1. ' GHULAM MUJADDID MIRZA, J.--Asghar Ali, Akram, Ghulam, Muhammad Younis and Muhammad Hanif, all related inter se, were challaned under section 302/34, P.P.C. For the murder of Muhammad Sharif. Muhammad Hanif died before the trial commenced. So, only Asghar Ali, Akram, Ghulam and Muhammad Younis were tried by the Additional Sessions Judge, Sahiwal. The trial judge by judgment, dated 28-3-1981 convicted and sentenced Asghar All under section 302, P.P.C. And sentenced him to death. He was also sentenced to pay fine of Rs,5,000. In default of payment of fine, he was to undergo R.I. For one year. Half of the amount of fine, if realized, was ordered to be paid to the legal heirs of the deceased.
2. ' The convict has appealed to this Court. Reference for confirmation of the death sentence is also before us. Both the matters are being decided by this judgment.
3. ' The First Information Report (Exh. P.B.) was lodged by Muhammad Hanif, brother of the deceased, at Police Station Hujra. It was recorded by Maqbool Ahmad, S.H.O. On 6th August, 1977 at 10-00 a.m.
4. The occurrence took place the same day at 8-00 a.m.
5. ' According to the first informant, on the day of occurrence, he alongwith his brother Muhammad Sharif, deceased, who was Lambardar of Mauza Jhuj Kalan, Ghulam Muhammad and Zabta were present at the village Primary School gate. The party was waiting for some persons. They had to go to Depalpur for registration of their votes.
6. ' At about 8-00 a.m. Asghar Ali, appellant, armed with 7 M.M. Rifle, and Akram and Ghulam, acquited accused, armed with revolvers turned up. When they were at some distance from the complainant party, the three shouted and said that they would teach them a lesson for the abduction of Mst.
7. Sughran. On hearing the shouts, Muhammad Sharif ran towards the school building so as to go towards the village.
8. ' Asghar All chased him from the eastern side. Akram accused followed Sharif. Ghulam accused ran after Muhammad Sharif from the western side of the school. Akram and Ghulam misfired. But both of them then caught hold of Muhammad Sharif in the north-western corner of the school. They grappled. During grappling Asghar fired at Muhammad Sharif. He was hit in the chest. He fell down on the ground. Asghar fired another shot. Sharif was hit in the abdomen. Muhammad Hanif, alongwith Ghulam Muhammad and Zabta begged the accused not to kill the deceased.
9. ' Muhammad Sharif succumbed to the injuries at the spot.
10. ' The deceased had a bag containing Rs, 14,000 which he was to deposit with the Agricultural Development Bank, Depalpur for payment of loan. This amount was also taken by the accused.
11. ' The motive for the murder of Sharif was that 2 1/2 months prior to the occurrence, Nazra son of Muhammad Hanif, complainant (P.W.3) had abducted Mst. Sughran, niece of Asghar Ali. He had illicit liaison with her but later got married to her and both lived as man and wife.
12. ' The part attributed to Muhammad Hanif son of Ahmad, and Muhammad Younis, acquitted accused, was that they connived for the murder of Sharif.
13. ' Muhammad Hanif and Ghulam Muhammad appeared as eyewitnesses. The other evidence consists of recoveries of blood-stained earth, firearms and empties which were attested by Muhammad Nawaz and Sakhi Muhammad, and finally the post-mortem report of the deceased.
14. ' The appellant pleaded not guilty. He said that the rifle (Exh.P.8) belonged to his brother Ghulam. It was taken from Ghulam after the incident and planted upon him. Similarly, Akram accused stated that the revolver (P.10) was planted on him. Actually it was a licensed revolver of his uncle Sharif.
15. ' The accused stated that the case against them was due to enmity.
16. ' Asghar Ali examined three witnesses in defence. We shall refer to their evidence after the prosecution testimony has been discussed.
17. ' Muhammad Hanif, when examined on oath by the trial Court, affirmed the motive which he had mentioned in the F.I.R. Regarding the actual incident, his evidence was that he along with three others reached the gate of the village school. They were sitting near the gate waiting for some persons. The accused party turned up. Asghar had 7 MM rifle and the other two revolvers. When the accused party came close, Muhammad Sharif suspected them. He stood up. The accused raised Lalkara about the abduction of Mst. Sughran. He attributed the fatal shots to Asghar. The rest of his evidence is, almost, the same what he told to the police in the report. But some material contradictions have come on record in his cross-examination which shall be referred to later on in order to test his credibility.
18. ' Ghulam Muhammad (P.W.6) is the next eye-witness. He was present alongwith Sharif, Hanif and Zabta in front of the gate of the village school. It was about 8-00 a.m. They were to go to Depalpur for getting their votes registered and were waiting for others. There the three accused came.
19. Asghar had 7 MM rifle. Akram and Ghulam had revolvers. Sharif told Ghulam and others that he expected some foul play at the hands of the accused. The accused party raised Lalkara regarding the abduction of Mst. Sughran. Sharif started running towards the school premises. He was chased by the accused. Akram and Ghulam accused while crossing the corner of the school fired at Sharif.
20. The shots missed. Sharif had hardly covered distance of about one Killa from the school towards north when Akram and Ghulam caught hold of him. Asghar fired at him with rifle. Sharif was hit in the back. He fell down. Asghar then fired second shot in his abdomen.
21. ' Mr. Maqbool Ahmad S.I. (P.W.11) recovered blood-stained earth from the spot vide memo Exh.P.E.
22. Two crime empties of 7 MM rifle (Exh. P.5/1-2) vide memo. Exh.P.F. Three .32 bore crime empties (Exh.P.6/1-3) vide memo. Exh. P.G. And a pair of shoes of Muhammad Akram, accused (Exh. P.7/1-2) vide memo. Exh.P.H. The recoveries were attested by Nawaz P.W.9 and Shafi Muhammad, not produced.
23. ' On 7-8-1977, Dr. Ihsanul Hach M.O. Primary Health Centre, Hujra Shah Muqeem (P.W.1) performed post-mortem examination on the dead body of Sharif. He found three firearm entrance wounds on the abdomen, left arm and right side of chest. He also found two firearm exit wounds on the left side of chest and left arm. Dimensions of the wounds of entrance were (1) 3/5" x 1/2", (2) 1/4" x 1/4" and (3) 1/2" x 1/3".
24. ' On 8-8-1977, Asghar Ali, Akram and Ghulam Muhammad accused, were arrested by Maqbool Ahmad S.I. On 22-8-1977, Muhammad Younis and Muhammad Hanif, accused, were arrested by the same Police Officer.
25. ' On 13-8-1977, Asghar All led to the recovery of rifle P.8. It was taken into possession vide memo.
26. Exh.P.J. Ghulam led to the recovery of .32 bore revolver P.9, which was taken into possession vide memo, P.K. Akram also led to the recovery of .32 bore revolver P.10. That was taken into possession vide memo. Exh. P.L. The recoveries were witnessed by Sakhi Muhammad (P.W.10).
27. ' All the crime-empties recovered from the spot were found to match with the weapons of offence vide report (Exh. P..S.) of the Forensic Science Laboratory.
28. ' We now advert to the defence evidence. Mr. Muhammad Ikram Sabri, Manager, Agricultural Development Bank of Pakistan, Depalpur (D.W.1), deposed that according to the record of the bank, Muhammad Sharif son of Murtaza had applied for loan of Rs, 4,160 on 20-11-1976. He wanted to purchase chemcial fertilizer. This amount was sanctioned and was ultimately paid to him on 8-12- 1976. According to the Manager, on 6-8-1977 Sharif owed to the bank sum of Rs, 4,419.63, including interest of Rs, 259.63. On 14-12-1977, amount of Rs, 4,450 was paid. The deceased, according to the witness, did not obtain any other loan.
29. ' Noor Muhammad Arif, Assistant Education Officer, Hujra another defence witness, said that the primary school of village Jhuj Kalan was within his circle. He produced register of attendance of the said school. (The register was seen and returned). According to the register, the school was open on 6-8-1977. The attendance of the students was also marked and signed by the respective teachers. He further deposed that according to the order of the Director, Public Instruction, Punjab, vide letter No, 35/26-76/10991/G-1, dated 6-6-1977, all educational institutions (schools only) in the Punjab, except hilly area, were to remain close for summer vacation from 15-6-1977 to 31-7-1977.
30. ' The third defence witness was Malik Muhammad Hanif, Senior Clerk, D.E.O. Office, Sahiwal. He appeared to prove the letter of the Director, referred to above, by means of which the schools were to remain closed from 15-6-1977 to 31-7-1977.
31. ' Learned counsel appearing on behalf of the appellant contended that neither Muhammad Hanif nor Ghulam Muhammad (P.Ws.) were present at the spot. It was further submitted that if their presence was to be accepted, then they were not telling the truth. In support of this the learned counsel drew our attention to the contradictions in the evidence of Muhammad Hanif when he said that they were on their way to get their votes registered. Before the trial Court, on oath, he changed this stance and deposed that they were waiting for others who were to accompany them for registration of their votes.
32. ' Learned counsel submitted that Muhammad Hanif told another lie and that was that the school was closed. Solid evidence has been brought on record by the defence to belie this statement. In support of this, he relied upon the statement of Malik Muhammad Hanif, Senior Clerk, D.E.O. Office, Sahiwal (D.W.3).Learned counsel further submitted that according to the defence evidence, it was established that the deceased had taken loan of Rs, 4,160, while according to Muhammad Hanif, the deceased at the time of occurrence had Rs, 14,000 in his bag which was to be paid by him to the bank. Counsel submitted that the witness told a bare lie.
33. ' With regard to Ghulam Muhammad, learned counsel submitted that the parties were hostile. They were inimical to each other, therefore, it would be highly unsafe to rely on the testimony of this witness as well in the absence of independent corroboration.
34. ' Last of all, learned counsel laid stress on the fact that the evidence which is being relied upon against the appellant has been rejected qua the acquitted accused. Learned counsel submitted that, as a matter of fact, the evidence was "incapable of division", it had to be accepted or rejected as a whole. Reliance was placed on Mathela v. The State PLD 1959 SC 109 and Ilahi Bux v. State 1982 SCMR 57.
35. ' Learned counsel appearing on behalf of the State supported the impugned judgments. He argued that the appellant had been rightly convicted and sentenced. His appeal merited dismissal.
36. ' We are inclined to agree with the learned counsel for the appellant that the contradictions in the evidence of Muhammad Hanif are of such nature that it is not possible for us to accept his testimony. We, therefore, reject his evidence.
37. ' Now it is to be seen whether the rest of the evidence is sufficient in law to maintain the conviction and sentence of the appellant. No doubt, Ghulam Muhammad, the next eye-witness, is the nephew of the deceased, but merely on the ground of relationship his evidence is not to be discarded, if otherwise it inspires confidence.
38. ' It is in evidence that Zabta, given up prosecution witness, had filed a complaint under section 307, P.P.C. Against one Munir, brother-in-law and cousin of Akram and Younis, acquitted accused. In that case, Zabta, Qutba, father-in-law of Hanif complainant, and Sakhi Muhammad were prosecution witnesses. Asghar All appellant did not come into the picture at all. Moreover, he is distantly related to Akram and Younis.
39. The defence has not succeeded in bringing anything on record to establish enmity of Ghulam Muhammad to the extent that he would falsely implicate Asghar Ali for a murder charge. Certain facts relating to the murder of one Goman were put to this witness, but those suggestions were denied.
40. ' For the foregoing reasons, we are not going to discard the evidence of Ghulam Muhammad. He attributed fatal shots to the appellant.
41. ' It is now to be seen whether the evidence of Ghulam Muhammad finds any support from the rest of the evidence. The post-mortem report of the deceased leaves no room for doubt that he was killed by fire-arm. The prosecution never alleged that any of the shots fired by the acquitted accused also hit the deceased. There is also other corroborative evidence which is recovery of rifle and empties, report of Forensic Science Laboratory, post-mortem report and motive, though admitted by the appellant in a lukewarm manner.
42. ' So, we are of the view that the evidence of Ghulam Muhammad is duly corroborated by the items referred to above that it was Asghar Ali who shot dead Sharif.
43. We have gone through the cases, referred to above. The dictum laid down in these cases is to be applied keeping in view the facts of each case. The mere fact that some of the accused were acquitted on the same evidence would not mean that the entire evidence is to be rejected outright. It is yet open to the Court to accept that much of evidence which is trustworthy and finds corroboration from the other evidence. Keeping this principle in mind, we are of the view that the case against Asghar Ali appellant is proved beyond doubt.
44. Now comes the question of sentence. Admittedly, Nazar son of Hanif abducted Sughran niece of Asghar. The mere fact that subsequently it was regularized by marriage would not remedy the irreparable damage to the family honour.
45. We, therefore, think that it is not in the interest of justice to confirm the death sentence. I decline to do so. On the other hand, the same is altered to imprisonment for life. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C.
46. ' The sentence of fine is upheld. The entire amount shall be paid as compensation to the heirs of the deceased. The Collector concerned is hereby ordered to take immediate necessary steps for its recovery and payment.
47. Death sentence not confirmed.