1. MUHAMMAD AFZAL ZULLAH, J.--These appeals through leave of the Court: one by complainant for enhancement of the sentence, and the other by the convicts against the conviction in a murder case are directed against judgment dated 8-6-1980 of the Lahore High Court; whereby, after conviction and sentence under sections 302 and 307 read with sections 149, P.P.C. And 148, P.P.C. For the murder of one Muhammad Naeem and attempt to commit murder of Abdul Ali P.W.
2. (complainant), the High Court dismissed the appeal against conviction and upheld the sentences including those of life imprisonment awarded under section 302/149, P.P.C. To the convicts as also dismissed the complainant's revision petition for enhancement of the sentence.
3. The prosecution case as projected in the deposition of Abdul Ali the injured eye-witness is as follows: "On 13-6-1974, at about late Digarwela, I was sitting on a platform in front of my Baithak. Towards my north there was the Baithak, of Sultan Mahmood. On the platform of the said Baithak, Aqil Khan accused armed with a rifle, Allah Dad, Sher Khan, Dost Muhammad and Muhammad Aslam accused armed with guns were present. Muhammad Naeem deceased alongwith his son Ahmed Saeed, his nephew Abdul Aziz, and Muhammad Zahid and Gulsher P.Ws. Came to from Kundian. I and Muhammad Naeem deceased used to live together. When the aforesaid persons reached the platform and the deceased was about to enter our Baithak, Sher Khan accused raised a Lalkara.
4. After that all the accused started firing at the deceased. The deceased was hit as a result of which he fell down. I stepped forward to lift him, when Aslam accused fired a shot at me. It hit me on my right knee. I also fell down. I and the other P.Ws. Raised alarm, but the accused went away towards north in a lane firing shots in the air. The deceased expired at the spot. Leaving the dead body with Abdur Rashid, I was carried to the police post, Kundian. I lodged the complaint Exh. P.D. On reaching the police post. It was read over to me aild I in token of its correctness signed it. I was then sent to the hospital for medical examination. I reached the hospital at about evening prayer the, but was medically examined at 10 p.m., because the Doctor was not available before that. The Doctor took into possession my Cheddar (P.5) which was blood-stained. About 2 or 3 months before the occurrence Sher Khan accused was beaten by Abdur Rehman and Shera sons of Noor Muhammad, caste Mohna, residents of Ali Wali.Sher Khan accused suspected that he had been beaten at the instigation of Muhammad Naeem deceased. Due to this motive the accused have killed the deceased. Abdur Rehman and Shera afore-mentioned were friends of Muhammad Naeem deceased. Prior to the aforesaid beating, Sher Khan accused and Muhammad Aslam accused had given beating to one Khizar Hayat the maternal-uncle of the aforesaid Abdur Rehman and Shera. Allah Dad, Sher Khan and Dost Muhammad accused are brothers. They reside in Kundian Town. Muhammad Aslam and Aqil Khan accused are also brothers. They reside in village Ghandi. Their house adjoins the Baithak of Sultan Mahmood. The Baithak of Sultan Mahmood was in possession of the accused persons viz., Muhammad Aslam and Aqil Khan. The sister of Aqil Khan and Muhammad Aslam accused is the wife of Sher Khan accused. Ahmad Khan the father of Muhammad Aslam and Aqil Khan accused is married to the sister of Sher Khan."
5. Prosecution case at the trial was supported by the said Abdul Ali injured eye-witness as also three other eye-witnesses namely, Ahmed Saeed, Abdul Aziz and Muhammad Zahid. Abdul All is a brother-in-law of the deceased while Ahmed Saeed is the latter's son and Abdul Aziz is a step- brother of Abdul Ali. Zahid P.W. Although is not so closely related to the deceased or the other eye- witnesses but is connected with the deceased through, a relationship of his wife. Some evidence of recoveries from the spot was led but nothing has been connected with the accused. The prosecution case accordingly depended by and large on the eye-witnesses' account.
6. The defence plea, during the trial, was that the accused had no reason to attack and kill Muhammad Naeem and that he had also other enemies. With regard to injuries on Abdul Ali an attempt was made to show that they were self-suffered. However, in the statements under section 342, Cr.P.C. When asked to explain the involvement in the case it was pleaded that one Ghulam Muhammad Qureshi ex-Chairman of a Local Council was inimical to them and because the complainant side belongs to the party of Ghulam Muhammad therefore all the accused have been falsely implicated. They again specifically stated that they had no enmity with the deceased and as such no motive to kill him. Evidence was produced in defence. One witness a Head Constable of Police (produced in defence) proved several F.I.Rs. Indicative of the fact that Muhammad Naeem had other enemies also and that one case was registered under 302, P.P.C. Against him at the instance of Ghulam Muhammad son of Mian Muhammad Qureshi.
7. The learned trial Court disbelieved the motive and to of the eye-witnesses namely, Muhammad Zahid and Abdul Aziz. Explicit reliance was placed on Abdul Ali as the injured person and Ahmed Saeed as natural witness. Some support was also sought from the recovery of a lead bullet though it had not matched with any weapon on the simple assumption that fire-arms as alleged by the witnesses were used in the occurrence. It may be remarked that even without such a supporting material the medical evidence was enough to show the use of fire-arms.
8. The appellants alongwith their co-accused Aqil Khan who has since died in jail were convicted as noted earlier. They were all sentenced to life imprisonment under section 302 and other sentences of imprisonment as also a small amount of fine under other heads of charge. In the High Court all the eye-witnesses were believed. Although there was no finding about a specific motive as to why Muhammad Naeem should have been picked up by the accused to be attacked, it was surmised that the relations between the parties were strained. Regarding the P.Ws'. Credibility the criticism qua their relationship with the deceased was repelled by the observation that this fact alone would not make them otherwise than creditworthy and that corroboration is a matter of caution and not a rule of necessity. The recovery of the lead bullet was also used in an indirect manner. Accordingly the High Court upheld the conviction.
9. Leave to appeal was granted to examine the contentions that they medical evidence contradicted the eye-witness account; that the eye-witnesses having motive to falsely implicate the appellants were interested witnesses and no conviction could take place on their testimony without strong corroboration; and that the corroboration sought from the lead piece was in reality of no avail to the prosecution as it did not match with any crime weapon.
10. In this case neither Muhammad Naeem nor any of the witnesses who are related to him (though Zahid is remotely related to him) had any enmity with the accused so as to falsely implicate them.
11. On the other hand, the prosecution case is that the accused party had only a suspicion that Muhammad Naeem was responsible for the attack on Sher Khan appellant few months prior to the occurrence, might have given a cause for the appellants' side to launch an attack on Muhammad Naeem. It is a daylight occurrence. There is nothing in the record t9-suggest that the' occurrence did not take place at Digarwela when there was sufficient light to identify the culprits. It cannot be a case of substitution either. There was no reason why Muhammad Naeem or his close relations should have allowed the real culprits to go free.
12. Abdul Ali himself suffered injuries. We, after examination of the particulars of the to injuries on him do not agree with the learned counsel that they were self-inflicted or self-suffered. In doing this we also took note of the certificate of the doctor that originally he had kept the injuries under observation waiting for X-Ray Report and that subsequently they were declared as simple because no damage was found to have been caused to any bone or joint. The duration of the injuries as also the corresponding holes in the Dhoti of Abdul Alt noticed by the doctor are further proof of the fact that the injuries as opined by the doctor, were caused by gunshots. It was explained in the medical evidence that the injuries were not probed for their depth because of fear of haemorrhage. Abdul Ali thus, undoubtedly was present at the the of the occurrence and he was in a position to identify the culprits.
13. An argument of the learned counsel that someone from the Baithak of Sultan Mahmood and not from the Tharra of that Baithak as alleged by the eye-witnesses, fired at the deceased therefore there was no possibility of identification, has not impressed us. There is such damage to the deceased side--he suffered innumerable gunshot wounds as also there was scattering of the pellet marks all around the place in different directions which corroborated the prosecution version that the shots were fired from the Tharra--an open space in front of the Baithak of Sultan Mahmood.
14. Regarding the other point in medical evidence that the deceased should not have suffered wounds on front of back of his body if the firing was from the said Tharra is of no avail to the appellants because in the circumstances described by the eye-witnesses it was not an impossibility for the deceased to have changed his posture when he received the shots on his body.
15. Regarding the so-called scortching on the wounds, learned counsel after developing the argument to some extent indicating short range firing, was unable to pursue it to the logical ends; because he ultimately stated that there was no scortching or tattooing of the wounds--only the clothes had some marks of blackening. That would not by itself be enough to discredit the eye-witnesses particularly the injured eye-witness. Moreover, it cannot be ignored that according to the evidence, during the attack the assailants also came near the victims.
16. The main argument of the learned counsel for the appellants remained that Ghulam Muhammad Qureshi is a deadly enemy of the appellants and that the complainant side falsely implicated them on the asking of the said Ghulam Muhammad. It is to wide an argument to be accepted without any further support. There is nothing in evidence to suggest that Ghulam Muhammad had such influence on Abdul Ali and other close relations of Muhammad Naeem so as to compel them to give up their case against the real culprits and falsely implicate six innocent c accused persons in this case who admittedly included to teen-agers-- school and college students. The mere fact that in the village politics the deceased party had aligned with Ghulam Muhammad side is in the circumstances of this case, not such a strong circumstance so as to condemn all the eye- witnesses as interested and inimical towards the appellants and that for that reason they went to the extent of falsely implicating them in a murder case.
17. The other argument that Naeem had enmity with different persons also would not be of any avail to the defence because had any other enemy attacked Muhammad Naeem and Abdul Ali (as the medical evidence shows) they must have been named as culprits. There was no reason for the complainant side to give up the case totally against them.
18. After hearing the learned counsel for the appellants at some length and going through the relevant evidence we do not find any justification for interference with the finding of guilty.
19. There is no force in the appeal (Criminal Appeal No. 130 of1981) filed by the convicts. The same accordingly is dismissed. However, benefit under section 382-B, Cr.P.C. Is allowed.
20. The learned counsel for the complainant appellant in Criminal Appeal No. 131 of 1981 did not press the appeal in so far as prayer for enhancement of the sentence of life imprisonment to death is concerned. He however stressed that negligible amount of fine was imposed and that mandatory provision regarding award of adequate compensation was not kept in view. The plea has sufficient force, we accordingly enhance the sentence of fine under section 302 read with section 149, P.P.C.
21. To Rs.4,000 against each appellant in default whereof rigorous imprisonment of to years' R.I.
22. Against each. The entire amount of fine when recovered shall be paid as compensation to the heirs of Muhammad Naeem deceased. We also enhance the sentence of fine under section 307/149, P.P.C. Against Muhammad Aslam appellant who fired at Abdul Ali P.W. To Rs.5, 000 and in default to years' R.I. This amount of fine when recovered shall be paid as compensation to Abdul Ali P. W.
23. Except to the extent of the afore-recorded enhancement of fine Criminal Appeal No. 131 of 1981 filed by the complainant is dismissed.