' Gulbaz Khan, J.-- Karam Ali, Muhammad Sharif Muhammad Khan and Ahmad Khan appellants and their brother Muhammad Ramzan were tried by the learned Additional Sessions Judge, Sargodha, for offences under sections 148, 302/307/149, P.P.C. The appellants were convicted, on 29th June, 1977, under section 302/34, P.P.C. And sentenced to imprisonment for life. They were further convicted under section 307/34, P.P.C. And each of them sentenced to undergo rigorous imprisonment for seven years. Neither any fine was imposed on the appellants nor order was passed as regards compensation under section 544-A, Cr.P.C. Muhammad Ramzan was given the benefit of doubt and acquitted of the charges.
2. The appeal filed by the four convicts and revision petition filed by Manzoor Ahmad complainant for the enhancement of the sentence of the four convicts, are being disposed of together.
3. Five months prior to the present occurrence, Muhammad Yousaf, a brother of the appellant, was murdered. Manzoor Ahmad complainant (P.W.9), his brother Muhammad Hayat, Muhammad Nawaz, Ata Muhammad, Gulzar and Muhammad Yaqub Pathan were challaned in the said case.
The parties were bound down to keep peace. Manzoor Ahmad complainant and his co-accused Muhammad Nawaz were admitted to bail. The case was fixed for 31st December, 1975, in the Court of A.C. Shahpur 'Sadar. Manzoor Ahmad complainant, his maternal-uncle Ghulam Muhammad P.W.
(not produced), Muhammad Afzal (P.W.10), brother of aforesaid Muhammad Yaqub Pathan) and Sahib Khan deceased (maternal-uncle and father-in-law of aforesaid Muhammad Yaqub Pathan) were returning to their village Mangowal KaIan, on foot. When they reached near railway line in front of old brick kiln, in front of Mohallah Deputy Wala, the four appellants and Muhammad Ramzan acquitted accused came out from their hiding place. Karam Ali and Muhammad Sharif appellants were armed with .12 bore guns, Ahmad Khan and Muhammad Khan appellants carried carbines (country-made .12 bore pistols) and Muhammad Ramzan acquitted accused had a rifle.
Karam Ali appellant shouted that he would avenge the murder of his brother and would not care for the consequences. He fired gun-shot, which hit Sahib Khan deceased who fell down. The appellants fired more shots . With their respective weapons. The deceased received more fire shots while he was lying on the railway line. Manzoor Ahmad complainant (P.W.9), Muhammad Afzal (P.W.10) and Ghulam Muhammad P.W. (not produced) ran towards different directions to save their lives. Karam Ali, Muhammad Sharif and Muhammad Khan appellants fired shots at the complainant when they were chasing him. Ahmad Khan appellant and Muhammad Ramzan acquitted accused gave a chase to Muhammad Afzal P.W. And had fired shots at him. In the meantime, police reached the spot. The appellants and the co-accused Ramzan fled away on seeing the police party.
4. Abdul Wahid, A.S.I, Police Station, Shahpur Sadar (P.W.11), was present in Mohallah Deputy Wala, alongwith some constables, on 31st December, 1975 at about 2.30 p.m. He was conducting investigation in some case. On hearing reports of fire shots, he ran towards railway line and saw some persons running away. He reached the spot. In the meantime, Manzoor Ahmad complainant came from the side of Mohallah Deputy Wala. Muhammad Afzal P.W. Came from the side of canal while Ghulam Muhammad P.W. (not produced) from the dera of Muhammad Khan. The A.S.I. Found Sahib Khan lying near the railway line in an injured condition. Since Sahib Khan was unable to give statement, the A.S.I. Recorded the statement of Manzoor Ahmad Exh.P.C. He prepared the injury statement of Sahib Khan and sent him to.Civil Hospital, Shahpur Sadar, for medical examination. He collected blood-stained earth from the spot and sealed it into a parcel. He took into possession five empty cartridges P.20/1-5 from near spot and sealed them into a parcel. The memo, was attested by Manzoor Ahmad complainant and Muhammad Afzal P.W. The A.S.I. Prepared rough site plan. The A.S.I. Reached Civil Hospital, Shahpur Sadar, but Sahib Khan had been sent to Civil Hospital, Sargodha. The A.S.I. Reached Civil Hospital, Sargodha and enquired from the doctor if the injured was fit to make statement. The doctor answered the query in negative. Originally, the case was registered under sections 148, 307/149, P.P.C. The A.S.!. Reached village Mango Wal, on the night between 31st December, 1975 and 1st January, 1976 and searched for the accused but they were not available. Sahib Khan expired, on 1st January, 1976, at 7.00 a.m. The offence was accordingly amended. The A.S.I. Reached Civil Hospital, Sargodha, and prepared inquest report and sent the dead body for post-mortem examination. He took into possession blood-stained clothes of the deceased. He arrested Muhammad Khan and Ahmad Khan appellants and acquitted accused Ramzan, on 4th March, 1976. He handed over two sealed parcels containing blood-stained earth and empty cartridges to Mushtaq Hussain Shah, Naib Muharrir, on 4th January, 1976. He again went to village Mango Wal, on 6th January, 1976, for the arrest of Karam Ali and Muhammad Sharif appellants. On the night between 6/7th January, 1976, on the receipt of secret information, he raided the dera of Attaya Jhamat at about 3.00 a.m. He found Muhammad Sharif appellant asleep in the cattleshed at the said dera. He threw light of the torch on the face of Muhammad Sharif appellant, who got up and picked up gun P.6, but was apprehended. Gun P.6 was recovered from his possession. The gun was unloaded. Three more live cartridges were recovered from underneath the pillow. These articles were taken into possession. The gun was sealed into a parcel. Muhammad Sharif appellant was interrogated. He led the police to the dera of Karam Ali appellant, the same day, at about 6.00 a.m. Karam Ali was lying on his cot and was apprehended. He too had picked up his gun P.11 from the charpai but overpowered. Gun P.11 contained cartridge P.12. Three cartridges were found underneath the pillow. These articles were taken into possession. Gun was sealed into a parcel. On 10th January, 1976, on interrogation, Muhammad Khan appellant produced carbine P.17 from the dung heap, which was lying in front of his cattleshed. It was sealed into a parcel. On 11th January, 1976, Ramzan acquitted accused produced rifle P.18 from a stock of bhoosa near his cattleshed. It was sealed into parcel. On the same day, Ahmad Khan appellant produced carbine P.19 from a chipper adjacent to his cattleshed. It was sealed into a parcel. The appellants and the co-accused Ramzan were challaned after investigation.
5. Dr. Muhammad Azam Majuka, medically examined Sahib Khan, aged sixty years, on 31st December, 1975, at 5.20 p.m. He found the following injuries on his person:-
(1) A gun-shot wound 2/5" x 2/5" on inner aspect of right knee.
(2) A gun-shot wound 2/5" x 2/5" on back of right knee bleeding profusely.
(3) A gun-shot wound 3/5" x 2/5" on back of right middle 1/3".
(4) A gun-shot wound 2/5" x 2/5" on the inner aspect of right thigh middle 1/3".
(5) A gun-shot wound 2/5" x 2/5" on outer aspect of right heal. Sahib Khan was under severe shock.
He was crying with pain. He was pulseless. His tongue was dry. The wounds were bleeding. Injury No,5 was found simple while Nos. 1 to 4 were kept under observation. All the injuries were caused by fire-arm and were fresh within four hours. Sahib Khan expired on the next day. The doctor conducted postmortem examination on his dead body, on 1st January, 1976, at 1.00 p.m. The doctor noted the following injuries:-
(1) A gun-shot wound of entry 2/5" x 2/5" on inner aspect of right thigh making a wound of exit 3/5" x 3/5" on right thigh 6" below the gluteal fold.
(2) A gun-shot wound 2/5" x 2/5" on inner aspect of right knee entering the flesh and making a wound of exit on back of knee at political fossa making a wound of 3/5" x 2/5".
(3) A gun-shot wound 2/5" x 2/5" on outer aspect of right heal. On dissection, it was found that the wound of knee and thigh communicated. Femoral artery was wounded in poplitical fossa and femoral vein was wound on inner aspect of right thigh. No fire material was found in the tissues. In the opinion of the doctor, death had occurred due to shock and haemorrhage on account of injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature.
6. Manzoor Ahmad complainant (P.W.9) and Muhammad Afzal (P.W.10) gave the eye account of the occurrence. They also attested the recovery memo Exh. P.L. In respect of .12 bore five empties, which were collected from the spot. Allah Ditta (P.W.7) and Abdul Wahid (P.W.12) deposed about the recoveries of weapon of offence referred to above. Report of the Fire- arm Examiner Exh. P.X. Was placed on the record. According to this report, the two empties matched with gun recovered from Karam Ali appellant and one empty each matched with gun recovered from Muhammad Sharif appellant and two carbines of Muhammad Khan and Ahmad Khan appellants.
6-A. The learned counsel for the appellants submitted that the eyewitnesses of the case were interested and their statements could not be accepted without independent corroboration that Abdul Wahid A.S.I. Reached the spot on hearing fire shots and saw the accused running away, but he did not state the number of the accused and the weapons, which they were carrying that the eye-witnesses were not present at the spot and in case they had been present, they would have been murdered, that after the occurrence, Manzoor Ahmad complainant was called by the police and a false story cooked up, that the recovery memo. Pertaining to five .12 bore empties was not attested by any disinterested witness and it was attested by Manzoor Ahmad and Muhammad Afzal P.Ws., who were highly interested; that the recoveries of weapons of offence were not proved beyond doubt and those recoveries could not be used; that keeping in view the circumstances of the case proper sentence had been awarded and there did not exist any good ground for the enhancement of the sentence.
7. The learned counsel for the State contended that it was a case of sifting of grain from the chaff; that even if the statements of other recovery witnesses were discarded, the statement of Abdul Wahid, A.S.I. Could not be rejected as the defence had not levelled any allegation against him and his statement could not be discarded on the sole ground that he was a police officer and that the case stood proved against the appellants and they were rightly convicted.
8. The learned counsel for the complainant argued that the appellants were not awarded the proper sentence and the learned Additional Sessions Judge had not given any sound reason for awarding lesser sentence and it was a fit case for enhancement of sentence.
9. It was an admitted fact that Muhammad Yousaf, brother of the appellants was murdered four or five months prior to the occurrence and in that murder case, Manzoor Ahmad complainant, his brother Muhammad Hayat, Muhammad Yaqub Pathan and some others were challaned. Sahib Khan deceased was a maternal-uncle and father-in-law of Muhammad Yaqub Pathan, who had been challaned in the murder case. Muhammad Afzal P.W. Was a real brother of Muhammad Yaqub Pathan. The parties were bound down to keep peace. It was also an admitted fact that the murder case was fixed for 31st December, 1975, in the Court of A.C., Shahpur Sadar. Manzoor Ahmad complainant had to attend the Court on that date as he was an accused in the case. It was quite natural for Sahib Khan deceased, Muhammad Afzal and Ghulam Muhammad P.Ws. To have gone to Shahpur Sadar for attending Court proceedings. Nothing was abnormal in it. The occurrence had taken place near the railway line close to Mohallah Deputy Wala. Five .12 bore empty cartridges had been recovered from the spot. Abdul Wahid, A.S.I. Who was present in Mohallah Deputy Wala reached the spot on hearing fire shots. He found some persons running away from the spot. He found Sahib Khan injured near the railway track. The place of occurrence could not be disputed.
Manzoor Ahmad complainant, Muhammad Afzal (P.W.10) and Ghulam Muhammad (not produced) came to the spot when the A.S.I. Reached there. Village Mangowal KaIan was at a distance of seven miles from the place of occurrence. The occurrence had taken place at about 2.30 p.m. The A.S.I.
Completed the statement of Manzoor Ahmad complainant Exh. P.C. At 3.15 p.m. The case was registered at Police Station, at 3.30 p.m. Sahib Khan was first taken to Civil Hospital, Shahpur Sadar, and from there to Civil Hospital, Sargodha. He was medically examined on 31st December, 1975, at 5.20 p.m. The doctor gave the duration of injuries as within four hours. The occurrence had taken place at about 2.30 p.m. As stated by the prosecution witnesses. There was no other evidence, except the defence contention, to hold that Manzoor Ahmad complainant was sent for from his village and thereafter, prosecution story was cooked up. It was a day time occurrence. There could be no mistake about the identity of the assailants. We agree with the submission of the learned counsel for the appellants that Manzoor Ahmad and Muhammad Afzal P.Ws. Were interested witnesses and thus their statements required independent corroboration. The shots were fired at Manzoor Ahmad complainant and Muhammad Afzal P.W. But they escaped injuries. When the attack was opened and first shot fired, Manzoor Ahmad saved his life by getting down from the railway track and lying on the ground. Thereafter, he, Muhammad Afzal and Ghulam Muhammad took to their heals, ran in different directions and saved their lives. Five .12 bore empty cartridges were recovered from the spot and sealed into a parcel. This parcel was deposited with Mushtaq Hussain Shah, NaibMuharrir, on 4th January, 1976, by Abdul Wahid, A.S.I. Mushtaq Hussain Shah, Naib-Muharrir (P.W.3) sent the sealed parcel containing five empty cartridges to the Office of Forensic Science Laboratory, Lahore, on 5th January, 1976 through Muhammad Nawaz, F.C. The statement of Mushtaq Hussain, Naib-Muharrir was corroborated by Muhammad Nawaz, who stated in Court that he delivered the sealed parcel intact in the Office of Forensic Science Laboratory on 6th January, 1976. Karam Ali and Muhammad Sharif appellants had not been arrested by that time. Muhammad Sharif appellant was arrested on the night between 6/7th January, 1976, at about 2.00 a.m. And .12 bore gun P.6 was recovered from his possession. Karam Ali appellant was arrested, on 7th January, 1976, at 6.00 a.m. And gun P.11 was recovered from him.
These two guns were sent to the Office of Forensic Science Laboratory, on 15th January, 1976. The two guns recovered from Karam All and Muhammad Sharif appellants were found to have been used for the commission of murder. Two empty cartridges had been fired from gun of Muhammad Sharif appellant while one empty cartridge had been fired from the gun of Karam Ali appellant. The recoveries of the two guns stood clearly proved from the statements of Allah Ditta (P.W.7) and Abdul Wahid, A.S.I. (P.W.12). There was no material to reject their testimony as regards the recoveries of the two guns from Karam Ali and Muhammad Sharif appellants.
10. Karam All and Muhammad Sharif appellants had the motive to commit the murder. Both of them fired shots and the shots hit Sahib Khan deceased. Manzoor Ahmad and Muhammad Afzal escaped injuries. Karam Ali and Muhammad Sharif appellants had made murderous assault on Manzoor Ahmad and Muhammad Afzal P.Ws. The occurrence had taken place on 31st December, 1976, whereas Muhammad Sharif was arrested on the night of 6th January, 1976 and Karam Ali appellant on the morning of 7th January, 1976. They were not available for six days and it was another circumstance against them. The statements of Manzqor Ahmad and Muhammad Afzal were corroborated by medical evidence, the motive and the recovery of two guns from Karam Ali and Muhammad Sharif appellants, which were proved to have been used in the commission of murder and murderous assault. The case was proved against Karam Ali and Muhammad Sharif appellants and they were rightly convicted. Their appeal is dismissed.
11. The case of Muhammad Khan and Ahmad Khan appellants was on different footing. They were arrested on 4th January, 1976. Muhammad Khan produced carbine P.17 on 10th January, 1976.
Ahmed Khan produced carbine P.19 on 11th January, 1976. Before the five empty cartridges were sent to Fire-arms Examiner, on 5th January, 1976, Muhammad Khan and Ahmad Khan appellants were in police custody. We cannot hold that police had fabricated empty cartridges from the two carbines produced by Muhammad Khan and Ahmad Khan and sent the empties to the Fire-arms Examiner and the latter prepared the recovery memos, of the two carbines, on 10th January, 1976 and 11th January, 1976. But by way of abundant caution, we are not inclined to treat the report of the Fire-arms Examiner as a corroborative piece of evidence against Muhammad Khan and Ahmad Khan appellants for the reason that they were in police custody on 4th January, 1976. They are entitled' to the benefit of doubt. Muhammad Khan and Ahmad Khan appellants are given the benefit of doubt and acquitted of the charges. They shall be set free forthwith unless wanted in some other case.
12. The occurrence had taken place, on 31st December, 1975. The appellants were convicted, on 29th June, 1977. A period of more than five years and five months has elapsed and at this stage we do not consider it a fit case for the enhancement of sentence, although we do not agree awarding lesser sentence. The upshot of the above discussion is that the appeal of Karam Ali and Muhammad Sharif appellants is dismissed. The revision petition filed by Manzoor Ahmad complainant is also dismissed.