MUHAMMAD ILYAS, J.-Muhammad Akram, aged 35/38 years and Muhammad Azram, aged 26 years, sons of Muhammad Fazal, Caste Arain, residents of Karumb Usman, Police Station Jatli, District Rawalpindi, have been convicted by Mr. Muhammad Sarfraz Cheema, Additional Sessions Judge, vide judgment dated the 10th July, 1979, on charge under section 302 read with section 34 of the Pakistan Penal Code, for intentionally causing the death of Ghulam Rasool in furtherance of their common intention, and sentenced to death and to pay a fine of Rs. 5,000 each or, in default, to suffer rigorous imprisonment for six months each. The amount of fine, if realized, is required to be paid to the heirs of Ghulam Rasool deceased as compensation. The said two convicts have filed this appeal against the judgment of the learned Additional Sessions Judge who has, on the other hand, made reference for confirmation of the capital punishment awarded to them. This judgment shall dispose of both the matters.
2. It is alleged that on 5th September, 1976, at about 10 a.m. Ghulam Rasool deceased along with Muhammad Bashir (P. W: 8), both residents of village Karumb Usman, were going from their village to a place known as Dera Bakhshian. On the Way, Ghulam Rasool was attacked by the appel-- lants, who are real brothers. Both the appellants were armed-with guts. In-- the first instance, Muhammad Akram appellant fired at Ghulam Rasool but the fire proved abortive. On this, Ghulatn Rasool and Muhammad Bashir ran towards the locality known as Karumb Ilyas. The assailants followed them. Muhammad Akram appellant again fired and the short hit Ghulam Rasool at his back and neck. Ghulam Rasool went a little ahead and sat down. Then, Muhammad Azram appellant struck him with the butt of his gun and also fired at his right leg. During the occurrence, Muhammad Bashir threw a stone at the assailants which hit Muhammad Akram appellant. Besides Muhammad Bashir (P. W. 8) incident was witnessed by Zaman Ali (P. W. 6) and Muhammad Yaqoob (P. W. 7). Kafait Hussain and Muhammad Iqbal had also seen the occurrence but they were not examined for having been won over. Having caused injuries to Ghulam Rasool'as afore--said the appellants fled away alongwith their weapons. After few minutes, Ghulam Rasool succumbed to injuries at the spot.
3. In regard to motive behind the occurrence, the case of the prosecu--tion is that the wife of Muhammad Akram appellant and that of Ghulam Rasool deceased were real sisters. It was suspected by Muhammad Akram appellant that Ghulam Rasool had illicit relations with his wife.
This gave rise to repeated quarrels. On the night preceding the day of occurrence Muhammad Akram appellant had also threatened to kill the deceased. The other appellant Muhammad Azram, as indicated above, is the brother of Muhammad Akram appellant.
4. Zaman Ali (P. W. 6), who is one of the eye-witnesses in this case, is Lambardar of the village. He reported the matter to the police by making statement, Exh. P. B. This statement was recorded by Muhammad Aslam (P. W. 10) who was then posted as A. S. I. At the Police Station of Jatli. Zaman Ali was on his way -to the Police Station when the A. S. I. Met him at the Bus Stand of Daultala and it was there that the said statement was recorded. On the basis of the above statement, F. I. R. Exh. P.
B. 1 was drawn up at the Police Station by Abdul Latif, Head Constable (P. W. 3).
5. On being informed of the murder of Ghulam Rasool, Muhammad Aslam A. S. I. Went to the spot and prepared injury statement, Exh. P. M. And the inquest report, Exh. P. N., regarding his dead body.
He then despatched the dead body to the mortuary for post-mortem examination.
6. From the spot, the A. S. I. Picked up crime empties Exhs. P. 7, P. 8 and P. 9 which were taken into possession by him ride memoranda Exhs. P. G., P. F. And P. H., respectively. On the following day, i.e. 6th May, 1976, he arrested the appellants. While in custody, Muhammad Akram appellant led to the recovery of his licensed gun, Exh. P. 5 together with five live cartridges. They were taken into possession by the A. S. I. Vide memo. Exh. P. D. On the same day, Muhammad Azram appellant led to the recovery of gun, P. 6~together with three live cartridges which were taken into possession by the A. S. I. Vide memo. Exh. P. E. This was alicensed gun in the name of Muhammad Aslam, a brother of Muhammad Bashir (P. W. 6).
7. [Medical, Evidence].
8. After necessary investigation Muhammad Aslam A. S. I. Challaned the appellant.
9. It was denied by the appellants that they were responsible for causing the death of Ghulam Rasool. It was, however, admitted by Muhammad Akram appellant that gun, Exh. P. 5 was his licensed gun. According to him he had produced it before the police when it was asked for.
Explaining as to why the case had been brought against him, he said ---Muhammad Bashir P. W. Had illicit relations with wife of the deceased. My sister Nasreen Akhtar is married to this Bashir. I and my relatives have been persuading Bashir to give up the illicit relations with wife of the deceased and to keep our sister like an honourable man would keep his wife. Muhammad Bashir P. W. Was annoyed with us on that account and he has killed two birds with one stone by causing the murder of Ghulam Rasool and involving us in the present case.--- As for Muhammad Azram appellant, it was denied by him that he had led to the recovery of gun, Exh. P.
6. It was added by him that the said gun was owned by the brother of Muhammad Bashir (P.
W. 8). When asked as to why he had been involved in this case, he endorsed the plea of Muhammad Akram appellant.
The appellant did not produce evidence in defence.
10. It was held by the learned trial Court that the prosecution had been able to prove the charge against the appellants and, therefore, they were convicted and sentenced under section 302- read with section 34 of the Pakistan Penal Code.
11. Assailing the judgment of the learned Additional Sessions Judge, it was contended by learned counsel for the appellants that the eye-witnesses in the present case had not seen the occurrence and, therefore, no reliance could be placed on their testimony. As indicated above, the eye- witnesses are Zaman Ali (P. W. 6), Muhammad Yaqoob (P. W. 7) and Muhammad Bashir (P. W. 8).
The presence of Muhammad Bashir with the deceased at the time of occurrence was impliedly admitted by the appellants by making following suggestion to Muhammad Yaqoob (P. W. 7) :- "It is incorrect to suggest that none of us had seen the occurrence and I only saw the deceased going with Muhammad Bashir P. W. And thereafter only his dead body was found."
Similar suggestion was made to Zaman Ali (P. W. 6). It was not disputed by learned counsel for the appellants that Muhammad Bashir was not only related to the deceased but also to the appellants. There is thus no reason to doubt the presence of Muhammad Bashir at the time of occurrence. Zaman Ali (P. W. 6) is Lambardar of the village and also a disinterested person.
Muhammad Yaqoob (P. W. 7) too is not related to the deceased nor he has any enmity with the appellants. In his statement, however, Muhammad Yaqoob made some departures in. Regard to firing by the appellants by stating that to start with both the appellants had fired together at Ghulam Rasool and the shots fired by each had hit Ghulam Rasool. This was not stated by the other two eye-witnesses nor it is the prosecution case. We will, therefore, not take into consideration the statement of Muhammad Yaqoob. As for the other eye-witnesses, namely, Zaman Ali and Muhammad Bashir their statements are consistent and in tune with the prosecution version. We will, therefore, like to rely on their testimony.
12. In regard to the recoveries, it was urged by learned counsel for the appellants that since there was no report by the Forensic Science Expert to the effect that the crime empties matched with the guns alleged to have bee recovered from the appellants, the recovery of guns, live cartridges an empties was of no help to the prosecution. It was frankly conceded b C learned counsel for the State that there was no matching report by the sat Expert. The gun Exh. P. 6 alleged to have been recovered at the instance of Muhammad Azram appellant does not belong to him. We will, therefore, not rely on the evidence of recoveries.
13. Evidence of motive was furnishe4 by Zaman Ali (P. W. 6), Muhammad Yaqoob (P. W. 7) and Muhammad Bashir (P. W. 8). The statement of Muhammad Yaqoob was, however, not relied upon by the learned trial Court and we will also like to follow suit. As already stated, Zaman Ali is the village Lambardar and an independent person. Muhammad Bashir is related to both sides. Relying on the statements of Zaman Ali an Muhammad Bashir, therefore, we believe that Muhammad Akram appellant had a motive to kill 6hulam Rasool as it was suspected by him that Ghulam Rasool had illicit liaison with his (Muhammad Akram's) wife. The said appellant had also threatened to put him to death. Muhammad Azram appellant is the brother of other appellant.
14. The medical evidence also supports the ocular evidence inasmuch as it was stated by Dr. Muhammad Samie Tariq (P. W. 9), who had per--formed post-mortem examination on the dead body of Ghulam Rasool, that the fatal injuries suffered by him were caused by fire-arm. He had also found an injury on the person of Muhammad Akram appellant. According to the prosecution, it was caused by the stone thrown at him by Muhammad Bashir (P. W. 8).
15. As for the defence plea it is to the effect that Ghulam Rasool was killed by Muhammad Bashir (P.
W. 8) because Muhammad Bashir wanted to marry the wife of Ghulam Rasool with whom be (Muhammad Bashir) had illicit relations: This plea, however; runs counter to the suggestion made to Muhammad Bashir when he was in, the witness box inasmuch as according to the said plea Ghulam Rasool was put to death by Muhammad Bashir but the suggestion made to Muhammad Bashir was that he was fired at and thus killed by his brother, Muhammad Aslam. It was also submitted by learned counsel for the appellants that Ghulam Rasool was done to death by Muhammad Aslam and not Muhammad Bashir. In view of the defence version, Muhammad Bashir could have a motive to take the life of Ghulam Rasool but Muhammad Aslam bad no such motive.
It is difficult to believe that any person would risk his life in order to promote illicit relations of his brother. The plea raised by the appellants also appears to be an after thought because no suggestion in this behalf was made to Zaman Ali (P. W. 6) and Muhammad Yaqoob (P. W. 7) who were examined before Muhammad Bashir had entered the witness box. There is no defence evidence to support the defence plea. We are not, therefore, impressed by it.
16. It is evident from the statement of Zaman Ali (1. W. 6) and Muhammad Bashir (P. W. 8) that Muhammad Akram appellant had a motive for taking the life of Ghulam Rasool as he (Muhammad Akram appellant) suspected illicit relations between his wife and Ghulam Rasool. It was for the same reason that on the night preceding the day of occurrence there was quarrel between Muhammad Akram and Ghulam Rasool and the former had threatened to kill the latter. According to the ocular account of the occurrence it was Muhammad Akram appellant who bad opened attack on Ghulam Rasool and his death .Had occurred due to the injuries caused by him. It is not disputed that he had licensed gun available to him. The medical evidence too reveals that Ghulam Rasool had died due to the injuries caused by fire-arm. An injury was also found on the person of Muhammad Akram appellant which was stated to have been caused due to the throwing of stone by Muhammad Bashir. We are, therefore, convinced that Muhammad Akram appellant had committed the murder of Ghulam Rasool. Therefore, we maintain his conviction under section 302 of the Pakistan Penal Code.
17. As for the sentence, we find that it is the prosecution's own case that Muhammad Akram appellant bad put Ghulam Rasool to death due to the suspicion of illicit intimacy between the deceased and the wife of t said appellant. The wives of both of them are sisters but according to the statement of Zaman Ali (P. W. 6) they were not on speaking terms. This means that the tempers were high due to the said suspicion of illicit liaison. On the night preceding the occurrence, Muhammad Akram appellant an the deceased had quarrelled for the same reason and the former bad threatened to kill the latter. We believe that Muhammad Akram appellant felt constrained to take the life of Ghulam Rasool with a view to vindicating hi family honour. We are, therefore, not inclined to send him to gallows. Accordingly, his death sentence is altered to imprisonment for fife.
The sentence of fine, is however, maintained. Muhammad Akram appellant will have the benefit of the provisions of section 382-B of the Code of Criminal Procedure in the matter of suffering the terms of imprisonment.
18. This brings us to Muhammad Azram appellant. He is brother of Muhammad Akram appellant but he did not have as much strong motive as Muhammad Akram appellant. The gun allegedly recovered at his instance does not belong to him. Undoubtedly, it was the licensed gun of Muhammad Aslam brother of Muhammad Bashir (P. W. 8). The statement of Muhammad Bashir that the said .Gun was stolen away by Muhammad Azram appellant does not inspire confidence because its theft was not reported to the police. According to the prosecution story, as given in the F. I. R., Exh. B. 1, Muhammad Azram did not fire at the deceased till he (deceased had suffered fatal injuries at the hand of Muhammad Akram appellant. The fire-arm attributed to Muhammad Azram is on the leg of Ghulam Rasool which is a non-vital part. It is also difficult to believe that when Muhammad Akram appellant had thought of taking the life of Ghulam Rasool he had also taken alongwith him his younger brother, namely, Muhammad Azram appellant, so that he may also suffer the consequence of participating in the commission of murder which is punishable with death. The number of injuries found on the dead body of Ghulam Rasool could be --conveniently inflicted by one person. It is not uncommon that innocent persons are involved in criminal cases by making exaggerations. In the circumstances, the participation of Muhammad Akram appellant in the occurrence does not appear to be free from doubt. Therefore, we give him the benefit- of doubt and acquit him of the charge under section 302 read with section 34 of Pakistan Penal Code. He shall be set at liberty forthwith if not required in any other case.
19. The death sentences awarded in this case are not confirmed.
20. The appeal and the reference are disposed of accordingly.
Death sentence not confirmed.