' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No,36/82 and the connected Murder Reference No,20182 arise from the judgment of learned Sessions Judge, Jhelum, whereby he on 23-11-1981 while acquitting Zulqarnain convicted Muhammad Saglain, Muhammad Younis, Nazar Hussain and Muhammad Idrees appellants under sections 302/34 and 307/34, P.P.C. For the double murder of Said Amir and Muhammad Hussain and murderous assault on Muhammad Bashir P.W. And sentence them as under:-
(i) Under section 302/34, P.P.C.-- Muhammad Saqlain and Nazar Hussain to death and a fine of Rs,2,000, in default thereof one year R.I. On two counts. Muhammad Younas and Muhammad Idrees to imprisonment for life and a fine of Rs,1,000, in default thereof 6 months' R.I. On two counts.
(ii) Under section 307/34, P.P.C.-- All the appellants to 10 years' R.I. And a fine of Rs,1,000, in default thereof 6 months' R.I.
' The learned trial Court directed that the sentences of fine under section 302/307/34, P.P.C. And sentences of imprisonment under section 307/34, P.P.C. Awarded to Nazar Hussain and Muhammad Saglain appellants would take effect if their death sentences on two counts are not confirmed by the High Court or changed into some terms of imprisonment and in that case their sentences would run concurrently. The sentence of imprisonment awarded to Muhammad Younas and Muhammad Idrees appellants would also run concurrently except of fine. It was further directed that the amount of fine under section 302/34, P.P.C. When recovered be paid to the legal heirs of both the deceased in equal share, as compensation. The amount of fine when recovered under section 307/34, P.P.C. Half of it be paid to Muhammad Bashir injured witness as compensation.
2. The occurrence took place on 30-3-1981 at 5-30 p.m. In the house of the deceased situated in village Sarkalan of Police Station Kallar Kahar. The F.I.R. Is Exh.P.A. The statement of Anar Khan, brother of the deceased made by him at the Police Post Buchhal Kalan on the same day which was recorded by Muhammad Anwar A.S.1., P.W.12. Formal F.I.R. Exh.P.A./1 was drawn up on the same day at 8-00 p.m. At Police Station by Muhammad Rafiq, Moharrir Head Constable P.W.1. The distance between place of occurrence and the Police Station Kallar Kahar is 13 miles.
3. The parties are inter-related. Muhammad Saqlain and Muhammad Idrees appellants are real brothers. Nazar Hussain appellant is uncle of Zulqarnain, acquitted accused. Khan Muhammad, Chairman is the husband of maternal aunt of Muhammad Younas appellant. The mother of Idrees appellant is Meser of Nazar Hussain appellant. The daughter of Rab Nawaz, the uncle of Idrees appellant is the wife of Muhammad Ajaib maternal uncle of Khan Muhammad, Chairman.
Muhammad Ashraf, father of Muhammad Idrees appellant is Meser of Anar Khan complainant and Muhammad Hussain deceased. Lal Khan is maternal uncle of the deceased. The mother of Idrees appellant is the real cousin of the wife of Anar Khan P.W.8. Shain Khan was the uncle of the complainant. His wife was Phhuphi of Mst. Sowar Khatun. Sher Khan P.W. Is the cousin of the complainant. Muhammad Ashraf, father of Muhammad Idrees appellant is the maternal cousin of Sher Khan P.W.
4. The motive as alleged by the prosecution was that Subedar Lal Khan, the maternal-uncle of Muhammad Hussain deceased contested local bodies election against Khan Muhammad, the maternal uncle of Muhammad Younas appellant. Muhammad Khan was elected as a Chairman.
Lal Khan questioned the result of election before the Commissioner. Resultantly, Muhammad Khan was removed from Chairmanship. Further, 6-7 days before the occurrence, the appellants had a quarrel with both the deceased. The matter was, however, settled in the Bradri.
5. As far the main occurrence, it has been stated that on the eventful day at about 5-30 p.m., the two deceased, Anar Khan P.W.8 and Muhammad Bashir P.W.10 were sitting in the courtyard of the Baithak of Subedar Lal Khan and were discussing about the removal of Khan Muhammad from Chairmanship. Muhammad Hussain deceased was narrating this fact when the appellants and Zulqarnain happened to pass through the lane and overheard Muhammad Hussain. The appellant Nazar Hussain abused Muhammad Hussain who returned the abuses. While moving towards their house, the appellants and Zulqarnain threatened Muhammad Hussain with dire consequences.
Thereafter, Anar Khan, two deceased and Bashir Ahmad went to their houses and sat on the cot lying in the courtyard of the house of deceased. After a shortwhile, the appellants armed with guns while Zulqarnain carrying Lathi, climbed over the roof top of Qasim's house. They raised Lalkara. On this Bashir P.W., Anar Khan complainant and Said Amir deceased went to the roof top of Muhammad Afzal's house. Zulqarnain raised Lalkara that the deceased and others be not spared.
In the meantime Muhammad Khan P.W. Came in the courtyard. Muhammad Idrees appellant fired shot hitting Muhammad Bashir in his left thigh and Muhammad Younas appellant fired shot hitting Said Amir deceased on his left shoulder. Muhammad Saglain fired shot hitting Said Amir deceased on head. He fell down and died. Muhammad Hussain deceased was climbing on the stairs when Nazar Hussain appellant fired a shot hitting on his head. He fell down and succumbed to the injuries. The appellants then ran away raising Lalkaras.
6. Dr. Asghar Hamid Qureshi, P.W.11 conducted post-mortem examination on the dead body of Said Amir on 31-3-1981 at 8-00 a.m. He found following injuries:-
(1) "An oblique fire-arm wound 1/4" x l 1/2"/8" x brain deep on anterior part of the scalp 1/2" to the right of mid line and 1-3/4" behind the forehead. The margins were inverted. This was the entry wound. It was going backwards and slightly downwards and to the left making a hole in the frontal bone.
(2) A fire-arm wound 4" x 1/4" x chest cavity deep on the upper part of left chest between neck and left shoulder, more near the base of the neck and slightly on the back. Blood was coming out of the wound. It was going downwards into the left chest cavity. The margins of the wound were contused and inverted. This was entry wound. Corresponding holes were present in the shirt.
(3) An abrasion 1" x 1/8" on back of the scalp 41" behind and slightly above left ear. No blackening or scortching was present around the wounds or the clothes."
' There was an oblique clean hole in the frontal bone underneath injury No,1. A deformed pellet was found embedded in the inner table of the occipital bone 1" to the left of the mid line on the back.
The occipital bone was fractured. The right middle and anterior carneal fossae were also fractured.
Free blood was present inside the carneal cavity. The brain was destroyed along the course of the pellet from before backwards. The pellet was sealed in a glass bottle. Left second rib was fractured underneath injury No,2. There was collection of blood around the posterior chest wall towards the posterior part. The left pleural cavity was full with blood and left pleura was injured. The left lung was injured from above downwards underneath injury No,2. One deformed pellet was found embedded inside left diaphragm. It was removed and was sealed alongwith the previous pellet, in the same bottle. The heart was healthy and both the chambers were empty. Blood vessels were injured. Other organs in the chest cavity were healthy.
' The diaphragm was injured on left side. The stomach was healthy and contained five ounces of semi-solid and semi-digested paste like food. The small intestine was healthy and contained chyme and the large intestine was healthy and contained a small amount of solid stool. The bladder was healthy and was full of urine. Rest of the organs were healthy.
' In his opinion, the death was due to injury and destruction of the brain and injury to the left lung and bleeding from injuries Nos. 1 and 2. The injuries were individually as well as collectively sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 2 were caused by firearm weapon and injury No,3 was by blunt weapon. The time between injuries and the death was a few minutes and between death and post-mortem was 12 to 20 hours.
' On the same day at 9-30 a.m., the doctor performed post-mortem examination on the dead body of Muhammad Hussain and found the following injuries.
(1) Two fire-arm wound each 1" x 1" x brain deep on the back of scalp, 4" above and to the right of occiput. The margins were inverted. These were entry wounds. These were directed to the left slightly upward and forward.
(2) Bluish black swelling of left lids in area 21" x 1".
(3) Bluish black swelling right upper and lower eye-lids in area 2" x 1"
(4) Abrasion 1" x 3/8" on back of right hand."
' No blackening or scortching was present around the fire-arm wounds.
' There was extensive bleeding under the scalp. One deformed pellet was removed from under the scalp on left side of back of scalp. It had passed outos skull bone on left side and was embedded under the scalp. There were two holes in the vault of skull underneath injury No,l. There was extensive fracture of the vault of the skull, more on right side. There were two big incomplete holes in the vault of the skull on the left side due to the exit of the two pellets. One large deformed pellet and one small piece were found are removed from this part of skull bone. The right middle and both anterior and posterior carneal fossae were fractured. The heart was healthy and both the chambers were empty. Rest of the organs in the chest cavity were healthy. The brain and membranes were destroyed and free blood was present inside the carneal cavity. The stomach was healthy and contained five ounces of semi-digested food which consisted of more fluid part.
Small intestine was also healthy and contained chyme. Large intestine was also healthy and contained stools. The bladder was healthy and full of urine. Rest of the organs in the abdomen were healthy. Two deformed pellets and one piece of a pellet removed from the dead body were sealed in a glass bottle and handed over to the police.
' In the opinion, the death was due to injury to the brain and bleeding from injury No,1. This injury was sufficient to cause death in the ordinary course of nature. Injuries Nos. 2 and 3 were the result of injury No,1 caused by fire-arm Injury No,4 was caused by blunt weapon and was simple in nature.
The time between death and the injuries was a few minutes and between death and post-mortem was 12 to 20 hours.
' On the same day at 7-30 a.m., the doctor had examined Muhammad Bashir P.W. And found following injury on his person: "Eight pellet wounds in an area 8", x 6" on front and outer side of left thigh, over lower half and knee joint area, each pellet wound measured 1/8" x 1/8" x skin deep. There were corresponding holes in the shirt and Shalwar, both stained with blood."
' The injury was simple and caused by fire-arm within 12 to 18 hours of the examination.
7. Muhammad Anwar A.S.I., P.W.12 took crime empty Exh.P.1 from the spot in the presence of Muhammad Bashir P.W.S. Muhammad Saqlain and Muhammad Idrees appellants were arrested on 2-4-1981 by Ghulam Murtaza, S.H.O., P.W.13. Muhammad Saqlain got recovered gun Exh.P.8 from his house which was taken into possession vide memo. Exh.P.L. Attested by Muhammad Khan P.W.7 and Anar Khan P.W.B. Idrees appellant got recovered gun Exh.P.7 from his residential Kotha which was taken into possession vide memo. Exh.P.K. Attested by the same witnesses. Nazar Hussain was arrested on 11-4-1981. It may be noted that no recovery was effected from Nazar Hussain and Muhammad Younas. The crime empty and the two guns were received in Forensic Science Laboratory on 23-4-1981. The report Exh.P.Y. Reveals that crime empty Exh.P.1 was fired from gun Exh.P.8 recovered from Saqlain.
8. Prosecution examined 13 witnesses in all. Anar Khan P.W.8 and Bashir P.W.10 deposed about the background of the murders and also gave ocular account of the occurrence. They supported the prosecution case as stated in the early part of the judgment. They claimed to have seen the appellants firing at the two deceased and causing their death and injuries to Muhammad Bashir P.W.10. Muhammad Khan P.W.9 was also an eye-witness. He supported the statement of the complainant and Muhammad Bashir P.W.10 in all material particulars. Muhammad Sher P.W.5 and Muhammad Anwar A.S.I., P.W.12 stated about the recovery of crime empty Exh.P.1 from the place of occurrence. Muhammad Khan son of Sardar Khan P.W.7 and Anar Khan P.W.8 stated that Idrees and Saqlain appellants had got recovered gun Exhs.P.7 and P.8 respectively. Dr. Asghar Hamid Qureshi P.W.11 has proved the postmortem examinations reports and the medico-legal report pertaining to the injuries of Muhammad Bashir P.W. The rest of the evidence in more or less of formal nature.
9. When examined under section 342, Cr.P.C., Muhammad. Younas and Nazar Hussain denied all incriminating circumstances and raised plea of false implication on account of enmity and suspicion. Muhammad Saqlain partly admitted relationship of the parties inter se. He denied the recovery of gun Exh.P.8 from him. He stated that the occurrence took place in dark hours of the night. There was cross-firing between the parties in which he and his co-accused were invovled falsely. Muhammad Idrees appellant admitted relationship between the parties to some extent. He denied the recovery of gun Exh.P.7 from him. He stated that the occurrence took place after the sunset in the darkness. There was cross-firing between the parties in which, he and his co-accused had been involved falsely. He further stated that gun Exh.P.7 was a licensed gun of Manzoor Hussain, son-in-law of Anar Khan complainant and it was planted on him to strengthen the main murder case. In defence, he tendered photostat copy of Expense Book, with regard to Muhammad Khan son of Sardar Khan P.W. , who was present on his duty on the day of recovery of gun Exh.P.7.
This document was marked as 'A', subject to objection as to its admissibility. No witness was produced in defence.
10. The learned trial Court while disbelieving the motive has based conviction of the appellant on the ocular evidence and the recovery of gun from Muhammad Saglain appellant.
11. Learned counsel for the appellants submitted that the eye-witnesses are related to the deceased; that their evidence is in conflict with the medical evidence, inasmuch as, according to the statements of the eye-witnesses, the assailants and the deceased were looking face to face at the time when the shots were fired but the location of the injuries and the directions from where the injuries appear to have been fired, falsify it; that since guns and the empties were sent together for examination, to Forensic Science Laboratory, therefore, the recovery from Saglain was of no consequence; that no recovery was effected from Nazar Hussain and Muhammad Younas appellants and that the contents of stomach and bladder show that the occurrence did not take place at the time as stated by the prosecution. On the other hand, the learned counsel for the State while supporting the judgment of the trial Court maintained that the prosecution has successfully brought home the guilt to the appellant through truthful witnesses.
12. We have considered the arguments advanced by the learned counsel for the parties with care.
Keeping in mind that it is a case where the appellants have denied all incriminating circumstances and have not raised any special plea and as such the entire burden is on the prosecution to prove its case qua each appellant beyond reasonable doubt through reliable witnesses, we proceed to examine the foundation of the prosecution case i.e, F.I.R., first. We find that the occurrence took place at about 5-30 p.m. And the statement Exh.P.A. Was made at police post Buchal Kalan at 7-15 p.m. There is nothing on record to show that Exh.P.A. Was not a genuine document or that it was not written at the time and place as it purports. The names of the appellants, weapons carried by them, the individual part played by them and the names of the witnesses are mentioned therein.
The learned counsel for the appellants has not been able to shake the F.I.R. The foundation of the case is, thus, concrete.
13. Adverting to the main pillar of the prosecution i.e, ocular testimony, we propose to appreciate ocular account in the light of guidelines given by the Honourable Supreme Court in case 'Niaz v.
State' reported as PLD 1960 SC (Pak.) 387, wherein it has been stated: "Whenever interested persons claiming to be eye-witnesses of an occurrence charge person against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in Tact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it."
Coming to the first question, we find that the occurrence having taken place in/near their houses, the three eye-witnesses had a probable cause to be present on the spot at the time of occurrence.
By the fact of injuries on the person of Muhammad Bashir P.W., his presence is very much established. Since the occurrence took place in daylight and the appellants were not only previously known to the eye-witnesses but were related to the complainant and Muhammad Bashir P.W. To some extent, therefore, they were in a position to identify the offenders. This brings us to the further question as to whether the eye-witnesses can be relied upon without corroboration or not. We find that the eye-witnesses have attributed the injuries found on the person of the two deceased and Muhammad Bashir P.W. To the four appellants. The number of the injuries and the persons to whom the eye-witnesses have named does commensurate. The eye-witnesses have successfully stood the test of cross-examination. Mere relationship with the deceased is no ground for the rejection of their evidence, more particularly that they are related to the appellants as well.
We do not see any material conflict in the statements of the eye-witnesses and the medical evidence. At the time of attack it is but natural that the deceased and Muhammad Bashir P.W.
Might have moved and changed their position and as such would have received injuries on different parts of bodies. The learned counsel has failed to point out any major contradiction, material discrepancy and dishonest improvement in the statements of the eye-witnesses. The statement made by the eye-witnesses are in consonance with the probabilities. The statements materially fit in with other evidence and circumstances of the case and have inspired confidence of truth in our mind. We do not see any inherent infirmity in the statements of the eye-witnesses.
We have been very much impressed by the fair investigation conducted in the case. The Investigating Officer could easily plant recoveries of gun and Lathi on Nazar Hussain, Muhammad Younas and Zulqarnain but this was not done. The Investigating Officer could also plant the recovery of one more crime empty from the spot. As far the acquittal of Zulqarnain by the trial Court, the same does not damage the verasity of the eye-witnesses. The trial Court has not disbelieved the witnesses. The trial Court has rightly distinguished the case of Zulqarnain and has given him benefit of doubt. For all these reasons, we do not see any force in the submissions made by the learned counsel for the appellants. D We are fully convinced that the eye-witnesses can safely be relied upon and there is nothing which may make the conviction on their statements unsafe. On the question of sentence we find that the appellants have taken the lives of two persons and, launched murderous assault on Muhammad Bashir P.W. Without any legal and factual justification. We do not see any mitigating/extenuating circumstance in E favour of Muhammad Saqlain and Nazar Hussain appellants for lesser punishment.
13. For what has been stated above, the appeal is dismissed. The y sentences of death awarded to Muhammad Saqlain and Nazar Hussain are confirmed.
DEATH SENTENCE IS CONFIRMED.
' Appeal rejected.