GULBAZ KHAN, J.---Sultan son of Muhammad Khan, Sultan and Dewan sons of Baqar Khan, Pehlwan and Amanat Ali were convicted, on 4-9-1979, by the learned Additional Sessions Judge, Sheikhupura, Camp at Rawalpindi, for offences under sections 148, 302/149, 332/149, 353/149 and 307/149, P. P. C. And sentenced to undergo rigorous imprisonment for one year each under section 148, P. P. C., imprisonment for life and a fine of Rs. 5,000 (Rupees Five Thousand) each or in default in payment of fine to undergo rigorous imprisonment for two years under sections 302/14.9, P. P. C., one year rigorous imprisonment each under section 332/149, P. P. C., one year rigorous imprisonment each under sections 353/149, P. P. C., and there years' rigorous imprisonment and a fine of Rupees Five Hundred each or in default in payment of fine to undergo rigorous imprisonment for six months under section 307/149, P. P. C. All the substantive sentences were ordered to run concurrently. The fine, if recovered, for offence under section 302/149, P. p. C. Was ordered to be paid to the legal heirs of the deceased. Muhammad Khan co-accused was given the benefit of doubt and acquitted of the charges. Bostan co-accused had absconded. Sadiq -co- accused was murdered.
2. Criminal Appeal No. 988 of 1979 filed by Sultan and Dewan son of Baqar Khan, Criminal Appeal No. 1038 of 1979 filed by Sultan of Muhammad Khan, Criminal Appeal No. 1039 of 1979 filed by Pehlwan, Criminal Appeal No. 1089 of 1979 filed by Amanat Ali, the Murder Refence, Revision Petition No. 846 of 1979 filed by Muhammad Zaman and Criminal Revision No. 234 of 1980 filed by the Public Prosecutor, are being disposed of together.
3. The occurrence had taken place on Rawalpindi-Kahuta Road in the area of Chak Kamdar, on 1- 2-1973, at about 10.30 p. m. The case was registered at Police Station Rewat, on -1-2-1973 at 12.00 noon, on the statement of Muhammad Zaman (P. W. 11). Police Station was at a distance of about eight miles from the spot. The F. I. R. Was recorded by Imdad Hussain S. H. O. (P. W. 22).
4. Mehrban son of Muhammad Khan (brother of Sultan son of Muhammad Khan appellant), was murdered, on 21-11-1972. Muhammad Zaman complainant, his two sons Muhammad Aslam, Iltaf, his sister's son Muhammad Bashir (P. W.), his son-in-law Ali Asghar and Lal (P. W.) were challaned in the case. Muhammad Zaman complainant was admitted to bail, on 13-1-1973. The other accused were confined in jail Rawalpindi. The case was fixed in the Court of A. C. Kahuta, for 1-2-1973. The com--plainant and the accused of the aforesaid murder case were to be produced in the Court of Assistant Commissioner, Kahuta, on 1-2-1973. Muhammad Zaman complainant, Muhammad Amin, Abdul Ghafoor, the five accused of the murder case, namely, Muhammad Aslam, 11taf, Muhammad Bashir, Ali Asghar and Lal Khan, who were brought by F. C. Muhammad Aslam, F. C. Ghulam Rabbani, F. C. Fateh Sher F. C., Taj Muhammad and Muhammad Ashraf and Muhammad Sharif, who were in custody and produced in a Court of were to be A. C. Kahuta. F. C. Muhammad Azram (P.
P.12), . F. C. Muhammad Siddique, who were posted at Police Station Kallar Sayedan, boarded Bus No. CR 5183. When the bus reached at the turning of Chak Kamdar, at about 10.30 a. m., Sultan appellant son of Muhammad Khan, Bostan absconder armed with guns, Amanat, Pehlwan, Dewan appellants armed with rifles, Sultan appellant son of Baqar Khan, Sadiq co-accused (since murdered) and Muhammad Khan acquitted accused armed with rifles, attacked the bus. Bostan absconder gave out lalkara and threw a hand-grenade at the bus, which exploded on the road.
Simultaneously, other accused started firing indiscriminately. The bus stopped, and the passengers got down from the bus in order to save their lives. The five accused of the murder case and other two accused, who were in custody, took shelter against the seats. The complainant and the Police Constables got down from the bus. The complainant received a fire shot on his right leg.
Muhammad Azram F. C. (P. W. 12) and Muhammad Siddique (not produced) fired shots at the accused in self-defence. There was an exchange of firing for about twenty minutes. During the firing, Bostan absconder and Sultan appellant threw six more hand-grenades out of which three did not explode. Gulab Khan deceased, Muhammad Zaman complainant, Lal Khan (P. W. 18), Iltaf Hussain, Muhammad Ashraf and Ghulam Rabbani Constable received fire shot injuries. Gulab Khan was removed to hospital and medically examined. He died on 12-2-1973.
5. The motive for the present occurrence was the old-standing enmity between the parties. The appellants and their co-accused had launched an attack to avenge the murder of Mehrban.
6. Jmdad Hussain S. H. O. Prepared injury statement of Muhammad Zaman complainant. On reaching the spot, he took into possession three hand-grenades, lever hand-grenade, three springs of hand-grenades and two pins of hand-grenades. He collected thirteen '12 bore empty cartridges, four empties of 7 mm. Rifle, three empties of .12 bore pistol from the spot. He took into possession Bus No. CR 5183 from the spot. The window panes were broken. Eight pellets were found in the bus, which were taken into possession. The S. H. O. Took into possession blood-stained earth and blood-stained pebbles from the spot and sealed them into a parcel. He took into possession blood from inside the bus by a piece of white cloth and sealed it into a parcel. Muhammad Siddique produced 53 empties of '303 rifle and thirteen chargers before the S. H. O., who took them into possession. The S. H. O. Arranged for photographs of the bus. He made query from the doctor about the condition of Gulab Khan and received reply that Gulab Khan was not fit to make state-- ment. Amanat, Pehlwan appellants and Sadiq co-accused (since murdered), were arrested on 2- 2-1973. The rough sketch of the place of occurrence was prepared. After the death of Gulab Khan, S. H. O. Prepared his injury statement and inquest report. The S. H. O. Took into possession blood-- stained clothes of the witnesses. On 5-3-1973, Ghulam Farid produced licensed rifle of Dewan appellant and it was sealed into a parcel. On 8-2-1973, Sultan son of Baqar Khan was arrested.
Muhammad Khan acquitted accused was arrested, on 14-3-1973. Sultan appellant son of Muhammad Khan and Bostan were declared proclaimed offenders. The S. H. O. Moved application for proclamation against Sultan appellant son of Muhammad Khan and Bostan. After completing the investigation, the S. H. O. Submitted challan in Court.
7. Dr. Rafique Ahmad was posted as Medical Officer, in Hospital at Kahuta. He examined Gulab, who was brought to the Hospital in an unconscious condition. Gulab was admitted in the Hospital but as his condition was not satisfactory, he was referred to D. H. Q. Hospital, Rawalpindi.
Dr. Muhammad Siddique M. O., D. H. Q. Hospital, Rawalpindi, examined Gulag Khan; on 3-2-1973, at 9.00 p. m., and found a lacerated wound -- x -- brain tissue in the wound on the right side of skull 4' above the right ear. Gulab was comatosed. His pulse was thready, pupils were sluggishly reacting to life. The injury was dangerous to life and caused by a fire-arm. The duration was about six hours.
Autopsy was conducted on the dead body of Gulab Khan, on 13-2-1973. There was circumscribed round wound of entry measuring 10 x 12 mm. With sharp inverted edges over the vault of the skull on the right side of the mid-line. There was a small bony fragment in the wound. There was a trachotomy wound in the front of the neck with a purulent fluid coming out. There was haemorrhage under the scalp and extensive subdural haemorrhage on the lateral surfaces of both the cerebral hemispheres. The wound of entry was in the right half of the skull. The missile bad pierced through the right cerebral hemisphere and was found lodged in the cerebellum. Bony fragments were present in the track. The cause of death was due to shock and haemorrhage as a result of bullet injury on the head.
8. Dr. Abdul Jabbar M. O. D. H. Q. Hospital Rawalpindi, medically examined Muhammad Ashraf P. W., on 1-2-1973, at 12.15 p. m. And found six punctured wounds on the back of sacral region, outer side of right hip joint, back of right thigh, outer side of right thigh lower part, outer side of right knee and inner side of left calf. The edges of the wounds were blackened but skin around was not burnt. The injuries were caused by fire-arm and the duration was within about six hours.
The same doctor medically examined Ghulam Rabbani F. C., on the same day, at 12.45 p. m. And found a punctured wound with blackened edges on the outer aspect of right thigh and two abrasions on the left leg. The punctured wound was the result of fire-arm, while abrasions were caused by blunt weapon. The duration was within about six hours.
9. Dr. Muhammad Siddique M. O. D. H. Q. Hospital, Rawalpindi medically examined 11taf Hussain P. W.
And found a grazed abrasion on the back of right index finger and a swelling on the left nostril. The injury on the right index finger was probably the result of the fire-arm, while swelling was due to blunt weapon.
The same doctor medically examined Lal Khan P. W. On the said day and time and found a small wound above the right ear. The injury was caused with blunt weapon and within a duration of about six hours.
The same doctor medically examined Ali Asghar P. W. And found a grazed abrasion on the back of right hand. The injury was caused by fire-arm, within a period of about six hours.
The same doctor medically examined Muhammad Zaman P. W., on the said date and found a fire- arm wound on the inner side of right thigh, a. Lacerated fire-arm wound of exit on the outer side of right thigh and a small abrasion on the back of right little finger. The injuries on the right thigh were due to fire-arm while on the little finger it was caused by blunt weapon. The duration was within twelve hours. Injury on the inner side of right thigh was a wound of entry.
I D. Muhammad Zaman complainant (P. W. 11), Muhammad Azram F. C. (P. W. 12), Lal Khan (P. W. 18) and Bashir Ahmad (P. W. 19) were examined as eye-witnesses. Ghulam Rabbani F. C., Iltaf, Muhammad Ashraf and Ali Asghar, who received injuries, were not produced. Muhammad Ashraf had died whereas the other injured witnesses were given up as un--necessary. The four eye- witnesses mentioned above supported the prosecution version and they involved the appellants in their statements made before the trial Judge.
The first point for determination is, as to whether or not the said four witnesses were present and the second question is, as to whether or not they had made correct statements.
11. It is an admitted fact that Muhammad Zaman complainant and the co-accused, who were challaned in the murder case of Mehrban, were to appear in the Court of Assistant Commissioner, Kahuta, on 1-2-1973. Muhammad Zaman complainant was admitted to bail, on 13-1-1973. He had to appear in the Court of Assistant Commissioner. Bashir Ahmad (P. W. 12) was an accused in the said murder case but he was in custody. He was to be produced in the said Court alongwith other accused, who were not released on bail, His presence at the spot could not be challenged Muhammad Azram F. C. (P. W. 12) was attached to Police Station, Kallar Seyydan. He and Muhammad Siddique F. C. Were deputed by Inspector to accompany the under trial prisoners from Pindi to Kahuta. Consequently, they accompanied Bashir Ahmad etc. Muhammad Azram F. C. And Muhammad Siddique F. C. Were carrying Service rifles. They fired shots in defence after taking shelter against the bus. The police recovered fifty-three empties of 303 bore rifle. It was a corroboration of the statement of Muhammad Azram F. C. Muhammad Siddique F. C. Was rightly given up by the prosecution. Lal Khan (P. W. 18) was to be produced in the murder case of Mehrban.
His presence at the spot also stood proved. He had an injury on his person and the duration of the injury was within about a period of six hours. Muhammad Zaman, Lal Khan and Bashir Ahmad had named the appellants in their statements.. They knew the appellants. It was a day. Time occurrence. Muhammad Azram F. C. Had also named the appellants in his statement made before the trial Court. The position of Muhammad Azram in his statement Exh. D C made before Investigating officer was that he had not mentioned the names of the accused in his statement.
The witness was duly confronted with his police statement. In statement before the police, the witness had not stated as to which arms the appellants were carrying and as to who had " thrown hand-grenades but while making statement in Court, he had named Bostan as the person, who had thrown the hand-grenades. He also gave the weapons of offence which the appellants were carrying, He was duly confronted with his earlier statement. It was clear that Muhammad Azram F.
C. Bad made improvement over his earlier statement but it stood established from his state--ment that some persons threw hand-grenades and started indiscriminate firing at the bus, as a result of which the deceased died and several other witnesses sustained injuries.
12. The motive in this case stood proved against Sultan son of Muhammad Khan, Pehlwan, and Amanat Ali. In year 1962, a Chowkidar of the village was murdered, when the police party raided the house of Muhammad Khan acquitted accused and his son Mehrban (since murdered). The accused wanted to destroy the dead body of Chowkidar. Muhammad Zaman complainant deputed his son Muhammad Akram to guard the dead body, and for that reason the accused were against Muhammad Akram. They, committed the murder of Muhammad Akram about fourteen days later and in that lease Sultan appellant son of Muhammad Khan, his brother Mehrban (since murdered), Suhbat and Nazir were challaned. On 21-11-1972, Mehrban was murdered and in that case Muhammad Zaman complainant, his sons Iltaf, Aslam, Balhir P. W. Lal P. W. And others were challaeed. Sultan appellant son of Muhammad Khan was a real brother of Mehrban, while Amanat appellant was his cousin. Sultan appellant son of Muhammad Khan was married to the niece of Pehlwan appellant. The said three appellants had a motive to avenge the murder of Mehrban. It was a strong piece of evidence and a corroboration of the statements of Muhammad Zaman, Lal Khan and Bashir Ahmad P. Ws. Sultan alias Kamra and his brother Dewan sons of Baqar were remotely connected and distantly related. Hence the evidence of motive did not furnish corroboration against them.
13. Sultan appellant son of Muhammad Khan had absconded after the occurrence. Ho. Was declared proclaimed offender. The Investigating Officer had moved pplication for issuing the proclamation, against him. He was arrested on 14-3-1973, i. e. One month and fourteen days after the occurrence. He remained fugitive for such a long period: It was another circumstance against him, which was rightly considered as a corroborative piece of evidence.
14. Amanat Ali appellant had confessed his guilt. He made an inculpatory statement. He made the following statement in answer to question No. 4:- ---The fact being that Bostan since absconder was armed with revolver and I was holding a rifle.
When we reached the spot Bostan accused threw a band grenade and then Sultan accused threw another hand grenade followed by firing by him with a '12 bore gun. Sultan asked the remaining accused to fire on the bus. On his asking all the remaining accused including myself fired at the bus. After firing Sultan accused and two other persons, namely Muhammad Saeed and Banaras took the rifles from us and asked us to run away and. We ran away.--- Amanat Ali further admitted that co-accused Bostan threw six/seven hand-grenades at the bus and the accused started firing ruthlessly towards the bus and two Constables, who were armed with rifles got down from the bus and started firing. He further admitted that as a result of firing and explosion of hand-grenades, Gulab Khan deceased, Muhammad Zaman, Muhammad Asbraf, Ali Asghar; Lal Khan and Ghulam Rabbani received injuries. When asked as to why the case was against him, be replied that as he had participated in the offence, he was correctly challaned.
Amanat Ali had no escape due to his confessional statement. He was in jail and there was no material on record to show that he was prompted by some one else to make confessional statement. The confessional statement of Amanat Ali was a material evidence against other appellants, Since this statement was not put to the other appellants and. They were not afforded opportunity to meet this circumstance, we do not feel inclined -to use this confessional statement against the other appellants. The learned counsel for Amanat Ali appellant submitted that Amanat Ali appellant had made correct statement in Court.
15. The learned counsel for the appellants contended that injuries of Muhammad Zaman had been fabricated. We cannot agree to the said contention: Muhammad Zaman had a fire-arm injury on the inner side of right thigh. It was the wound of entry. He had another injury on the outer side of right thigh. It was the exit of Injury' No. 1. These injuries had been caused with fire-arm. The doctor was not put any question that these injuries were not the result of fire-arm. Since the defence did not challenge the statement of doctor, it shall be deemed to have been accepted by the defence.
Muhammad Zaman was medically examined, on 1-2-1973, at 8.30 p. m. The doctor gave the duration of the injuries as twelve hours, which fitted with the prosecution version. Muhammad Zaman did receive fire shot injury during the occurrence.
16. It, was further submitted by the learned counsel for the appellants that no disinterested passenger or the driver or cleaner was examined by the prosecution and hence the Court should draw adverse inference against the prosecution. The Courts in Pakistan had taken notice of the fact, that persons usually avoid to become witnesses for fear of their lives. It was a case in which hand-grenades was thrown on the bus and there was indiscriminate firing. No person could pick up courage to appear in the witness box. For this reason, we are not prepared to draw adverse inference against the prosecution.
17. The contention of the learned counsel that case of the appellants was at par with the case of acquitted accused, was devoid of force. It was observed by the trial Court that Muhammad Khan was aged eighty years and had a weak physique and other relatives were there to take revenge, and on account of danger of an encounter with the police, possibility that Muhammad Khan had not joined others, could not be ruled out. Muhammad Khan was given the benefit of doubt in these circumstances and acquitted of the charges. The circumstances on which Muhammad Khan was acquitted were not available to his son Sultan and close relatives Pehlwan and Amanat Ali.
18. The case of Sultan and Dewan sons of Baqar was at different footings. They were not closely related to the deceased. Hence motive of this case could not be considered to be a corroboration against them. They were not involved in any of the cases as accused persons. Dewan appellant was a prosecution witness in the murder case of Mehrban. It was a circumstance which could be used in favour of Dewan appellant and his brother Sultan. Sultan appellant son of Baqar Khan had not absconded. He was arrested on 8-2-1973. Name of Dewan appellant was placed in Column No. 2 of the challan. After considering these circumstances and by way of abundant caution, we accept the appeals of Sultan alias Kamra and Dewan sons of Baqar and acquit them of the charges. They shall be set free forthwith, if not required, in any other case.
19. The case against Sultan son of Muhammad Khan, Pehlwan and Amanat Ali stood proved beyond doubt. They were rightly convicted by the trial Judge and proper sentences awarded. Their appeals are dismissed but they shall be given the benefit of section 382-B, Cr. P. C. And period spent by them as under-trial prisoners, shall be counted towards their sentence.
20. Gulab Khan deceased was a passenger. He received a fire shot, which resulted in his death. He was not the target. The prosecution could not specify as to which of the appellants fired shot at him. The persons who were the target, escaped death. These were the mitigating circumstances for awarding lesser sentence. It is not a fit case for the enhancement of sentences: We accordingly dismiss the revision petitions filed by the State, and Muhammad Zaman Khan complainant.