ABDUL WAHEED, J.-Umar Hayat son of Sikandar, aged 28 years, Shamsher son of Ghulam Ali, aged 28 years, and Abdullah son of Ata Muhammad, aged 33 years, were tried on a charge under sections 302 and 307 read with section 34, P. P. C. For committing the murder Mumtaz Ahmad and Riaz Hussain and murderous assault on Falak Sher P. W. 15 in furtherance of the common intention of them all, at 12-15 a. m. On the night between 7th and 8th of July, 1977, by the learned Sessions Judge, Jhang, who vide his judgment dated 2nd of March, 1980, convicted them under sections 302/34, P. P. C. On two counts. This case actually pertained to Sargodha District but under the orders of the Supreme Court it was transferred to Jhang District for trial. Umar Hayat and Shamsher were sentenced to death while Abdullah was sentenced to imprisonment for life. They were also sentenced to pay a fine of Rs, 10,000 each or in default to undergo R. I. For four years. It was directed that two-third of the amount of fine, if realized, be paid to the legal heirs of Mumtaz Ahmad and Riaz Hussain deceased as compensation under section 544-A, Cr. P. C. They were also convicted under sections 307/34, P. P. C. And sentenced each to undergo R. I. For 10 years and to pay a fine of Rs, 2,000 or in default to suffer R. I. For a further period of one year. It was ordered that half of the fine imposed under sections 307/34, P. P. C. Would on recovery be paid to Falak Sher P. W. The sentences were ordered to run concurrently. It was further directed that Umar Hayat and Shamsher would serve the sentence under sections 307/34, P. P. C. Only if the sentence of death awarded to them under sections 302/34, P. P. C. Was not confirmed.
2. All the convicts have preferred an appeal against their convictions and sentences. Ata Muhammad complainant has filed a revision petition for the enhancement of the sentence imposed on Abdullah appellant. The learned trial Court also has submitted a reference to this Court under sections 374, Cr. P. C. For the confirmation of the sentence of death awarded to Umar Hayat and Shamsher. This judgment shall dispose of all the three matters.
3. Umar Hayat and Abdullah appellants are related inter se. They are hamzulf. Shamsher appellant is stated to be from their brotherhood.
4. The occurrence was reported by Ata Muhammad P. W. 14, father of the two deceased, at Police Station Sahiwal, District Sargodha, about 9 miles away from the spot, on 8th of July, 1977, at 2-30 a. m. Vide F.I. R. Exh. P. Z. Which was recorded by S. I. Habib Ullah P. W. 18, who was then posted there as S.H.O. The case as set up in the F. I. R. Was that Umar Hayat appellant was born out of the wedlock of Mst. Suban and Sikandar. On the death of Sikandar, Mst. Suban contracted a second marriage with Mata, brother of Ata Muhammad P. W.
14. Mst. Suban had inherited one square of land from Mir Dad Rabana, her father. Mst. Suban transferred this land to Mata. Sometime before the occurrence Umar Hayat demanded the entire land which his mother has transferred to Mata, her second husband, on the ground that it belonged to Rabana tribe to which he belonged. The deceased were lawyers practising at Sargodha. Mumtaz Ahmad deceased, being the elder nephew of Mata, was approached by Umar Hayat appellant in this behalf. Mumtaz Ahmad deceased arranged the transfer of a portion of the land to Umar Hayat appellant by a consent decree but later on he demanded the transfer of the remaining land also. Mumtaz Ahmad deceased did not accede to his demand. On 5th of July, 1977, Umar Hayat appellant alongwith Haji Muhammad Nawaz (given up) again visited the chamber of Mumtaz Ahmad deceased and in the presence of Ch. Muhammad lqbal, Advocate P. W. 13 pressed his demand for the transfer of the entire land which was inherited by his mother from her father. Mumtaz Ahmad deceased again turned down his demand, whereupon he left his chamber holding out a threat that he would teach him a lesson for his refusal to accept the demand.
5. On 7th of July, 1977 which was Thursday both the deceased came home from Sargodha on week end as usual. At night they slept on the roof of their house alongwith Falak Sher P. W. 15, their uncle.
Ata Muhammad P. W. 14, their father and Ahmad (given up), the husband of their sister, also slept there at some distance. Their two guests, namely, Muhammad P. W. 16 and Haji Shahadat (given up) slept in the dera adjacent to their house. During night at 12-15 a. m. All the three appellant trespassed into the house of the deceased and climbed up its roof. Umar Hayat and Shamsher appellants were armed with guns while Abdullah appellant was carrying a rifle. Their intrusion attracted dogs and on their barking Ata Muhammad P. W. 14 and Ahmad woke up. They saw in the light of a bulb which was glowing on the roof that Umar Hayat, Shamsher and Abdullah appellants had placed their fire-arms on the chests of Mumtaz Ahmad, Riaz Hussain and Falak Sher respectively. All of them fired simultaneously. Whereas Mumtaz and Riaz deceased were wounded, Falak Sher escaped any injury because the rifle of Abdullah misfired. Ata Muhammad P. W. 14 and Ahmad raised an alram. The appellants fired at them also but they were not hit. Then the appellants ran downstairs taking away their respective weapons of offence. At the gate of the haveli they came across Muhammad P. W. 16 and Haji Shahadat who tried to intercept them but when they aimed their fire-arms at them also, they got back out of fear. The appellants made good there .Escape.
6. Both the deceased were immediately carried in an injured condition to the Civil Hospital, Farooka, at a distance of two furlongs from the spot. On reaching there at 12-40 a. In. Dr. Muhammad Shafi P. W. 8 medically examined Riaz Hussain at 12-45 a. m. And Mumtaz Ahmad at 1- 15 a. m. He handed-over medico-legal reports, Exhs. P. G. In respect of Riaz Hussain and P. H. In respect of Mumtaz Ahmad to Ata Muhammad P. W. 14 who took them to Police Station Sahiwal in a special bus and on reaching there at 2-30 a. m. Lodged F. I. R. Exh. P. Z. Which was recorded by S.I.
Habib Ullah P. W.
18. On the basis of this report, a case under section 307/34, P. P. C. Was registered.
7. Dr. Muhammad Shafi P. W. 8 in the presence of Muhammad P. W. 16 and Zulqarnain (given up) recorded dying declaration Exh. P. J. Of Riaz Hussain at about 2-30 a. m. And then referred him to D.
H. Q, Hospital, Sargodha. Falak Sher P. W. 15 took him in a wagon to Sargodha. However, on the way at Bus Stand Sahiwal, they came across Ala Muhammad P. W. 14, who was then coming back in the bus from Police Station Sahiwal, in the company of S. I. Habib Ullah P. W. 18 and others. The S.I. Also recorded there statement Exh. P. A. A. Under section 161, Cr. P. C. Of Riaz Hussain.
8. S. I. Habib Ullab P. W. 18 came to the Civil Hospital, Farooki. Since Mumtaz Ahmad deceased was in a critical condition, he on the advice of the medical officer could not record his statement. Dr. Muhammad Shafi P. W. 8 handed over to him the dying declaration Exh. P. J. Of Riaz Hussain recorded by him earlier. Mumtaz Ahmad deceased died in the hospital on the same date at 7-30 a. m. The medical officer apprised the S. I. Of the death through ruqqa Exh. P. L. The S.I. Sent a chit to the Police Station for the addition of an offence under sections 302/ 34. P. P. C. He also prepared injury statement Exh. P 8. B. And inquest report Exh. P. C. C. In respect of Mumtaz deceased and sent his dead body to the mortuary for autopsy.
9. S. I. Habib Ullah P. W. 8 then visited the spot. He collected blood-stained earth from underneath the cost of Riaz and Mumtaz deceased vide memo. Exhs. P. S. And P. T., blood-stained pellet Exh. P.
10 from the place where Mumtaz deceased had been injured vide memo. Exh. P. U., two empties P.
11/1-2 from a place close to the cost of Riaz deceased vide memo. Exh. P. V. Two more empties P.
12/1-2 from a place near the cost of Mumtaz deceased vide memo. Exh. P. X. And a missed cartridge Exh. P. 13 and an empty cartridge P. 14 from the place near the cost of Falak Sher P. W. Vide memo.
Exh. P. Y. All these articles were sealed into parcels. The above recovery memoranda were attested by Fateh Khan P. W. 12 and Bhorey Khan (given up).
10. Riaz Hussain expired in the D. H. Q. Hospital, Sargodha, on 10th of July, 1977, at 3-45 a. m. A. S.
1. Muhammad Yar P. W. 6 who was then posted at Police Station City, Sargodha, on receipt of an intimation about the death of Riaz Hussain, reached the hospital. He prepared injury statement Exh.
P. D. And inquest report Exh. P. E. In respect of Riaz Hussain deceased and despatched his dead body to the mortuary for post-mortem examination.
11. On 10th of July, 1977, M. H. C. Muhammad Azam P. W. 5 entrusted five sealed parcels of this case to F. C. Sardar Khan P. W. 4 who transmitted three parcels containing empties and a missed cartridge to the Forensic Science Laboratory, Lahore on 11th July, 1977 and two parcels containing blood-stained earth to the office of the Chemical Examiner, Lahore on 12th July, 1977.
12. A. S. I. Mehr Khan P. W. 17 arrested all the three appellants on 15th July, 1977. Abdullah appellant while in custody led to the recovery of rifle Exh. P. 3 from a cattle shed near his house. The A. S. I.
Took it into possession vide memo. Exh. P.
0. And made it into a sealed parcel. Shamsher appellant at the time of his arrest was carrying a double barrel gun Exh. P. 4 and a bandolier Ea. P. 5 containing cartridges Exh. P. 6/ 1-17. The A. S. I.
Took them into possession vide memo. Exh. P. Q. And made the gun into a sealed parcel, Similarly Umar Hayat appellant at the time of his arrest was carrying a double barrel gun Exh. P. 7 and a bag Exh. P. 8 containing cartridges Exh. P. 9/1-13. The A. S. I took them into possession vide memo. Exh. P.
R. And sealed the gun into a parcel.
13. The recovery memo. Exh. P. 0. Was attested by Ahmad Khan P. W. 10 and Riaz Hussain (given up), while recovery memo. Exhs. P. Q. And P. R. Were attested by Jiwan P. W. 11 and Ata Muhammad son of Sardara (not produced).
14. The sae plan of the spot Exh. P. F. And its duplicate Exh P. F./1 were got prepared from Noor Muhammad, Draftsman P. W. 7.
15. On 20th July, 1977, M. H. C. Muhammad Azam P. W. 5 handed over three sealed parcels of this case containing two guns and one rifle to F. C. Sardar Khan P. W. 4 who delivered them in the Forensic Science Laboratory, Lahore, on 23rd July, 1977, 22nd July, 1977 being Friday.
16. According to the report Exh. P. H. H of the Fire-arms Expert, the crime empties and the missed cartridge recovered from the spot matched with the guns and rifle recovered from the appellants.
According to the report Exhs. P. F. F. Of the Chemical Examiner and report Exh. P. G. G. Of the Serologist, the earth recovered from the spot was stained with human blood.
17. After the completion of the investigation, the appellants were challaned under sections 302 and 307 read with section 34, P. P. C.
18. On 8th of July, 1977, Dr. Muhammad Shah P. W. 8, who was then posted as Medical Officer at Civil Hospital, Farooka, medically examined Riaz Hussain at 12-45 a. m. When he was alive and found the following injury on his person :-
(1) "An irregular firearm wound 3' in diameter over the right side chest on its lateral aspect, starting 4" below the axilla and 3i" lateral to right nipple, with bleeding from the wound, and a haematoma of about 4" diameter around the wound."
' The above injury was declared as dangerous. It had been caused by a fire-arm within half an hour before the examination. Exh. P. G. Is the medico-legal report and Exh. P. 0./1 is the diagram showing the locale of the injury.
19. On the same date, the above Medical Officer medically examined Mumtaz Ahmad at 1-15 a. m.
When he was alive and observed the following injuries on his person :- "(1) A firearm wound 1k" x 1" over the left side chest, li" below clavicle, on anterior aspect of chest. The wound being enterance wound, about 4" lateral to the enterance wound there is exit wound 3f" x 2i" being irregular. Bleeding from both the wounds, this wound being 2" lateral to the left nipple.
(2) Five pellet wounds over the left upper arm and forearm at its upper end, within an area of 41" diameter, with bleeding from wounds."
Injury No, 1 was declared as dangerous and injury No, 2 was kept under observation. The injuries were caused by a fire-arm within the duration of probably one hour. Exh. P. H. Is the medico-legal report and Exh. P. H./1 is the diagram showing the sites of the injuries.
20. Mumtaz Ahmad succumbed to the injuries in the Civil Hospital, Farooka, on the same date at 7- 30 a. m. Dr. Muhammad Shafi P. W. 8 conducted autopsy on his dead body on the same date at 8- 15 a. m. He observed as follows :- "(1) A fire-arm wound 2' x r over the left side chest, 1 f" below the clavicle on anterior aspect of chest, the wound being entrance wound, about 4" lateral to the entrance wound, there was exit wound 31" x 21" wound being irregular and 2" lateral to left nipple.
(2) Five pellet wounds over the left upper arm and forearm over its upper part within an area of 41" diameter, each wound being about 1/3" in diameter."
On opening the chest between entrance and exit wounds, muscles found disappeared underneath the skin. There was marked haemothorax on left side of chest with lungs markedly congested and with laceration of about 2" x Fr over the surface of upper lobe. The blood freely oozed out on cutting the congested lungs and the colour of lungs was dark.
21. In the opinion of the Medical Officer, death occurred due to injury No, 1 which caused loss of blood and shock and compression of lungs with respiratory embarrassment. This injury was ante- mortem and fatal and sufficient to cause death in the ordinary course of nature. Injury No 2 was also ante-mortem and ,grievous and caused by pellets coming out of exit wound of injury No, 1.
Both the injuries had been caused by fire-arm. The probable interval between the injuries and the death was about 7 to 8 hours and between the death and the post-mortem examination 45 minutes. Exh. P. M. Is the post-mortem examination report and P. M./1.Is the diagram 'showing the locale of the injuries. In his cross-examination be explained that : 'injuries No, 1 and 2 had been caused by one gunshot because of the fact that a line approximately drawn from entrance and exit wounds of injury No, 1 would connect injury No, 2'.
22. Riaz Hussain deceased died in the D. H. Q. Hospital, Sargodha, on 10th of July. 1977 at 3-45 a. m.
On the same date at 10 a. m. Dr. Syed Muhammad Firdaus P. W. 9, Medical Officer, D. H. Q. Hospital, Sargodha. Performed post-mortem examination on the dead body of Riaz Hussain and observed as follows :- "A stitched wound on the right side of the middle of the chest. On opening of the wound, it was found to be by a fire-arm weapon. The firearm wound was on the right side of the middle of the chest and it was the wound of enterance. There was no wound of exit. On opening of the abdomen, two pellets were recovered from there."
23. In the opinion of the Medical Officer, the above injury had been caused by a firearm and was sufficient to cause death by haemorrhage and shock in the ordinary course of nature. The injury was ante-mortem. The probable interval between the injury and the death was within two days and between the death and the post-mortem examination within six hours. Exh. P. N. Is the post- mortem examination report.
24. The appellants in their statements recorded under section 342, Cr. P. C. Denied the occurrence and the recoveries attributed to them. According to them, the firearms were planted on them and they were fired before their transmission to the laboratory. Umar Hayat appellant further stated that after the consent decree had been passed in his favour in respect of some of the land which was inherited by his mother from her father and transferred by her to Mata, her second husband, there was left no dispute. The appellants pleaded innocence. They did not adduce any oral evidence in defence. However, certain documents were brought on record on their behalf in order to show enmity between the complainant and some other persons.
25. At the trial, the prosecution in support of its case relied on the dying declaration Exh. P. J. Of Riaz Hussain deceased recorded by Dr. Muhammad Shafi P. W. 8 soon after the occurrence, the evidence of motive given by Muhammad Iqbal P. W. 13, an Advocate of Sargodha and Ata Muhammad P. W. 14, father of the two deceased and the complainant in this case, ocular account as furnished by the said Ma Muhammad P. W. 14 and Falak Sher P. W. 15, evidence of waj-takar in the form of the statement of Muhammad P. W. 16, recovery of crime empties from the spot as supported by Fateh Muhammad P. W. 12 and S. I. Habib Ullah P. W. 18 and of fire-arms viz. Rifle P. 3, gun P. 4 and gun P. 7 from Abdullah, Shamsher and Umar Hayat appellants respectively as deposed to by Ahmad Khan P. W. 10, Jiwan P. W. 11 and A. S. I. Mehr Khan P. W. 17 coupled with the positive report P. H. H. Of the Fire-arms Expert and of medical evidence comprising4tatements of Dr. Muhammad Shafi P. W. 8 and Dr. Syed Muhammad Firdous P. W. 9.
26. As mentioned earlier, Dr. Muhammad Shafi P. W. 8 after medically examining Riaz and Mumtaz deceased at 12-45 a. m. And 1-15 a. m. Respectively handing over their medico-legal reports Exh. P.
G. And Exh. P. H. To their father, Ata Muhammad P. W. 14, who left for Police Station Sahiwal to lodge a report, recorded dying declaration Exh. P. J. Of Riaz completing it at 2-30 a. m. The completion of this statement synchronised with the recording of the F. I. R. Exh, P. Z. At Police Station Sahiwal, about nine miles away from the spot, at 2-30 a. m. The dying declaration runs as under {{URDU TEXT}}
27. On the same date S.I. Habib Ullah P. W. 18 also recorded the statement Exh. P. A. A. Of Riaz under section 161, Cr. P. C. When they 4crossed each other near the bus stand of Sahiwal while the S. I. Was on his way to the spot after the registration of the case and Riaz was being carried to D. H. Q.
Hospital, Sargodha, for treatment. Both the statements are consistent inter se and also with the F. I.
R.
28. The reliability of the dying declaration Exh. P. J. Has been challenged on three grounds ; firstly that in view of the grievous fire-arm injury sustained by Riaz deceased he was incapable of making any such statement, secondly that the statement was recorded in the presence of the father and relatives of the deceased and as such the possibility of its having been made after prompting cannot be ruled out and thirdly that handing over of the statement by the medical officer to the investigating officer is beclouded with doubts. None of these grounds, however, carries any substance.
29. Dr. Muhammad Shafi P. W. 8 explained in his cross-examination that the condition of Riaz was serious an dangerous when he was brought to the hospital at 12-40 a. m. And he did not start recording his statement at that time. According to him, he gave him blood and glucose and when his condition improved with his treatment, he recorded his dying declaration. The medical officer also stated that Riaz Hussain deceased was brought to the hospital by his father and other relatives but there is no mention in his statement that the father of the deceased was present when he recorded his dying statement. It is in the statement of Ata Muhammad P. W. 14 that after obtaining the medico-legal reports in respect of the two deceased he left for the police station to lodge a report. Muhammad P. W. 16 in whose presence the dying declaration was recorded unequivocally stated in his cross-examination that the doctor did not take down the statement of Riaz Hussain in the presence of Ata Muhammad. There is no indication in the statement of the medical officer of Muhammad P. W. 16 that the deceased was prompted at the time he made his dying statement. As regards the third objection, the medical officer stated that he completed the statement of the deceased at 2-30 a. m. He kept the same with him and produced it before S. I, Habib Ullah P. W. 18 on his arrival in the hospital. The precise objection of the learned counsel for the appellants is that no recovery memo. Was prepared by the police officer in respect of this dying declaration nor any endorsement was made by him on it in token of his having received the same.
Under the law such a formality was not essential. 'Moreover, the medical officer explained in his cross-examination that after recording the dying declaration he, in view of its importance, kept it with him and delivered it only to the S. H. O. After obtaining his signatures on his own record.
Therefore, the omission on the part of the police officer to prepare a recovery memo in respect of this document or make any endorsement on it does not recoil on its reliability.
30. As regards the motive, Ata Muhammad P. W. 14 deposed that one Mir Dad Rabana had two daughters, namely, Mst. Allah Jawai and Mst. Suban. Mst. Allah Jawai was his wife, while Mst. Suban was married to Sikandar. Umar Hayat was born out of the wedlock of Mst. Suban with Sikandar.
Sikandar died and thereafter. Mst. Suban contracted a second marriage with Mata, brother of Ata Muhammad P. W. Mst, Suban had inherited one square of land from her father, namely, Mir Dad Rabana. This land was transferred by her to Mata, her second husband. Four or five months before the occurrence Umar Hayat appellant demanded that the land inherited by his mother from her father and transferred by her to Mata be given to him as it belonged to Rabana tribe. Mumtaz expressed readiness to give Umar Hayat only his share in the land but not the entire land. However, Umar Hayat appellant was adamant to get the entire land. Two days before the occurrence a settlement was reached in pursuance of which he got the land to the extent of his share. In spite of the settlement Umar Hayat appellant again approached Mumtaz deceased for the remaining land but Mumtaz deceased did not agree which was resented to by Umar Hayat appellant who held out a threat that he would teach him a lesson.
31. This motive was briefly given in the dying statement Exh. P. J. Of Riaz Hussain deceased.
Muhammad Iqbal P. W. 13 who is an Advocate and was sharing a chamber with Mumtaz deceased at Sargodha corroborated the motive. He said that Umar Hayat appellant used to come to Mumtaz deceased and demand that he should arrange for the restoration of the land inherited by Mst.
Suban from her father. Mumtaz deceased did not accede to his demand on the plea that Mst.
Suban had children from her second husband also and further Umar Hayat and his sisters should get one-third of the land according to their share. About a month before the occurrence Umar Hayat, accompanied by Muhammad Rafique, his cousin and brother-in-law, again came to their chamber and repeated the same demand. Mumtaz gave the same reply. Rafique said that Mumtaz should at least arrange for the return of the share agreed to by him. It was agreed that a civil suit in that behalf be instituted and a consent decree be obtained from the Civil Court.
Accordingly two civil suits were filed ; one civil suit was in respect of 12 Kanals of land and it was against Mst. Suban, while the other suit was in respect of 45 Kanals of land and it was against Mata, Mst. Suban's second husband. Umar Hayat engaged Muhammad lqbal P. W. As his counsel.
Mumtaz deceased was the counsel and attorney for Mst. Suban and Mata. He filed written statement consenting to the decrees prayed for. Eventually consent decrees were passed on 5th of July, 1977. Copies of these consenting decrees are Exh. P. J. J. And P. K. K. After the decrees were passed Umar Hayat appellant again approached Mumtaz deceased in his chamber in the company of Muhammad Nawaz Kalyar P. W. (given up) on the same day at 2-00 p. m. And repeated the demand for the remaining land stating that he had been given less land. Mumtaz deceased said that whatever was due to him was given and added that he was not prepared to arrange for more land for him. Umar Hayat expressed anger and said that he would deal with Mumtaz.
32. Muhammad Iqbal P. W. 13 is quite an independent witness. Although he was sharing the chamber of Mumtaz deceased, yet he was not attributed any malice or motive to make a fake 'statement. It is argued by the learned counsel for the appellants that after the consent decrees had been passed by the civil Court in accordance with the compromise reached between the parties, there was left no dispute which could exasperate the appellants to launch the attack and that target of the attack should have been, instead of the deceased, Mate and his children who were the beneficiaries of the land. It was explained by Muhammad Iqbal P. W. 13 that soon after the decrees were passed, Umar Hayat again approached Mumtaz decered, pasersisting in his demand for the return of the remaining land. This shows that the greed of Umar Hayat for the entire Jand remained insatiated and since Mumtaz deceased was managing the affairs of Mata, his uncle, and acting as his attorney, Umar Hayat considered him and his brother Riaz deceased as the only hurdles in the materialization of his lust for the entire land. It is next argued that at least Abdullah and Shamsher, especially the latter, had no motive to partake in the occurrence. Abdullah admittedly is the Hamzulf of Umar Hayat appellant and Shamsher, appellant is from their brotherhood. Being partisan of Umar Hayat, they aligned with him. Even if it be assumed for the sake of argument that they had no motive to join Umar Hayat, this would not inevitably vouchsafe for their innocence. It was held in Syed Mushtaq Ahmad v. Siddiqullah and others that the weakness of motive or even its complete absence would be wholly immaterial in a case where ocular testimony of an unimpeachable character was available in support of the prosecution case.
The same principle was elaborated in Abdur Rashid v. Umid Ali and 2 others . It was observed, "Evidence of motive is not only relevant but also often helpful both to the Investigating Agency as well as the Court. Its importance, however, depends on the facts and C circumstances of each case. For the police it steers and determines the course of investigation. Its established existence and strong nature proved by reliable evidence when put in the scales alongwith the ocular and other evidence does quite often tend to set at rest some lurking suspicions and satisfy the Judicial conscience. Of course there may be cases where even the strongest motive may be wholly inapt owing to absence or weakness of direct evidence. Conversely the weakness of motive or even its conspicuous absence might not be helpful to the accused against whom unimpeachable ocular evidence is available."
33. There was no hostility between the complainant party and Abdullah and Shamsher appellants which could motivate Riaz deceased and the eye-witnesses to falsely implicate Abdullah and Shamsher with Umar Hayat who was undoubtedly feeling incensed on account of his failure to retrieve the entire land inherited by his mother from her father and transferred by her to her second husband. The learned trial Court, therefore, did not err in giving credence to the motive.1 2
34. As mentioned above, the ocular account of the occurrence was furnished by Ata Muhammad P.
W. 14 and Falak Sher P. W.
15. Ata Muhammad is the father of the two deceased, while Falak Sher is the consanguine brother of Ata Muhammad. Another eye-witness who was given up at the trial as unnecessary is Ahmad, son-in-law of Ata Muhammad. The occurence took place in the house of Ata Muhammad. Therefore, the presence of these witnesses at the spot at the time of occurrence was quite natural. The close relationship of the eye-witnesses with the deceased' would not ipso facto make them interested witnesses because they were ascribed absolutely no animus against any of the appellants.
35. Ata Muhammad deposed that on the night of occurrence he slept on the roof of his house alongwith the two deceased. Falak Sher P. W. 15 and Ahmad and his two guests, namely, Muhammad P. W. 16 and Haji Shahadat (given up) slept in the dera adjacent to his house. Two bulbs were glowing on the roof and one bulb in the lane. At about mid-night he woke up on the barking of dogs. Ahmad P. W. Also woke up. He saw that Shamsher accused was aiming his gun at Riaz deceased, Umar Hayat was aiming his gun at Mumtaz deceased and Abdullah also was aiming his rifle at Falak Sher P. W. They all fired simultaneously, While the rifle of Abdullah misfired, the shots fired from the guns of the other two appellants hit Riaz and Mumtaz deceased. He and Ahmad raised an alarm. The appellants fired at them also but they were not hit. The appellants ran away downstairs. Muhammad P. W. 16 and Haji Shahadat tried to intercept them but when they aimed their fire-arms at them, they got frightened and stayed back on account of which the appellants made good their escape. In cross-examination he said that he had seen the appellants reloading their fire-arms. Similar was the statement of Falak Sher P. W. They were cross-examined at length but their credibility remained unimpaired.
36. It is contended by the learned counsel for the appellants that if the two deceased had been fired at by placing the guns on their chests some charring or burning would have been found around the injuries sustained by them. Dr. Muhammad Shafi P. W. 8 who medically examined both the deceased when they were alive said in his cross-examination that he did not observe any charring or burning of the skin or singeing of the hair or unburnt gun powder or burning due to gases inside the wounds. The same objection was raised before the learned trial Court also but it repelled the same by observing that "the possibility of the assailants having placed their weapons upon the bodies of their objects to begin with and to have fired from the same by subsequently pulling back the firearms to some distance, cannot be ruled out." This observation is not misconceived. Falak Sher P. W. 15 stated in his cross-examination that there was some distance between the muzzles of the guns of Umar Hayat and Shamsher and their respective targets. Therefore, we do not subscribe to the contention of the learned counsel for the appellants that the ocular account is at variance with the medical evidence.
37. It is further argued that the introduction of the story that at the time of the occurrence an electric bulb was burning on the roof, was merely a contrivance to make the identification of the assailants by the witnesses as plausible and, therefore, this story is unbelievable. State v. Barkat All and others , has been referred to in support of this argument. In that case the story that at the time of occurrence the deceased were sleeping with an electric bulb switched on was disbelieved because the deceased themselves were suspected of having committed several murders and could normally be taking precautions so as not to be identifiable at night. This was not the situation in the instant case. It is correct that usually people put off light before going to sleep. But this does not imply that if the deceased and the eye-witnesses did not switch off the bulb before they slept, it was an incredible phenomenon. Even if no such but had remained lit, it would not have been improbable for the witnesses to identify the appellants because after all two of them, namely, Umar Haya and Abdullah were their close relatives and Shamsher appellant was also known to them. The occurrence took place at 12-15 a. m. On the 8th of July, 1977 which was 20th of Rajab 1397.3 On the night between 71h/8th July, 1977 the moon rose at 23-26 hours. Since at the time of occurrence, the moon had already risen, the argument of the learned counsel for the appellants that at that time it was pitch dark on account of which the identification of the assailants was impossible is not very forceful an susceptible of acceptance.
38. Ata Muhammad P. W. 14 stated in his cross-examination that be, Ahmad P. W. His son-in-law.
And Mata, his brother, kept licensed firearms in the house but they did not keep the weapons with them on the roof on the night of occurrence. The learned counsel for the appellants contends that if Umar Hayat appellant had in fact held out a threat to teach a lesson to Mumtaz deceased and he had apprised Ata Muhammad P. W. Of the same, as deposed by him, they would have taken precautions against the impending attack and would not have gone to sleep unarmed and, unguarded According to the learned counsel, the conduct of the deceased and their family members, in the circumstances, was unnatural and militated against the veracity of the occurrence. This contention too is not substantial. Ata Muhammad explained in his cross- examination that they did not apprehend any serious danger and, therefore, they did not keep the weapons on the roof. Falak Sher P. W. 15 also said in his cross-examination that they had no fear of any enemy even on the night of occurrence. Muhammad Iqbal P. W. 13 too stated in his cross- examination that when after the threat of Umar Hayat he advised Mumtaz to be careful and to take precaution about his life and safety, he replied that he trusted God Almighty. It is, therefore, evident that Mumtaz and his family did not take the threat seriously and this fully explains and justifies their conduct.
39. As is evident from copies of the F. I. Rs, Exh. D. F., D. F./1, D. F./5, D. F./6, D. F./8 and D. F./10, Ata Muhammad P. W. 14 was cited as a prosecution witness in cases under section 13 of the Arms Ordinance, 1965 and sections 379/310/411, P. P. C. In the years 1973, 1974, 1975 and 1976. It is asserted that it is possible that any of the accused of those cases, on account of the grudge being harboured against Ata Muhammad, might have perpetrated this crime. This assertion is too far- fetched and hypothetical to deserve any consideration. If any of the accused were to nurse the grudge hyperbolically so long, the target of the attack would have been Ata Muhammad and not his sons. It is also pointed out that one Basharat Ali alias Billa of the village of Ata Muhammad was also his enemy. But, as stated by Ata Muhammad in his cross-examination, he fell out with Basharat sometime after the present occurrence. Therefore, this circumstance also is inconsequential.
40. Muhammad P. W. 16 is a wajtakar witness. He corroborated the dying declaration and the ocular testimony. He deposed that on the night of occurrence he and Haji Shahadat slept at the dera of Ata Muhammad P. W., adjacent to his house, as his guests. At about midnight they were awakened by two gunfire shots and the alarm raised by Ata Muhammad. There were three more fire shots. They rushed towards the door of the haveli. A bulb was lighting there. They saw all the three appellants coming out of the door. Abdullah had a rifle while the other two were carrying guns. They tried to apprehend them but they aimed their fire-arms at them and they got aside. The appellants made good their escape. They went upstairs. Two bulbs were lit there. Mumtaz and Riaz were lying injured. Ata Muhammad told them the details of the attack.
41. This witness admitted in his cross-examination that he was the tenant of Ata Muhammad P. W.
For the last ten or eleven years. However, G this fact alone was insufficient to discard his testimony.
He was not attributed any malice against any of the appellants.
42. The ocular testimony was further corroborated by the recoveries made in this case. S.I. Habib Ullah P. W. 18 deposed that he inspected, the spot on 8th of July, 1977 and collected from there, besides other articles, two empties P. 11/1-2 from near the place where the cost of Riaz deceased was lying, two empties P. 12/1-2 from the place where the cost of Mumtaz deceased was laying and a missed cartridge P. 13 and an empty cartridge P. 14 from the place where the cot of Falak Sher P.
W. Was lying. According to him, he took these empties and the missed cartridge into possession, vide memoranda Exhs. P. V., P. X. And P. Y. And made them into sealed parcels. Fateh Muhammad P.
W. 12 fully supported these recoveries. According to F. C. Sardar Khan P. W. 4, be delivered three sealed parcels containing empties in the office of the Forensic Science Laboratory, Lahore, on 11th July, 1977.
43. A. S.-I. Mehr Khan P. W. 17 deposed that on 15th of July, 1977, Abdullah appellant while in custody led to the recovery of rifle P. 3 from his cattleshed. He took it into possession, vide memo. Exh. P.O.
And made it into a sealed parcel. He arrested Umar Hayat and Shamsher appellants on that date at 8-30 p. m. Shamsher was carOing a double barrel gun P. 4 and Umar Hayat was in possession of a double barrel gun P.
7. He took them into possession, vide memo. Exhs. P. Q. And P. R. Respectively and sealed them into separate parcels. All these sealed parcels were delivered in the office of the Forensic Science Laboratory, Lahore, on 23rd of July, 1977 by the same F. C. Sardar Khan P. W.
4. The recovery of the fire-arms from the appellants was supported by Ahmad Khan P. W. 10 and Jiwan P. W.
11. No or grudge was ascribed to the police officials and other witnesses for making false statements Therefore, these recoveries do not bristle with any doubt.
44. According to the report P. H. H. Of the Fire-arms Expert, the crime empties and the missed cartridge recovered from the spot matched with the guns and the rifle recovered from the appellants. This report also augmented the testimony of the eye-witnesses and proved the culpability of the appellants in the commission of the offence beyond any doubt. It is contended by the learned counsel for the appellants that since the Fire-arms Expert had not given reasons in support of his opinion, his report was valueless. In this connection reliance is placed on Yaqoob Shah v. The State , wherein it was observed that the opinion of an Expert, in order to prevail with the Court, must be backed up by reasons failing which it would have no value whatever. On the other other hand, it was laid down in Ali Hassan v. The State , that "since the law does not seem to require that the Ballistic Expert, in his report, must give reasons in support of it, but merely provides that it must be signed by him the absence of reasons upon which the opinion of the report of the Ballistic Expert is based, would not make such a report inadmissible in evidence". If the appellants entertained any doubt to the veracity of the report, they could have made a request to the trial Court to summon the Expert. Since it was not done, the objection now raised by their learned counsel cannot be sustained. In support of this view Zulfiqar Ali Bhutto v. The State , may be referred to.
45. As would appear from the above discussion, the overwhelming evidence adduced by the prosecution proved beyond any iota of doubt that K all the three appellants in furtherance of the common intention of them all committed the murder of Mumtaz Ahmad and Riaz Hussain and murderous assault on Falak Sher P. W. Therefore, they were rightly convicted and sentenced under section 302/34, P. P. C. On two counts and under section 307/34, P. P. C. Accordingly the convictions and sentences of the appellants are maintained and this appeal is dismissed. The sentence of death awarded to Umar Hayat and Shamsher appellant is hereby confirmed.
46. As regards the revision petition filed by Ata Muhammad complainant for enhancement of sentence imposed on Abdullah appellant, we have not felt persuaded to entertain the same in view of the facts that Abdullah did not cause any injury to any of the deceased and when his rifle aimed at Falak Sher P. W. Misfired, he did not repeat the fire at him and left him unscathed.
Accordingly the revision petition is dismissed in limine. PLD 1975 SC 160 PLD 1975 SC 2774 5 6 1 2