MIAN BURHANUDDIN KHAN, J.-Muhammad Afzal appellant was tried alongwith Muhammad Ashraf and Hamid son of Inayat by the learned Additional Sessions Judge, Sargodha under sections 302, 307 read with section 34, P. P. C. For causing the death of Tasnim Akhtar, and attempting on the life of Hameed, P. W. In furtherance of their common intention on 14-3-77 near the dera of Bashir Langrial in the area of Chak No. 37/SB. The learned Additional Sessions Judge, vide his judgment, dated 4-1-1979 sentenced Muhammad Afzal appellant to death subject to confirmation by the High Court and also imposed on him a fine of Rs. 5,000, or in default to further undergo R. I. For one year. In case the fine was realized, it was ordered to be paid to the father of the deceased as compensation under section 544/A, Cr. P. C. He was further sentenced to 3 years' R.1. And a fine of Rs. 1,000, or in default of payment of fine, to further undergo R. I. For six months under section 307/34, P. P. C. Hamid son of Inayat the co-accused was sentenced to life imprisonment and a fine of Rs. 1,000, in default, to fur--their R. I. For six months. The fine, if realized, was ordered to be paid to the father of the decreed as compensation. He was further sentenced to 3 years' R. I. Under section 307/34, and in default of payment of fine, to undergo R. I. For another three months. Muhammad Ashraf accused was acquitted by the learned trial Judge.
2. The appellant convict filed an appeal in the Lahore High Court against his conviction and sentence and his death penalty, was also to be confirmed by the learned High Court. Hamid son of Inayat also preferred an appeal in the High Court against his conviction and sentence and the learned Judges of the Lahore High Court vide their judgment dated 2-3-1980 accepted the appeal of Hamid son of Inayat and set aside his conviction and sentence. While maintaining the conviction of appellant Muhammad Afzal under sec--petition 302/34, P. P. C. The learned High Court converted his death sentence to life imprisonment but his conviction under section 307/34 was left undisturbed.
3. Appellant Muhammad Afzal filed petition for leave to appeal and leave was granted by this'
Court videorder dated 16-3-81 on the ground that the learned trial Judge and the learned Judges in the High Court deemed it necessary to seek for corroboration of the ocular testimony of prosecution witnesses but ignored the fact that the evidence of the alleged recovery of the gun was totally unworthy of credence.
4. In nutshell the prosecution case is that on 14-3-77 at about 11 a. m. The complainant Bashir Ahmad alongwith his son Tahir Ahmad and his brother-in law Manzoor was sitting in the dera in the limit of Chak No. 37/GB whilethe deceased Tasnim Akhtar, another son of the complainant was cutting the lemon shoots when suddenly Muhammad Ashraf, the acquitted accused, Muhammad Afzal, appellant, brothers inter seand Hamid son of Inayat came armed with 12 bore guns and raised lalkara saying that the deceased would not escape this time and started firing at him.
Tasnim Akhtar deceased got up and ran for his life pursued by the accused who continued firing at him. Tasnim Akhtar was running towards the dera of Bashir Ahmad Lengrial where ultimately they overtook him and fired hitting him on the left side of his abdomen and he fell to the ground, Muhammad Ashraf, the acquitted accused then went forward and put his gun on the temple of injured Tasnim and fired at him, and second that fired by Muhammad Afzal hit him (deceased) on his left rib while shot fired by Hamid son of Inayat hit the deceased on his right wrist. They fired more shots at the fallen Tasnim Akhtar who died on the spot. Thereafter the accused challenged the complainant Bashir Ahmad, Tahir Ahmad and Hameed P. W. Who ran towards their Chak but near the field of sugarcane crops of Raja Hanif the accused reached near them and fired at them.
Tahir Ahmad and complainant Bashir Ahmad--fortunately escaped unhurt while Hameed, P. W.
Was hit by the shots fired by the accused. Afzal son of A.I Muhammad, Aslam son of A.I Akbar and other people of the village witnessed the occurrence.
5. The motive for the crime, according to prosecution, is that six years ago Tasnim Akhtar deceased was charged for the murder of Muhammad Aslam, brother of Muhammad Ashraf and Muhammad Afzal accused. The matter was, however, compromised on transferring a house and mutation of 2 acres of land to the family of the deceased.
6. Dr. Inamul Haque Medical Officer P. W. 7 performed the post-- mortem examination on the dead body of Tasnim Akhtar aged about 23/24 years (deceased) on 15-3-1977 and found a gunshot wound on the left jaw in front of the left ear. This was a wound of entrance and of the dimension of 2' x -- and found charring and blackening around the wound in the area of 5 -- x 3'. The cardboard and some pieces of pellet were removed from this wound the doctor found another entrance wound at the inner side of the left elbow joint 4 -- x 2' and cardboard disc was removed from this wound there was another entrance wound on the back of chest left side and a wound on the inner side of the left arm; another gunshot wound on the left side of the chest of 3 -- x lateral side of the nipple towards the armpit 1' x -- deep to the muscle; an exit wound on the right shoulder below the clavicle; two more entry wounds were found on the middle of the right fore-arm and inner side of the right fore-arm; and lastly two scars of wound on the left side of the abdomen. A piece of bullet/pellet was removed from this wound. In the doctor's opinion injuries 1, 2, 3 and 9 were the result of one shot but he was in doubt about injuries 7 and 9 as to whether these could be caused by a single shot. Injuries 11 and 12 were stated to be the result of a single shot and by scar he meant marks of wound but be was in doubt about the nature of injury No. 13 whether it was wound of entry or exit. Thus multiple injuries of different dimension caused to the deceased from different directions would show that the assailants were more than one though the fire-arms used appear to be shot-guns.
7. In support of the prosecution case Bashir Ahmad P. W. Father of the deceased was examined. ' He gave ocular account of the occurrence and also gave motive for the crime as previous blood feud.
Second witness Hamid Ahmad P. W. 9 who got injured during the attack, at the hands of the accused, was also examined by Dr. Muhammad Firdous, P. W. And the doctor found on him some gunshot injuries on the back of his right buttock, on the right leg (back in its middle 1/3rd) and circular wound on the back of the right leg with lacerated margins. Tabir Ahmad P. W. 12 also gave ocular account of the accused. He is younger brother of the deceased. Ataullah Khan, S. 1. P. .W. 10 investigated the case and Hamid Nawaz, Inspector C.
1. A. P. W. 13, partly investigated this case.
8. The accused/appellant; when examined under section 342, Cr. P. C. Denied the charge and recovery of the gun P. 7 and stated that it was planted on him and that the crime empty was fabricated by the police. He, however, produced no defence. The learned trial Judge observed that no doubt the witnesses in the case were related inter sebut mere relationship of the witnesses was not sufficient to discard their testimony but one cannot call them as independent witnesses and their evidence is to be read with caution i. e. Corroboration of their testimony by independent evidence. In this respect the learned Judge came to the conclusion that as against Muhammad Afzal the ocular evidence is sufficiently corroborated by the recovery of gun P. 7 and the opinion of the Arms Expert to the effect that the gun had been used in the commission of the offence the learned Judge held him guilty of the murder of Tasnim Akhtar. Similarly be found Hamid son of Inayat accused guilty of the offence of murder for the reason that be has been named in the F. I. R.
As one of the assailants and being a servant of Muhammad Afzal, accused, he participated in the commission of the offence and gun P. 8 was recovered at his instance by the police, which is sufficient corroboration of the ocular evidence qua Hamid accused but gave him lesser penalty as he had no direct motive against the deceased and acted under the order of his master Muhammad Afzal who was awarded death penalty plus fine as stated in the foregoing paragraphs.
9. As regards Muhammad Ashraf the learned trial Judge relied on the incomplete report of the police under section 173, Cr. P. C. Given by Ataullah, S. I. And found that the ocular evidence of the three witnesses namely Bashir Ahmad, P. W. 8, Hamid Ahmad, P. W. 9, and Tahir Ahmad, P. W. 12 was not corroborated by any independent evidence i.e. Recovery of gun and incriminating articles.
Moreover, it was observed by the trial Court that the Investigating Agency doubted his participation in the crime as he had led evidence in support of his plea of alibi. The learned Judge, therefore, acquitted him giving the benefit of doubt.
10. On appeal by the convict, and revision petition for enhancement of fine imposed on Muhammad Afzal appellant and life imprisonment of Hamid accused to be altered to death sentence. The learned Judge of the High Court dismissed the revision petition and accepted the appeal of Hamid accused on the ground that the recovery of gun P. S. Is in no way, connected with the commission of the offence as no empty cartridge was found to have been fired from his gun. In the case of Muhammad Afzal the learned High Court came to the conclusion that the recovery of gun P. 7 from the accused/appellant and the report of the Firearm Report showing that one of the crime empties was fired from the said gun corroborates the ocular testimony of the witness. The High Court, therefore, maintained his conviction but for the reason that he bad not fired the fatal shot, altered his conviction from death to life imprisonment.
11. Learned counsel for the appellant contended that the prosecution evidence had been dismissed with regard to the other two acquitted accused by the trial Court and the Court of Appeal, that the statement of these eye--witnesses against the appellant Muhammad Afzal should not be given any credence. Regarding the recovery he contended that the recovery of the gun was in the case suspicious manner and appears to be planted by the police in order to secure conviction of the named accused. The learned counsel also referred to the statement of Hamid Nawaz Inspector, P.
W. 13 who had recovered gun P. 7 pointed by Muhammad Afzal accused while in police custody from a place known as Cattle Haveli, and lying underneath the heap of bears. This being an unlicensed gun. Sh. Shaukat A.I learned counsel further contended, it cannot be linked with the accused.
12. We have examined recovery memo. Exh. PL wherein it is mentioned that the accused first disclosed the place where he had concealed gun P. 7 giving the location and thereafter the police was led by him to the recovery of the gun, which procedure is not strictly legal. Recovery of an incriminating article at the instance of the accused under section 27 of the Evidence Act is admissible only to the extent that when the accused leads to the discovery of incriminating article and his words or action leading to the discovery are contemporaneous with the recovery as forming part of the res gestae.More--over, this recovery was made in the presence of the witnesses namely Haji Muhammad Siddiq and Khan Muhammad, the later not produced at the trial and the former being real uncle of the deceased Tasnim Akhtar, admitted that in an earlier case in 1971, he (Haji Muhammad Siddiq P. W. 9) was accused of the murder of one Sullah, Sadhal.
In that case Muhammad Ashraf accused was the helper of the complainant party. In cross- examination he admit--ted that the village Abadi consisted of many respectable and disinterested per--sons out of whom some had joined the investigation namely Khan Muhammad, Afzal Manzoor and Ghulam Hussain, Lambardar of the Chak, but on going to the place of recovery the Investigating Officer had not asked any one of them to accompany him to witness the recovery of the gun. He further admitted that Afzal and Ashraf accused have two brothers Amjad and Anwar and their father Sultan is also alive. They have a joint cultivation and a common Haveli. Thus in our opinion the recovery of gun P. 7 become highly doubtful for the reason that no disinterested and respectable person e of the locality was made to join the investigation i.e. To witness the recovery of gun P.
7. Moreover, the Haveli from where the gun is recovered is jointly possessed by Afzal and Ashraf and their father Sultan who is also alive Thus the possession of gun cannot be said to be exclusively that of Muhammad Afzal accused. Discarding this piece of corroborative evidence the case of Muhammad Afzal stands on the level as that of the other acquitted accused. We, therefore accept his appeal, set aside his conviction and sentence and direct that the appellant Muhammad Afzal be set at liberty if he is not required in any other case.