' Muhammad Rafiq Tarar, J.-- Muhammad Sabir Hussain (35) son of Sardar Khan, Sardar Khan (66) son of Abdul Malik, Abdul Malik (100.) son of Ghulam Muhammad and Shaukat (20) son of Feroze, Mughal by caste, residents of village Giyal, were tried by the learned Additional Sessions Judge, Gujrat, on the allegations that they made murderous assault on Muhammad Yusuf and Zahur Ahmad P.W. And committed the murder of Allah Ditta and Bostan deceased persons on '28th March, 1977 at 10-30 a.m. In furtherance of their common intention, in Primary School, Giyal. By judgment dated 13th December, 1980, Shaukat accused was convicted under section 323, P.P.C.
And sentenced to rigorous imprisonment for six months and a fine of Rs,500 or in default of its payment to undergo further R.I. For one month. Muhammad Sabir Hussain and Sardar Khan accused were convicted under section 302, P.P.C. For the murder of Allah Ditta deceased and were sentenced to death and a fine of Rs,5,000 each or in default in the payment thereof to undergo R.I.
For one year each. Muhammad Sabir Hussain was further convicted for the murder of Bostan deceased and sentenced to death and a fine of Rs,5,000 or in default in the payment thereof to undergo R.I. For one year. Fine, if recovered, was ordered to be paid to the legal heirs of the deceased "respectively to the extent of one half". Abdul Malik accused was, however, acquitted of the charges. The convicts have appealed and the case is also before us on reference under section 374, Cr.P.C. For confirmation of the death sentence awarded to Muhammad Sabir Hussain and Sardar Khan accused. Adalat Khan complainant has filed Criminal Revision No,66 of 1981 against Abdul Malik and Shaukat Ali praying that the acquittal of the former be set aside and both of them "be awarded the maximum punishment as provided by law". All these matters shall be disposed of by this judgment.
2. Brief facts of the prosecution case are that on 28th March, 1977 at about 10-30 a.m. Adalat Khan complainant, Allah Ditta deceased, Bostan deceased, Zahur Ahmad and Muhammad Yusuf P.Ws.
Were present on the roof of Primary School, Giyal. They were waiting for the mason as the roof of the Verandah of the school needed repair. In the meantime, Muhammad Sabir Hussain, Sardar Khan, Shaukat and Abdul Malik accused armed with guns, came there through the stairs and opened attack on the complainant party. Muhammad Sabir Hussain fired a shot hitting Allah Ditta deceased on the back. Then Sardar Khan fired at him hitting his chest, upon which he fell down.
Thereafter, Sabir Hussain fired a shot hitting Bostan deceased on his back below the left shoulder and he too fell down. Shaukat fired a shot hitting Muhammad Yusuf P.W. On his buttock and he also fell down. Abdul Malik fired at Zahur Ahmad hitting his left leg. Sabir Hussain and Sardar Khan again fired one shot each which did not hit any body. Thereafter, all the accused came down from the roof through the stairs and went towards their houses raising Lalkaras and firing in the air. Allah Ditta deceased succumbed to his injuries at the spot. Bostan was removed to Civil Hospital, Kharian, in a precarious condition. He also expired on the same day. The occurrence was also witnessed by Abdul Aziz and Amanat P.Ws. (not produced).
' According to the F.I.R., the motive for the offence was that four years prior to the occurrence a bomb exploded in the house of Sardar Khan accused causing three deaths, for which Adalat Khan complainant, Allah Ditta deceased, Bostan deceased and four others were challaned. It is alleged that the accused persons harboured grudge against the complainant party on that score.
' After the occurrence, Adalat Khan complainant proceeded to police station for lodging the report.
On the way he came to know that the S.H.O. Was present in village Sang. He went to that village and reported the occurrence to Mumtaz Khan, S.H.O., at 12-30 p.m. Vide his statement Exh.PK, on the basis of which formal F.I.R. (Exh.PE.) was recorded at Police Station Sarai Alamgir at 2 p.m.
3. After recording the statement of the complainant, the S.H.O. Reached the spot. He prepared the injury statement (Exh.P.X.) and inquest report (Exh.P.Y.) of Allah Ditta deceased and despatched the dead body to the mortuary at Kharian for post-mortem examination. Then he secured blood stained earth from the place where the dead body of Allah Ditta was lying. He also took blood- stained earth from the place where Bostan deceased and Zahur Ahmad P.W. Were injured. The earth collected from each place was made into a separate sealed parcel vide memo. Exh.P.L. Then he secured five crime empties (Exh.P.15/1-5) which were lying in the courtyard near the stairs and made them into a sealed parcel vide memo. Exh.P.M. He prepared injury statements .Exh. P.S. And Exh.P.R. Of Zahur Ahmad and Muhammad Yusuf P.Ws. Respectively, and sent them to the hospital for medical examination. On the next day, Muhammad Akram constable brought blood-stained Shalwars Exh.P.11 and Exh.P.12 of Zahur Ahmad and Muhammad Yusuf from the hospital, which were taken into possession vide memos. Exh.P.H. And Exh.P.J., respectively. On the same day Ghulam Rasul F.C. Brought the last-worn clothes of Allah Ditta deceased and a Phial containing pellets which were taken into possession vide memo. Exh.P.C. On the same day Ghulam Nabi F.C. Brought the last-worn clothes of Bostan deceased which were taken into possession vide memo. Exh.P.D. On the same day Nasrullah Khan, A.S.I., Police Station Sarai Alamgir, prepared the inquest report (Exh.P.C.C.) of Bostan deceased in Civil Hospital, Kharian. Mumrez Khan, Sub-Inspector, arrested all the accused on 31st March, 1977. On 3rd April, 1977 Sabir Hussain, Sardar Khan and Shaukat accused made disclosures that they could lead to the recovery of guns. On the Same day Sabir Hussain accused led to the recovery of gun (Exh. P.11) from the ,room of his house which was made into a sealed parcel vide memo. Exh.P.U. Shaukat accused got recovered gun (Exh.P.12) alongwith three live-cartridges (Exh.P.12/1-3) from the Bhoosa lying in a room of his house vide memo. Exh.P.V. The gun was made into a sealed parcel. Thereafter, Sardar Khan accused led to the recovery of gun (Exh.P.13) alongwith six cartridges (Exh.P.13/1-6) from a box lying in a room of his house. He also produced licence Exh.P.14. All these articles were taken into possession vide memo. Exh.P.W. The gun was made into a sealed parcel. After the investigation, the accused persons were challaned.
5. Dr. Muhammad Rafiq conducted the post-mortem examination on the dead bodies of Allah Ditta and Bostan deceased on 29th March, 1977. He also medically examined Muhammad Yusuf and Zahur Ahmad P.Ws. On 28th March, 1977. He could not be produced in Court as he was out of country. Muhammad Akram, Dispenser, Civil Hospital, Kharian, who had worked under him, proved the post-mortem reports Exhs. P.N. And P.O. And the medico-legal reports Exhs.P.P. And P.Q. To be in the handwriting of afore mentioned Dr. Muhammad Rafiq.
According to post-mortem report Exh.P.N., following injuries were found on the dead body of Allah Ditta deceased:-
(1) Three fire-arm wounds matted with each other on the opigastrum, on left side, each measuring about 1" x 1". The edges of each were inverted.
(2) A fire-arm wound on the upper part of the front of the left chest, measuring about V' x 3".
(3) A fire-arm wound on the axillary side, the left chest, about 1" below the left nipple, measuring about 1/3" x 1/3".
(4) A fire-arm wound on the axillary side of the left chest, about 2" below the left armpit, measuring about 1/3" x 1/3".
(5) A fire-arm wound on the inner side of the upper part of the left upper arm, measuring about V x V.
(6) A fire-arm wound on the inner surface of the upper part of the left upper arm, about 3" away from injury No,5, measuring about x
(7) A fire-arm wound on the outer side of the upper part of the left upper arm, measuring about V x V.
(8) Multiple fire-arm wounds on the back of the upper part of the left upper arm, each measuring about i" x 3".
(9) Multiple fire-arm wounds on the back of the upper and middle part of the left chest, each measuring 3" x 3".
(10) Two fire-arm wounds on the axillary side of the middle of the right chest, each measuring about i" x 3".
Sixth and 7th ribs on the left side and 9th and 10th ribs on the right side were fracutred. Pleaura, right lung at lower lobe, left lung, paricardium, heart, diaphragm on left side and liver were ruptured. Injury No,10 was the wound of entry and injury No,9 was its exit. Injury No,10 was wound of entry and injuries Nos. 2, 3 and 4 were its exit. Injuries Nos. 7 and 8 were wounds of entry and Nos. 5 and 6 were their exit. Death occurred due to shock and haemorrhage resulting from the fire-arm injuries, referred to above, which were sufficient to cause death in the ordinary course of nature.
6. According to post-mortem report Exh.P.O., following injuries were found on the dead body of Bostan deceased:-
(1) A fire-arm wound on the left side of base of neck about 3/4" above the left clavicle, measuring about i" x 4", the edges were averted.
(2) A fire-arm wound on the front of the upper part of the left chest, about 3" away from injury No,1, measuring about i" x 4", the edges of which were everted.
(3) A fire-arm wound on the back of the left chest, below the angle of the left scapula, measuring about 1/3" x 1/3", the edges of which inverted.
(4) A fire-arm wound on the back of the upper part of the left upper arm, slightly on its inner surface, measuring about 1/3" x 1/3", the edges were inverted. Second left rib was fractured. Left pleaura, left lung and carotid and facial arteries on the left side were ruptured. Death was due to shock and haemorrhage resulting from the fire-arm injuries, referred to above, which were sufficient to cause death in the ordinary course of nature.
7. According to medico-legal report Exh.P.P., Muhammad Yusuf P.W. had a fire-arm wound on the right buttock, 3" x 3" going inwards. The edges inverted. The injury was declared simple in nature. There were corresponding holes on the Shalwar.
' According to medico-legal report Exh.P.Q. Zahur Ahmad P.W. Had a fire-arm wound on the outer side of the upper part of the left leg, 3" x 3" going inward. The edges were inverted. There was swelling on knee and upper part of leg. The injury was declared simple in nature. There was a hole in the Shalwar corresponding to the injury.
8. In support of its case the prosecution examined three eye-witnesses, namely, Adalat Khan, Muhammad Yusuf and Zahur Ahmad. It also relied on the evidence relating to motive, recovery of crime empties from the spot, recovery of guns at the instance of Sabir Hussain, Sardar Khan and Shaukat appellants and the report of the fire-arms expert according to which two crime empties matched with the gun recovered from Sabir Hussain accused, one with the gun recovered from Shaukat Ali accused and two with the gun recovered from Sardar Khan accused.
9. The appellants pleaded not guilty to the charge. They admitted their relationship inter se. They also admitted that eight years prior to the occurrence there was a bomb explosion in the house of Sardar Khan accused for; which Adalat Khan complainant, Allah Ditta deceased, Bostan deceased and others were challaned. Sabir Hussain appellant admitted having fired at the complainant party but he gave a counter-version of the occurrence as under:- "The real facts are that we had purchased land in the village, which was not tolerated by the Jat Biradri who are the complainant in this case and who in order to pacify their agony they had exploded a bomb in our house about 8 years back, in which the deceased and AJalat Khan complainant alongwith others were co-accused. On the day of occurrence I was all alone upon my machine installed in the adjoining house of the school and the complainant party having knowledge of this fact attacked upon me in loneliness and I in retaliation and self-defence fired at them because they were firing upon me."
He tendered in evidence copy of Jamabandi Exh.D.C., copy of judgment dated 26-3-1964 Exh.D.D., copies of decree and judgment of Civil Judge, Kharian, Exhs.D.E., and E.P., D.F., respectively.
' Sardar Khan appellant denied having led to the recovery of gun from his house. He, however, stated that gun (Exh.P.13) was his licensed one and he had produced it before the police alongwith its licence of his own accord. He further stated that at the time of occurrence he was at Sarai Alamgir and was falsely implicated due to enmity.
' Shaukat accused stated that at the time of occurrence he was at Bhalwal and he was falsely implicated due to enmity.
' Acquitted accused Abdul Malik stated that at the time of occurrence he was not present in the village and was falsely implicated. He further stated that he was 100 years of age with weak eye- sight and weak physique and was unable to walk without support.
10. After examining the evidence on the record, the learned trial Judge came to the conclusion that the presence of the eye-witnesses at the spot was fully established and their testimony "has proved the prosecution case without any shadow of doubt". He also accepted the evidence relating to motive and recoveries. Despite these findings, he was of the view that the prosecution has failed to prove its case against Abdul Malik accused. He, therefore, acquitted him of the charges and convicted the remaining accused as mentioned above in the opening part of this judgment.
11. The learned counsel for the appellants contended that the presence of Adalat Khan complainant at the spot was highly doubtful, the eyewitnesses were closely related inter se as well as to the deceased persons and inimical towards the accused, therefore, their uncorroborated evidence was not sufficient to warrant the conviction. He further submitted that the reason advanced by the alleged eye-witnesses for being on the roof of the school was unconvincing. He strenuously argued that the plea of self-defence was taken at the earliest and the facts and the circumstances of the case indicate that the occurrence had not taken place in the manner alleged by the prosecution.
He also assailed the evidence relating to recoveries and contended that since the crime empties were deposited in the Forensic Science Laboratory after the alleged recovery of guns, ther-fore, the said recoveries and the report of the fire-arms expert were of no consequence.
' The learned State counsel submitted that the presence of the eyewitnesses at the spot is fully established; the occurrence took place in the broad-daylight and there is no suggestion that the complainant had enmity with any one else, therefore, no interference with the impugned judgment was called for.
' The learned counsel for the complainant contended that in view of the facts and circumstances of the case, principle of vicarious liability is clearly attracted, therefore, all the accused are guilty under section 302/.34. P.P.C.
12. Adalat Khan complainant, Muhammad Yusuf and Zahur Ahmad P.Ws. supported the prosecution version as detailed in the earlier portion of this judgment. Bostan deceased was son of Sardar Ali who was real uncle of Adalat Khan complainant. Zahur Ahmad P.W.
Is the real brother of Bostan deceased. Muhammad Yusuf P.W. Admitted that Allah Ditta and Bostan deceased were his uncles. Mst. Hanifan Bibi, real niece of Allah Ditta deceased, is the grand- daughter of Ahmad, real brother of the grand father of the complainant. In this way the three eye- witnesses are related inter se as well as to the two deceased persons.
' On accused side, Sardar Khan appellant is son of acquitted accused Abdul Malik, Muhammad Sabir Hussain appellant is son of Sardar Khan appellant while Shaukat appellant is nephew of afore mentioned Sardar Khan.
' It is admitted on all hands that eight years prior to the occurrence there was a bombexplosion in the house of Sardar Khan accused causing three deaths for which Adalat. Khan complainant, Allah Ditta deceased Bostan decesed and some others were challaned. Adalat Khan complainant admitted that Sabir Hussain appellant, Sardar Khan appellant and acquitted accused Abdul Malik were prosecution witnesses in that case. He further admitted that after the explosion their relations "with the accused became very much strained". It is, therefore, fully established that prior to the occurrence the relations between the parties were extremely strained and in that view of the matter corroboration of ocular evidence from an unimpeachable source is imperative.
13. There are two versions of the same occurrence, one narrated by the prosecution and the other by the defence. The prosecution version is that on the fateful day, the two deceased persons and the eye-witnesses were present on the roof of the Verandah of the school as it needed repairs. The case of the defence is that Sabir Hussain accused was attacked by the complainant party when he was present in his house adjoining the school building and the story regarding the repair of roof was concocted to cover the aggression. After giving our careful consideration to the respective versions of the parties, we are of the view that the reason given by the eye-witnesses for being present on the roof of the school is unconvincing. Adalat Khan complainant when asked about the presence of the building material, stated: "We had purchased 13 balas for replacement, which were lying in the house of Bostan Khan. We had brought those Balas in the school at that time and were lying on the school roof when the occurrence took place (sic). According to him, some bricks were lying on the ground and some on the roof. Muhammad Yusuf P.W. Gave an evasive reply saying; "The bricks were already at the spot for the last 2 months, which may be about 150, which were lying in our house and we were yet to take them to the ,school. We were ourselves to carry the bricks to the school". The Investigating Officer stated that bricks and Balas were lying on the roof.
He did not state that some bricks were on the ground. All the three eye-witnesses are, thus, at variance with regard to the location of an essential item of repair like bricks. Adalat Khan P.W.
Further stated that besides bricks and Balas no other material for repair had been collected. He further stated that Ali Muhammad was employed as a mason for 'repairing the roof and they were waiting for him when the occurrence took place. He admitted that the said mason did not appear before the police during the investigation. The Investigating Officer (P.W.14) admitted that he did not record the statement of any mason during the investigation. He further stated: "The roof of the school had fallen at some places although I had not given a note to this effect neither in my inspection note nor in the site plans". We have noted that the Investigating Officer is an unreliable person. Towards the end of para. 27 of the impugned judgment, the trial Court has observed that Abdul Malik "is a man of 100 years of age with weak physique and weak eye-sight, who is unable to walk without any support". The Investigating Officer in his anxiety to secure conviction, was not prepared even to concede that Abdul Malik accused was an old man with weak eye-sight. He stated: "I cannot say whether Abdul Malik is an old man and with weak eye-sight or not". In the circumstances, we are not inclined to believe his statement that the "roof of the school had fallen at some places". Had it been so, he would not have omitted to mention it in his inspection-note. It need also to be mentioned that the site plan does not show that any bricks or any other building material was lying in the school premises. Had any repair business been there, the Investigating Officer would not have omitted to locate the building-material and must have examined the mason, as only that material could establish the justification for the presence of the complainant party on the roof of the school which happens to be opposite/adjacent to the house of the accused party where their machine is also installed. In the circumstances, we are not inclined to believe that the complainant party had come on the roof for repair.
14. The prosecution version that four accused armed with guns fired at the members of the complainant party while standing in the stairs, also does not ring true. According to the prosecution, the two deceased persons, the complainant and the two injured eye-witnesses were on the roof of the school. Their- presence on the roof was not questioned in cross-examination nor controverted before us. The learned counsel for the appellants rather contended that the route of the pellets indicates that the shots were fired from ground to roof. The distance between the village and the school is two furlongs. If the accused had come armed to the school premises as alleged by the prosecution, the members of the complainant party who were on the roof would have seen them from some distance and retreated to some safe place. In that situation they would not stay on the roof so as to allow the accused party to take positions in the stairs. In any case, it is difficult to believe that four accused persons armed with guns appeared on the stairs all at once, unnoticed by any body. We are, therefore, reluctant to believe that the members of the complainant party were fired at from the stairs of the school. Another circumstance which lends support to this view is that all the members of the complainant party would be visible to the accused from the stairs. In that situation the accused would not have spared A dalat Khan complainant for the reason that he was also an accused in the bomb-explosion case and his enmity with the accused was of the same intensity and magnitude as of the two deceased persons. In the circumstances, we are of the view that the occurrence had not taken place in the manner as alleged by the prosecution.
15. We have already observed that all the three eye-witnesses in this case are interested and their evidence cannot be accepted unless corroborated from an unimpeachable and independent source. The prosecution has relied on the evidence relating to recoveries and the report of the fire- arms expert as corroborative evidence against the appellants. The recoveries of guns were witnessed by Nazir Ahmad (P.W.13) and Muhammad Shafi (not produced). Nazir Ahmad P.W. Being the first-cousin of Bostan deceased, is an interested witness. The statement of Mumrez Khan Sub- Inspector who effected the recoveries, cannot be accepted because we have already observed that he is an unreliable witness.
16. The alleged recoveries can also be ignored on the ground that the crime empties were delivered at the Forensic Science Laboratory, Lahore, on 4-4-1977, while the guns were recovered on 3-4-1977. Chulam Nabi F.C. (P.W.3) stated that he took the parcel containing five crime empties to Forensic Science Laboratory, Sihala, on 2-4-1977 where he was informed that the Laboratory had been shifted to Lahore and then he delivered that parcel at Forensic Science Laboratory, Lahore, on 4-4-1977. Be that as it may, the fact remains that the guns were recovered on 3-4-1977 and the parcel containing the empties was delivered in the Forensic Science Laboratory on 4-4-1977. In the circumstances, the report of the fire-arms expert is of no consequence.
17. Sardar Khan and Shaukat appellants denied having participated in the occurrence. The uncorroborated evidence of inimical eye-witnesses is not at all sufficient to warrant their conviction and they are entitled to acquittal. We, therefore, allow their appeal, set aside their conviction and sentence and acquit them. Sardar Khan appellant shall be set at liberty forthwith if not required to be detained in any other case. Shaukat appellant is on bail. He shall be discharged from his bail bond.
18. The learned trial Judge has observed that Abdul Malik accused is 100 years of age with weak physique and is unable to walk without support. In view of his old age and infirmity he was incapable of playing any role in the occurrence. It is unbelievable that his son and grand son would take himalong in an adventure of that type. The order of his acquittal does not call for any interference.
19. The case of Sabir Husain appellant, however, stands on a different footing. He admitted having fired at the members of the complainant party but his plea is that on the day of occurrence he was present at his machine installed in the adjacent house when the members of the complainant party attacked him and he fired at them in retaliation and self-defence as they were firing on him.
He has not elaborated from which place the complainant party launched attack on him. It has already been mentioned that the presence of the complainant party on the roof of the school was neither challenged in cross-examination nor controverted before us. The seats of the inlet and exit wounds on the dead bodies clearly show that the pellets travelled from lower to higher level, which lends support to the view that the shots were fired from ground to roof. The complainant admitted that the house of Sardar Khan accused is adjacent to the school and there was a machine installed in that house. In view of the previous background of enmity between the parties, the possibility of the complainant party having come on the roof of the school to attack Sabir Hussain appellant cannot be ruled out. The medical evidence clearly shows that more than one shots were fired at Allah Ditta deceased. Sabir Hussain appellant could put an end to the aggression of the complainant party by much lesser force but he caused more harm to Allah Ditta deceased than was necessary for the purpose of defence and is, therefore, liable under section 304 (Part I), P.P.C., for causing his death. Accordingly, his conviction under section 302, P.P.C. For the murder of Allah Ditta deceased is altered to section 304 (Part l), P.P.C. And he is sentenced to rigorous imprisonment for ten years and a fine of Rs,20,000. In default of payment of fine he shall undergo R.I. For three years. The fine, if recovered, shall be paid to the heirs of Allah Ditta deceased.
20. Now we proceed to consider the charge of murder of Bostan deceased. There were four injuries on his dead body. Injuries Nos.3 and 4 on the back of left chest and back of upper part of left upper arm were the wounds of inlet and the other two injuries were the exit wounds. The injury on the person of Muhammad Yusuf P.W. Was on the right buttock and that on Zahur Ahmad P.W. Was on the outer side of upper part of the left leg. The seats of injuries of Bostan deceased, Muhammad Yusuf and Zahur Ahmad P.Ws. Clearly show that they were fired at when they were retreating and running for their lives. After Allah Ditta deceased had fallen down and the other members of the complainant party, i,e, Bostan deceased, Muhammad Yusuf and Zahur Ahmad P.Ws., had retreated, the right of self-defence had ceased to exist. Therefore, the shot fired by Sabir Hussain appellant on Bostan deceased cannot be said to have been fired in self-defence and he is liable under section 302, P.P.C. We, therefore, maintain his conviction for the murder of Bostan deceased.
' The facts and circumstances of the case indicate that it was the complainant party who initiated the trouble from the roof of the school where they had no business to be present. If the complainant party had not come there, this unfortunate occurrence would not have happened. In the circumstances, we are of the view that capital punishment is not called for in this case.
Accordingly death sentence awarded to Sabir Hussain appellant of the murder of Bostan deceased is altered to imprisonment for life and a fine of Rs,20,000. In default of payment of fine he will undergo R.I. For three years. The sentences of imprisonment under section 304 (Part I) and section 302, P.P.C. Shall run consecutively. In awarding the above sentences we have taken into consideration the provisions of section 382-B of the Code of Criminal Procedure. The fine, if recovered, shall be paid to the heirs of Bostan deceased as compensation.
' The death sentences of Sabir Hussain and Sardar Khan appellants are not confirmed.
' Criminal Revision No,66 of 1981 against Abdul Malik and Shaukat accused fails and is dismissed.