' A. Rahman, J.-- Manzoor alias Mami aged 22 years and his brother Ibrahim aged 19 years sons of Muhammad resident of Chak No, 66/4-R. Police Station Noor Shah, Tehsil and District Sahiwal were tried and convicted by the learned Additional Sessions Judge, Sahiwal, under section 302/458/34, P.P.C. On 30th April, 1978, they were sentenced to death for committing the murders of Khan and Mst. Aimna Bibi and were ordered to pay a fine of Rs, 5,000 or in default of payment of fine to further undergo rigorous imprisonment for three years. They were also sentenced to seven years' rigorous imprisonment and a fine of Rs, 5,000 or in default of payment of fine to further suffer rigorous imprisonment for three years under section 458, P.P.C. The amount of fine on realisation was to be paid as compensation to the legal heirs of the deceased. They have filed the present appeal challenging the afore Mentioned order of conviction and the case has also been referred by the learned Additional Sessions Judge, Sahiwal, for confirmation of sentence of death. This judgment would dispose of the appellant's appeal (Crl. Appeal No, 466/78) as well as Murder Reference No, 158 of 1978.
2. Briefly stated the facts of the prosecution case as disclosed in the F.I.R. Exh. P.L. Which was recorded by Muhammad Hussain, S.I., S.H.O. Police Station Noor Shah, P.W. 31 on 10th July, 1975 at 3- 30 a.m. On the statement of Wali Muhammad P.W.8, are that on the night between 9th and 10th July, 1975 Khan, his daughter Mst. Aimna Bibi and son Qasim Ali P.W.9 were asleep in the courtyard of their house. At about 1-0 a.m. P.W.8 Wali Muhammad complainant heard the report of the gun- shot from the lhata of Khan. He rushed to the house of Khan. Shamman P.W.10 also accompanied him. They were followed by Nur Muhammad and Qutab Ali P.Ws. (not produced). In the light of a lantern which was placed near the wall of veranda, they saw the appellants standing near the cots of Khan, Mst. Aimna Bibi and Qasim. Ibrahim appellant was armed with dang while Manzoor appellant had a gun in his hand, which he loaded with a cartridge handed over to him by Ibrahim appellant and fired a shot at Mst. Aimna Bibi hitting her right shoulder.
' They also saw Khan in injured condition struggling for life on the cot, Qasim_P.W.9 had hidden himself in between two earthen bins placed the courtyard near his cot. After firing the shot at Mst.
Aimna Bibi the appellants shouted that they had taught a lesson to Khan and his daughter Mst.
Aimna Bibi for getting a case registered against them.
' The appellants then ran away from the place of occurrence.. According to Wali Muhammad complainant,, the motive for committing the murder of Khan, and his daughter Mst. Aimna Bibi was that on 8th July, 1975 the appellants had forcibly taken Mst. Aimna into their dhari where Manzoor appellant had committed rape upon her. On 9th July, 1975, a case under section 376, P.P.C. Was registered against the appellants at the instance of Mst. Aimna Bibi's father Khan. The appellants murdered both Khan and his daughter Mst. Aimna Bibi so that they might not depose against them in the rape case.
3. The case was investigated by Muhammad Hussain P.W.11 who after recording the F.I.R. Repaired to the place of occurrence where he found the dead bodies of Khan and Mst. Aimna Bibi. He prepared injury statement Exh. P.O. Ind inquest report Exh. P.Q. Of Khan deceased and injury statement Exh. P.R. And inquest report Exh. P.S. Of Mst. Aimna Bibi deceased. Thereafter he sent the dead bodies to the mortuary for post-mortem examination under the escort of Waryam Khan Foot Constable P.W.2. He secured the blood-stained earth from underneath the cots of the deceased vide memos. Exh. P.E. And Exh. P.F. And made them into separate sealed parcels. Two crime empties P.7/1-2 were also recovered from the plea of occurrence vide memo. Exh. P.G. And the same were made into a sealed parcel. He also picked up two blood-stained pellets P.8 and P.9 from the spot and took the same into possession vide memo. Exh. P. H. A sealed parcel of the pellets was also prepared. Lantern P.6 which was hanging by a peg in the wall of the verandah (sabbat) was also secured vide memo. Exh. P.D. After the post-mortem examination of the dead bodies last worn blood-stained clothes of the deceased were taken into possession vide memos. Exh. P.B. And Exh.
P.C.
4. Manzoor appellant was arrested on 15th July, 1975. He was carrying gun P.10 and live cartridge P.11 which were taken into possession vide memo. Exh. P.M. Ibrahim appellant was taken into custody on 21st July, 1975 when he produced Lathi P.12 which was secured vide memo. Exh. P.N. The site plan Exh. P.A/1 was got prepared by Ashfaq Beg, Draftsman P.W.1. After completing the investigation of the case, the appellants were challaned.
5. At the trial the' prosecution produced 11 witnesses to prove the charges brought out against the appellants. The evidence of Ashfaq Beg P.W.1, Waryam Khan.Foot Constable P.W.2, Ahmad Hassan, A.S.I. P.W.3, Easa P.W.4 and Muhammad Aslam P.W.7 was of formal nature. Dr. Muhammad Hussain, Medical Officer, Civil Hospital, Arifwala, who had performed the autopsy on the dead bodies of Khan and Mst. Aimna Bibi on 10th July, 1975 between 3-30 and 4-00 p.m. Proved his post-mortem reports Exh. P.J. And Exh. P.K. He had found the following injuries on the dead body of Khan which according to him were sufficient to cause death in the ordinary course of nature:
(1) Fire-arm entrance wound 1-1/4" x in diameter with inverted margin, margins end blackened on the front middle chest 1" above and inner to the nipple and 1" from the mid-line on the right side.
(24) Fire-arm seven exit wounds in an area " x 3" on the back middle of chest right side 11" from the mid-line each measuring 1/4" x 1/6" round each, margins of the wounds are everted.
6. Similarly he had found the fallowing injuries on the dead body of Mst. Aimna Bibi which according to him were sufficient to cause death in the ordinary course of nature:
(I) Fire-arm entrance wound 23" x 23" on the front and upper part of chest and shoulder right side.
(2) Four exit wounds of fire-arm on the back and upper part of right chest each measuring 1/4" x 1/4" in an area of 3" x 2". Th were nine palpable foreign bodies on the back of right Chest up part.
7. Sikandar Khan P.W.5 proved the various recovery memos. Prepared by the Investigating Officer during the invesrtigation of the case. Wali Muhammad P.W.8, Qasim Ali P.W.9 and Shamman P.W.10 furnished the ocular account of the occurrence. Wall Muhammad P.W. Also proved the recovery memo. Exh. P.M. Through which gun P.10 and live cartridge P.11, which were recovered from the possession of Manzoor appellant, were taken into possession by the -Investigating Officer. He also proved the recovery memo. Exh. P..N. Which was prepared by the Investigation Officer after taking into possession dang P.12. Muhammad Hussain P.W.11 deposed with regard to the investigation of the case. The prosecution also relied on the Fire-arms Expert's report Exh. P.V, according to which crime empties C-1 and C-2 were found to have been fired from .12 bore single barrel gun No, 38332 which according to the recovery memo. Exh. P.M. Was secured from Manzoor appellant at the time of his arrest.
8. After the close of the prosecution case the statements of the appellants were recorded under section 342, Cr.P.C. Manzoor appellant admitted that Khan deceased had got a case registered against him and Ibrahim appellant on the allegation that he. (Manzoor appellant) had committed rape upon her daughter Mst. Aimna Bibi but it was a false case. Manzoor appellant stated that he and Ibrahim appellant were convicted by the learned trial Magistrate in the aforementioned case, but they had filed an appeal in the High Court against the order of conviction. As regards gun P.10 he stated that it was a licenced gun of his father and was obtained from him by the police and later on was planted on him. Ibrahim appellant also stated that the case of rape which was got registered against him and his brother Manzoor was false and that the order of conviction passed by the trial Magistrate in the said case had been challenged by him in appeal in the High Court. He controverted the prosecution story and pleaded that he had been falsely implicated in the case due to enmity. The appellants did not produce any witness in their defence. They however, tendered certified copy of the statement of Mulazam Hussain Head Constable which was recorded during the trial of the appellants in the rape case.
9. Learned counsel for the appellants has assailed the order of conviction passed against the appellants on the grounds that none of the eye-witnesses examined by the prosecution is an independent and disinterested witness as they are all related to the deceased and are inimical towards the appellants; that the motive alleged by the prosecution stands disproved by the fact that the appellants have been acquitted in the rape case and that the recovery of the gun P.10, which is the licensed gun of the father of the appellants, from Manzoor appellant at the time of his arrest is highly doubtful. According to the learned counsel for the appellants it is a case of blind murder as no one had seen the assailants of Khan and Mst. Aimna. The appellants have been roped in merely on suspicion.
10. There is no doubt that the eye-witnesses in the present case namely, Wali Muhammad P.W.8, Qasim Ali P.W.9 and Shamman P.W.10 are closely related to Khan and Mst. Aimna deceased but nothing has been brought on the record to show that they are inimical towards the appellants.
Besides the aforementioned eye-witoesses the occurrence was also seen by Qutab Ali and Noora who however were not produced by the prosecution at the trial. No adverse inference can be drawn against the prosecution for not examining Qutab Ali and Noora as witnesses though they too had seen the occurrence, because the prosecution was not bound to examine all the witnesses cited in the calendar. Wali Muhammad and Shamman P.Ws. Had reached the house of Khan deceased on hearing the report of the gun-fire. Being closely related to Khan deceased. It was quite natural on their part to rush to the house of Khan deceased to find out what had happened. It has been contended by the learned counsel for the appellants that the testimony of the aforementioned witnesses that Manzoor pellant had loaded the gun within their view and had fired a shot at Mst. Aimna is evidently false because it is wholly inconceivable that after having fired the first shot. Manzoor appellant had waited till the arrival of the aforementioned eye-witnesses for reloading the gun in their presence. Their is no fOrce in the above contention of the learned counsel for the appellant because there is nothing on the record to show that Wali Muhammad and Shamman P.Ws. Could not reach the house of Khan deceased immediately on hearing the report of the gun fire. The testimony of these witnesses cannot be discarded also for the reason that they had made no attempt to apprehend the appellants after reaching the house of Khan deceased, because the appellants had forewarned them that they should not come near them. Learned counsel for the appellants has argued that Qasim Ali P.W. Could not see the occurrence as according to him he had hidden in between the two earthen bins. Qasim All P.W. However has made a categorical statement that Manzoor appellant had fired a shot at his father within his view and it was thereafter that he had taken shelter behind the earthen bins from where he had seen Manzoor appellant reloading his gun after taking a cartridge from Ibrahim appellant and firing a shot at his sister Mst. Aimna. The presence of Qasim Ali P.W.9 in the house at the time of occurrence cannot be doubted as he too was asleep in the courtyard of the house on the third cot when the occurrence took place. The ocular evidence in the present case is consistent and dependable and cannot be rejected merely because of the relationship of the eye-witnesses with the deceased.
11. The motive for committing the murder of Khan and his daughter Mst. Aimna as stated by Wali Muhammad P.W.8 in the F.I.R. Was that the appellants did not want them to appear as witnesses against them in the rape case which they had got registered a day before the occurrence, The factum of registration of the case under section 376, P.P.C. Against the appellants at the instance of Khan deceased is not disputed by the appellants. They however, have contended that the aforementioned case was false and although they were convicted by the trial Magistrate in that case, their appeal against the order of conviction was accepted by the High Court. At the time of hearing of the appeal, an application was submitted on behalf of the appellants for seeking permission to place copy of the judgment of the High Court, whereby the appellants' appeal against the order of conviction in the rape case was accepted. As the acquittal of the appellants in the rape case is not relevant for determining the question of motive in the present case we do not consider it necessary to allow the appellants to place copy of the judgment of the High Court referred to above on the file. The acquittal of the appellants in the rape case is a subsequent event which had taken place after the murder of Khan and Mst. Aimna deceased and as such has no bearing on the present case. It is an admitted fact that a case under section 376, P.P.C. Had been registered against the appellants at the instance of Khan deceased pritr to the occurrence Khan deceased and Mst. Aimna who was subjected to rape were material prosecution witnesses in that case. The appellants knew that the fate of that case depended on the testimony of Khan and Mst. Aimna and so they were naturally interested that the aforementioned persons should not appear as witnesses against them. Thus they had a strong motive to commit the murders of Khan and Mst. Amina. The appellants' acquittal by the High Court in that case after their conviction in the present case, does not disprove the aforementioned motive.
12. The recovery of gun P.10 from Manzoor appellant has been proved by Wali Muhammad P.W.8 and Muhammad Hussain, S.I. P.W.11. The mere fact that gun P.10 is a licensed gun and belongs to the appellants' father does not make the aforementioned recovery doubtful. It is also not possible to doubt the recovery of the gun because Manzoor appellant was carrying it with him even after 5 days of the occurrence and had no disposed it of alter committing the murders of Khan and his daughter Mst. Aimna. As noticed above, it was the licensed gun of the appellants' father and as such Manzoor appellant had not considered it proper to dispose it of after committing the murders.
13. We cannot accept the contention of the learned counsel for the appellants that Khan and Mst.
Aimna were murdered by some unknown assailants because nothing has been brought on the record to show that they had enmity with any person. The ocular testimony of Wali Muhammad, Qasim Ali and Shamman P.Ws. As corroborated by the medical evidence and the evidence of recovery of gun P.10 from Manzoor appellant, which according to the Fire-arms Expert was used in firing the empties, which was taken into possession from the place of occurrence, have proved beyond reasonable doubt that the appellants had committed the murders of Khan and Mst.
Aimna. There could be no mistake about their identity because they were previously known to the eye-witnesses who had seen them at the place of occurrence and had identified them in the light of lantern P.6 which was lit and was hanging by a peg in the wall of the verandah. Learned counsel for the appellants has questioned the recovery of crime empties P-7/1-2 from the place of occurrence as according to him Sikandar Khan P.W.5 who has been examined by the prosecution to prove the aforementioned recovery is inimical towards the appellants. The recovery of crime empties from the place of occurrence cannot be doubted merely because the relations of Sikandar Khan P.W.5 are strained with the appellants because the testimony of Muhammad Hussain, S.I. P.W.11 regarding the recovery of crime empties cannot be discarded as he had no motive to make a false statement against the appellants. It may also be noticed that Sikandar Khan P.W.6 had joined the investigation of the case and had witnessed the recovery of crime empties as he was the Lambardar of the Chak where the occurrence had taken place.
14. Learned counsel for the appellants has submitted that the case of Ibrahim appellant is distinguishable from that of his brother Manzoor appellant because he had not caused any injury to the deceased. The role attributed to him by the prosecution that he had handed over a cartridge to Manzoor appellant for re-loading the gun is highly improbable as is evident from the fact that Wall Muhammad P.W.8 had mentioned the handing over of the cartridge by Ibrahim to his brother Manzoor at the end of his statement recorded by the police at the time of registration of the F.I.R.
Exh. P.L.
15. We have given our anxious consideration to the aforementioned contention of the learned counsel for the appellants. The presence of Ibrahim at the place of occurrence has been established beyond any reasonable doubt by the ocular testimony. He too was equally interested in the murder of Khan and Mst. Amina and thus shared the intention of his brother because he was also one of the accused in the rape case. He is therefore, equally liable for the murders committed by his brother Manzoo appellant even if he had not caused any injury to the deceased. In the matter of sentence however, his case is distinguishable from that of Manzoor appellant because we-consider that the overt act of handing over of the cartridge to Manzoor appellant attributed to him by the eye-witnesses is not free from doubt. Sentence of death awarded to him by the learned Additional Sessions Judge, therefore would not be proper under the circumstances of the case.
16. The upshot of the above discussion is that while maintaining the appellants' conviction under section 302, read with section 314, P.P.C. We partly allow this appeal by altering the sentence of death awarded to Ibrahim appellant to the sentence of imprisonment for life. His sentence of death is NOT confirmed. Sentence of death awarded to Manzoor appellant is confirmed sentence of fin2 imposed on the appellants under section 302. P.P.C. And their conviction and sentence under section 458, read with section 34, P.R.C. Are also maintained. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.