GUL MUHAMMAD KHAN, J.-Khan Zaman 30, Palak Sher 20, Ramzan O, Muhammad Yousaf 28, Sikandar Hayat 40, Khan Muhammad (alias Khanoo) 55, Bahadur 60 and Ali Ahmad 40, have been convicted and sentenced as under, vide order dated 15th June, 1982, passed by the learned Additional Sessions Judge, Sargodha : {{TABLE}} MOW Appellant. Sentenced under section 302/149, P. P. C. For murder of Muhammad Amin. Sentenced Sentenced under Sentenced under section 302, under section P. P. C. For section 148, P.P.C. Murder of Sar war 148, Khatoon. P. P. C.
Khan Zaman Falke Sher Ram zan Muhammad Yousaf Life imprisonment with a fine of Rs, 3,000 in default of payment to one year R. I. ditto ditto ditto 3 years ditto ditto ditto Nil 3 years' R. I.
Under section 302/10, P. P. C. Life imprisonment and a fine of Rs, 3,000 or one year R. I. In default of payment each for the murder of Mst. Sarwar Khatoon, Sikandar Hayat Death Khan Life imprison- Muhammad ment with fine alias Khanoo of Rs, 3,000 in default of payment to one year R. I.
Bahadur ) Under section All ) 302/109, Muhammad ) P. P. C. Life imprisonment and a fine of Rs, 3,000 in default of payment one year R. I.
Each for the murder of Muhammad Amin.
Death and a fine 3 years of Rs, 3,000 in default of payment to one year R. I. ditto ditto ditto ditto Life imprisonment ditto with fine of Rs, 3,000, in default of payment to one year R. I. ditto ditto Life imprisonment 3 years' with fine of Rs, 3,000 R. I. In default of payment to one year R. I. {{TABLE}} Khan Zaman, Falaksher, Ramzan, Muhammad Yousaf and Khan Muhammad were also convicted under section 20 of the Arms Ordinance and sentenced to 3 years' R. I. Each, The sentences were to run concurrently and the fines ifrealised are payable to Muhammad Yousaf complainant. The complainants have appealed against that order. Muhammad Yousaf, Khan Muhammad, Felak Sher, Ramzan and Khan Zaman have also filed separate appeals (Cr. A. 334, 335, 336, 337 and 338 of 1982) in respect of their conviction under the Arms Ordinance. The learned Additional Sessions Judge has also sent up a reference under section 374, Cr. P. C. For the confirmation of the sentences of death awarded by him. All these cases shall be disposed of by this order.
2. The occurrence took place at 6-30 a. m., on 3rd September. 1980, in the area of Rakh Lukko at a distance of 20 miles from Police StationMitha Tiwana, District Khushab, in which Muhammad Amin and Mst. Sarwar Khatoon were killed. The case of the prosecution was that the complainant Muhammad Yousaf P. W.
6. Alongwith Mst. Sarwar Khatoon deceased and Muhammad Amin deceased was going to Multan, from his Dera situate in the area of Rakh Lukko. When the party reached the forest. Near Chashma Link Canal, only about 150 karams, from the dera of Muhammad Yousaf. P. W. The appellants Khan Zaman, Falak Sher, Ramzan, Sikandar Hayat and Muhammad Yousaf, all armed with guns and Khan Muhammad with a Carbine, forming an unlawful assembly, emerged from the bushes and in the prosecution of their common object, fired at Mst. Sarwar Khatoon deceased, as well as Muhammad Amin deceased, with their respective weapons, with the result that both of them died at the spot due to fire shot injuries. Muhammad Hussain P. W. 7 and Muhammad (not examined) who were accompanying the complainant party to see them off, witnessed the occurrence.
3. The motive, as stated, for the offence was, that Mst. Sarwar Khatoon, daughter of Bahadur appellant, had been wedded to Muhammad Amin deceased. About 4/5 months before the occurrence, the complainant came to know that Bahadur appellant was trying to arrange her marriage with Khan Zaman appellant. The complainant dissuaded Bahadur from doing so but he did not come round. Consequently, Muhammad Amin filed a suit in the Court of the learned Civil Judge, M ianwali. He summoned Mst. Sarwar Khatoon, for 1st of September, 1980. There she admitted that Muhammad Amin was her husband and agreed to go with him. The Court, on that, allowed her to do so. Muhammad Amin brought Mst. Sarwar Khatoon to his Dera in Rakh Lukko. The incident infuriated the appellants, who as relations of Mst. Sarwar Khatoon, attacked the complainant party, with the result as stated above. The other two appellants Bahadur and Ali Muhammad were said to have conspired together in the hearing of Sardara P. W. 3 and Sultan (not examined) and incited their co-accused, who caused the death of the two deceased.
4. Muhammad Yousaf P. W. 6, father of Muhammad Amin deceased, lodged the first information report on the same day 1. e. 3rd September. 1980 at 10-00 a. m. It was recorded by Asmat Ullah Khan S. H. O. P. W.
9. He proceeded to the spot and after inspection prepared injury statement and inquest reports of the two deceased and sent the dead bodies for post-mortem examination. He then inter alia recovered on the same day, from near the dead body of Muhammad Amin, five .12 bore empty cartridges Exh. P. 11/1-5, took them into possession in the presence of Muhammad Hussain P. W. 7 and Hamayun (not examined) vide memo. Exh. P. O. And sealed them into a parcel. Three more .12 bore empty cartridges Exh. P. 12/1-3 were also recovered from near the dead body of Mst. Sarwar Khatoon and taken into possession, vide memo. Exh. P. Q. In the presence of the same witnesses.
5. Dr. Ghulam Haider Shah conducted autopsy on the dead bodies of the two deceased and recorded the following injuries :- ' Mst. Sarwar Khatoon :
(I) A fire-are in wound 3/4" diameter on the lateral part of right side of abdomen, edges were blackened.
(2) A circular fire wound 1/2" diameter about 2" below the injury No,
1. The edges were blackened.
(3) A fire-arm wound circular in shape 3/4" diameter in the middle of left chest outer part, the edges were blackened.
(4) A circular fire wound 1/2" diameter on the outer part of left memory gland.
(5) Three fire-arm wounds 1/4" diameter on the aspect of left joint elbow joint.
' Muhammad Amin :
(1) A circular fire arm wound 1" in diameter on the back of head upper part. The brain matter was coming out of it. Two pieces of gatta were found. Many small rounded matallic pellets were also recovered from the brain matter.
(2) A fire-arm wound 1J/' x 1" abdomen cavity deep on the lower left part of the back with multiple supper ficial rounded injuries about 1/8" diameter around the main injuries were present in an area of 5" x 3".
(3) A fire-arm wound 2" x 1" on the back of neck left side edges of the wound were blackened.
(4) A fire-arm wound 2" x circular in shape 1/6" in diameter on the right side of back upper and middle part.
(5) The two fire-arm wounds 1/6" diameter each on the front of right fore-arm 4" from wrist joint.
(6) Multiple rounded superficial wound 1/6" diameter on the back of right leg, right thigh, corresponding parts of shalwar.
(7) Multiple rounded shape wounds 1/6" diameter on the back of left leg and left thigh present holes on the shalwar.
(8) Abrasion 4" x 1" on the back of left elbow joint.
' During the trial the doctor could not appear due to his serious illness despite a few summons. His post-mortem report was, however, proved by Amir Bakhsh Dispenser P. W.
10.
6. The Investigating Office, Asmatullah P. W. 9, recovered, on 20th September, 1980, four guns from the appellants Ramzan, Khan Zaman, Muhammad Yousaf and Falak Sher, in the psesence of Sher Muhammad P. W. 8 and Bahadur P. W. 5 at Chouk Girot. On the next day Sikandar Hayat appellant after having been arrested produced his licensed gun Exh. P. 11 at village Hadali in the presence of Sher Muhammad and Bahadur. Khan Muhammad appellant produced a Carbine Exh. P.
13. This recovery was witnessed by Muhammad Hussain P. W. 7 and Hamayun not produced. Some of the empties matched with the weapons of Falak Sher, Sikandar Hayat and Khan Muhammad.
The prosecution relied on the ocular evidence of Muhammad Yousaf P. W. 6, and Muhammad Hussain P. W. 7, medical evidence, the recoveries referred to above and the strong motive.
7. All the appellants in their statements under section 342, Cr. P. C. Denied the allegations against them and stated that they had been falsely implicated on account of enmity. Sikandar Hayat appellant produced three witnesses in defence. The learned Additional Sessions Judge, as stated above, found that the case of the prosecution had been proved against the appellants and, therefore, he convicted and sentenced them as detailed above.
8. To begin with the learned counsel assailed the recovery of crime empty cartridges from the spot, their despatch to the Forensic Science Laboratory and the report that some of them had matched with the recovered guns. His contentions on that score have much weight. Asmatullah S. H.0. P. W. 9 recovered five crime empties from within 6 feet radius of the dead body of Muhammad Amin and three empties, within 6 feet radius of the dead body of Sarwar Khatoon, on 3rd September, 1980, in the presence of Muhammad Hussain P. W. 7, and Humayun not produced, Khurshid Ali, H. C. P. W. 4, stated that he received these empties sealed in two parcels on 6th September, 1980 and gave them to Fakharuddin F. C. P. W. 1, on 19th September. 1980 to be delivered to the Forensic Science Laboratory. After seeing the register of Roznanicha, dated 6th September, 1980 he, however, deposed that there was no specific mention of empties in the entry and that he wrote to have received articles in accordance with the memos. Asmatullah P. W. 9 admitted after seeing the police file that recovery of 'Kiwi Kartus' was not mentioned in the statement of Muhammad Hussain P. W. Khurshid Ali, H. C., referred to Exh. P. C. Which is a copy of Register 19 of Malkhana. The crime empties are not mentioned as the case property recovered. Muhammad Hussain P. W., in his statement Exh. D. C. Recorded on 3rd September, 1980 did talk about recovery of blood-stained earth but not of the empties. On the comparison of original police file and copy of statement of Muhammad Hussain P. W., Asmatullah P. W. 9 admitted that the word Khol Kartus' was overwritten.
The number of empties and their place of recovery was not mentioned therein. Muhammad Hayat, Patwari P. W. 2, also did not show in the plan, the place where empties were lying. Fakharuddin F. C, P. W. 1, admitted to have received the parcels on 19th September, but did not give the date when he delivered them to the Laboratory. They are however, shown to have been received by the Laboratory on 8th October, 14 1980 (Exh. P. Z.) through Fakharuddin, F. C.
352. The entire recovery of the crime empties is, therefore, highly doubtful.
9. The crime empty C. 2 matched with .12 bore D.B.B.L. Gun No, 4116 allegedly of Sikandar appellant.
There recovery memo. Of his gun (Exh. P.C.) gives its number as 1116 D.B.B.L.-12 bore. The empty C. 4 matched with .12 bore shot pistol (Carbine) of Khanoo (Exh. P. R.). The empties C. 1, C. 7, C. 8 were opined to have been fired from .12 bore S.B.B.L. Gun of Falak Sher (Exh. P. J.). No other empty matched with any gun. The gun recovered from Ramzati was found to be out of order. Asmatullah Khan, S. H.0. P. W. 9, deposed that he was present on 20th September, 1980, at Chauk Girot in search of the accused when one Alam Khan, not examined, produced before him at 6-30 a. m. Khan Zaman, Ramzan, Falak Sher, Yousaf, Bahadut and Ali Muhammad appellants. He arrested them. Out of them Muhammad Ramzan, Khan Zaman, Muhammad Yousaf, Falak Sher produced unlicensed guns which were taken into possession in the presence of Sher Muhammad P. W. 8 and Bahadur P.
W.
5. On the next day i. e. 21st September, Sikandar Hayat was produced before him at Hadali at 3-00 p, m. By Aslam Khan not examined. He was arrested and he produced a licensed .12 bore D.B.p.L.
Gun in the presence of the same Sher Muhammad P. W. 8 and Bahadur P. W.
5. The five parcels of the guns were given to the Moharrir of the Police Station on 23rd September, 1980.
10. On 26th September, 1980, at noon time while the same S. H.0. Was at Jauharabad Courts with Muhammad Hussain P.W. 7 and Humayun. He received a secret message regarding the presence of Khanoo at an hotel at Chauk Girot. He reached the hotel by bus and arrested Khanoo and recovered a .12 bore Carbine Exh. P. 13 from the fold of his loin-cloth, in the presence of Muhammad Hussain P. W. 7 and Humayun, not produced, at 8-30 p. m. The parcel of the carbine was handed over to the Moharrir of the Police Station on 27th September. In all these recoveries not a single witness of the locality was produced and the witnesses cited were not only close relations of the complainant but lived at far-off places. Any way, all the six gun-parcels were given by Khurshid Ali H. C. P. W. 4 to Fakharuddin F. C. P. W. 1, on 7th October, 1980, for taking them to the Forensic Science Laboratory vide Exh. P. C. And the statement of Fakharuddin F. C. P. W. I. So both the guns and the empties were with the police'. Before they were sent to the Laboratory. Hence no reliance could be placed on the Laboratory results.
11. The statement of Asmatullah S. H. O. P. W. 9 that Sher Muhammad and Bahadur P. Ws. Were with him on the night between 19th and 20th on petrol duty, also appears to be incorrect. Bahadur P. W.
5, stated that he had gone to Chauk Girot on 20th September to inquire from the police about the fate of the murder case. It means he was not with Asmatnllah S. H.
0. On the night between 19th and 20th. Sher Muhammad P. W. 8, also stated that he and Bahadur were coming by bus on 20th September, when on seeing the Thanedar in the Chauk Girot, they got down to find if the accused had been arrested or not. The Thanedar then said that the accused were likely to be produced by Aslam Khan and they should stay on. Both Sher Muhammad and Bahadur deposed that they were also asked by the S. H.0. To come back to Hadali on the next day as he was to effect recovery from Sikandar Hayat. It may be noted that Sikandar's house is situate at a distance of 25/26 miles from Hadali So all the recoveries and the arrests were either fake or an arranged affair.
12. Muhammad Hussain P. W. 7 stated that he and Humayun went to the Police Station Mitha Tiwana on 26th September, 1980. At about 3-00 p. m. The S. H.
0. Came. They, thereafter, left with him for Chauk Girot at 5-00 p. m. By bus and reached there at 7- 30 p. m., and sat in a hotel. The S. H.0., had however, stated that the witnesses were with him at noon time in the Courts of Jauharabad when he learned about Khanoo and he went to Chauk Girot straight from there. It was at about 8-00 p. m. That the S. H.0. Learnt about the arrival of Khanoo, at the hotel across the road, They then raided at 8-30 p. m. And arrested Khanoo. In his statement Exh.
D. D. Before the police, with which he was confronted. Muhammad Hussain had stated that recovery was made from Khanoo at 5-30 p. m. It will be further seen that in all the above cases the S. H.0. Seems to be knowing before hand who was to be arrested where and when and also had the knowledge that they will come with the weapons which they used in the commission of the offence.
12-A. Further, the defence showed from official documents that Sikandar was arrested on 12th September, 1980, and not on 26th September, as stated. According to D. W. 1 Ghulam Muhammad, who is a licensed arms-repairer, he received for repair licensed Gun No 4116 of Sikandar on 25th August, 1980. He entered it in the relevant register. About 6/7 days prior to 20th September, the S. H.0. Checked the presence of that gun, fired it twice and took away the empties with him. A had constable then took away the gun on 20th under the signatures of Sikandar Ha yat (in handcuffs).
A photo copy of the receipt is Exh. D. H. It may further be noted that Ghulam Qadir, Sub-Divisional Forest Officer supported D. W. 1 by deposing that Sikandar Hayat who was working under him, was arrested on 12th September, 1980, and not on 21st as stated by the S. H.0. P. W.
9. Documents Exhs, D. J. To D. M. Were produced in support. Even Asmatullah S. H.0. Admitted in his statement recorded on 26th May, 1982 that he had visited the shop of D. W. 1 on 14th September, 1980 and checked the gun. Exh. P. Z. Report of the Forensic Science Laboratory does not specifically show as to when the parcels of the crime empties were actually received there. The general statement is that they were received there on 8th October, 1980. However, according to Fakharruddin even the parcel of carbine was delivered by him on 7th October, 1980. Exh. P. C.
Supports it. Khurshid Ali, H. C. P. W. 4, also stated in Exh. D. C. That the parcel of carbine was given to him on 23rd September, 1980 (Exh. D. C. Statement of Khurshid Ali, H. C. Has not been printed in the paper-book). The statement of Muhammad Hussain P. W. Has also been assigned the same mark and only that has been printed). So as the firearms and the empties were in possession of the police till 23rd September, 1980 or 7th October, 1980. The empties were also delivered to the Forensic Science Laboratory some time between 23rd September and 8th October, while all the guns except the carbine of Khanoo were admittedly E recovered before 23rd September, 1980. So, the opinion of the Forensic Science Laboratory cannot be relied on to fix any liability on any of the appellants, in respect of their respective weapons. Thus neither the recovery of empties and guns nor their matching are of any value.
13. The learned counsel further pleaded that the appellants except Sikandar are all close-relations and they have been falsely involved in the case due to enmity and the evidence produced, did not at all prove the prosecution case. Admittedly, Ramzan appellant is son of Bahadur appellant. It means that Mst. Sarwar Khatoon was the sister of Ramzan. Zaman and Falak Sher appellants are brothers inter se and are sons of a sister of Bahadur. Yousaf appellant is son of a brother of Bahadur. Khan Muhammad alias Khanoo is the brother of the wife of Bahadur and maternal uncle of Ramzan. A son and a daughter of Ali Muhammad appellant are said to have been married to a son and a daughter of Bahadur appellant though the Rukhsati had not yet taken place. In answer to question No, 2 Bahadur denied it. Same was the case with Ali Muhammad. Sikandar appellant is a friend of Ali Muhammad, and Ramzan and he is employed in the Forest Department where Ali Muhammad also works. As only close relations and close friends would join hands and commit such heinous crimes for each other, and against their common enemies, the above objection would cut on both sides. In that situation the evidence on record will be carefully analysed in ascertaining the guilt or innocence of each appellant. This objection, therefore, cannot be conclusive as such in isolation and has to be looked at alongwith the other material, to yield the necessary results.
14. The learned counsel then submitted that even the two eye-wit. Nesses are close relations and being undoubtedly inimical to the appellant party, their evidence must receive corroboration from some independent and unimpeachable source, before it is to be relied upon. Admittedly, Muhammad Hussain P. W. 7 is a son of a cousin of Muhammad Yousaf P. W. 6, Mst. Mehr Khatoon, a sister of Muhammad Yousaf P. W. 6 is the wife of Muhammad Hussain P. W. 7, Muhammad Yousaf is the father of the deceased Muhammad Amin. The parties are also very inimical to each other.
Muhammad Yousaf admitted in cross-examination that Falak Sher appellant had instituted a suit for restitution of conjugal rights, against his daughter Mst. Aziz Khatoon and him, before this occurrence. The witness volunteered that the suit was false and had been maliciously filed to disgrace him and his family. There also, all the appellants were one party and Khan Zaman and Yousaf even appeared as witnesses for Falak Sher. The civil Court decision on 1st September, 1980, further aggravated the situation. The fact is supported by Exhs. P. W. 6, A to P. W. 6/E which are Court decrees and orders etc. In fact Muhammad Yousaf P. W. Stated that the appellants had enmity with him and his son. So, there is no doubt that the parties were very inimical to each other.
The last incident must have added fuel to the fire. However, as stated above, all this by itself is no circumstance to reject the evidence of the P. Ws. The inter se relationship of the prosecution witnesses. Their enmity with the appellants and the last episode which might have turned the appellants desparate are not conclusive factors. They only call for more care and caution in considering the material on record and to ensure that the same is legally corroborated before it is acted upon.
15. So we take up the ocular account. Muhammad Yousaf P. W. 6, who is also the father of the deceased Muhammad Amin, appeared as an eye-witness of the occurrence. He deposed first of all about the incident of the immediate past, in which his deceased son Muhammad Amin secured the hand of Mst. Sarwar Khatoon, daughter of Bahadur and sister of Ramzan appellant, through Court on 1st September, 1980. He went on to say that on the morning of 3rd September, when Muhammad Yousaf, Muhammad Amin and Sarwar Khatoon had left their dera, in order to catch a bus from the canal bank of Chashma Link Canal for Multan, a place at a distance of about 150 karams from his dera, the six appellants, excluding Bahadur and Ali Muhammad, emerged from the bushes nearby. All of them except Khan Muhammad alias Khanoo were armed with guns. Khanoo carried a carbine. According to the F. I. R., however, he was armed with a gun. They challenged the complainant party. Khan Zaman got near Mst. Sarwar Khatoon who tried to catch hold of his gun, but he in the meantime, fired at her right flank. Flak Sher fired a second shot which too hit her right flank. Ramzan fired the third shot at her left flank. She fell down. Yousaf then fired Weir left arm while Sikandar in the abdomen. This shot was not mentioned in the F. I. R. Mst. Sarwar Khatoon died of injuries there and then. In his cross-examination Muhammad Yousaf stated that Mst. Satwar Khatoon was fired at, by all the accused simultaneously, while they were standing in line, at an equal distance of 3 Karams from the deceased.
16. While narrating the incident about his son Muhammad Amin, deceased Muhammad Yousaf P.
W. Had deposed that as the appellants were firing at Mst. Sarwar Khatoon, Muhammad Amin ran towards the canal to save himself. He was fired at from behind by all the six appellants hitting his legs and back of the chest. In spite of being injured, Muhammad Amin reached the canal bank.
Yousaf appellant then reached near and fired at him hitting his left flank on the back side. Khanoo fired to hit him on the back of his neck. Sikandar fired at the back of his head. Muhammad Amin fell down and died at the spot.
17. In his cross-examination he stated that Muhammad Amin was going 15-16 Qadams ahead of Mst. Sarwar Khatoon. The attack on him started after all the fire injuries had been suffered by ifst.
Sarwar Khatoon. The appellants were at a distance of 10 paces from Muhammad Amin. When Sarwar Khatoon was being fired at Muhammad Amin ran and the appellants ran after him They fired one shot each on him which hit him on his back. Muhammad Amin in all ran 10 Qadams leaving behind a trail of blood. Neither Muhammad Yousaf nor were the other eye-witnesses fired at. The appellants had fired. At Muhammad Amin from the ground level while he was standing at the canal bund, 8 feet high.
18. The learned counsel for the appellants laid much emphasis on this last part of the evidence of Muhammad Yousaf and argued that while in the examination-in-chief he divided the transaction into two parts, later in the cross-examination all the appellants are stated to have fired while the deceased Muhammad Amin was standing at a height of 8 feet. To understand the objection, it will be useful to reproduce the portion relied upon.
"The Canal bank is 8 feet high. The accused fired from the ground level while the deceased was standing at a height of 8 feet. All the fires were shot at the deceased while standing in above mentioned position and from the abovesaid distance."
The above situation is clearly explanatory of the second round of fires after Muhammad Amin reached the canal bank. Further, the 'standing' does not mean facing the appellants and was rather used as contradistinctive to have fallen. There is thus no contradiction or discrepancy so as to benefit the appellants.
19. The learned counsel then referred to some of the apparent improvements made in the deposition of Muhammad Yousaf and argued that be is not reliable. He referred to him saying that while he was coming out of the Mianwali Court on 1st September, 1980, Khan Zaman Khanoo, Sikandar, Ali Muhammad, and Bahadur had threatened that they would murder Muhammad Amin and Mst. Sarwar Khatoon. Undoubtedly, no such allegation was made in the F. I. R., but that may be a mere omission. Exh. P. W. 6/C shows that he was present in Court on 1st September, 1980.
However, the fact that Muhammad Yousaf took police escort to reach his Dera would support him.
The other improvement pointed out is that Khanoo was said to be armed with a gun according to the F. I. R., but in his deposition before the trial Court, Muhammad Yousaf said that Khanoo was armed with a carbine. It is argued on behalf of the appellants that the said improvement was made to fall in line with the report of the fire-arm expert who had opined that one crime-empty C- 4 matched with the carbine recovered from Khanoo. Similarly, no overt act was attributed to Sikandar in the F. I. R., qual Sarwar Khatoon but in his statement Yousaf P. W. Deposed that Sikandar fired a shot which hit the abdomen of Sarwar Khatoon. However, a shot attributed in the F. I. R., to Yousaf qua Sarwar Khatoon, alongwith the remaining accused was said specifically, in the statement, to have hit her arm. Obviously, the above are improvements and seem to have been made to attribute to the accused specific roles. It appears that the witness carried the vengeance of an aggrieved father and anxiety of an enemy to ensure that all the appellants were involved so as not to escape punishment. However, this is the situation for which the Courts are called upon to sift evidence carefully and to reject parts which are shown to be contradictory or false. The entire evidence cannot be rejected.
20. Muhammad Hussain P. W. 7 repeated more or less the same version as given by Muhammad Yousaf P. W.
6. According to him also Khan Zaman, came near Mst. Sarwar Khatoon who tried to catch hold of the gun. Khan Zaman fired which hit her on the right flank. Falak Sher fired a second shot which hit near the Ore of Khan Zaman. Ramzan fired the third shot which hit on her left flank. She fell down.
Yousaf then fired on her left arm while Sikandar fired on the left side of her chest. Muhammad Amin then ran to the bank-canal. He was fired at simultaneously by all the accused hitting at the back of his legs, thighs and also his back. Meanwhile, Muhammad Amin reached the canal bank. Yousaf accused reached near Amin and fired on the left side of his flank. Khanoo fired at the back of his neck while Sikandar on the back left side of his head. Amin expired there. This witness also was said to have made certain improvements. He had stated in his statement under section 161, Cr. P. C. Exh.
D. C. That Khanoo carried a .12 bore gun but in his deposition he charged it to carbine. He, however, knew the difference between the two weapons and stated that carbine is like a pistol. Again he had not attributed specifically any fire to Yousaf hitting left arm of Sarwar Khatoon as said in his deposition. Similar is the case with regard to Sikandar who was not attributed any specified fire to Mst. Sarwar Khatoon in the statement Exh. D. C. Made under section 161, Cr.. P. C. He did not know how many fires had been shot during the pursuit of Amin and whose fire hit him and where but it was at his back while he was running. However, apart from the carbine of Khanoo none of the other alleged improvements are noticeable. These were just general statements in the F. I. R., while they are specific in the deposition. In any case, if the participation of an appellant in the incident is proved, his liability could be vicarious.
21. The autopsy report of Mst. Sarwar Khatoon as prepared by Dr. Ghulam Haider Shah, who conducted autopsy on her dead body, shows that injury No, 1 on the abdomen, injury No, 2 about 2 inches below the above injury and the third in the middle of left outer part of the chest were caused by fire-arms and their edges were blackened. This is in accord with the statements of Muhammad Yousaf and Muhammad Hussain who deposed that the gun of Khan Zaman was so near to Sarwar Khatoon that she tried to catch hold of it. The seats of the injuries are also the same as stated by them. The second shot of Falak Sher hit just under the first injury. Ramzan fired the third shot at her left flank. Similarly, the injuries on the person of Muhammad Amin corroborate the account given by Muhammad Hussain P. W. His injury No, 1 from a very close range, at the back of the head, had gatta and pellets in it. The one on the left flank corresponds to the given account. The one on the back of the neck had also blackened edges. The other injuries at the back may be caused when the deceased was running away.
22. Thus, the post-mortem report fully corroborated the version given by Muhammad Hussain as to the seat of injuries and the distances. His presence at the spot is natural. The places where the dead bodies of the two deceased were found, as shown in the sketch plan of the scene of occurrence, are also in accord with his statement. The witness fully stood the test of cross- examination. The attack started with Mst. Sarwar Khatoon while she was at the foot of the bund.
Muhammad Amin, who, in his bid to escape, ran to the bank of the canal, was attacked in pursuit.
The injuries corroborate that. The occurrence took place on 3rd September, 1980, at 6-30 a. m.
When it is normally quite bright. Even the dera of Muhammad Yousaf is only 150 Karams away. The report was also lodged by Muhammad Yousaf at 10-00 a. m., at the police station which is 20 miles away. There was thus no delay in lodging it and no such objection has been taken by the appellants either. The death of Mst. Sarwar Khatoon, alongwith Muhammad Amin, the very third day of her making a statement before the Court to go with Muhammad Amin, against the wishes of her father and other relations, would also leave no manner of doubt about the party who would have the motive to kill. The fact that only the 'delinquent couple' was done to death and others not harmed may also point to the party who may have resorted to that killing. It may also be taken note of that all the appellants live in Chak No, 2/D B.. Village Khundian and the fare between their village and the place of occurrence is Rs,
13. All those present there thus could have the same- intention and their presence not without premeditation.
23. The next question is to know, if all the appellants were involved in the occurrence or some have been falsely involved ? Both Yousaf and Muhammad Hussain P. Ws. Have attributed specific parts to the appellants 1 to 6 as discussed above and normally, no interference would have been called for. However, some very important facts have come up in cross-examination, in the light of which, cases of Sikandar and Khan Muhammad require reconsideration. Therefore, a further scrutiny of the material on record is called for. It is now judicially recognised that there is a tendency, on the part of complainants in this country, to involve innocent persons alongwith the real culprits.
Keeping in view this sad state of affairs, the Supreme Court also departed from the previously established principle of indivisibility of evidence of a witness and assigned to the Courts the time consuming role of sifting grain from the chaff. The Courts thus take note of the fact that witnesses do mix falsehood with the truth and it is for them to carefully separate them. The moral fibre, however, gets more soiled and the fear of God takes leave of some witnesses, when there is a litigation based on enmity or vanity. The people seem also to have become more crafty eversince the above judicial departure, so much so, they spin falsehood so artfully and fabricate it into a story so deftly, and unfortunately, sometimes with the connivance of even the Investigating officers, that the Courts of today are faced with the arduous task of separating, not grain from chaff but fresh air from noxious fumes.
24. So we take up the case of Sikandar appellant first of all. According to Asmatullah Khan S. H.
0. P. W. 9, he was arrested at Hadali on 21st and his gun was also recovered at the same time, in the presence of Bahadur P. W. 5 and Sher Muhammad P. W. 8 who had reached there of their own.
Bahadur P. W. 5, however, deposed that while he was atGhouk Girot on 20th to witness the arrest of and recoveries from appellants Khan Zarnan, Falak Sher etc., be was asked by the S. H. O. To $o to Hadali on the next day as Sikandar was to be arrested and his gun was also to be recovered. Sher Muhammad P. W. 8 went a step further to say that the S. H.
0. Had asked him to come back to Hadali on the next day at 3-00 p. m. As recovery was to be made from Sikandar. Ghulam Muhammad D. W. I deposed that the gun of Sikandar which had been deposited with him for repair on 25th August, 1980, was taken back on 20th September, by a Head Constable when he brought Sikandar in handcuffs. About 6/7 days earlier, the S. H.
0. Had gone to the shop of D. W. 1 (who is a licensed repairer) to check the presence of the gun there. He also, fired two shots from the same gun and took away the empties with him. Asmatullah S. H. 0. In his further statement, dated 26th May, 1982, admitted that he did visit the shop of D. W. 1 on 14th September, 1980, and found the gun lying there. He agreed that be did not take the gun into possession on that day but only checked it.
25. Ghulam Qadir D. W. 2, the Sub-Divisional Forest Officer stated that Sikandar was arrested by the police, on 12th September, 1980. To confirm that position, he had sent a communication to the Superintendent of police, who without answering the query direct, endorsed the report of the S. H.
0. That Sikandar was involved in the above case and had been challaned. Reference be made to Exhs. D. J., D. K. And D. L. Ghulam Ahmad D. W. 3, Block Officer, Forest Department stated that on the fateful day, he and Sikandar had offered morning prayer together. Thereafter, at 7-00 a. m., he paid him his salary. A photo copy of the pay roll is Exh. D. N. Even Asmatullah P. W. 9 in his statement admitted that he found him innocent in his investigation but challaned him because of the ocular evidence against him.
26. The above facts speak volumes as to the efforts of the prosecution to create false evidence against Sikandar just to challan him. Why all that was done is not comprehensible from this record.
Except to say that he was a colleague of Ali Muhammad appellant and was said to be getting his son and daughter married with the son and daughter of Bahadur appellant At any rate, when prosecution goes to the extent of creating false evidence and making palpably false statements, the Courts, as held by the Supreme Court in Ilahi Bux v. The State , will have to grant benefit to the accused, even if it is possible or even probable that the real culprit was among the assailants and had been so named by the eyewitnesses. The prosecution in that situation has to thank itself for the results. We, therefore, give Sikandar the benefit of doubt and acquit him.
27. Next we take up the case of Khanoo. Both the eye-witnesses, Yousaf P. W. 6, and Muhammad Hussain P. W. 7, had stated at the trial that Khanoo was armed with a carbine. Muhammad Hussain who also happens to be a witness of recovery of his carbine, was asked a particular question if he knew the difference between a gun and a carbine. He replied that he did and explained that carbine is like a pistol. However, in the F. I. R., Muhammad Yousaf P. W. 6 had stated that Khanoo was armed with a gun. Even Muhammad Hussain admitted having stated before the police (Exh. D.
C.) that Khanoo was armed with a gun. He was also charged for the possession and use of the gun and not carbine. P. W. 9 Asmatullah S. H.0. Who had recovered the carbine from Khanoo admitted that according to the F. I. R., and inquest report Khanoo had a gun.
In his statement at the trial, he deposed that on getting information at noon at Jauharabad about the presence of Khanoo at Girot, he joined with him at Jauharabad Muhammad Hussain P. W. 7 and Humayun, not examined. They reached Chauk Girot direct and arrested Khanoo at 8-30 p. m., on 26th September, 1980. They also recovered the carbine and strangely enough the empty cartridge C. 4 matched with it. Muhammad Hussain P. W. 7, stated that he and Humayun had met the S. H.0. not at Jauharabad but at Police Station Mitha Tiwana, on that day at 3-00 p. m. All of them then got a bus for Girot Chauk and reached there at 7-30 p. m. In his statement before the police, however, Muhammad Hussain had stated that the arrest of Khanoo was made at 5-30 p. In. (Exh. D. D.).
Again, it is surprising to note that Khurshid Ali Head Constable P. W. 4 in his statement Exh. D. C. With which he was duly confronted had \stated that parcel of the carbine was handed over by him to Fakharuddin F. C., on 23rd September, 1980, for transmission to the Forensic Science Laboratory.
This is supported by Exh. P. C. Where carbine is at Serial No, 6 of the list. Thus, weapon was then delivered to the Forensic Science Laboratory on 7th or 8th October, as discussed above.
28. The further fact which creates a doubt about the participation of Khanoo and that he may not have joined the rest of the appellants, has its support in the evidence of Muhammad Yousaf P. W.
6. Also. Khanoo had only one daughter and no male issue. She was married to Khan Zaman son of Silabat Khan. Gulsher a nephew of Falak Sher, appellant, who is a maternal cousin of Ramzan 1. e.
Son of wife's brother of Bahadur, had lodged a criminal case, under section 16 of the Offence of Zina (Enforcement of Hadood) Ordinance against Khan Zaman, the son-in-law of Khanoo and Mst.
Naziran his daughter, in which they were acquitted by the Additional Sessions Judge, Sargodha, on 9th August, 1981, Exh. D. G. The facts of that case were put to Muhammad Yousaf P. W. 9, but he expressed his ignorance. A suggestion was also put to him that he was deliberately suppressing hi knowledge to conceal enmity of Khanoo with the other appellants but he denied that also.
Normally, such a fact may not be unknown to Muhammad Yousaf. The allegation of Gulsher his near relation, was that Mst. Naziran was his lawfully wedded wife but had been kidnapped by Khan Zaman son of Silabat Khan and others. The Nikahnama produced by Gulsher does not show if1 Khanoo was in any way associated with that. He was neither one of the accused nor a witness for any one in the case. Even Yousaf P. W. Did not say that Khan Muhammad alias Khanoo appellant was aiding or siding with the party of Gulsher. On the other hand. Bahadur and Ramzan had witnessed the alleged Nikah of Gulsher. So it is clear that Khanoo was either inimical to the party of the appellants as suggested or in any case indifferent. He therefore, could not join them in that crime. So, most likely eve Khanoo has been falsely involved. We therefore, give him also the benefit of doubt and acquit him.
29. Now we take up the case against Ali Muhammad and Bahadur. They are said to have instigated their co-accused to commit the murder the two deceased and thereby abetted the offence of murder under sec tion 302/109, P. P. C. Sardara P. W. 3 is only witness against them. He and Sultan (close relation of Yousaf, not ;produced) had gone to Mianwali to attend the Sessions trial of one Farooq Qureshi, on 1st September, 1980. From there they went to a hotel at the bus stand Mianwali.
There they found Ali Muhammad, Bahadur, Sikaudar, Rainzau and Khan Zaman already sitting. They heard Bahadur appellant stating that Muhammad Amin and Sarwar Khatoon had badly defeated them by winning the case, in the civil Court. Ali Muhammad appellant said that Sarwar Khatoon had also deserted them. All Muhammad and Bahadur then said that they would finish both of them before they reach Multan. Sikandar appellant replied that they would not be allowed to reach Multan. Others repeated the same and left the hotel. These two witnesses are related to Yousaf complainant. Sardara's cousin Ashraf is married to the sister of Yousaf while Sultan's wife Bhagbharl is the sister-in-law of Yousaf. They had come to attend a Sessions trial but did not know in which Court the trial was held and when it had commenced. It was such a serious matter concerning his close relations but he reported that neither to the police nor did he inform Amin, Sarwar Khatoon or any other relative till 4th September, 1980. He made the statement before the police on 4th September, 1980. Further, he made improvements in his police statement Exh. D. B.
30. The above statement of Sardara does not inspire any confidence at all. It is not believable that the appellants would conspire in an hotel and that too so loudly that the witnesses whom the appellants must be knowing, as close relations of the complainant party, would have heard.
Secondly, if that be so, Sardara as a natural reaction, should have informed Amin, Yousaf and other relations. Consequently, we hold that the prosecution failed to prove its case against Ali Muhammad and Bahadur beyond reasonable doubt. They too are, therefore, acquitted and shall be set at liberty unless their detention is required in some other case. In the circumstances.
Sections 148 and 149, P. P. C. Are not attracted. The conviction of the remaining accused under section 302/149, P. P. C. Is, therefore, altered to section 302/34, P. P. C.
31. Now comes the question of sentence. As said above, we have not been able to find any force in the appeal of Khan Zaman, Muhammad Yousaf, Falak Sher and Ramzan. They, however, are young and closely related inter se. Ramzan is the real brother of Sarwar Khatoon. His sister had been taken away so publicly and daringly that he and others must have felt dishonoured and in such a way that they could do nothing about it. Their warm blood must have boiled provoking them to avenge the insult. The situation creates a mitigating circumstance in their favour. We alter their death sentence to the lesser penalty of life imprisonment. Khan Zaman, Falak Sher and Ramzan shall, however, pay a sum of Rs, 30,000 each as fine but in default of payment, they shall undergo further R. I. For 3 years. Out of the fine, if recovered, a sum of Rs, 60,000 shall be paid to Muhammad Yousaf P. W. The sentence of Muhammad Yousaf is maintained but as no notice of enhancement had been given to him, his fine in the sum of Rs, 3,000 is not increased. The fine, if recovered, shall be paid to Muhammad Yousaf complainant. In case of default of payment of fine, Muhammad Yousaf appellant shall undergo further R. I. For one year. The conviction of all the four appellants for the murder of Muhammad Amin is also altered to fall under section 302/ 34, P. P. C. However, as no notice of enhancement had been given to them, their sentence of life imprisonment each with a fine of Rs, 3,000 each is maintained. In case of default in payment of fine, they shall undergo further R. I. For one year each. They shall further pay a sum of Rs, 15,000 each as compensation under section. 544-A, Cr. P. C. To Muhammad Yousaf complainant for the murder of Muhammad Amin. In default of its payment they will undergo R. I. For six months each. The sentences shall runonsecutively.
32. Khan Muhammad alias Khanoo, Sikandar Hayat, All Muhammad and Bahadur appellants who have been acquitted of all the charges shall be immediately released unless their detention is required in any other case. The convictions and sentences of Khan Zaman, Falak Sher, Ramzan and Muhammad Yousaf under section 148, P. P. C. Are set aside. The reference under section 374, Cr. P.
C. Sent by the learned Additional Sessions Judge, is refused. The appeals filed by the five appellants, namely Khan Zaman, Falak Sher, Ramzan, Muhammad Yousaf and Khan Muhammad alias Khanoo under the Arms Ordinance are allowed and their conviction and sentence set aside. 1982 SCM R 57