least, an hour's time to have made some investigation in the case. As already noted, the statement of this witness as recorded during the inquiry was brought on the record under section 288, Cr. P. C. In that evidence he did mention that from the spot he went to police station where he was advised to go to the hospital whereupon he proceeded to the hospital. He does not mention in that statement that he had, in fact, also lodged a report with the police. His medical examination in the hospital took place at 1-30 p.m. He had, however, in his cross-examination, during the trial, stated that the Police had come to the hospital "for recording my statement". It is obvious that if the police had already recorded a report made by the witness they had no need for going to the hospital for recording his statement. In the circumstances it is difficult to believe that an F. I. R. Had actually been recorded in the case at his instance. The place of occurrence was 10 miles from the police station. The occurrence having taken place at 12~ noon, no appreciable delay can be said to have occurred in lodging the F. I. R. At 1-30 p.m. In any case, the complainant having had no difficulty in identifying the assailants, the delay was inconsequential.
11. The presence of Maqsurn Ilahi P. W. Cannot be doubted in view of the injury sustained by him. He had been medically examined at 1-20 p.m , i.e. shortly after the occurrence. In his statement before the Com--mitting Court he had fully supported the prosecution case. He had neither' any relation with the parties nor had he known them from before. During the trial, he broadly supported the prosecution case, but, on the question of identification, he stated : "When the Police came to me in the hospital for recording my statement, they brought two persons in handcuffs and the S. I. Told me that one of them way Khaqan and the other Aslam. I could not identify the-, even at that time".
In his statement before the Com--mitting Magistrate he had, however, not spoken of any difficulty in identifying the appellant. There, he had stated : "Two persons attacked him. Later on I was informed that they were Khaqan and Aslam who are now present in Court as accused". And again.
"I identify the accused present in Court. They are Aslam and Khaqan". Although he had admitted in his cross--examination there than he did not know the accused from before the occurrence yet there is no reason to doubt his identification of the appellant with whom he had grappled in the bus. Nevertheless, as he had resiled on some material points for which reason his statement made before the Inquiry Magistrate had to be transferred as evidence under section 288, Cr. P. C., it will not be safe to rely on such evidence unless corroborated in material particulars. Such corroboration, as we will presently see, is furnished by the recoveries.
12. There is no difficulty in the matter of identification of the appellant by Sajawal Shah and Hazur Ali Shah P. Ws. Sajawal Shah is the brother---in-law of the deceased, and, according to him, he had gone to see the deceased at Rawalpindi to seek his help in securing some employment and he and his brother had accompanied the deceased to Kamra. In view of his close relationship with the deceased, his explanation for the presence at the spot is acceptable. Nevertheless, the contention is not devoid of force that in view of the subsisting enmity between the deceased and the appellant the evidence of Sajawal Shah and his brother Hazur Ali Shah, who were closely related to the deceased will require independent corroboration before the same is made the basis for convicting the appellant on a capital charge.
13. That corroboration comes from the recoveries. The recovery of the detached trigger-guard from inside the bus is proved by Sakhi Sarwar Shah and S. H. O. Shabbir Hussain. Phul Shah, whose daughter was married to Ali Asghar Shah, brother of the deceased, was a collateral of the father of Sakhi Sarwar Shah. This relationship is too remote to detract from the value of his evidence. There is nothing, otherwise, to doubt the veracity of this witness. We have also the recovery of the blood- stained licence book of the appellant from inside the same bus. The recoveries had been made promptly. A good deal of objection was, however, taken in respect of the recoveries made at the instance of the appellant mainly on the ground that those recoveries had been sought to be proved by two Police Officers, that the private persons associated with the recoveries had not been produced, and that even those persons were not of the locality. The, persons so associated were Muhammad Ajun (resident of Gondal) and Haq Nawaz (resident of Shina Bagh). Muhammad Ajun had been given up on 11-3-1972 during the committal inquiry as having been won over. Haq Nawaz was, for similar reason, given up during the trial. None of the two witnesses belonged to village Bahadur Khan from where the recoveries bad been effected. In support of his contention, learned counsel relied on Ahma Baksh v. The State (1) and Mumtaz Ahmad alias Mumtaz Ali v. The State (2). It is to be noted that the stress under section 103, Cr. P. C. Is on the respectability of the witness.
It is not shown that the witnesses were wanting in such respectability. In any case they, having been won over, were not examined by the prosecution who had to fall back upon the police Officers Abdul Latif S. 1. And Muhammad Sadiq A. S. I. The question that arises is whether in the circumstances reliance can be placed on the evidence of these Police Officers. Such a question had been discussed, with reference to case-law on the point, Intre : Islamul Hay and others (3) and it had been held that where the recovery witnesses had been won over and dropped by the prosecution, the recovery could still be proved by the solitary statement of the Investigating Officer who is to be treated to be as good a witness as any other member of the public. Reliance for such view had particularly been placed on Muhammad Sarwar's case (4). We find nothing on record to suggest that either of the two Police Officers had any motive for falsely, involving the appellant. We, therefore, see no reason to disbelieve them. The recoveries, thus proved through them, are believable. These recoveries include the revolver in question which was without its trigger-guard.
During the hearing of the case, we inspected the weapon and found that the trigger -guard recovered from the spot fitted to the revolver, which fact linked the revolver with the time. It is urged that there was no mark showing the wrenching off the trigger-guard and that the trigger-guard could not get twisted out in the minor scuffle. We found that the trigger itself had got bent which shows that the revolver had struck something and in the process the trigger-guard had got detached and the trigger-guard might have fallen on account of the screws being loose. This is possible particularly in a country-made revolver, such as the weapon in question, wherein the screws are not well-fitted. Moreover, we have the recovery from the spot of the licence of the revolver admittedly belonging to the appellant. The presence of blood--stains on the Licence Book is confirmed by the Serologist. The recovery of the trigger-guard and the blood-stained Licence Book shows the presence of the appellant in the bus at the time of the occurrence.
14. The criticism regarding the daranti (Exh. P. 17) which had been used for inflicting the injuries by the appellant, was that no such weapon was expected to be carried about by a would-be murderer, nor were the injuries compatible with such weapon, there being no mark of serration. The daranti was seen by us. It was slightly curved in shape but was not the ordinary sickle used by the farmers. It had a well-made handle. This weapon, which was recovered from the house of the appellant soon after the occurrence, was found to be blood-stained. No question had been put to the docto in regard to the incompatibility, if any, of the injuries on the deceased with this weapon.
We have also the recovery of the blood-stained clothes for] the appellant which had been washed and kept in sun for drying.
15. Apart from the ocular evidence and the recoveries we have also the motive which had been admitted by the appellant. The deceased had been out on parole and the appellant had taken the opportunity to take revenge for his brother's murder. It was urged that the appellant had no way to know that the deceased had been travelling by that particular bus. This is not a matter which the prosecution is under an obligation to establish. The appellant may have had a source of information of his own.
(1) 1972 P Cr. L J 279(2) 1974 P Cr. L J 137
(3) 1974 P Cr. L J 6(4) PLD 1969 SC 278
16. In the result of the above discussion we feel satisfied that the case stands fully established against the appellant and he has been rightly convicted for the murder. There is no extenuating circumstance. The murder had been committed in a most daring manner in a passenger bus and in the middle of the day. As many as 46 injuries had been inflicted upon the deceased. The appellant in the circumstances deserves the normal penal prescribed by law. This appeal is therefore liable to dismissal.
17. Coming to the Revision, we find that the acquittal of Muhammad Aslam had been mainly on the ground that he had no direct enmity with the deceased, that Maqsum Ilahi the only independent witness did not inspire confidence particularly in regard to his identification and that as he bad appeared as an eye-witness in the murder case of Khaqan's brother, the possibility of his having been falsely implicated could not be ruled out. The learned trial Judge did not discuss the effect of the evidence of the other eye-witnesses, namely Sajawal Shah and Hazur Ali Shah. Even if they were interested witnesses, their evidence was corroborated by the factum of recoveries of the incriminating articles from and at the instance of Muhammad Aslam which recoveries were believed by the learned trial Judge. We are, therefore, satisfied that the reasons assigned by the learned trial Judge for the acquittal of Muhammad Aslam are not satisfactory and that the acquittal .Should be set aside and he should be retried.
18. In the result of these discussions we dismiss the appeal of Khaqan, appellant and maintain his conviction and confirm the death sentence awarded to him. The revision application filed by the complainant, is accepted, the acquittal of Muhammad Aslam co-accused is set aside and it is directed that he shall be re-tried for the murder of the deceased.