' JAVID IQBAL, C. J.-Sher Khan son of Qaim Khan, aged 75 years on his own saying as well as on the basis of doctor's opinion, armed with '12 bore pistol, and Abdul Rahman ali is Mani, son of Mir Zaman, age not given, armed with revolver, both distantly related, vide judgment, dated 25-10-1983 of the Additional Sessions Judge, Rawalpindi, have been convicted under section 302/34, P. P. C. For the double murder of Mst. Maroof Sultan, an old lady, and a boy Imtiaz, aged 16/17, both passengers in a bus, and Abdul Rahman alias Mani was sentenced to death plus fine of Rs, 20,000 or in default to undergo two years' rigorous imprisonment with the direction that if the fine was realized from him, Rs, 10,000 out of the same be paid to the heirs of each deceased, whereas Sher Khan WAS sentenced to imprisonment for life plus fine of Rs, 20,000 or in default to undergo two years' rigorous imprisonment with the direction that if the fine was realized from him, Rs, 10,000 out of the same be paid to the heirs of each deceased. They were also convicted under section 307/34, P. P.
C. For murderous assault on Muhammad Sabir (P. W. 1) and each of them was sentenced to seven years' rigorous imprisonment. Plus fine of Rs, 5,000 or in default to undergo six months' rigorous imprisonment with the direction that the sentences of imprisonment would run consecutively. The appeal of the convicts is being taken up alongwith the reference for the confirmation of death sentence awarded to Abdul Rahman alias Mani and these matters are being disposed of together with Criminal Revision No, 38 of I 84 for enhancement of sentence awarded to Sher Khan from life imprisonment to death and also for enhancement of sentence of both the convicts under sections 307/34, P. P. C. From seven years to ten years' rigorous imprisonment as well as for enhancement of the amount of compensation. The aforesaid Criminal Revision has been admitted for full hearing.
All these connected matters are being disposed of by this judgment.
2. The occurrence took place on 29-10-1981 at 12-45 p.m. In a bus in front of residential colony of Kohe Noor Mills, Peshawar Road, Rawalpindi, at a distance of three miles from Police Station Rawalpindi Cantt. Statement (Exh. P. A.) was made by Muhammad Sabir (P. W. 1) at 1-30 p.m. On the same day and it was recorded by Ghulam Muhammad A. S. I. (P. W. 14) who was present on patrol duty in front of Kohe Noor Mills, Peshawar Road, Rawalpindi, and Muhammad Sabir P. W. Appeared before him to make said statement. On the basis of the aforesaid statement formal F. I. R. (Exh. P.
A./i) was registered at the police station at 1-45 p.m. On the same day by Barkat Ali S.
1. (P. W. 11). Initially case was registered under section 307/34, P. P. C. But on the death of both the deceased in the hospital after about an hour section 302/34, P. P. C. Was added thereto.
3. The motive for crime as stated in the F. I. R. Is that one and quarter years before the occurrence appellant Sher Khan's son namely, Zamurrad Khan was murdered and in that case Muhammad Sabir P. W. Along with four others was chained. Muhammad Sabir P. W. Was released on bail and was travelling in the fateful bus on the day of occurrence after having attended a peshi in the Court in connection with a case against him under section 13 of the West Pakistan Arms Ordinance XX of 1965. The prosecution version is that both the appellants had boarded the bus, armed as described above, and on seeing Muhammad Sabir P. W. Fired at hint but the shots fired by both of them missed and hit the two passengers of the bus thereby killing them.
4. In the F. I. R. The occurrence is reported to have taken place in the following manner : On the fateful day Muhammad Sabir (P. W. 1) along with Muhammad Ashraf (P. W. 13) and Muhammad Taj (P. W. 8) after appearing in a peshi of the case against him under section 13 of the West Pakistan Arms Ordinance XX of 1965, was returning to his village. He boarded the bus in question. He and Muhammad Taj P. W. Sat together on the third seat behind the front seat and Muhammad Ashraf P.
W. Sat on the left side seat of the said bus. When the bus arrived at the bus-stand of Kohe Noor Mills, Peshawar Road, both the appellants boarded the bus from the back entrance. On seeing Muhammad Sabir P. W. Sher Khan appellant raised a lalkara to the effect that he would not be spared and that the murder of his son Zamurrad Khan would be avenged. On this lalkara Abdul Rahman alias Mani appellant took out his revolver and fired at Muhammad Sabir P. W. But Muhammad Sabir P. W. Immediately ducked under the seat and the bullet was missed hitting a female traveller sitting on the front seat by the name of Mst. Maroof Sultan on the head.
Immediately thereafter Sher Khan appellant fired a shot through .12 bore pistol at Muhammad Sabir P. W. But again by sheer luck Muhammad Sabir P. W. Was saved and the shot hit a young traveller boy who sat on the front seat, on the head. The appellants seeing Muhammad Sabir P. W.
Lying on his seat thought that he had been done to death and hence alighting from the bus they ran away. The female traveller as well as the boy traveller were seriously injured due to the shots fired by the appellants through their respective fire-arms. They were lying in an unconscious state in the bus and the occurrence was witnessed by Muhammad Sabir, Muhammad Ashraf and Muhammad Taj P. Ws.
5. Sher Khan appellant was arrested on 11-11-1981, by Allah Dad Khan I. P. (P. W. 4), whereas Abdul Rehman alias Mani appellant was arrested on 15-2-1982, from Hyderabad Sind by Bahadur Khan S. I. (P. W. 12). No recovery was effected from Sher Khan appellant in the instant case. But at the instance of Abdul Rehman alias Mani appellant was recovered revolver (Exh. P. 9) which was taken into possession vide Memo. Exh. P. K. Dated 21-2-1982. The attesting witnesses are Bhag Hussain (not produced), Lai Khan (not produced), and Bahadur Khan S. I. (P. W. 12). It may be pointed out at this stage that no crime empty was picked up from the spot and, therefore, the recovery of the fire- arm in the instant case is of no consequence. It was not sent to Forensic Science Laboratory. Since the recovery in the instant case has no corroborative value, the case of the prosecution is built mainly on the ocular testimony.
6. The appellants in their statements before the trial Court totally denied having participated in the occurrence. Abdul Rahman alias Mani appellant disowned the recovery and both of them stated that they have been falsely implicated due to enmity. Sher Khan appellant stated that Muhammad Sabir P. W. Was their old enemy, and he had already got registered many cases against his relatives and that this case was one of the series of said cases. He stated that they had been falsely involved in this case, although they did not know anybody in the said case and the deceased were not known to them. He also stared chat he was an old man of 75 years with a very weak eye-sight. He had never handled any arm nor he was capable of doing so, specially after the murder of his son he had been rendered absolutely infirm. He produced a photo copy of newspaper marked 'A' to show the activities of Muhammad Sabir P. W. As smuggler of charas etc. Abdul Rahman alias Mani appellant produced in defence attested copies of certain F. I. Rs, to show that Muhammad Sabir P. W. And Muhammad Ashraf P. W. Had been continuously dealing in illegal transactions of arms and intoxicants and Muhammad Ashraf P. W. Was holding a permanent Adda for sale of charas etc. He also pointed out that Muhammad Ashraf P. W. Was under the influence of Muhammad Sabir P. W. He likewise produced another F. I. R. Against Muhammad Ashraf P. W. In which Ch. Muhammad Zaman S.-I. Was complainant to show that Muhammad Ashraf P. W. Was a hired criminal. He likewise stated that they never boarded the bus in question and that they were innocent and have been falsely implicated due to enmity.
7. The prosecution has produced four eye-witnesses of the occurrence namely, Muhammad Sabir (P. W. 1), stated to be inimical towards the accused party, Muhammad Taj (P. W. 8), declared hostile at the trial stage, Muhammad Ashraf (P. W. 13) also declared hostile at trial stage. His statement made before the trial Court shall be considered by us to the extent that it corroborates the testimony of Muhammad Sabir P. W. And Mir Afzal (P. W. 9), not cited as an eye-witness in the F. I. R.
But preduced subsequently at the trial stage and even then having turned hostile. Now the picture which emerges from the record is this : There is no recovery evidence of any consequence in this case on which reliance could be placed. The ocular testimony comes forth from Muhammad Sabir (P. W. 1) who is admittedly inimical towards the accused party, for, he was involved as one of the accused persons in murder case of Zamurrad Khan, son of Sher Khan appellant. In that murder case Jima Khan had been convicted and sentenced to death for causing the murder of Zamurrad Khan, son of Sher Khan appellant, whereas Muhammad Sabir P. W. Had been given the benefit of doubt and acquitted by the trial Court. This judgment had been confirmed by this Court. The ocular testimony of Muhammad Sabir P. W. Is in the field and the trial Court has based the conviction as well as sentence awarded to the appellants on this testimony supported by the testimony of Muhammad Ashraf (P. W. 13), the medical evidence and the motive version. However, as it has been pointed out above, Muhammad Taj (P. W. 8) and Mir Afzal (P. W. 9) turned hostile and, therefore, their testimony will not be considered by us in this case.
8. Dr. Muhammad Akhtar Khan (P. W. 3) medically examined the boy, aged 16 years in this case while he was still alive, at 2.00 p. m. On 29-10-1981, and found on his person a lacerated wound on the back of head to the right side with profuse bleeding from the wound and the brain matter coming out. The injury was caused by fire-arm within about an hour and was declared as grievous.
' On 29-10-1981 Dr. Mahmood Khan (P. W. 2) conducted post-mortem examination on the dead- body of the boy and noted the same injury on his person in the form of a circular wound of entry 1 cm. In size (stitched) on the back of head, 3 cm. Of the midline of the head towards the right side.
The right occipital bone had been fractured. In his opinion the deceased died of shock and intra- cranial and extra-cranial haemorrhage due to this injury which was sufficient to cause death in the ordinary course of nature. The injury was anti-mortem and was caused by fire-arm. One metallic foreign body was extracted from the skin above the left eye-brow which was handed over to the police in a sealed bottle.
' On 29-10.1981 at 4.30 p. m. He conducted the post-mortem examination on the dead-body of Mst.
Maroof Sultan deceased and found on her person an oval wound of entry 2 cm. In size on the right side top of head and backwards. The bullet had passed below the scalp and the exit wound on the left side of head was 9 cm. In size. There was fracture of right partietal occipital and left parietal bones under the injury. In his opinion the deceased died of shock and extensive external and iritra- cranial haemorrhage due to this injury which was sufficient to cause death in the ordinary course of nature. The injury was anti-mortem caused by fire-arm. The time between the injury and death was immediate and time between death and post-mortem examination was about 2 to 3 hours.
' In the cross-examination he stated that both the injuries ori the deceased persons were the result of bullet shots. There was no burning of the skin around the entry wound showing that the distance of fire-arm from the deceased was more than 10/12 feet. It may be pointed out at this stage that we examined the case properly in order to find out as to what is the nature of the metallic foreign body which had been extracted from the skin above the left eye-brow of the boy. We find that it is a circular pellet and decidedly not a bullet. It must also be noted at this stage that according to the prosecution version Sher Khan appellant was armed with .12 bore pistol, whereas Abdul Rahman alias Mani appellant was armed with a revolver. In the case of the woman murdered in the instant case, there is an oval wound of entry 2 cm. And exit wound 9 cm. In size and this appears to be a bullet injury. But in the case of the boy the wound of entry is 1 cm. And the metallic foreign body which had been extracted from his person appears to be a pellet indicating that it might have been .12 bore pistol through which the shot had been fired at him. Tbus, so far as the medical evidence is concerned, to us it appears that two kinds of fire-arms were used apparently by two persons who were the assailants as a result of which two passengers in the bus were killed.
9. We have heard learned counsel for the parties and carefully perused the record in the instant case. There is no denying the fact that Muhammad Sabir P. W. Is involved as one of the accused persons.In the murder case of Zamurrad Khan, son of Sher Khan appellant. However, in that murder case Muhammad Sabir P. W. Had been acquitted, whereas Juma Khan accused was convicted and sentenced to death. The prosecution version in respect of motive is that while the murder case of Zamurrad Khan was still at the trial stage, Muhammad Sabir P. W. Had been admitted to bail but on the fateful day he was returning after entering appearance in another criminal case against him. He boarded the bus along with Muhammad Taj and Muhammad Ashraf P. Ws. When the bus came to the bus-stand of Kohe Noor Mills, Peshawar Road, Rawalpindi the appellants are stated to have boarded the bus and on seeing Muhammad Sabir P. W. In the bus, they immediately took out their firearms and fired shots at him. Fortunately he was saved, but unfortunately two other passenger travellers in the same bus, an old lady and a young boy, were hit by the said shots and were murdered. The motive has been believed by the trial Court and we see no reason why we should not agree with the trial Court so far as the motive version is concerned. Thus, we are relying on the motive version which is not only plausible but also natural. We have already pointed out that the recovery evidence, in the instant case, is of no corroborative value. Consequently about the occurrence there is in the field only ocular testimony and now let us examine the same. The ocular testimony comes forth, in the instant case, from Muhammad Sabir (P. W. 1) who is admittedly inimical towards the accused party. He is stated to be a bad character previously involved in criminal cases, also a smuggler or dealing with shady transactions of sale of arms and narcotics.
Learned counsel for the appellants vehemently argued that since this eye-witness suffered from these disabilities, he should not be believed or relied upon. But we made it clear to learned counsel that if he was a person of bad character etc., he could still be a credible., witness. In this connection reliance can be placed on Abdul Hakim etc. v. The State (1), in which it was held that a person of bad character can still be a credible witness as it is the inherent worth of his statement that would matter and not the character. Similarly it was held in Nazo alias Ali Nawaz v. The State (2) that mere fact of a witness having been prosecuted for a criminal offence by itself would ne no reason for discarding or doubting his testimony. Learned counsel also submitted that Muhammad Sabir P. W.
Was an interested witness who had a motive to falsely implicate the appellants as he was their enemy and that, therefore, also when his testimony was uncorroborated by any evidence coming from an independent source, he should not be relied upon. On this point we made it clear to learned counsel that the principle of safe administration of criminal justice is not that an interested or inimical witness should not be D believed at all but it is that his testimony should be considered with abundant caution and it can be accepted after proper scrutiny or in accordance with its plausibility determined by the circumstances particularly when it is being corroborated or supported by circumstantial evidence, medical evidence, motive etc. In the instant case although Muhammad Sabir P. W. Is inimical but his version is plausible as well as acceptable, E and as we are going to explain, it is also supported or corroborated by circumstantial evidence etc. We are aware that he is the main eye-witness in the instant case. Muhammad Taj P. W. 8 also stated to be an eyewitness, had turned hostile. Similarly Mir Afzal (P. W. 9) who was not cited as an eye-witness in the F. I. R. And was produced subsequently, also turned hostile. However, there are certain aspects of the statement of Muhammad Ashraf (P. W. 13) which must not be ignored. He is also alleged to have turned hostile but he stated in the examination-in-chief that the names of the persons who fired in the bus were Sher Khan and Abdul Rahman alias Mani, although he did not see the said persons firing on anyone. In the cross-examination he stated that he knew that both the appellants were firing in the bus. He also knew that Muhammad Sabir P. W. Was challaned in the murder case of Zamurrad Khan son of Sher Khan appellant. It was correct that Sher Khan appellant had said in the bus that he was going to take the revenge of the murder of his son. It was also correct that due to their firing a woman and a boy were injured in the bus and that they subsequently died. He also admitted that his statement was recorded under section 164, Cr. P. C. By a Magistrate. It was correct that Muhammad Sabir P. W. Had laid under the seat of the bus when the appellants had fired at him. Thus the testimony of Muhammad Sabir P. W. Is being corroborated by Muhammad F Ashraf P. W. And Muhammad Ashraf P. W. Although stated to be person under the influence of Muhammad Sabir P. W. By the appellants, had no motive to falsely implicate the appellants. Now we may consider the medical evidence and to the extent it is supporting or corroborating the ocular testimony. According to Dr. Mahmood Khan P. W., the measurement of the injury on the head, of the woman was wound of entry 2 cm. In size and wound of exit 9 cm. This was obviously a bullet wound as stated by the doctor which could have been fired from a revolver and according to the prosecution version revolver was carried by Abdul Rahman alias Mani appellant. So far as the size of the head injury of the boy is concerned, it was a circular wound of -entry I cm. In size and metallic foreign body was extracted from the body of the boy. We
(1) PLD 1971 Kar. 239 (2) 1974 P Cr. L J 313 examined it and found out that it was round in shape like a large pellet and not at all a bullet.
Obviously it was part of a shot which could possibly have been fired through a fire-arm of the nature of 'I2 bore pistol or carbine. Thus, the sizes of the wounds on the two deceased, in the instant case, and the metallic foreign body recovered from the body of the boy make us arrive at the conclusion that two different kinds of fire-arms had been used obviously by two assailants. Thus, the medical evidence as part of circumstantial evidence is supporting the ocular testimony to the effect that the appellants out of whom one was armed with '12 bore pistol and the other was armed with a revolver on seeing Muhammad Sabir P. W. In the bus fired at him, each firing one shot, but since both of them had missed, the shots hit a woman and a boy travellers in the bus who as a result thereof were killed. Learned counsel insisted on us that we must not accept the ocular testimony of Muhammad Sabir P. W. In the instant case because he was himself a desperado and an enemy of the appellants and in support of his argument placed reliance on Fateh Muhammad v. The State (1), in which it was held that if direct evidence was itself intrinsically unreliable and of doubtful nature, then corroborative evidence of any form could be of no help to the prosecution. It was also a case of previous enmity existing between the complainant and accused parties and these observations were made in respect of the ocular testimony and it was held that it must require close scrutiny in the circumstances of that particular case. We are afraid that the authority cited by learned counsel is clearly distinguishable and is not on all fours with the facts of the present case. Thereafter learned counsel took us through Bahadur v. The State (2). In that case the accused had thrown acid on a woman resulting in grievous hurt to her and causing death of a baby of tender age in the lap of the woman. It was held in that case that the accused voluntarily caused grievous hurt to the woman and although he possessed knowledge that death of the baby was likely to result by contact with acid but the death sentence awarded to him was altered to imprisonment for life for the reason that the accused did not stand convicted for attempting at the life of the principal victim as it was not a case involving transfer of malice. On the basis of this authority learned counsel for the appellants wanted us to believe that the present case was likewise not a case involving transfer of malice. His reasoning was that if it is to be presumed that the appellants fired shots at Muhammad Sabir P. W. And he was not hit but a woman and a boy travellers of the bus were accidentally hit, then according to learned counsel since it was not a case involving transfer of malice, case was made out for the awarding of lesser penalty at least to Abdul Rahman alias Mani appellant like Sher Khan appellant. We do not agree with learned counsel. In fact, the facts of the cited case are distinguishable from the facts of the present case so much so that the facts of the present case clearly disclose that it is a case of transfer of malice.
Both the appellants in the present case did stand convicted for attempt at the life of the principal victim who was luckily saved but instead of him two other innocent persons travelling in the bus i. e.
An elderly woman and a young boy were murdered at the hands of the appellants. The facts of this case provide a good example of transfer of malice and the appellants have to be burdened with the liability for having murdered two innocent persons. In the light of what has been discussed above,
(1) PLD 1981 Lah. 403 (21 1984 SC MR 855 we are convinced in our mind that the prosecution has succeeded in establishing its case as against the appellants beyond any shadow of doubt. In the circumstances their convictions as well as sentences awarded to them were quite proper and are accordingly maintained. The result is that Criminal Appeal No, 132 of 1983 is dismissed. The sentence of death awarded to Abdul Rahman alids Mani appellant is hereby confirmed.
' Now we take up Criminal Revision No, 38 of 1984, which has already been admitted for full heating.
The main prayer in the criminal revision is for enhancement of sentence of Sher Khan appellant from life imprisonment to death. The reasoning is that be was armed with 12 bore pistol and he fired a shot at Muhammad Sabir P. W. Which he missed and instead it hit the boy Imtiaz who was travelling in the bus and eventually led to his death. The argument is that the part ascribed to him is identical to that which has been ascribed to Abdul Rahman alias Mani appellant for firing through his revolver at Muhammad Sabir P. W. And instead of hitting him, it hit the old lady Mst.
Maroof Sultan in the head which eventually led to her death. We may say that ordinarily Sher Khan appellant might also have been awarded the sentence of death but the trial Court awarded sentence of life imprisonment to him for the reason that it took a lenient view as Sher Khan appellant was admittedly more than 75 years old and had been facing the agony of trial since his arrest on 11-11-1981. We note from the record that at his own saying he is 75 years old and there is also in the record the opinion of the doctor about his age and state of health when he moved this Court for suspension of his sentence. Although his application for the same was dismissed by this Court the opinion of the doctor is to the effect that he suffers from T. B., his age is 75 years and his eye-sight is weak. Besides that, we also take this into consideration that he is the father of Zamurrad Khan deceased who had been murdered at the hands of the complainant party in the instant case, one of the alleged assailants being Muhammad Sabir P. W. Who was subsequently acquitted. Thus he is an old unfortunate man and, therefore, considering his old age, bad state of health and weak eye-sight, we are of the considered view that there was some justification on the part of the trial Court in these circumstances to award lesser penalty to him. We also find no reason why the sentence of both the appellants should be enhanced under section 307/34, P. P. C.
From seven years to ten years' rigorous imprisonment and likewise why we should enhance the amount of compensation. In our view the sentences passed by the trial Court, in the instant case, are quite adequate, and, therefore, no case is made out for enhancing the same. In the light of what we have discussed above, we do not find any substance in Criminal Revision No, 38 of 1984, which is accordingly dismissed.