' MUHAMMAD -MUNIR KHAN, J.-- This Criminal Appeal No,155/82 and the connected Murder Reference No,113/82 arise from the judgment of learned Sessions Judge, Attock whereby he on 5-5- 1982, while acquitting Mumtaz co-accused convicted Sultan Mehmud appellant under section 302, P.P.C. On two counts for double murder of Muhammad Razzaq and Muhammad Nur, son and father, respectively and sentenced him to death and a fine of Rs,2,000 on each count, in default thereof one year's R.I. The appellant was also convicted under section 307, P.P.C. For murderous assault on Muhammad Nawaz complainant and sentenced to 3 years' R.I. And a fine of Rs,2,000 in default thereof further R.I. For one year. It was directed that the fine when recovered be paid to the heirs of both the deceased as compensation.
2. The occurrence took place on 18-8-1980 at about Rotivela in open filed of village Thoha Mahram Khan of P.Ws. Talagang. The distance between the place of occurrence and the police station is 12 miles. The F.I.R. Exh.P.M. Was lodged by P.W.8 Muhammad Nawaz s/o Muhammad Nur deceased at the police station and was recorded by Muhammad Gulzar, S.H.O. P.W.13.
3. The motive as alleged by the prosecution was that three years before the occurrence Muhammad Nawaz complainant was suspected of having illicit relations with Mst. Ghulam Begum.
She married to Sultan Mehmud appellant two years before the occurrence. The suspicion of her illicit relations with the complainant could not be removed from the mind of the appellant and about 20 days before the occurrence, the appellant had also a quarrel with Muhammad Razzaq deceased over boundary line dispute but due to intervention of Manzoor Hussain, the dispute was settled.
4. As far the main occurrence, it has been stated that on the eventful day, Muhammad Noor deceased took his cattle for grazing in Rakh Part at a distance of one mile from his Dhok. Razzaq deceased was clearing up the thrashing floor in his Khalwara of the Dhok at some distance from the courtyard of the house of Muhammad Nawaz complainant, who was present in his courtyard.
Mat. Sherif Khatoon P.W. 9 and Rehmat Khatoon not produced were present near Razzaq deceased.
Sultan Mehmud appellant accompanied by Mumtaz, the brother of Met. Ghulam Begum both armed with short guns came near Muhammad Razzaq, raising Lalkara that he (Muhammad Razzaq) would not be spared. Mumtaz fired shot at Razzaq hitting at his arm. Muhammad Razzaq sat on the ground in injured condition. Sultan Mehmud appellant then fired second shot on the back of his chest from close range causing his immediate death. Muhammad Nawaz P.W.8 was witnessing the occurrence from his courtyard. After having done away with Muhammad Razzaq, the appellant and his co-accused Mumtaz Hussain proceeded towards the complainant raising Lalkaras who seeing them, started running to save his life. The appellant and Mumtaz co-accused allegedly followed him and fired at him thrice but he luckily remained unhurt. The complainant finally succeded in escaping, so the appellant and his co-accused made retreat. Thereafter, the complainant came to the place of murder of Muhammad Razzaq. He found him dead. At this juncture Mumtaz P.W. 11 came from Rakh Pari and told that when he (witness) was grazing his cattle in Rakh Pari with grandfather Muhammad Noor deceased, the appellant Sultan Mehmud and Mumtaz came there armed with guns. Mumtaz Hussain raised Lalkara and Sultan Mehmud fired shots at Muhammad Nur from close range, hitting him and causing his instantaneous death.
Mumtaz P.W.11 also disclosed that the murder of Muhammad Nur was seen by Resham Khan P.W.10 who was grazing his sheep nearby. Muhammad Nawaz P.W.8 then left for the police station for making report.
5. On 18-8-1980 Muhammad Gulzar S.I., P.W.13 inspected the spot. Fom the place of murder of Muhammad Razzaq, he took into possession three empties vide memo. Exh.P.G. Attested by Umar Hayat P.W.7 and Resham Khan- P.W.10. From the spot of the murder of Muhammad Nur no empty was taken into possession. Five pellets were found on the body of Muammad Nur which were taken into possession by Muhammad Gulzar, S.I., P.W.13 vide memo. Exh.P.J. Attested by the same witnesses.
6. On 19-8-1980, Dr. Awais Muhammad P.W.1 conducted post-mortem examination on the dead body of Muhammad Nur and found following injuries.
(1) "Lacerated wound conical shaped on upper part of front of right side of chest adjacent to the base of front of neck near the middle line length of the wound was 2". It was 6/8" in width on left side and 1/3" on right side. It was going deep and directed laterally and backward. Skin around the wound was blackened. There was also burning of shirt corresponding to this injury.
(2) Eight wounds on the back of right side of chest in an area of 4" x 4", each of them was 1/4" x 1" coming from depth with everted margins. 5 of them were on the skin of blade of right scapula, i,e, 5 of them were on the blade and rest were medial to it. All these were exit wounds."
' In his opinion, the death was due to shock and haemorrhage as a result of injury No, 1 which was suficient to cause death in the ordinary course of nature. Probable time between injury and the death was about 10 minutes and between death and post-mortem was about 24 hours.
(ii) On the same day he performed autopsy on the body of Muhammad Razzaq and found following injuries on his body:-
(1) "Lacerated wound 1" x 1" going deep on the back of chest in the middle line more on the right side 5" from the back of the neck. Skin around the wound was blackened. Hair around the 'wound was singed. The wound was directed forward.
(2) Lacerated wound on the posterio-lateral side on the right upper arm just adjacent to the elbow joint. It was 1-3/8" x 1" going deep. Its margins were inverted.
(3) Lacerated wound 1" x 1" on the posterio-lateral side of right fore-arm 1" below the injury No,2. The margins were inverted.
(4) Lacerated wound 11/4" x 1" in front of right elbow joint near the medial end with everted margins.
It was coming out from depth.
(5) Lacerated wound 3/4" x 1/8" coming from depth and 4th of an inch above lateral to injury No,4.
(6) Lacerated wound 2" x 1" front of right forearm 1" below injury No,4. It was coming from depth.
(7) Lacerated wound 4" x 4" and 1" above injury No,4 on the front of right upper arm coming from depth.
(8) Lacerated wound 14" x 1/2" in front of right fore-arm and 4" below injury No,6. It was going deep and its margins were inverted.
(9) Abrasion 1/2" x 1/2" on the back of right elbow joint.
(10) Seven lacerated wounds on the right side of chest each was 4" x 4" going deep. 5 pellets were removed from five of these wounds.
(11) Lacerated wound near the middle line on right side of chest 7" from the base neck. It was also 4" x 4" going deep with inverted margins.
(12) Three lacerated wounds on right side below rib margin with everted margin; each was 4" x 4" coming from interior. 3 pellets were removed from these wounds.
(13) Swellings 3 in number on the left side of chest each was 4" x 1/4" x 1/8". On dissection 3 pellets were removed from these swellings."
' In his opinion, the death was due to shock and haemorrhage as a result of injury No,1 which was sufficient to cause death in the ordinary course of events. According to him, the other injuries also had contributed towards death of the deceased. Probable time between the injury and death was about 5 minutes and between death and post-mortem was 24-25 hours. The injuries on the person of both the deceasd were caused by fire-arm.
7. On 19-8-1980, Muhammad Gulzar, S.-I., P.W.13 arrested Sultan Mehmud appellant. On 27-8-1980 the appellant led to the recovery of 12-bore gun Exh.P.10,its licence Exh. P.10/1 from his house which was taken into possession vide memo. Exh.P.K. Attested by Umar Hayat P.W.7. The Investigating Officer also recovered shot gun from Mumtaz, acquitted co-accused. The three empties recovered from the place of murder of Muhammad Razzaq, Gun Exh.P.10 recovered from the appellant and the gun recovered from Mumtaz co-accused were received together in the Office of the Director Forensic Science Laboratory on 13-9-1980. The examination revealed that out of 3, 2 crime empties had been fired from the gun recovered from the appellant and one empty was fired from the gun recovered from Mumtaz co-accused.
8. To prove its case, prosecution produced 13 witnesses. Dr. Awais Muhammad P.W.1 conducted post-mortem examination on the dead bodies of Muhammad Noor and Muhammad Razzaq deceased. Muhammad Nawaz P.W.8.While supporting the motive and the prosecution case stated that Sultan Mehmud appellant suspected him for having illicit relations with his wife Mst. Ghulam Begum. He further stated that 20 days before the occurrence, Sultan Mehmud appellant had quarrelled with Muhammad Razzaq on account of controversy over the common boundary line Banna and that 3 years before the occurrence his father Muhammad Noor deceased had requested father of Mst. Ghulam Begum for giving her in marriage to him. As far the murders of Muhammad Noor, his father and Muhammad Razzaq, his brother, he stated that on the fateful day Muhammad Razzaq, Mst. Sharif Khatoon and Mst. Rehmat Khatoon (not produced) were clearing thrashing floor at a distance of 100 paces from their 'Dhok'. At that time, he was present at his 'Dhok'.
Sultan Mehmud and Mumtaz acquitted accused, brother of Mst.Ghulam Begum came duly armed with guns. They raised Lalkara, addressed to Muhammad Razzaq that they would not spare him alive. Mumtaz fired a shot from his gun at Razzaq hitting him on his right arm and right side of front chest who sat down and was slightly bending. When Sultan Mehmud fired shot on his back from a close range. He was witnessing the occurrence from his courtyard of his house but did not go near on account of fear. The appellant and Mumtaz accused then rushed towards him and he started running towards North. The appellant and his co-accused chased him, and fired at him but he succeeded in escaping.
' After covering about mile when he looked behind, the accused were not visible. So he returned to thrashing floor where he found Razzaq lying dead and Mst. Sharif Khatoon and Rehmat Khatoon weeping and bewailing. After a short while, his nephew Muhammad Mumtaz P.W.11 arrived there and told that Sultan Mehmud appellant accompanied by imtiaz co-accused had killed Muhammad Noor by firing at him. Mumtaz further told him that the occurrence was witnessed by him (Mumtaz) and Resham Khan P.W. Mst. Sharif Khatoon P.W.9 made almost similar statement.
Resham Khan P.W.10 and Muhammad Mumtaz P.W.11 claim to have seen Sultan Mehmud appellant firing at Muhammad Noor from his gun hitting on his person and causing his death. Muhammad Mumtaz P.W.11 stated that on the fateful day, he accompanied by his grandfather Muhammad Nur went to the lands of his grandfather situated in Rakh Pail at a distance of about a mile from their 'Dhok' to graze cattle. Resham Khan P.W.10 was also grazing his cattle nearby. When at Rotivela, Sultan Mehmud and Mumtaz co-accused suddenly appeared on the scene. They were armed with guns. Mumtaz accused paused at a short distance whereas Sultan Mehmud appellant stepped towards Muhammad Noor and fired at him from a distance of 3 Karams hitting him in the chest as a result of which he fell down and died immediately. He, then, went to `Dhok' and narrated incident to Muhammad Nawaz P.W. Resham Khan P.W. 10 supported the statement made by Muhammad Mumtaz P.W.11 in all material particulars. Umar Hayat P.W.7, Resham Khan P.W.10 and Gulzar S.I., P.W.13 supported the recovery of 3 empties from the place of murder of Muhammad Razzaq, 5 pellets from the chest of Muhammad Noor deceased and recovery of 12-bore licensed gun Exh.P.10 from Sultan Mehmud appellant. Umar Hayat P.W.7 and Muhammad Gulzar S.I. P.W.13 also stated that Muhammad Mumtaz had got recovered his licensed gun Exh.P.11 from his Kotha. The three empties and the two guns were sent to the Forensic Science Laboratory for examination. According to the report Exh.P.U. Of the examiner of fire-arms, two guns and the three empties secured from the place of the murder of Muhammad Razzaq were received in the Office on 13-9-1980 and on examination it was revealed that one crime empty was fired from the gun recovered from Mumtaz co-accused and 2 crime empties were fired from the licensed gun of the appellant. The rest of the evidence is more or less of formal nature.
9. When examined under section 342, Cr.P.C., Sultan Mehmud appellant admitted that gun Exh.P.10 was his licensed gun. He also admitted that he was suspecting Muhammad Nawaz P.W. For having illicit relations with his wife Mst. Ghulam Begum. He further stated that 15 days before the occurrence he was present in his land and Razzaq deceased was in his own land nearby. He (the appellant) had asked him to admonish his brother Muhammad Nawaz P.W. For having illicit relations with his wife and when he (Razzaq) asked him that better he should restrain his wife from doing so and that he was helpless. So far as his brother was concerned, there ensued a quarrel and exchange of hot words. He, however, denied the other incriminating circumstances. In defence no witness was produced.
10. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt in that the eye-witnesses are related and inimical; that they were not present at the places of occurrence; that had Muhammad Nawaz P.W. 8 been present near the place of occurrence and chased by the appellant and co-accused, as stated by the eye- witnesses, then he would not have been spared at all; that the 3 crime empties and the guns having been received in the office of Forensic Science Laboratory, the possibility that the 3 crime empties were fired from the guns and then despatched to the Forensic Science Laboratory cannot be excluded; that Mumtaz co-accused who allegedly had fired at Muhammad Razzaq having been acquitted, the appellant Sultan Mehmud could not have been convicted for the under of Muhammad Razzaq on the same evidence. The learned counsel also submitted that the trial of the appellant and his co-accused for two murders which took place at different times and places was illegal. On the other hand, the learned counsel for the State supported the judgment of the trial Court. He maintained that the prosecution has successfully brought home the guilt to the appellant; that the eye-witnesses were not inimical towards the appellant and that their evidence is quite reliable.
11. We have considered the arguments advanced by the learned counsel for the parties with care.
From the state of affairs given in the early part of the judgment it is very much obvious that Muhammad Razzaq and Muhammad Noor were not murdered in the same transaction. The distance between the two spots is about one mile. Although both the murders took place on the same daj yet exact interval is uncertain. Since Sultan Mehmud appellant and his co-accused were accused of more offences than one of the same kind committed on the same day although not in respect to the same person, to our mind, they have rightly been charged and tried at one trial in accordance with the provisions of section 234, Cr.P.C., and as such, no exception can be taken to the mode of the trial. In the circumstances of the case, we would like to examine the charge of the murder of Muhammad Noor first. We find that Resham Khan P.W.10 and Muhammad Mumtaz P.W.11 claimed to have seen Sultan Mehmud appellant firing shot fron his gun at Muhammad Noor resulting in his death. No doubt, Muhammad Mumtaz is the grandson of. Muhammad Noor but this relationship alone may not be sufficient to discard his testimony. Muhammad Mumtaz was a boy of A 10 years when his statement was recorded in the Courts He has successfully stood the test of cross-examination. He has given probable cause of his presence at the place of occurrence. It is the matter of common experience that boys of tender age usually graze cattle and accompany their elders. He had no enmity with the appellant. There is nothing on record to show that he made a tutored statement. We do not see any inherent infirmity in his statement. Resham Khan P.W.10 who appears to be an independent witness has affirmed the presence of Muhammad Mumtaz P.W.11 at the time of ocurrence. Resham Khan refuted the suggestion that Mst. Haleem Khatoon daughter of the deceased brother Muhammad lqbal was betrothed to him or that her Nikah was recited by Shah Zaman Imam Masjid of the village. The defence did not care to substantiate the suggestion. The witness has given probable cause of his presence near the place of occurrence.
His name is given in the F.I.R. Which was lodged promptly. Except for minor and immaterial discrepancies here and there, we do not see any material contradictions, major discrepancies and dishonest improvements in the statements of the two eye-witnesses. Their statements are not in conflict with the medical evidence. We have been very much impressed by the straightforward manner in which the witnesses have made statements. They could easily attribute active participation to Mumtaz co-accused but they did not do so and stated what had actually happened. So, there is no reason to doubt that Resham Khan P.W.10 and Muhammad Mumtaz P.W.11, in fact, witnessed the occurrence. The occurrence took place in daylight. The appellant was previously known to the witnesses and as such, they were in a position to identify the offenders.
Since they have charged Sultan Mehmud appellant with the commission of crime and the number of the persons whom they have named does not exceed which appears from independent evidence or from circumstances not open to doubt to be the true number of the culprits, therefore, their evidence in the absence of anything making it unsafe to do so can be accepted without corroboration. In the instant case, we do not see anything which would make the conviction of Sultan Mehmud unsafe on the uncorroborated testimony of these two witnesses.
12. Reverting to the charge of the murder of Muhammad Razzaq and murderous assault on Muhammad Nawaz complainant, we find that the evidence of recovery of gun from the appellant is of no consequence in that the three crime empties secured from the place of murder of Muhammad Razzaq and gun recovered from appellant were received together in the Office of Forensic Science Laboratory. The possibility that the empties might have been fired by the police and then despatched to Forensic Science Laboratory, cannot be excluded. The ocular account furnished by Muhammad Nawaz P.W.8 and Mst. Sharif Khatoon P.W.9 alone remains in field. On careful examination of the statement of Muhammad Nawaz P.W.8, we see reasons to doubt that he, in fact, witnessed the occurrence. The motive alleged by the prosecution was that Muhammad Nawaz complainant, P.W.8 was suspected to have illicit relations with the wife of Sultan Mehmood appellant. Had he been present near the place of occurrence and the appellant and his co- accused followed him half a mile, he could not have remained unhurt. His statement that the appellants advanced towards him and on seeing them he started running, both the appellants went on chasing and firing at him from their guns but he succeeded in escaping and that after covering about half mile when he saw behind, the accused had discontinued the chase so he stopped running, runs counter to the natural probabilities. He was the person who brought humiliation and disgrace to the appellant and his co-accused and was the real source of the entire trouble, the appellant in the ordinary course of events would not have given up the pursuit and would not have spared him at all. He being not injured, there is no circumstantial guarrantee and judicial certainty of his presence near the place of occurrence. We are of the opinion that it would be in accordance with the safe administration of justice in criminal cases that his evidence be excluded from consideration. Mst. Sharif Khatoon P.W.9 also does not appear to be confidence inspiring witness. She has introduced Muhammad Nawaz complainant as eye-witness of the occurrence whose presence on the spot we have not believed. She is closely related to the deceased as as well as Muhammd Nawaz complainant. Muhammad Razzaq deceased was his paternal uncle. She also attributed active participation to Mumtaz who has already been acquitted by the trial Court. From the trend of her statement it is very much obvious that she has given evidence with a motive other than that of telling the truth. In any case, the prudence requires independent corroboration of the statements of Muhammad Nawaz P.W.8 and Mst. Sharif Khatoon P,.W.9 with regard to the occurrence of the murder of Muhammad Razzaq and the identity of the offenders. Since there is no additional circumstance to satisfy the mind of the Court that the witnesses have spoken the truth or to connect Sultan Mehmud appellant with the commission of the murder of Muhammad Razzaq, we are, therefore, of the view that as a matter of abundant caution, the appellant is entitled to the benefit of doubt on the charges of the murder of Muhammad Razzaq and murderous assault on Muhammd Nawaz complainant.
13. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellant on the charges of the murder of Muhammad Razzaq and murderous assault on Muhammad Nawaz P.W.8, while giving him the benefit of doubt, we acquit the appellant of the charges. Since the charge of the murder of Muhammad Noor against Sultan Mehmud appellant stands proved beyond reasonable doubts, we hold that he has rightly been convicted and sentenced by the trial Court on this charge. As for the question of sentence, we find that Sultan Mehmud appellant has murdered him without any justification and as such, there are no mitigating extenuating circumstances in his favour for lesser punishment.