LEHRASAP KHAN, J.-The convict-appellants (1) Sher Khan aged 35/36 years son of Ahmad Khan caste Gondal and (2) Ghulam Abbas aged 42 years son of Shah Nawaz caste Mughal Kassar, both residents of village Balokassar, Police Station Chakwal, were tried along with Ahmad Khan aged 35 years son of Mahboob Hussain caste Mugal Kassar and Muhammad Khan aged 20 years son of Mahboob Hussain caste Mugal Kassar, their co-villagers, by learned Additional Sessions Judge, Jhelum for the offence of murder punishable under section 302/34, P. P. C. On two counts i. e. For causing the deaths of Muhammad Ashraf deceased aged 65 years and Muhammad Ayyub deceased aged 15/16 years, their co-villagers, on 17th June 1977 at 6 p. m, in the area of village Balokassar, Police Station Chakwal.
2. The learned trial Judge, vide his judgment, dated 28th February, 1980 convicted Sher Khan and Ghulam Abbas appellants under sections 302/34, P. P. C., on two counts and sentenced each of them to death and to a fine of Rs, 5,000 or in default of payment of fine, to suffer further R. I. For three years on each count. Ahmad Khan and Muhammad Khan, co-accused were acquitted of the charge of murder. Muhammad Khan co-accused was, however, convicted under section 323, P. P.
C. For causing simple hurt to Muhammad Aslam P. W. By pelting stone on him during the course of occurrence and was sentenced to imprisonment till the rising of the Court.
3. Sher Khan and Ghulam Abbas appellants have filed the present appeal challenging their conviction and sentence. The matter also stands referred to us under section 374, Cr. P. C. Seeking confirmation of the death sentence awarded to both the appellants. Both these matters i,e,, the appeal and the murder reference shall be disposed of by this judgment.
4. The F. I. R. Account of the prosecution-version briefly stated is that on 17th June, 1977 a shortwhile after 6 p. m., Sher Khan and Ghulam Abbas appellants armed with .12 bore guns went atop the roof of the house of Ahmad Khan Kumhar (Potter). Ahmad Khan and Muhammad Khan co-accused armed, respectively with hatchet and stick also accompanied the appellants to the top of the roof of Ahmed Khan Kumhar aforesaid. Muhammad Ashraf and Muhammad Ayyub deceased passed in the lane alongwith the house of Ahmad Khan Kumhar followed by Muhammad Aslam P. W. 9.
Sher Khan appellant fired at Muhammad Ashraf with his gun injuring him at his left arm and chest.
Muhammad Ashraf after receiving the injuries fell to the ground and succumbed to the injuries.
Ghulam Abbas fired with his .12 bore gun which hit Muhammad Ayyub causing injury to the latter at the left wrist, left flank and under the umbilicus. Muhammad Ayyub after receiving the injuries ran for his)ife in the lane towards the eastern side but fell down near the mosque. Muhammad Khan hurled a stone hitting Muhammad Aslam P. W. At his forehead. Muhammad Khan son of Muhammad Bakhsh P. W. 8, the first informant, and Zamurrad Khan son of Ashraf Khan (not produced) also reached at the spot and witnessed the occurrence. The appellants and their co- accused made good their escape from the place of occurrence. Muhammad Ayyub was taken to the hospital at Chakwal on a cot but be succumbed to the injuries on the way.
5. Muhammad Khan P. W. 8 went to the Police Station at Chakwal and lodged the report. Exh. P. L. At 9 p. m. On the same day. The report was recorded by Syed Shamsher Ali Shah, the then Sub- Inspector, S. H.O. Police Station Chakwal who died before the commencement of the trial in this case.
6. As regards motive, it is alleged that in 1939, and 1953, there had been murder cases between the parties and thus they harboured grudge against each other. As an immediate motive, it is alleged that Mulazam Hussain, son-in-law of Muhammad Khan complainant removed earth from the land of Sher Khan appellant to strengthen the bank of his adjoining land. Sher Khan protested and abused Mulazam Hussain who also hurled abuses at Sher Khan. However, with the intervention of one Muhammad Ashraf son of Watey Khan, they were made to leave for their houses and soon thereafter this occurrence took place in which Muhammad Ashraf, maternal grand-father of Mulazam Hussain and Muhammad Ayyub, nephew of said Mulazam Hussain were killed.
7. After recording the F. J. R. Exh. P. L. Syed Shamsher Ali Shah Sub-Inspector proceeded to the spot.
He collected blood-stained earth from two spots i. e. From the street adjoining the house of Ahmad Khan Kumhar and from the place where Muhammad Ayyub deceased fell down near the mosque, vide memos. Exhs. P. F. And P. G, and the same was made into two separate sealed parcels. Two empties of -12 bore cartridges were also taken into possession from the top of the roof of the house of Ahmad Khan Kumhar, vide Exh. P. H. And sealed into a parcel. Injury Statement in respect of Muhammad Ashraf deceased. Exh. P. Q. And Inquest Reports P. Q./1 and P. Q./2 were prepared by Syed Shamsher Ali Shah Sub-Inspector. He also prepared injury Statement Exh. P. M. In respect of Muhammad Ayyub deceased and Inquest Reports Exhibits P.N./1 and P.N./2 in regard to him.
7. The aforesaid exhibits have been formally proved by P. W. 10, Muhammad Arif Assistant Sub- Inspector, who worked as colleague of Syed Shamsher Ali Shah Sub-Inspector, as observed earlier, died before the commencement of the trial.
8. The case has been partly investigated by Muhammad Arif A. S. I., P. W.
10. He got prepared the site plans Exhs. P. E./1 to P. E./3 by Nawab Khan, P. W. 4, a draftsman of Chakwal. Muhammad Arif A. S. I. Arrested all the accused. On 28th June, 1977 Sher Khan appellant led to the recovery of gun (P. 7) from his residential house in the village. The same was secured vide memo. Exh. P. K. And sealed into a parcel.
9. Dr. Asghar Hamid Qureshi, Medical Officer, Civil Hospital, Chakwal, P. W. 1, performed the post- mortem examination on the dead body of Muhammad Ashraf deceased on 18th June, 1977 at 6 p. m. He noticed the following injuries on the dead body of the said deceased :-
(1) Three fire-arm wounds, two of them 3/8" x 1/4" and the third one 31 x 11" into whole thickness deep on the back and outside of left arm and shoulder upper part. The margins were inverted. The bone, muscles and vessels were all destroyed in area 4i" x 3". The wounds were going forward downwards and to the right side (entry wound). No blackening or scorching was present.
(ii) Two fire-arm wounds 3/8" x 3/8" into whole thickness deep and 4i" x 2f" into whole thickness deep margins everted and connected with injury No, 1 situated on back and inner side of left arm and axilla. In area 5" x 41" (Exit wound of injury No, 1).
(iii) Six fire-arm wounds the largest 1" x 3/8" obliquely placed and smallest 3/8- x 1/4" all chest cavity deep. Margins inverted and in line with injury Nos. 1 and 2 situated on upper part of left side of the chest towards the back and over the inner wall of axilla in area 5-1" x 41" going downwards slightly forward and to the right through the chest cavity. No blackening or scorching were present.
In his opinion, death was due to injury to the heart, lung, liver and right kidney as a result of injuries Nos. 1 and 3. He thus opined that injuries Nos. 1 and 3 were individually as well as collectively fatal and sufficient to cause death in the ordinary course of nature. All the injuries were ante =nem and were caused by fire-arm. Exhibits P. A./1 to P. A./4 is the carbon copy of the post-mortem report while Exhibit P. A./5 is the pictorial presentation of the injuries.
10. On the same day, at 7 p. m., Dr. Asghar Hamid, performed the autopsy on the dead body of Muhammild Ayyub deceased. He noticed the following injuries on the dead body.
(i) Six fire-arm wounds each 3/8" x 1/4" into abdominal and pelvic cavity deep in area 51." on left side of lower part of abddminal left side of buttock and illia crest. Margins were inverted and contused going forward and to the right and slightly downwards left injury.
(ii) Two fire-arm wounds each 3/8" x 3/8" into abdominal and pelvic cavity deep. Margins were everted on the right side of front of abdomen and pubic area, in area 7i" x 4". Exit wound of Injury No,
1. The abdominal wall between the umbilicus and pubic area has become bluish in colour and 3 pellets were removed from the enterior wall of the abdomen. WO Four fire-arm wounds each 3/8" x 1/4" into whole thickness deep on the back and outer side of left fore-arm and wrist in area 5" x Ir going downward forward and inward towards a next injury. Margins were inverted (entry wound).
The radius bone was perforated.
(iv) Four fire-arm wounds each 3/8" x 3/8" connected with injury No, 3 on the front of left fore-arm inner margins were averted. Exit wound of injury No, 3.
In the opinion of the doctor, death occurred due to rupture of large and small intestines and injury to the pelvic blood vessels causing bleeding and shock as a result of injury No, I. This injury i,e, injury No, 1, in his opinion, was fatal and was sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem And were caused by firm-arm weapons. Exhibit P. B./1 and P. B./4, is the correct carbon copy of the post-mortem report while Exh. P. B./5 is the diagram indicating location of the injuries.
11. Muhammad Khan P. W. 8, the first informant and Muhammad Aslam P. W. 9, a resident of adjoining village Joya Mair, have been examined at the trial as eye-witnesses to furnish the ocular account of the prosecution version. .
12. Both the appellants pleaded complete innocence and their involvement in the case due to suspicion and enmity with the complainant party. Ghulam Abbas did not produce any evidence in his defence while Sher Khan appellant produced documents Exibits,D. A., D. B. And D. C. In his defence. Exhibit D. A. Is a copy of a register of criminal cases which contains entry in regard to a case under section 302/149, P. P. C., in which Fazal Hussain, etc. Were involved and were ultimately acquitted on 8th June, 1948. Exhibit D. B. Is a copy of Nikahnama containing entry about the Nikah of one Yaqoob Khan son of Muhammad Gul with Mst. Shamimim Akhtar daughter of Ghulam Hussain.
Exhibit D. C. Is also a copy of a register of criminal cases containing entries of a case in which Muhammad Ashraf, etc. Were involved in a case under sections 302/149, 307/148, P. P. C. And were acquitted on 8th June, 1948.
13. It transpires from the above resume of facts of the case that the prosecution case against the appellants rests on ocular evidence, medical evidence and evidence regarding recoveries. So far as ocular evidence is concerned, it consists of statements of Muhammad Khan P. W. 8 and Muhammad Aslam P. W.
9. Muhammad Khan is admittedly a close relation of both the deceased. He admitted that there was old enmity between his family and that of the appellants on account of murders. He stated that in 1940, one Ahmad Khan was murdered who was real uncle of Muhammad Khan and Ahmad Khan, co-accused. In that case Muhammad Ashraf deceased was challaned but was acquitted. He also stated that Sher Khan. Appellant is married to the sister of Muhammad Khan and Ahmed Khan co-accused, while Ghulam Abbas is cousin of Muhammad Khan and Ahmed Khan co-accused. He also said that 18/19 years back, Fazal Hussain was murdered. He was brother of Ghulam Abbas accused and in that case Muhammad Ashraf deceased was challaned but was acquitted. He further admitted that in 1939/40, Sikandar and Muhammad Khan were murdered. Sikandar happened to be the brother of Muhammad Ashraf deceased. In that double murder, Mehboob, Ghulam Muhammad, Fateh Khan and Jaffar were challaned, Muhammad Khan and Ahmed Khan co-accused are sons of said Mehboob. The other eye-witness, namely, Muhammad Aslam P. W. 9, is resident of adjoining village Joya Mair. He claims his presence at the time of occurrence because he happened to be in village Ballokassar to attend a marriage party. He says that he came to attend the marriage of one Ayyub son of Gul Khan. The contents of Exhibit D. B. Show that the marriage was of one Yagoob Khan son of Muhammad Gul and not of Ayyub son of Gul Khan.
Muhammad Aslam P. W. First disclosed that Ayyub happened to be his class-fellow but again said he was just his friend. He could not tell the name of grand-father of said Ayyub nor he could disclose correctly the name of his brothers and sisters.
14. The learned trial Judge has mainly relied upon the testimony of Muhammad Aslam P. W.
9. He has held him to be an independent and unconnected witness whose testimony furnishes corroboration to that of Muhammad Khan P. W. 8, the other eye-witness. Seemingly, Muhammad Aslam P. W. 9, appears to be an unconnected and disinterested witness but it does not necessarily mean that what he states is not untrue. The truth or falsity of the statement of a witness largely depends upon the circumstances which provide the guideline. To accept the evidence, without considering the circumstances, would be totally inconsistent with the safe dispensation of justice.
The scrutiny of the evidence in the light of the allied circumstances, only makes it possible to say that, the evidence is immune from all taints and is worthy of belief. The Supreme Court of Pakistan in Bashir Ahmad v. Muhammad Azam and another , has held that the fact that the witness was not relation witness does not in all circumstances mean that he is a witness of truth. Ultimately, the acid test of the veracity of witness is the inherent merit of his own statement. Muhammad Aslam, as already observed, does not belong to the village in which the occurrence has taken place. He claims his presence on account of his participation in a marriage which took place in the village on that day but he has not been able to correctly tell the name of the person, his alleged friend in whose marriage he allegedly participated. It is noteworthy that this witness, Muhammad Aslam, claimed to have been injured at the hand of Muhammad Khan co-accused who has been convicted by the learned trial Judge under section 323, Pakistan Penal Code and has been sentenced to imprisonment till the rising of the Court. He allegedly caused injury at the forehead of Muhammad Aslam P. W., by hurling stone at him. Muhammad Aslam appeared before the Investigating Officer on 18th June, 1971 and his statement under section 161, Criminal Procedure Code was recorded. In that statement, there is no mention of his injury at his forehead. The Investigating Officer, two days afterwards i,e, on 20th June, 1977, prepared Injury Statement Exh. P.1 R., in respect of Muhammad Aslam. He was also medically examined thereafter. The report in respect of his medical examination has, of course, not been duly proved. Muhammad Khan P. W. 8, as also Muhammad Aslam P. W. 9 have stated that Sher Khan appellant fired his gun injuring Muhammad Ashraf deceased while Ghulam Abbas appellant fired his gun injuring Muhammad Ayyub deceased. No gun has been recovered from Ghulam Abbas appellant and the two empties recovered from the spot have matched with the licensed gun recovered from Sher Khan appellant as transpires from the contents of report Exh. P. S. Of the Forensic Science Laboratory.. According to both the eyewitnesses, Sher Khan appellant had fired only one shot. The number of injuries on the persons of both the decease.d indicate that these injuries were the result of at least two or more than two shots.
15. The circumstances detailed above thus do not support the testimonies of Muhammad Khan and Muhammad Aslam the alleged eyes witnesses. As regards medical evidence, it may be observed that it does indicate that both the deceased died of fire-arm injuries but it does not lead to the conclusion that both of them died as a result of one firearm shot each. Moreover, the post- mortem report in regard to Muhammad Ashraf deceased who succumbed to the injuries on the spot, is indicative of the fact that the possibility of the occurrence having taken place after the sunset cannot be excluded inasmuch as in his case, stomach was full with semi-solid food and the small intestines were healthy and empty. May be that the occurrence took place after the evening meals were taken by the deceased. So far as recoveries are concerned, a licensed gun belonging to Sher Khan appellant was recovered from him on 28th June, 1977, vide memo. Exhibit P. K. Besides Muhammad Arif A. S. I. Sultan Mahmood P. W. 7 has been examined to prove this recovery. This Sultan Mahmood does not belong to village Balokassar where the occurrence took place. He belongs to another village, namely, Chak Ghaghar. He admitted that the other persons belonging to village Balokassar were present at the time of recovery. Those persons have notbeen examined to prove the recovery of gun from Sher Khan appellant which took place on the day following the day of occurrence. He categorically stated that no recovery was made after 9/10 days of the occurrence. The contents of recovery memo Exh. P. K. Show that the gun was recovered from Sher Khan appellant on 28th June, 1977 i,e, 10/11 days after the occurrence. The other attesting witness of the recovery memo. Namely, Muhammad Akram who too is a co-villager of Sultan Mahmood has not been examined. The appellant himself stated that it was a licensed gun which he himself produced before the police. In the light of the statement of Sultan Mahmood P. W. 7, the recovery of gun from Sher Khan appellant on 28th June, 1977 is not proved as has also been held by the learned trial Judge. Thus, no corroboration is furnished to the testimonies of the eye-witnesses by the evidence. As for the ,motive, it may be observed that it is established that there was deep- rooted enmity between the parties of the appellants and that of the complainant and deceased on account of previous murders but such a motive can work either way i,e,, for murdering the enemy or for falsely implicating him in murder cases. No evidence, however, has been led by the prosecution to prove the alleged immediate motive that a shortwhile before the occurrence Mulazam Hussain, son-in-law of the complainant removed earth from the land of Sher Khan appellant for strengthening his 'Banna' which led to an altercation and exchange of abuses between Mulazam Hussain and Sher Khan appellant.
16. In the light of the above analysis of the ocular and circumstantial evidence led by the prosecution in this case, we have come to the conclusion that the prosecution has failed to bring home guilt to the appellants beyond reasonable doubt. We cannot, therefore, uphold their conviction and sentence as recorded by the learned trial Judge. We accordingly allow the appeal, set aside the conviction and sentence of the appellants and direct that they be released forthwith if not required to be detained in any other case. The benefit of this judgment also goes to Muhammad Khan co-accused who shall be deemed to have been acquitted of the charge under section 323, P. P. C.
17. The death sentence awarded to Sher Khan and Ghulam Abbas is thus not confirmed. PLD 1969 SC 469