' Munawar son of Manzoor Ahmad, aged 24, armed with pistol, and Akbar Ali son of Karam Din, aged 28 also armed with pistol, have been convicted under section 302, P.P.C. For the murder of Ahmad deceased, aged 45, and vide judgment, dated 5-1-1982 of the Additional Sessions Judge, Vehari, each of them was sentenced to death plus fine of Rs,500 or in default to undergo one month simple imprisonment each with the direction that if the amount of fine was recovered from them, it should be paid as compensation to the legal heirs of the deceased. Two co-accused, namely, Asghar Ali son of Ali Muhammad, armed with pistol, and Aziz son of Sultan, armed with Deng, were given the benefit of doubt and acquitted. We have before us Criminal Appeal No, 35 of 1982 of the two convicts as well as Criminal Revision No, 350 of 1982 against the acquittal of Asghar Ali and Aziz, acquitted co-accused, which are being taken up together and being heard alongwith the reference for confirmation of death sentence awarded to both the convicts and being disposed of by this judgment.
2. The occurrence took place at 5-30 p.m. On 30-1-1978 in the field of Chak No, 150/EB at a distance of 16 miles from Police Station Sadar Burewala, District Vehari. Statement (Exh.P.K.) was made by Muhammad Sadiq injured (P.W.8) brother of the deceased, at 10-00 p.m. On the same day at the Civil Hospital, Burewala and it was recorded by Nazir Ahmad A.S.I. (P.W.12) who had arrived there on receipt of message from hospital. On the basis of the aforesaid statement formal F.I.R. (Exh.P.K./1) was registered at the police station by WaliMuhammad M.H.C. (P.W.5) at 10-15 p.m. On the same day. Initially the case was registered under section 307/326/34, P.P.C. But on the death of the deceased on 15-2-1978 (after sixteen days) section 302, P.P.C. Was added thereto.
3. The motive for crime as stated in the F.I.R. Is that 3/4 months prior to the present occurrence a wedding took place of sister of Muhammad Hussain in the village and on this wedding Dhol etc. Were beaten. It is stated that at that time all the four members of the accused-party were present there whom Muhammad Sadiq P.W. Had dissuaded from creating row and trouble. The members of the accused-party are stated to have kept quiet there but left holding out a threat that they would avenge the insult. This is the only motive which has been set up by the prosecution in the instant case and the witness of motive is no other than Muhammad Sadiq P.W. There is no other background of previous enmity on the record.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Muhammad Sadiq injured (P.W.8), brother of the deceased, Sajawal (P.W.9), cousin of the deceased and Bahawal (P.W.10), another cousin of the deceased, both Sajawal and Bahawal P.Ws. Being inter se brothers. Noora son of Muhammad Sadiq P.W. Was cited as an eye-witness but has not been produced.
5. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day while the deceased was returning to the Chak alongwith Muhammad Sadiq P.W., they were confronted by the appellants as well as the acquitted co-accused, armed as described above.
Thereafter, Munawar appellant raised a Lalkara to the effect that they should not be spared. Then it is stated that Akbar All appellant and Asghar Ali, acquitted co-accused, fired shots through their respective pistols at Ahmad deceased and the shots had hit the face and chest. Then Munawar appellant had fired at Muhammad Sadiq P.W. And the shot had hit his leg, thigh and chin. Both of them fell down on the ground. On their alarm were attracted to the scene of crime Sajawal (P.W. 9) and Bahawal (P.W.10) as well as Noora (not produced). They tried to apprehend the members of the accused-party but they threatened them and were successful in running away. The eye- witnesses brought both the injured to the Civil Hospital, Burewala where the doctor medically examined them.
' Ahmad deceased, in the instant case, remained alive from 30-1-1978 to 15-2-1978 in the Civil Hospital, Burewala but throughout remained unconscious until he expired. Therefore, no dying statement of his could be recorded.
6. Munawar and Akbar All appellants as well as Asghar Ali, acquitted co-accused, were arrested by Nazir Ahmad A.S.I. (P.W.12) on 1-2-1978, whereas Aziz, acquitted co-accused, was arrested by the same police officer on 2-2-1978. The recoveries from the spot are four crime empties (Exhs. P.7 to P.10) which were taken into possession vide memo. Exh.P.O., dated 31-1-1978. The attesting witnesses are Sajawal (P.W.9), Noor Ahmad (not produced) and Nazir Ahmad A.S.I. (P.W.12). At the instance of Asghar Ali, acquitted co-accused, were recovered pistol (Exh.P.11) and two live cartridges (Exh. P.17/1-12) vide memo. Exh.P.Q., dated 1-2-1978. At the instance of Akbar All appellant were recovered pistol (Exh. P.12) plus six live cartridges (Exh.P.18/1-6) and taken into possession vide memo. Exh.P.R., dated 1-2-1978. At the instance of Munawar appellant were recovered pistol (Exh.P.13) plus four live cartridges (Exh.P.19/1-4) and taken into possession vide memo. Exh.P.S., dated 1-2-1978 and the attesting witnesses in all these cases are Sajawal (P.W.9), Noor Ahmad (not produced) and Nazir Ahmad A.S.I. (P.W.12). Eventually at the instance of Aziz, acquitted co-accused, gun (Exh. P.14) and two live cartridges (Exh.P.20/1-2) were recovered (although he was stated to have carried a Dang in the F.I.R.) and taken into possession vide memo. Exh.P.T., dated 2-2-1978. The attesting witnesses are the same. According to the report of the Fire-arms Expert (Exh.P.X) at page 14 of the printed paper-book, pistol (Exh.P.12) matched with crime empties (Exhs. P.7, P.8 and P.10) whereas pistol (Exh.P.13) matched with crime empty (Exh.P.9). It may be pointed out that pistol (Exh.P.12) had been recovered from Akbar An appellant, whereas pistol (Exh.P.13) had been recovered from Munawar appellant.
7. The appellants as well as the acquitted co-accused in their statements before the trial Court denied having participated in the occurrence. They disowned the recoveries and stated that they had been falsely implicated due to enmity. They also stated that they were innocent and that they would produce defence evidence but they did not produce any defence.
8. Dr. Muhammad Aslam Awan (P.W.3) medically examined Muhammad Sadiq P.W. At 8-40 p.m. On 30-1-1978 and found the following injuries on his person:-
(1) Six fire-arm wounds of entrance each 1/8" x 1/8" on back and upper part of both chests, no burning and tattooing was present.
(2) Six fire-arm wounds of entrance on the front of chest and chin, each 1/8" x 1/8", no burning and tattooing.
(3) About 70 fire-arm wounds of entrance each 1/8" x 1/8" on the front and medial side of right thigh and knee-joint. No burning and tattooing.
(4) Two fire-arm wounds of entrance on the front of left leg, lower part, each 1/4" x 1/4" and 1/4" x 3/4" (This passed touching the skin). Two small and one large pellets removed from this wound and sent to the S.H.O. (sealed).
' The pellets were removed from shoulders and chest. The injuries were kept under observation and had been caused by fire-arm within the duration of about 4 hours.
' On the same day at 8-30 p.m. He medically examined Ahmad deceased while he was still alive and found on his person the following injuries: - ' Fire-arm injuries about 70 in number on the left side and front of head, face, neck and left shoulder on the front and back of shoulder and some on the right of face, both ears and nose each 1/8" x 1/8". Patient was unconscious, bleeding from nose and mouth was present. No burning and tattooing was present. All wounds were of entrance wounds. All injuries were by fire-arm, kept under observation and were in about four hours' time.
' After the admission of Ahmad deceased, while he was still alive in the hospital, the police had made numerous inquiries from the doctor about the state of Ahmad deceased, but he informed that the condition of Ahmed patient was serious and he continously remained in a state of unconsciousness.
' Ahmad deceased died after about sixteen days in the same state and Dr. Wasim Akhtar (P.W.6) conducted the post-mortem examination on the dead body of Ahmad deceased at 3-30 p.m. On 15-2-1978 and noted the same injuries on his person. In his opinion the cause of death in this case was shock and internal haemorrhage due to damage to the brain which subsequently infected the brain producing cerbritis which was sufficient to cause death in the ordinary course of nature.
' In the cross-examination Dr. Muhammad Aslam Awan P.W. 13 stated that the probability was that the injuries on the person of Ahmad deceased were the result of one shot, that they were 70 in number, but he has mentioned these 70 wounds as one injury. Since there was no burning and tattooing, it indicated that the fire-arm was beyond the distance of 8 feet. The injuries mentioned four in number on the body of Muhammad Sadiq P.W. Might have been the result of four or more shots. Injuries on the body of Muhammad Sadiq P.Ws. Nos. 1 and 2 are on the front and upper part of the chest and chin which indicated that the fire-arm at that time was on the front of the injured.
Injury No,3 on the body of Muhammad Sadiq P.W. Might have been caused from right and front direction. Injury No,4 on the left leg of this witness meant that either the firing weapon was tilting downward or the firing person was sitting on the ground. The injuries on the body of Ahmad deceased and injury No,1 on the person of Muhammad Sadiq P.W. Are of the same nature and they might have been the result of one shot. Injuries Nos. 2 and 3 on the person of Muhammad Sadiq P.W. Show the same dimensions which meant that these could have been caused by the pellets of the same nature. He further stated that this could not be definitely said that injuries Nos. 1 to 3 on the persons of Muhammad Sadiq P.W. As well as Ahmad deceased could be the result of one shot.
Definite possibility could not be ruled out whether injuries Nos. 1 to 3 on the person of Muhammad Sadiq P.W. And injuries on the person of Ahmad deceased were the result of one shot or multiple shots.
9. We have heard learned counsel for the parties and carefully perused the record. Learned counsel for the appellants attempted to argue that in this case the crime empties as well as the recovered fire-arms were sent together to the Forensic Laboratory and that, therefore, the possibility of tampering with the same was there. In this connection he read before us the testimony of Nazir Ahmad A.S.I. P.W. 12 who had stated in the cross-examination that he deposited these parcels on 1-2-1978. We may point out that Nazir Ahmad A.S.I. P.W. Was not further corss- examined on the point as to whether the aforesaid articles remained in his possession for some considerable period after recovery so as to raise the possibility of tampering with them. Then learned counsel read before us the statement of Wali Muhammad M.H.C. (P.W.5) which is to the effect that he received six sealed parcels on 2-2-1978 from Nazir Ahmad A.S.I. P.W. And deposited the same in the police Malkhana for safe custody. Thereafter, on 28-2-1978 he made over all the six sealed parcels to Alamsher F.C. (P.W.7) for taking the same to the office of the Chemical Examiner and the Forensic Science Laboratory. So long as these articles remained in his custody nobody tampered with them. Alamsher F.C. P.W. Had stated that he received on 27-2-1978 from Wali Muhammad M.H.C. P.W. Six sealed parcels containing blood-stained earth, three pistols, one gun and one containing empties for onward transmission. He delivered the crime empties parcel as well as fire-arms parcels to the office of the Forensic Science Laboratory Lahore. Thus, from the testimony of these witnesses one cannot say that the investigation has been conducted in a dishonest manner in this case. It is not even established that the recovered articles i.e, crime empties as well as fire-arms were kept together by the Investigating Officer. What is established from the record is that the crime empties were picked up on 31-1-1978, whereas three pistols were recovered and taken into possession on 1-2-1978. Thereafter these articles were deposited in the Malkhana on 2-2-1978. They remained in the Malkhana until 27-2-1978 when they were forwarded to the Forensic Science Laboratory. Gun (Exh.P.14) was recovered on 2-2-1978 and apparently was deposited on the very same date in the Malkhana. In the light of what is established on the record we decline to arrive at the conclusion that there was any possibility of tampering with these B things. We also have nothing on the record that the investigation had been conducted in a dishonest manner in the instant case. We, therefore, consider that the recovery evidence has corroborative value in the instant case. Learned counsel then took us through the testimony of three eye-witnesses in the instant case. He pointed out that the statements of Sajawal and Bahawal P.Ws. Have not been relied upon by the trial Court. We have gone through the testimony of these two eye-witnesses and we agree with the learned trial Court that they were rightly disbelieved. Both these eye-witnesses have tried to make material improvement in their statements before the trial Court and so far as Bahawal P.W. Is concerned, he had stated that Asghar Ali, acquitted co-accused, and Akbar Ali appellant fired at Ahmad deceased with pistols which hit on his person and Munawar appellant as well as Aziz, acquitted co-accused, fired at Muhammad Sadiq P.W. Which hit him. Sajawal P.W. Had made the same statement. So far as Muhammad Sadiq P.W. Is concerned, the first improvement made by him was that he stated in the F.I.R. That Aziz, acquitted co-accused, was armed with Dang, whereas before the trial Court he stated that he had a gun. Then the second improvement which he made in his statement was that he and his brother Ahmad deceased had asked the accused-party not to raise hue and cry at the marriage ceremony and that later on the accused-party had threatened both of them that they would wreak vengeance for the insult and that it was due to this grudge that the accused-party had attacked him and his brother Ahmad deceased. We have carefully studied the statements of these eye-witnesses and as we have pointed out earlier, the testimony of Sajawal and Bahawal P.Ws. Were rightly rejected. In our view they were not present on the spot. But so far as Muhammad Sadiq P.W. Is concerned, he had sustained injuries in the course of the occurrence and his presence on the spot is clearly established. There is no background of previous enmity between the parties and, therefore, in our considered opinion, Muhammad Sadiq P.W. Had no motive to falsely implicate the accused-party. However, applying the principle of abundant caution it would be proper in this case to rely on the testimony of Muhammad Sadiq P.W. Only to theF extent that it finds corroboration through independent evidence coming forth in the form of recoveries evidence. If the testimony of Muhammad Sadiq P.W. Is read alongwith the recovery evidence, in the instant case, as well as with motive and the medical evidence, then one could say that Asghar All acquitted co- accused was rightly given the benefit of doubt and acquitted as there was no corroborative evidence of theG testimony of Muhammad Sadiq P.W. So far as this particular member of the accused-party was concerned. Likewise no part had been assigned to Aziz acquitted co-accused in the F.I.R. According to the testimony of Muhammad Sadiq P.W., Akbar All appellant was armed with pistol and he had fired a shot at the deceased. The medical evidence is to the effect that the deceased died as a result of single shot. The recovery evidence is to the effect that the crime empties picked up from the spot (Exhs. P.7, P.8 and P.10) matched with pistol (Exh.P.12) which had been recovered from Akbar Ali appellant. Thus, so far as H Akbar Ali appellant is concerned, in our view in the light of the eabove evidence his conviction under section 302, P.P.C. Was quite proper and it is accordingly maintained. So far as Munawar appellant is concerned, it was submitted by learned counsel that according to the testimony of Muhammad Sadiq P.W. He did not cause any injury to the deceased and that if he had fired shots through his pistol, he only caused injuries to Muhammad Sadiq P.W. On his leg, thigh and chin. These fire-arm injuries on the person of Muhammad Sadiq P.W. Are recorded also by the Medical Officer. Thus, the argument of learned counsel is that even if one of the crime empties picked up from the spot, namely, Exh.P.9, matched with pistol (Exh.P.13) recovered from Munawar appellant, according to the eye-witness account since he had not caused any injuries to the deceased and had only caused injuries to Muhammad Sadiq P.W., he could at the most be convicted under section 307, P.P.C. And sentenced thereunder.
We agree with him. In the light of the ocular testimony of Muhammad Sadiq P.W. He only -caused injuries to this witness and not to the deceased. 'Therefore, he cannot be burdened with common intention to cause the murder of the deceased. In the light of what has been discussed above, his conviction AS well as sentence awarded to him under section 302, P.P.C. Were not proper and these are accordingly set aside. Instead Munawar appellant is convicted under section 307, P.P.C. And sentenced to seven years' rigorous imprisonment plus fine of Rs,250 or in default to underg fifteen days' simple imprisonment with the direction that if the fine is recovered from him, it should be paid as compensation to Muhammad Sadiq P.W. The Jail authorities are directed to grant him the benefit of the provisions of section 382-H, Cr.P.C. At the time of computation of his sentence of imprisonment. His appeal is accepted to this extent. The death sentence awarded to Munawar appellant is not confirmed.
So far as the sentence awarded to Akbar Ali appellant is concerned, learned counsel attempted to argue that since he had not any direct motive to kill the deceased and furthermore since he did not repeat his shot, he should be awarded lesser penalty. We have heard learned counsel to a considerable length but we are not convinced in our mind that any extenuating circumstance is made out in the case of Akbar Ali appellant for justifying lesser penalty in his case. We have already stated that his conviction under section 302, P.P.C. Was quite justified and is accordingly maintained. Since we do not find any extenuating circumstance in his case, in our view the sentence of death plus fine of Rs,500 awarded to him in the instant case were quite proper and are accordingly maintained. The result is that the appeal of Akbar Ali appellant is dismissed. The death sentence awarded to him is hereby confirmed.
' In the light of what has been discussed above we do not find any substance.Is Criminal Reivision No,350 of 1982, which is accordingly dismissed in limine.