KHIZAR HAYAT, J.------Muhammad Sadiq (40) and his brother Muhammad Ashiq (38) were tried and convicted by Additional Sessions Judge, Multan by order dated 30th June, 1979 on three counts. They were sentenced under section 460, P.P.C. To seven years' rigorous imprisonment and a fine of Rs. 1,000 each, in default whereof six months' rigorous imprisonment each ; under section 307/34, P.P.C. To one year's rigorous imprisonment and a fine of Rs. 500 each, and under section 302/34. Muhammad Sadiq was awarded death penalty and a fine of Rs. 5,000, in default whereof one year's rigorous imprisonment while Muhammad Ashiq was awarded life imprisonment and a fine of Rs. 2,000, ' in default whereof six months' rigorous imprisonment. No compensation was awarded to the heirs of Ghulam Rasool, deceased., or his son Allah Yar, the injured P. W. Under section 544-A, Cr. P. C. All the sentences of Muhammad Ashiq were, however, ordered to run concurrently.
2. Both the convicts have filed separate appeals through jail (Cr. A. No. 170 of 1980 and Cr. A. No. 170- A'of 1980 respectively) against their convictions and sentences in this Court, as also the learned Additional Sessions Judge has submitted the proceedings under section 374, Cr. P. C. For confirming the death sentence of Muhammad Sadiq. We propose to dispose of both the appeals and the murder reference by this judgment.
3. Allah Yar (P.W. 8), the injured P. W., whose father Ghulam Rasool was murdered in the occurrence, gave the following details of the incident at the trial . --- I and my father were sleeping in the courtyard of our house. I heard some voice of breaking something. I woke up and got my father also awoke. I heard some noise again and therefore we both went towards back of our house. We saw the accused persons breaking the trunk and taking clothes out of it. We saw broken hole in the wall. I and my father grappled with one [of the] thief each before there was one fire also. We grappled as such and raised noise that we are being looted. I had grappled with Ashiq whose name I learnt later on and my father grappled with Sadiq whose name I learnt afterwards. On hearing our alarm. Hussain Bakhsh, Naseer Baksh, Azam and Allah Bakhsh reached there. They asked not to worry as they have come. Ashiq raised a Lalkara to fire at, on which Sadiq fired at my father, which bit him at his forehead and he fell down. Hussain Baksh and Naseer Baksh overpowered Sadiq and snatched the arms from him. Ashiq accused fired at me thrice which hit me on my face, side of the stomach and arm. Muhammad Azam and Allah Bakhsh overpowered Ashiq at the spot and took his arms from him. I observed a hole in the wall and saw the trunk and clothes over there. There was present [there] one bundle of clothes. The trunk is Exh. P. 1 and the clothes are Exh. P. 4/1-17 and bundle of clothes belonging to Ata Muhammad are Exh. P. 5/1-13. The clothes Exh. P. 4/1-17 and the trunk Exh. P. 1 are ours. The accused present in the court are the same who were apprehended at the spot. People from the village removed me to the hospital.--- Some villagers were still preparing to remove Allah Yar P.W. To the hospital when Hussain Bakhsh, one of the eye-witnesses leaving both the apprehended accused with their fire-arms and the dead body of Ghulam Rasool, in the care of Muhammad Hassan, Lambardar, repaired to Police Station Makhdoom Rashid and lodged F. I. R. Exh. PF there, at 5.10 a.m, on 2nd May, 1978 which was recorded by S. 1. Muhammad Yousaf (P. W. 11) containing almost the similar version as quoted above.
4. S. I. Muhammad Yousaf having reached the spot at 6.45 a.m. Prepared inquest report Exh. PV and injury statement Exh. P.V/1of the deceased and despatched the dead body for post-mortem examination under the escort of Constable Abdul Sattar (P. W. 2). He secured from the spot blood- stained earth, a crime empty P. 11 a trunk P. 1 with clothes P. 4/1-17 belonging to Ghulam Rasool, deceased, another bundle of clothes, P. 5/1-13 belonging to Ata Muhammad P.W. (not produced) two "Sandhiwas'. P. 2 and P. 3 (implements of house breaking), a Jhola P. 10 containing articles P.
10/1-9 belonging to the appellants, through different Memos. Attested by Muhammad Azam (P. W.
9) and Manzoor Hussain P.W. (not examined). The appellants were produced before the Investigating Officer who arrested them. As they had injuries on their persons, therefore, after preparing their injury statements Exh. PX and Exh. PY, they were also got medically examined.
5. The earth collected from the spot was found stained with human blood vide Chemical Examiner's report Exh. PAA. Crime empty P. 11 recovered from the spot matched with -12 bore pistol p. 6 recovered froth Muhammad Sadiq, appellant, and similarly six empties found in the chambers of revolver P. 7 recovered from Muhammad Ashiq, appellant, were found to have been fired from the same revolver, according to the Fire-arms Expert's report Exh. PCC.
6. After the post-mortem examination performed on the dead body of Ghulam Rasool, Constable Abdul Sattar brought deceased's last worn clothes and a sealed phial containing pellets (recovered from the wounds) and delivered them to the Investigating Officer who seized them through Memos Exh. PS and Exh. PT respectively. Site plan Exh. PE in triplicate was got prepared by Allah Dad Patwari (P. W. 5). After completing the necessary investigations, the challan was put in Court.
7. Dr. Allah Nawaz (P.W. 1) conducted post-mortem examination on the dead body of Ghulam Rasool at 5.15 p.m. On 2nd May, 1978 and found a fire-arm wound on his forehead at the level of eyebrow. Whole skull was torn, with fractures of frontal bone, parietal bone, occipital bone and temporal bone. Many pieces of bones were missing. 27 pellets were removed from posterior part of the cranial cavity. In the opinion of the doctor, the death bad occurred due to shock and haemorrhage produced by the injury to the brain which was sufficient to cause death in ordinary course of nature. The duration between injury and death was immediate and between death and post-mortem examination was 12 to 24 hours. He also opined the injury as ante-mortem, caused with a fire-arm.
8. On the same day, the same doctor medically examined both the appellants. He observed five injuries each on the person of the two appellants caused with blunt weapon within the duration of 24 hours. Their medical reports are Exh. PB and Exh. PC. In cross-examination, the doctor stated that the injuries of the appellants could be caused during the process of grappling and overpowering them.
9. Allah Yar, the injured P.W. Was examined on 2nd May, 1978 by Dr. Muhammad Afzal Qamar who was working as Casualty Medical Officer in Nishtar Hospital, Multan during the days of occurrence.
This doctor was not available for evidence at the trial because he had joined Army service.
However. Dr. Abdul Haq (P.W. 12) who operated the injuries of Allah Yar P.W. Appeared and stated that the patient was admitted in the hospital with firearm injuries on 2nd May, 1978. Seeing the bed head ticket, he gave the following details of the injuries ;
(1) Gunshot injury on the left side of the abdomen at its lower part.
(2) A fire-arm injury on the left forearm.
(3) A fire-arm injury on the mouth.
He operated injury No. 1 and noticed that the intestines were perforated at many places and the patient being in serious condition was given blood transfusion. He declared the injury as "imminently dange--rous". He also stated that Allah Yar P.W. Had told him that he got injured while resisting certain thieves.
9. At the trial, the prosecution relied on the evidence of three eye--witnesses, namely, Hussain Bakhsh (P.W. 7), Allah Yar (P.W. 8) and Muhammad Azam (P.W. 9) ;the recovery of fire-arms from the appellants; the medical evidence and the reports of the Chemical Examiner and the Fire-arms Expert.
10. Both the appellants when examined under section 342, Cr. P. C. Denied the allegations and stated that due to previous enmity with the witnesses they were first arrested from their house in Munirabad and then involved in this case. Muhammad Sadiq appellant, gave some details of the enmity. He stated that he had given evidence against one Ejaz and Iqbal, near relatives of Hussain Bakhsh, complainant, in a rape case under section 376 P.P.C. And bad also prevented them from putting of Sheasham tree standing in front of his house. He further stated that the murder of Ghulam Rasool was actually committed by Wazir Ahmad P.W. (given up) and in order to save him, he has been substituted for Wazir by the prosecution witnesses. However, no witness was examined in defence.
12. The learned trial Court believed the eye-witnesses, the incriminating recoveries and found the prosecution case established beyond reason--able doubt against both the appellants and consequently sentenced them on all the three counts as indicated in paragraph 1 of the judgment.
13. Learned counsel appearing on behalf of the appellants sub--mitted that the case against the appellants was concocted on account of previous enmity existing between them and the relatives of Hussain Bakhsh, complainant, namely, Ejaz and Iqbal. Further stated that the actual murderer was Wazir P. W. For whom the appellants have been sub--stituted, Lastly, be submitted that the recovery of firearms from the appellants was fake. As against this, the learned State counsel has supported the conviction saying that the appellants were caught red-handed at the spot and the plea of substitution stands disproved on the record.
14. We have gone through the record with the assistance of the learned counsel for the parties and considered their submissions carefully.
15. It is in evidence that the eye-witnesses lived close to the place of occurrence at a distance of, say, 11 Kanals or one Bigha. Ghulam Rasool, deceased, was Mahay by caste whereas Muhammad Azam P.W. a school teacher, is Mulwana Qureshi while Hussain Bakhsh P.W. Is Arain. So, in no way they appear to be connected with the deceased and his family. We have noted that stray and half- hearted suggestions have been put to Allah Yar (P. W. 8) that a rape case was registered against Ejaz and Iqbal at the instance of Muhammad Sadiq, appellant, and also that the latter bad disallowed Ejaz, Iqbal and their relative Hussain Bakhsh, complainant from cutting the `Sheesham' tree standing in front of his house and a quarrel had taken place between them on this issue.
Strangely enough, Hussain Bakhsh (P.W. 7) was not suggested that he, in the company of Ejaz and Iqbal, had gone to the appellant and picked up a quarrel with him over the cutting of the 'Sheesham' tree. When Hussain Bakhsh (P. W. 7) was asked if he was related to Ejaz and Iqbal he replied that he did not know any person with the name of Ejaz and Iqbal and also repelled confidently that they were his relatives. No specific relationship of these persons was suggested to the witness. The appellants claimed to be the residents of Munirabad, situated a mile-or two away from the place of occurrence. If it was so then they should have know the specific relation--ship of Ejaz and Iqbal and should have suggested the same precisely to the prosecution witnesses during the cross-examination.
16. By going through the evidence and seeing the trend of cross--examination, we have entertained an impression that questions pertaining to enmity and relationship of the witnesses with the deceased or his family were asked by the defence counsel without subtle and certain instructions from the appellants. Rather it appears that he was groping in the dark expecting to get some clue by chance so that he may build an argument that the witnesses are interested but unfortunately, his hope did not materialise. Had there been any truth in the assertion that Muhammad Sadiq, appellant, had got a rape case registered against Ejaz and Iqbal on account of which he was roped in this case then be could easily have obtained a copy of such an F. I. R. And produced the same at the trial which has not been done. What to think of the relationship of Ejaz anal Iqbal with Hussain Bakhsh, informant in this case, we have doubts if they ever exist in this world.
17. As for the plea of substitution, Muhammad Sadiq, appellant, had raised it in reply to question No. 12 which reads as under "I am innocent. Wazeer given up P. W. In fact is a real murderer and the witnesses wanted to save him, therefore, they have involved me in this false case."
It appears to us too sketchy to be appreciated. He did not say therein as to why Wazir was let off and the appellant was substituted for him by the near relatives of the deceased and his son Allah Yar, the injured P. W. It has been asked from Hussain Bakhsh (P.W. 7) and Allah Yar (P.W. 8) that Wazir Ahmad P.W. Had illicit relations with the wife of the deceased and Hussain Bakhsh (P. W. 7) had sexual liaison with the wife of AllahYar (P.W. 8) yet it was not specifically suggested to them that Wazir Ahmad P.W. Had killed Ghulam Rasool to remove him from his way for joining his widow although the question obviously carries this implication. Therefore, having considered this aspect of the case, we are constrained to remark that these scandalizing questions were asked without any reason--able basis and as such we are not persuaded to accept the plea of substitu--tion for reasons given below
(a) It has been often held by the Supreme Court of Pakistan and this Court as well that the substitution is a thing of rare occurrence which cannot be assumed unless and until he who set up the 'plea of substitution had laid firm foundation for it, which we may vouchsafe to say, is non- existent in this case. There may be cases where some innocent persons are added up with the real culprits but the real and known culprit is never let off by the kith and kin of the deceased without any rhyme and reason and in his place some innocent person is roped in. The substitution is still harder to believe where the real culprit allegedly had been playing with the honour of the females of the deceased or the witnesses injured during the occurrence, as suggested by the defence. In such cases, the relatives of the deceased are expected to pursue the case against the adulterer with a greater zeal to send him to the gallows ;
(b) no explanation as to the injuries suffered by Allah Yar P. W. Is forthcoming from the defence side. This witness, according to the prosecution case, was injured alongwith his father Ghulam Rasool "(deceased) at the same time and the medical evidence is also in the same strain ;
(c) the injuries on the person of the two appellants prove ,that they were captured red-banded at the spot (Ahata of Ahmad Yar) as claimed by the prosecution witnesses. They have failed to explain their presence at the spot. The firearms recovered from them could cause the injuries found on the person of the deceased and Allah Yar, P. W. ; .And
(d) the argument of substitution was perhaps built up because, accord--ing to the F. I. R., Wazir Ahmad P. W. Having heard the alarm of the deceased and his son "save us from the dacoits" reached the spot firing on the way with his licensed gun. It is not believable that Wazir's stray pellets had hit the deceased on his head because the head injury of the deceased is extensive inasmuch as the head bone and the brain matter had completely blown off which is suggestive of the fact that the shot was fired only inches away from the deceased as is the case of the prosecution.
18. In short, in the presence of the overwhelming evidence on the record discussed above, it is difficult to conceive of any circumstance which might have the effect of creating doubt in the prosecution case much less to establish the plea of substitution. The result is that the convictions of the appellants recorded by the learned trial Court are upheld and the sentences awarded are maintained. The death sentence of Muhammad Sadiq, appellant is confirmed and the reference is accepted. The appeal filed by Muhammad Ashiq, appellant is also rejected.
19. We have noticed that no compensation under section 544-A, Cr. P. C. Has been awarded to Allah Yar the injured prosecution witness or the heirs of the deceased nor the learned trial Court has given any reason for it. It is, therefore, directed that the fine imposed on the appel--lants, if realised shall be paid to the injured prosecution witness and the heirs of the deceased in equal share.