ATAULLAH SAJJAD, J.--The appellants in this case were tried Sarfraz, Dur Muhammad, Iqbal,, Nur Muhammad Nawaz were charged under sections 148, 120-B and 302/149 of the Pakistan Penal Code. Manzur appellant was charged under section 201, P. P. C. The trial Court convicted' Manic: under section 201, P. P. C. And sentenced him to five year` rigorous imprisonment, The other five appellants were convicted under sections 148 and 302/149, P. P. C. They were sentence to one year's R.
1. On the first count and to death on the second, count. They were acquitted from the charge under section 120-B. P. P. C.
State has also filed Criminal Appeal No. 678 of 1969, which is yet at the motion stage, against the acquittal of all the appellants from a charge under section 120-B, P. P. C. And the acquittal of the five appellants namely, Sarfraz, Dur Muhammad Nawaz, Nur Muhammad and Muhammad Iqbal under section 201, P. P. C. This judgment will dispost of both the appeals, and the murder reference which is also before us in this connection.
2. The evidence is that Sarfraz appellant is the son Manzur appellant. Nawaz and Iqbal appellants are brother inter se and are the sister's sons of Manzur appellant. Nur, Muhammad appellant is from their brotherhood. Dur Muhammad appellant is also the sister's sons of Manzur.
3. On 19th of July 1967, at about 10 a.m. In the area of Chak No. 477 E. B. Police Station Burewala, District Multan, the appellants, except Manzur, came, armed with guns and fired at Irshadullah deceased while he was riding a mare and was going towards the Darbar of Hazrat Daha Ibrahim.
On receiving the injuries Irshadullah fell down and the mare which was also injured ran away.
Ehsanullah (P. W, 13) the first informer, Anwar (P. W. 15) and Sharif (P W. 16) saw the occurrence.
They .Asked the appellants to desist from their nefarious design but they were threatened with death, After Irshadullah had fallen down the assailants took hold of his arms and legs and carried him to the bhaini of Nur Muhammad appellant. The witnesses raised hue and cry and followed the assailants. Irshadullah was put on a charpoy and taken to the tubewell of Manzur appellant who was present there. The deceased was then given blows with the butts of the guns, kicks and fists.
After that he was put in the trolly of the tractor of Manzur Manzur drove the tractor in which all the other appellants took their seats. After going to a distance of to acres they turned towards the south where they threw Irshadullah in the bed of a dry Khal, which was near a Jawar field.' The throwing away of Irshadullah was seen by Anwar son of Muhammad and Allah Rakha P. Ws. 17 and 18 respectively and Amir Hamza who was not produced at the trial. At this place Manzur appellant kicked Irahadullah and danced over his body. After that the assailants went back in the tractor to their houses. The witnesses went ahead and found Irshadullah dead. A pistol and three cartridges were lying along with the dead body. It was stated that Nur Muhammad appellant had thrown these articles near the dead body.
4. Leaving the dead -body in the charge of Amir Hamza and Allah Rakha, Ehsanullah proceeded to Police Station Burewala where he lodged F. I. R. Exh. P. E. At 1-45 p.m. The distance between the spot and the Police Station is about eight miles.
5. The Investigating Officer on arrival in the village found the dead body in a Khai. He despatched it for post-mortem. He found a pistol and three live cartridges lying near the dead body. He then visited the place where the deceased had been fired at. He took blood-stained earth from the field of one Sharif. He also took blood-stained earth from the field of Rajada. He stated during cross- examination that the distance between these to places was six karams and that there was a trail of blood in between them. He admitted that he had not mentioned the existence of a trail in the plan.
The injured mare was also recovered by the Sub-Inspector from the field of Sharif. He took possession thereof vide memo. Exh. P, K. The Veterinary Assistant found that it had to injuries caused by pellets.
6. The appellants, except Iqbal, were arrested on 21st of July 1967. On the same day Sarfraz produced double---barrelled gun P. 13, licensed in the name of his father Manzur appellant. Dur Muhammad produced the licensed gun P. 14 of his brother Zahoor, Nawaz produced the licensed gun P. 15 of his brother Iqbal, and Nur Muhammad also produced .a single-barrelled gun, which had been licensed in the name of his father. A blood-stained cot P. 17 was produced by Nur Muhammad appellant on the same day but it was not sent to the Chemical Examiner. Iqbal appellant was arrested on 23-7-1967.
7. On 24th of July 1967, Dur Muhammad led to the recovery of empty P. 7 from a field. Similarly Sarfraz led to the recovery of an empty Exh. P. 5 from a sugarcane field adjacent to the place of occurrence: Nawaz also led to the recovery of empty P. 6 from the field of one Nawab. These empties along with the guns recovered from the appellants were sent to the Ballistics Expert who stated at the trial that they were found wedded with the guns P. 13, P. 14, and P. 15 produced by Sarfraz, Dur Muhammad and Nawaz respectively.
8. According to the medical evidence there were four circular wounds of entry which had been caused by fire-arms. Apart from these wounds there were multiple abrasions on the forehead, nose, face, abdomen and both the arms of the deceased. One of the pellets had struck on the right arm on the deltoid region and had entered the right side of the chest, penetrating right lung and the liver. This injury, accord--ing to the doctor, was fatal and sufficient in the ordinary course of nature to cause death. Two pellets recovered from the dead body were sent in a phial to the Investigating Officer.
9. The motive for the crime is that about seven or eight months before the occurrence, the deceased had fired front a revolver at Manzur appellant. Manzur was not hit but a case under section 307, P. P. C. Was registered against the deceased and his servant Suba. The case was still pending when this occurrence took place. It is also the case of the prosecution that to persons, namely, Falak Sher and Roshan Din had warned the first informant that Manzur was hatching a conspiracy for the murder of Irahadullah and was trying to persuade them to join in the conspiracy but they had refused. They told Ehsanullah to ask Irshadullah to be more careful about himself. The accused admitted that a case had been registered against the deceased for firing at Manzur appellant. , The motive is thus admitted.
10: At the trial, Falak Sher (P. W. 12) appeared in support of the charge of conspiracy. He stated that Dur Muhammad appellant came to him seven or eight days before the occurrence and told him that Manzur appellant wanted to see him. He went to the tubewell of Manzur, where Sarfraz, Nur Muhammad, Nawaz and Manzur were present.. Manzur told him that Irshadullah had dishonoured him and that he should help them in killing him. Meanwhile, Roshan and Iqbal also came there and Manzur stated in the presence of the company that he had called Falak Sher and Roshan in order to achieve the object of killing Irshadullah. Roshan stated that he was prepared to go to the extent of causing Irshadullah any injury short of death but would not like to go beyond that. Falak Sher refused to help them. The witness replying to a Court question stated that when he was coming back he met Ehsanullah P. W. In the way and told him that there was a conspiracy against Irshadullah. This witness belongs to another Chak and the story that a conspiracy was hatched by Manzur does not carry conviction. Had. Ehsanullah been told by this witness seven or eight days before the occurrence about the conspiracy, the complainant party would have surely done something in the matter. -The evidence of conspiracy was rightly rejected by the trial Court.
11. The ocular testimony with regard to the actual firing comes from the mouth of Ehsanullah (P. W.
13), a cousin of the deceased, Muhammad Anwar (P. W. 15) and Muhammad Sharif (P. W. 16).
Ehsanullah stated that Muhammad Anwar P. W. Bad come to his shop and had told him that he wanted to purchase a bullock from- Sharif P. W. Both Ehsanullah and Muhammad Anwar went to the dera of Sharif who was ploughing his land in a killa adjacent to his dera. They parleyed about the purchase of the bullock and Sharif tested the bullock by having five or six rounds in the land on the plough. The parties sat down under a beri tree for striking a bargain and started smoking huqqa. Meanwhile, Irshadullah came from the south on the horse-back and was proceeding towards the north. He exchanged greetings with them and advanced further. When he had gone to a distance of one bigha, the witnesses heard a lalkara whereupon they proceeded towards that direction. They had covered a distance of 18/19 paces when they saw the appellants, except Marraur, armed with guns. Sarfraz had a double-barrelled gun and the rest had single-barrelled guns. Nawaz, Dur Muhammad and Sarfraz were standing on the banna of the sugarcane field.
Iqbal and Nur Muhammad were on the eastern side of the same banna. The distance between these to parties of the assailants according to Muhammad Anwar (P. W. 15) was one or one and a half karams and the distance between the assailants and the target was about ten to twelve karams, according to Sharif (P. W. 16).
12. Ehsanullah and Muhammad Anwar had ordinarily no reason to be present at the spot at the the of the occurrence: The learned Sessions Judge observed in para. 26 of his judgment that they were chance witnesses and prudence required that they should not he believed .If their evidence was not materially corroborated by independent evidence. He in this connection sought the corroboration of the testimony of these witnesses from the fact that Ehsanullah had soon after the occurrence apprised Ch. Fateh Ali (P. W. 8) of the said happening. In our view, the fact that Fateh Ali was told about the murder of Irshadullah by Ehsanullah soon after the occurrence does not serve as a corroborative circumstance. We, however, find that Sharif is a completely independent witness and-the suggestion put to him that he is the maternal uncle of the deceased was stoutly denied by him. We also find that the testimony of these to witnesses is corroborated by the fact that the blood-stained cot on which the deceased was carried was recovered from Nur Muhammad appellant and blood-stained earth was recovered from the trail of blood which had been formed by the carrying of the deceased from the place of occurrence to the bhaini of Nur Muhammad. The taking away of the deceased to the khal was also witnessed by the above-named to witnesses.
The Investigating Officer found some stains of blood in the khal but did not take possession of any blood from this place. We, therefore, hold that the presence of Ehsanullah and Anwar (P. W. 15) is proved by the independent testimony of Sharif and circumstances narrated above.
13. The latter portion of the prosecution evidence regarding throwing the dead body in the khal is also supported by Muhammad Anwar Baloch (P. W. 17) and Allah Rakha (P. W. 18). 'Both these witnesses were ploughing the land nearby. Anwar Baloch stated that he was ploughing the land which had been leased to his relative. Allah Rakha stated that he was ploughing the land. Of Anwar Baloch. They saw Manzur appellant driving the tractor, and throwing the dead body of the deceased. In the khal. They also saw Manzur and Nawaz giving kicks to the dead body. It was brought out by the Patwari that the land of Anwar (P. W. 17) in the vicinity did not require any ploughing because already cotton crop was standing therein. Anwar never claimed that he was cultivating his land. His statement was that he was ploughing the land which was leased out to his relative. There is no cross--examination on this aspect of the case. The only defect found with the evidence of Allah Rakha is that he belongs to, the brotherhood of the deceased. There is no cross- examination with regard to his assertion that he was ploughing the land of Anwar Baluch (P. W. 17).
There might have been some explanation for this if some.. Question was put to him. We, therefore, believe that the ocular testimony. As produced at the trial with regard to the entire incident is correct.
14. The learned counsel for the appellants, Ch. Nazir Ahmad Khan, asserted that only one cartridge containing 6 L G pellets had been fired. He in this connection referred to The Shooties Year Book issued by Eley Ammunition Division Birmingham that an L G cartridge contains six pellets. Since four pellets had struck the deceased and to pellets had struck the mare, he maintained that only one shot had been fired. There is nothing on the record to sustain this theory. In view of the overwhelming ocular testimony it is not possible for us to hold that only one gun was fired or that only the gun of one assailant, hit the deceased and his mare. It is just possible that some of the shots missed and the others hit the deceased and his mare. The inculpation of all the five appellants in the assault is proved beyond doubt.
15. The next question that arises for consideration is whether the conviction of Manzur appellant under section 231. P. P. C. Can be sustained. The gist of the offence under section 201, P. P. C. Is causing the disappearance of evidence or concealment thereof and the mere removal of the body from the place of occurrence to another place does not of itself amount to causing disappearance of evidence within the meaning of section 201, P. P. C. It was so held in The State v. Basirullah (PLD 1964 Dacca 710). In this case, the occurrence took place in broad daylight and the body of the deceased was taken from the place of occurrence to the dhari of Nur Muhammad and from there to the tubewell of Manzur and further on was thrown in the khal. It was being openly paraded. There does not appear to be any attempt on the part of the appellants, to conceal the dead body. . It was thrown in a dried khal and its bed has not been described to be of any considerable depth. In our view, therefore, the offence under section 201, P. P. C. Has not been brought home to Manzur appellant. It is just possible that the appellants thought of parading the dead body of their enemy in a fit of triumph and took it from place to place.
16. We do not attach any importance to the recoveries in this case. The guns were recovered on 21st of July, 1967 and the empty cartridges were recovered at the instance of the three appellants on 24th of July 1967. The evidence that the accused did not unload the guns at the spot. If they were carrying the empties in their guns as a measure of precaution, it is not likely that they would throw the same in the vicinity of the place of occurrence. The evidence with regard to these cartridges has, therefore, to be discarded.
17. As a result of the above discussion, we find that the charge under sections 148 and 302/ 149, P. P.
C. Has been brought home against the appellants, except Manzur. The conviction of Manzur under section 201, P. P. C. Is set aside. He is already on bail. His bail bonds shall stand cancelled.
18. We think the State appeal is misconceived. There was no charge against Manzur appellant under section 120-B, P. P. C. Though the evidence led at the trial on this aspect of the case involved him. We have disbelieved that evidence. Similarly there was no charge against the other appellants under section 201, P. P. C. We find no substance in the State appeal and dismiss the same.
19. The question of sentence of Sarfraz, Dur Muhammad, Iqbal, Nur Muhammad and Nawaz appellants confronts some difficulty. The learned Sessions Judge sentenced all of them to death under section 302/149, P. P. C. It is not clear as to whose shot was fatal in this Base. We, therefore think that it is a fit case in which sentence of death should be substituted by c the sentence of transportation. We order accordingly. The sentence of death is not confirmed. The sentence awarded under section 148, P. P. C. Shall run concurrently with the above sentence. The murder reference, and the to appeals; are decided accordingly.