LEHRASAP KHAN, J.-Muhammad Banaras son of Muhammad Sher aged 40 and (2) Ghulam Hussain son of Alam Sher aged 35 were tried alongwith Ghulam Mohy-ud-Din son, of Muhammad Sher aged 45 and Noor Muhammad son of Alam Sher, \aged 30, all Awans by caste and residents of Dhok Gangawali, by the learned Sessions Judge, Attock, under section 302/34, P. P. C., for committing the murder of Ghulam Mehdi son of Fazal Dad aged 45, their co-villager, on 1st June, 1979 at degarwela near the Bus Stand in the area of Pindigheb at a distance of 6.4 kilometre from Police Station, Pindigheb.
2. The learned trial Judge, vide his judgment dated 29th July, 1980 convicted the aforesaid Muhammad Banaras and Ghulam Hussain under section 302/34, P. P. C. And sentenced each of them to death and a fine of Rs, 5,000 or in default to one year's further R. I. The two co-accused namely Ghulam Mohy-ud-Din and Noor Muhammad were, however, acquitted.
3. The convicts have challenged their conviction and sentence through the present appeal. The matter also stands referred to us under section 374, Cr. P. C. For the confirmation of death sentence awarded to these appellants. The Appeal as also the Murder Reference shall be disposed of by this judgment.
4. The occurrence was reported at the Police Station, Pindigheb, by Abdul Ghani (P. W. 11), the cousin and brother-in-law of the deceased at 5.30 p.m. Through F. I. R. Exh. P. K.' which was recorded by Raja Mahmood Akhtar, the then S.-I. Police Station, Pindigheb (P. W. 13).
5. As per F. I. R. Account of the prosecution version, Ghulam Mehdi deceased and Abdul Ghani complainant (P. W. 11) went to Pindigheb Town, in connection with their domestic affairs. At about degarwela, they reached Bus Stand, Pindigheb, to go back to their village. They sat down in the hotel of Mian Muhammad alias Mota at the Bus Stand where Sultan Mumariz Khan (P. W. 12) and Allah Dad (not produced by prosecution as having been won over but examined by the Court as C.
W. 1) were also sitting. Ghulam Mehdi deceased came out from the northern door of the hotel in order to urinate, but when he reached in front of Khan Hotel on the road, Noor Muhammad armed with pistol, Ghulam Mohy-ud-Din armed with pistol, Ghulam Hussain appellant armed with chhuri and Muhammad Banaras appellant armed with chhuri emerged at the scene challenging Ghulam Mehdi deceased. On the alarm thus raised, Abdul Ghani, the aforesaid Sultan Mumariz Khan and Allah Dad also came out of the hotel and saw that Noor Muhammad fired a shot with his pistol, hitting Ghulam Mehdi near his left ear. Another shot was fired by Ghulam Mohy-ud-Din, which hit Ghulam Mehdi on his left thigh. After receiving these fire shots, Ghulam Mehdi fell down. Thereafter, Muhammad Banaras caused injury with chhuri in the abdomen. Ghulam Hussain caused injury to the deceased in his right flank with chhuri. Subsequently, Muhammad Banaras and Ghulam Hussain appellants caused repeated injuries with their respective chhuris to the deceased. While the deceased was being dealt chhuri blows by Banaras and Ghulam Hussain, Ghulam Mohy-ud- Din and Noor Muhammad continued declaring that if any body dared to come near, he would also be done to death. After doing the deceased to death, the assailants ran away towards the graveyard on the eastern side.
6. As regards the motive, it is alleged that two years earlier to the present occurrence, Fazal Din son of Alam Sher, the brother of Ghulam Hussain and Noor Muhammad, and Allah Ditta, the son of Ghulam Mohy-ud-Din and nephew of Muhammad Banaras, were murdered. In that case, Ghulam Mehdi deceased and seven others were sent up for trial. Ghulam Mehdi was released on bail sometimes prior to the present occurrence. On account of the said murder, the appellants and their acquitted co-accused are alleged to have committed the murder of the deceased.
7. Raja Mahmood Akhtar S.-I. (P. W. 13), after recording the F. I. R. Proceeded to the place of occurrence. After preparing the Injury Statement and the Inquest Report, he despatched the dead body of the deceased to the mortuary for post-mortem examination. He arrested the appellants as also their acquitted co-accused on 5th June, 1979 from Dhok Ghulam Jilani.
8. On 6th June, 1981 the revolver P. 7 alongwith bullets P. 8/1-3 was recovered at the instance of Noor Muhammad, vide memo. Exh. P. E. In the presence of Sher Muhammad (P. W. 8) and Nawab Khan (not produced). The revolver P. 9 and bullets P. 10/1-3 were recovered at the instance of Ghulam Mohy-ud-Din vide memo. Exh. P. F. On the same day in the presence of the aforementioned witnesses.
9. On 13th June, 1979 blood-stained chhuris P. 11 and P. 12 were recovered, respectively at the instance of Muhammad Banaras and Ghulam Hussain appellants vide memos. Exh, P. G. And P. H. In the presence of Shah Nawaz (P. W. 9) and Sharaf Din (not produced).
10. P. W. 1 Dr. Muhammad Afzal performed the autopsy on the dead body of Ghulam Mehdi deceased vide post-mortem report, copy whereof is Exh. P. A. He noticed one abrasion, two lacerated wounds, one small burnt area and seven incised wounds on different parts of the body of the deceased. In his opinion, two lacerated wounds and the burnt area were caused by fire-arm while incised wounds were the result of sharp-edged weapon. The abrasion was opined to have been caused by a blunt weapon. He further opined that death occurred due to shock and haemorrhage resulting from injuries Nos. 4, 5, 8, 9, 10 and 11 which individually could prove fatal in the ordinary course of nature. Injury No, 4 aforesaid was a fire-arm injury while injuries Nos. 5, 8, 9, 10 and 11 were caused by sharpedged weapon. Two metallic pieces were also extracted from injuries Nos. 3 and 4, which were caused by fire-arm.
11. P. W. 11 Abdul Ghani and P. W. 12 Sultan Mumariz Khan testified at the trial as eye-witnesses to furnish ocular account of the prosecution version. By and large these two witnesses have supported the prosecution case as contained in the F. I. R. Exh. P. K. By their testimonies.
12. The appellants as also their co-accused totally denied the occurrence and pleaded that they had been falsely involved in the case on account of previous enmity with the complainant party.
Ghulam Mohy-ud-Din and Noor Muhammad contended that they were not present at Pindigheb at the time of occurrence and were in fact busy in their normal husbandry work in their village.
In support of their plea of alibi they produced several witnesses before the Police and were found to be innocent by Ghulam Dastgir, Inspector. Police. They further pleaded that the eye-witnesses had refused to state on Holy Qur'an that they were present at the spot or took part in the occurrence.
Muhammad Banaras appellant in reply to question No, 5, which was to the effect "Why this case against you" ? Answered "On the day of occurrence, I and co-accused Ghulam Hussain went to Pindigheb for sundry purchases and on our return a little before Juma prayer, we sat in the hotel of Najab situate near Bus Stand Pindigheb, and took tea there while waiting for the bus. Saeed son of Habib Khan and Farman Shah son of Ghulam Jilani were sitting in the hotel of Mota, when a bus came from Rawalpindi and Ghulam Mehdi deceased alighted from it. Saeed and Farman Shah came out of Mota's hotel and some altercation between them and the deceased took place whereafter the latter took out revolver or a pistol from fold of his shalwar. On seeing this Farman Shah gave a chhuri blow to Ghulam Mehdi while Saeed snatched revolver/pistol from him and thereafter both of them caused injuries to the deceased with chhuri and pistol/revolver. I have been falsely involved on account of said previous enmity with the complainant party and because I was present at Bus Stand at the time of occurrence. Sultan Mumariz and Abdul Ghani P. Ws. Were not present there.
Muhammad Saeed and Farman Shah had appeared before the Police and supported my above version."
Ghulam Hussain appellant's answer to the same question reads :- "I have been falsely involved in the case on account of the reasons and circumstances given by co-accused Muhammad Banaras in detail in reply to question No, 5."
13. The appellants and their acquitted co-accused examined in their defence D. W. 1 Haji Ghulam Dastgir, Inspector Police, Pindigheb and D. W. 2 Muhammad Saeed son of Habib Khan. The learned trial Court examined Allah Dad as C. W.
1. This Allah Dad was originally cited as one of the eye-witnesses by the prosecution, but was later given up as having been won over. Farman Shah son of Ghulam Jilani has also been examined as C. W. 2 by the learned trial Court.
14. Haji Ghulam Dastgir testified that he investigated this case under the direction of S. P. Attock.
During the course of investigation by him, the accused party produced 11 persons who stated before him on Holy Qur'an that at the time of occurrence, Noor Muhammad and Ghulam Mohy-ud- Din (the acquitted co-accused) were present with them in village Gangawali. He further deposed that besides the aforementioned 11 persons, the accused party produced about 43 persons who stated on solemn affirmation that Ghulam Mohy-ud-Din and Noor Muhammad were innocent.
According to this witness, he was informed by the aforementioned 43 persons that Muhammad Banaras and Ghulam Hussain were real culprits while Noor Muhammad and Ghulam Mohy-udDin had been substituted for Muhammad Saeed and Farman Shah. It has also been disclosed by Haji Ghulam Dastgir that many persons had also appeared on behalf of the complainant, but when they were asked as to whether they were willing to state on Holy Qur'an that Ghulam Mohy-ud-Din and Noor Muhammad were culprits in the case, none out of them was prepared to state so on the Holy Qur'an. According to him, Sultan Mumariz Khan P. W. Did not appear before him.
15. D. W. 2 Muhammad Saeed deposed that he was employed as personal servant of one Malik Sumandar Khan at Rawalpindi. The said Malik Sumandar was on friendly terms with Ghulam Mehdi deceased. At the behest of the deceased, services of this witness were terminated by Sumandar Khan. On the day of occurrence, a little after the first call of iuma prayer, Ghulam Mehdi deceased alighted from a bus at Pindigheb I3us Stand. This witness and Farman Shah happened to be present there. Ghulam Mehdi looked at the witness and addressed him to say as to why he was staring at him. Thereafter altercation followed. The deceased took out a pistol from the fold of his shalwar and aimed the same at the witness. He (the witness) hurriedly pounced upon the deceased and snatched the pistol. The witness fired at the deceased hitting him in the chest.
Thereafter, he fell down. Two shots were fired at him by this witness. Farman Shah, the companion of the witness, also caused chhuri blows to the deceased. According to Muhammad Saeed, none out of the four accused was present at the time of occurrence nor any of them participated in the occurrence. He disclosed that Sultan Mumariz Khan and Abdul Ghani P. Ws. Were also not present at the time of occurrence.
16. Allah Dad (C. W. I) and Farman Shah (C. W. 2) supported the version of Muhammad Saeed (D. W.
2), except that Allah Dad deposed that Abdul Ghani and Sultan Mumariz Khan P. Ws. Might be present at the time of occurrence.
17. It has been contended on behalf of the appellants that independent of the defence version, onus of proving guilt of the accused persons beyond any reasonable doubt rests on the prosecution and that onus, in the circumstances of the instant case, has not been successfully discharged even to the extent of the two appellants. No doubt in Wall Muhammad v. The State , it has been held by the Supreme Court of Pakistan that the prosecution has to prove its case and the appellant cannot be convicted on this ground alone that his version appears to be unconvincing. It is an established legal maxim that in criminal cases, the burden of proof lies on the prosecution. It has been ruled in Muhammad Fazlul Karim v. The State and another , that it must be remembered always that in a criminal case, the onus is on the prosecution to prove their case, and the accused cannot be convicted merely on proof of his having told an untruth in relation to one or more of the facts alleged against him.
18. In the circumstances of the under consideration case, as already observed, Abdul Ghani (P. W.
11) and Sultan Mumariz Khan (P. W. 12) have been examined as eye-witnesses. Abdul Ghani (P. W. 11) is admittedly the first cousin and brother-in-law of Ghulam Mehdi deceased. He was also involved alongwith Ghulam Mehdi deceased and others in the double murder case of Fazal Din and Allah Ditta. Fazal Din deceased was brother of Noor Muhammad, acquitted co-accused and Ghulam Hussain appellant while Allah Ditta was son of Ghulam Mohy-ud-Din, acquitted co-accused, and nephew of Muhammad Banaras appellant. Even prior to the murders of Fazal Din and Allah Ditta, there had been cases of attempted murders between the two factions. The present occurrence took place at the Bus Stand of Pindigheb, while Abdul Ghani (P. W. 11) is resident of Dhok Gangawali which is at a distance of 7/8 miles from Pindigheb. Abdul Ghani in the F. I. R. Exh. P. K. Stated that he and deceased had come to Pindigheb on the day of occurrence in connection with their domestic affairs. He did not disclose the nature of such affairs. In his examination-in-chief, he stated that they had come to Pindigheb on the day of occurrence because the deceased had to get back his money from one of his friends. In the cross-examination, Abdilt Ghani deposed that on the day of occurrence, he had come to Pindigheb to order Sultan Cobbler to prepare his chapples. It thus transpires that Abdul Gbani (P. W. 11) is not only a close relative of Ghulam Mehdi deceased but he has a long-standing deep-rooted enmity against the appellants and he claims his presence at the place of occurrence as a chance witness. In case of such interested and inimical chance witnesses, this Court generally insists upon independent corroboration, to adhere to the rule of prudence for safe administration of criminal justice.
19. It is, however, noteworthy that P. W. 12 Sultan Mumariz Khan, who too has testified at the trial as eye-witness and has supported the prosecution version as contained in the F. I. R. And as also disclosed by Abdul Ghani (P. W. 11), is not related to the deceased or to Abdul Ghani. There is nothing on the records to suggest that Sultan Mumariz Khan has any animosity whatsoever1 2 against the appellants. He has admitted that his son Sher Bahadur and Ghulam Mehdi deceased alongwith certain other persons of his faction were bound down to keep peace on one side as against Abdur Razzaq etc., of his village. This Sultan Mumariz Khan is resident of village Pirana which is at a distance of 15 miles from Pindigheb, but admittedly he has his Dera at Pindigheb as well. The mere fact that Sultan Mumariz Khan or his son, had friendly relations with the deceased, does not furnish a plausible justification to discredit his testimony when he had no motive or animosity against the appellants to falsely involve them in a murder case. It is true that testimony of Sultan Mumariz Khan has not been believed as against the acquitted two co-accused namely Ghulam Mohy-ud-Din and Noor Muhammad, who have since been acquitted and whose acquittal has not been challenged by the State or the complainant. But whole of his testimony cannot be held to be unreliable. In Mela and others v. The State it was held that where a witness is proved to have given false evidence with regard to some detail, the whole of his deposition cannot be held to be unreliable. The theory of falsus in uno falsus in omnibus, no more holds the field and it is the duty of the Court to separate the grain from the chaff. The presence of the two appellants at the place of occurrence at the time of the murder of the deceased has not been denied by them also.
20. It has been urged on behalf of the appellants that the occurrence took place during the broad daylight at the Bus stand in front of hotels and other shops. Many independent witnesses could be produced by the prosecution to suostantiate their allegations against the appellants. In Yagoob Shah v. The State , it has been observed :- "It is frequent experience of criminal Courts that many a gruesome tragedy is enacted with scores of onlookers around, yet the assassin is allowed to operate without any let or hindrance and is allowed to escape from the scene, with impunity. Not only that these "independent" onlookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic injunctions. Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were to conflict with their personal interest or the interest of their kith and kin. This indeed is one of the principal causes of delay in decision of criminal cases."
21. In the preset case as well, the Investigating Officer, viz. Raja Mahmood Akhtar, S.-I. (P. W. 13) deposed that on 1st June, 1979 besides the eye-witnesses, he recorded statements of Khan son of Sher Khan, Proprietor Khan Hotel, Bus Stand, Pindigheb, Hazoor Muhammad son of Mian Ahmad alias Mota, Proprietor of Mota Hotel, Sultan son of Mian Muhammad and Hayat Muhammad son of Saadullah, servant of Mota etc., including those persons present near about the spot or in the shops at the time of occurrence. The total number of those witnesses, according to Raja Mahmood Akhtar, was 35. He could not cite any one of them as eye-witnesses because they denied having seen the occurrence.The testimony of Sultan Mumariz Khan, therefore, cannot be disbelieved for the reason that the persons residing in the locality where the occurrence took place have not been cited or produced as eye-witnesses. In Shahzado v. The State and 8 others it was observed "There is no doubt that the witnesses. Were interested in the prosecution of the accused and inimical against them. But the fact alone is not sufficient to altogether discard their evidence. It has to be properly sifted and weighed with the necessary care and caution before rejecting the chaff and accepting the grain in the light of the facts of each case."
22. In Nazir Hussain v. Muhammad Shafi and others , it was held that there was no inflexible rule that the statement of an interested witness can never be accepted without corroboration.
23. As already noticed above, Sultan Mumariz Khan (P. W. 12) has no relationship with the deceased or the complainant. He has no animosity or motive against the appellants for their false involvement. His presence alongwith Abdul Ghani on the spot at the time of occurrence has not been denied by Allah Dad (C. W. I). The appellants have also admitted that they were present at Bus Stand at the time of occurrence. The medical evidence also furnishes support to the testimony3 4 5 6 of Sultan Mumariz Khan and Abdul Ghani to the extent that incised wounds caused by a sharp- edged weapon have been noticed by the doctor at the time of post-mortem examination on the dead body of Ghulam Mehdi deceased These two eye-witnesses have stated that these incised wounds most of which have been declared to be fatal by the doctor were caused by the appellants. The F. I. R. Purports to have been lodged promptly after the occurrence. In these circumstances, we are satisfied that the testimony of Sultan Mumariz Khan (P. W. 12) to the extent of participation of the two appellants before us, in the occurrence, deserves credence and to that extent his testimony also furnishes support and corroboration to that o P. W. 11 Abdul Ghani. The recoveries in this case of course do not furnish corroboration to the prosecution case inasmuch as small metallic parts recovered from the dead body of the deceased did not match with the revolvers allegedly recovered from the acquitted co-accused as per report Exh. P. C. Of the Forensic Science Laboratory. The chhuris which are alleged to have been recovered from the appellants were recovered 13 days after the occurrence and 8 days after their arrest. The only recovery witness who testified at the trial about these chhuris besides the Investigating Officer happened to be a close relation of the deceased and none from the locality from where chhuris were allegedly recovered was associated with the recovery.
24. In the light of our findings in the preceding paragraph we conclude that on the basis of the testimonies of aforementioned two eyewitnesses and the other circumstances narrated above, the prosecution has been successful to bring home the guilt beyond any reasonable doubt to G both the appellants. They have murdered Ghulam Mehdi deceased during broad daylight in a gruesome manner to avenge the previous murders of their close relations. In this view of the matter, their appeal fails and is accordingly dismissed while their conviction and sentence are upheld.
25. The death sentence awarded to both the appellants is thus confirmed. 1969 SCM R 612 P D 1964 SC 792 PLD 1962 Lab. 58 PLD 1976 SC 53 PLD 1977 SC 413 PLD 1965 SC 188