JAVID IQBAL, C.J.--Ghulam Abbas aged 35, armed with carbine, Faqir Muhammad aged 55, armed with gun, and Muhammad Sharif aged 45, armed with carbine, all sons of Allah Dad, have been convicted under section 302/34, P.P.C. For the murder of Muhammad Hussain aged- 36, and vide judgment, dated 9-1-1984 of the Sessions Judge, Gujranwala, have been sentenced as follows: Ghulam Abbas convict was sentenced to death plus fine of Rs.5,000 or in default to undergo one year rigorous imprisonment, whereas Faqir Muhammad and Muhammad Sharif convicts were sentenced to life imprisonment plus fine of Rs.10,000 each or in default to undergo two years rigorous imprisonment each. It was also directed that if the fine was realized from them, half of the same should be paid as compensation to the legal heirs of the deceased. Muhammad Tufail, armed with revolver, another brother of the convicts, was given the benefit of doubt and acquitted.
The appeal of the convicts is being taken up alongwith the reference for confirmation of death sentence awarded to Ghulam Abbas convict as well as Criminal Revision No. 263 of 1984 against the acquittal of Muhammad Tufail co-accused under section 302/307/34, P.P.C. As well as acquittal of the appellants under section 307/34, P.P.C. And all these connected matters are being disposed of by this judgment,
2. The occurrence took place on 26-2-1981 at 7-30 a.m. On a pathway within the area of Mauza Ghanian at a distance of two miles from Police Station Kamoke, District Gujranwala. F.I.R. (Exh.P.K.) was lodged by Talib Hussain (P.W.12) brother of the deceased, at 8-30 a.m. On the same day and it was recorded by Muhammad Ashraf S.I. (P.W.15).
3. The motive for crime as stated in the F.I.R. Is that about one and a half years ago a brother of the appellants and acquitted co-accused, namely, Muhammad Hanif was murdered and in that murder case nine persons, including the deceased as well Talib Hussain P.W. Were involved. At the time of the commission of crime seven out of them had been released on bail, including the deceased and Talib Hussain P.W. It is stated that it was in the background of revenge that the accused party had attacked the deceased and murdered him.
4. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day, the deceased, Talib Hussain (P.W.12), Mst. Irshad Begum (P.W.13), were of the deceased, Mst.
Farzana (P.W.14), daughter of the deceased, and two small children alongwith Khan Muhammad (not produced and given up as won-over) were proceeding from their house towards Kamoke on a path-way to attend a wedding ceremony. The deceased at that time had bicycle and two small children were sitting on the bicycle which he had held in his hand. When they reached an under construction drainage well, suddenly the appellants and the acquitted co-accused, armed as described above, emerged from behind an earthen Bund as they had been sitting there in an ambush. Ghulam Abbas appellant raised a Lalkara to the effect that they would take revenge of the murder and that they would not spare them. Thereupon, Muhammad Tufail, acquitted co- accused, fired through his revolver on Talib Hussain P.W. But missed him. Then Ghulam Abbas appellant fired a shot through his carbine which hit Muhammad Hussain deceased on his left flank but Muhammad Hussain deceased attempted to run away towards the village. However, he was chased by all the four members of the accused party who encircled him in a field at a distance of about one Killa. Thereafter, Faqir Muhammad appellant fired a shot through his gun which hit the deceased on his right armpit. The deceased fell down on the ground and while he was in that condition, Ghulam Abbas appellant fired a shot at his head through his carbine and Muhammad Sharif appellant fired a shot through his carbine which hit on his right shoulder. As a result Muhammad Hussain deceased died on the spot. Muhammad Tufail, acquitted co-accused, also fired two more shots through his revolver at Talib Hussain P.W., but missed as he had managed to run away. The occurrence was witnessed besides Talib Hussain P.W.12, by Mst. Irshad Begum (P.W.13) were of the deceased, Mst. Farzana (P.W.14), daughter of the deceased, as well as Azmat Ali (not produced and given up a5 won-over). They raised alarm but the accused party escaped saying that they had murdered the deceased at the same spot where the deceased had murdered their brother. Thereafter, Muhammad Asghar (P.W.10) also appeared at the scene as Vajtakkar witness and he saw the appellants and the acquitted co-accused running away from the scene of crime. Leaving behind Mst. Irshad Begum, Mst. Farzana P.Ws. Azmat, Khan Muhammad and Muhammad Asghar P.W. To guard the dead body of the deceased, Talib Hussain P.W.
Proceeded to lodge the report.
5. The prosecution has produced three eye-witnesses of the occurrence, namely, Talib Hussain (P.W.12), brother of the deceased, Kist. Irshad Begum (P.W.13) widow of the deceased, and Mst.
Farzana (P.W.14), daughter of the deceased. Khan Muhammad who is stated to be brother-in-law of the deceased, was given up as won-over. Azmat Ali had also not been produced but was given up as won-over. Muhammad Asghar (P.W.10) has been produced as Vajtakkar witness. He is nephew of the deceased but has been disbelieved by the trial Court.
6. Ghulam Abbas appellant was arrested on 9-3-1981 by Muhammad Ashraf S.I. (P.W.15). Faqir Muhammad and Muhammad Sharif appellants were arrested on 28-2-1981 from Sahiwal Jail by Muhammad Ashraf S.I. (P.W.15), whereas Muhammad Tufail, acquitted co-accused was arrested on 8-3-1981 by the same police officer. From the spot were picked up four crime-empties (Exh.P.13/1-4) and taken into possession vide memo. Exh.P.O., dated 26-2-1981. The attesting witnesses are Khan Muhammad (not produced), Azmat Ali (not produced) and Muhammad Ashraf S.I. (P.W.15). At the instance of Ghulam Abbas appellant was recovered carbine (Ex.P.11) which was taken into possession vide memo. (EXh.P.J.), dated 9-3-1981. The attesting witnesses are Muhammad Bashir (not produced), Arshad Javed (P.W.11) and Muhammad Ashraf S.I. (P.W.15). At the instance of Faqir Muhammad appellant was recovered gun (Exh.P.8) and taken into possession vide memo. Exh.P.G., dated 8-3- 1981. The attesting witnesses are the same At the instance Muhammad Sharif appellant was recovered carbine (Exh.P.7) and taken into possession vide memo. Exh.P.F., dated 8-3-1981 The attesting witnesses are the same. At instance of Muhammad Tufail, acquitted co-accused, was recovered revolver (Exh.P.9) alongwith five live bullets (Exh.P.10/1-5) and taken into possession vide memo. Exh.P.H., dated 8-3-1981. The attesting witnesses are the same. The report of the Fire-arms Expert (Exh.P.T.) is at page 17 of the printed paper book, and according to the same the three crime empties picked up from the spot matched with carbine (Exh.P.11), carbine (Ex.P.7) and gun (Exh.P.8) i.e. All the three weapons of offence recovered from the three appellants. However, the trial Court has disbelieved these recoveries for the reasons stated in paragraph 22 of the Judgment at page 90 of the printed paper book. The weapons given are that only one public witness namely, Arshad Javid P.W.11 was produced to attest these recoveries who was nephew of the widow of the deceased namely Mst. Irshad Begum P.W. And also he did not belong to the locality from where the weapons of offence were recovered.
7. Ghulam Abbas appellant in his statement before the trial Court denied having participated in the occurrence. He stated that he had been falsely implicated due to enmity. He further stated that it was a blind murder and that he was not present in the village on the day of the occurrence. Faqir Muhammad appellant and Muhammad Shard appellant stated that the P.Ws. Had deposed against them due to enmity: Two days prior to the occurrence both of them had gone to Chak No. 3-1. Police Station Harappa, District Sahiwal, as their cousin sister had a dispute of her land with one Rafique who was annoying her. On 25-2-1981, in the evening the Harappa police apprehended both of the, under the security proceedings and lodged them in the police lock-up the same night. Next day they were produced before the Illaqa Magistrate and after all the legal formalities, they were sent to the District Jail Sahiwal. Consequently at the time of the occurrence they were not present in the village. Muhammad Tufail acquitted co-accused, stated that he had also been implicated due to enmity of the P.Ws. On the day and time of the occurrence lie was in Village Eisarke, Tehsil and District Sheikhupura where he attended the marriage ceremony of one Muhammad Munir of his village. The Nikah took place at 9-30 a.m. And was performed by Maulvi Muhammad Ghulam Kadir D.W. Pesh Imam. In support of their plea of alibi Faqir Muhammad, Sharif appellants as well as Muhammad Tufail, acquitted co-accused, have produced D.Ws. Ghulam Abbas appellant has only stated in his statement that he was not present in the village on the day of occurrence. He has not produced any defence evidence. The D.Ws. Produced, in the instant case, are Abdul Rashid H.C.
(D.W.1) Maulvi Ghulam Kadir, Nikah Khwan (D.W.2) and Syed Zawwar Hussain Shah Inspector Police (D.W.3).
8. Dr. Nazir Ahmad (P.W.8) conducted the post-mortem examination on the dead body of the deceased on 27-2-1981 and found on his person the following injuries:- (1)A fire-arm wound 5 x 6 c.m. On right cheek, right to nose including right eye, direction was backwards and upwards slightly to the right. Bones of the skull were fractured into many pieces and brain matter more than half was washed out. Scalp was blown of. There was scorching on the inlet wound edges. Open wound was 16 x 10 c.m. Walls of bones were missing alongwith scalp.
(2)A fire-arm wound 3 x 2-- c. m. Circular in nature on the upper part between neck and right shoulder with scorching and blackening at the edges of wound, direction was downwards and slightly inwards into the chest cavity.
(3)A fire-arm wound 1 x 1 c.m. On the back of right upper arm below shoulder with outlet wound in front of right upper arm 4 c.m. In front of inlet wound and that was 1--x 1-- c.m. With corresponding perforated holes in the shirt.
(4)A fire-arm wound 5-- -- x c.m. Below right arm pit, with scorching of edges of wound. Direction was inwards from right to left side, more or less transversly, with fracture of 4th and 5th ribs.
(5)Five outlet wounds 1 x 1 c.m. Each on left side outer aspect of chest below and above the left nipple in area 10 x 5 c.m. With fracture of 3rd and 4th ribs, left side with corresponding holes in the shirt.
9. We have heard counsel for the parties and perused the record. The motive for crime is admittedly this that about one year and a half ago brother of the appellants and acquitted co- accused, namely, Muhammad Hanif was murdered and in that murder case the deceased as well as Talib Hussain P.W. Were implicated. At the time of the occurrence the deceased and Taiib Hussain P.W. Had been released on bail and, therefore, they were present in the village. The defence does not deny the motive, but it is contended by learned counsel for A the appellants that motive can be a double-edged weapon and if the occurrence was an un witnessed one, there was motive for false implication of the remembers of the accused party in this case. Anyway, the trial Court hats believed the motive version as set up by the prosecution and we nave also no reason why we should not believe the same. The main arguments of the defence counsel are firstly, that there was material discrepancy in the testimony of the eye-witnesses produced in the instant case indicating that they might have not been present at the time of the commission of crime. Secondly, it was argued that there was conflict between the medical evidence and the ocular testimony which also established that the eye-witnesses were not present at the time of the commission of crime; thirdly, that the eye-witnesses were closely related to the deceased; they were interested and hostile and, therefore, they had a motive to falsely implicate the appellants; fourthly, that there was no corroboration coming forth of the ocular testimony as the recovery evidence has been disbelieved by the trial Court; and fifthly, that the alibi evidence produced in defence, particularly by Faqir Muhammad and 'Muhammad Sharif appellants, was not properly considered by the trial Court and if their alibi evidence was believed, then the version given by the eye-witnesses would have to be altogether discarded as unreliable. Learned counsel for the appellants read the ocular testimony of three eye-witnesses before us, namely, Talib Hussain P.W. Who happens to be brother of the deceased and was also implicated in the murder of Muhammad Hanif, i.e, the brother of the appellants and the acquitted co-accused. The argument here of learned counsel is that had Talib hussain P.W. Been present, the members of the accused party would not have spared him. The other eve-witness is Mst. Irshad Begum P.W. Who is the widow of the deceased and the third eye- witness is Mst. Farzana P.W. Who is the daughter of the deceased. Asghar P.W. i.e. Nephew of the deceased, was produced as Vajtakkar witness but he has already been disbelieved by the trial Court. According to the version given by Talib Hussain P.W. In the F.I.R. The appellants and the acquitted co-accused who were armed as described above, emerged from behind an earthen Band as they were sitting there already in an ambush and attacked the complainant side.
Muhammad Tufail, acquitted co-accused, fired through his revolver twice on Talib Hussain P.W. But missed him. He is not stated to have fired at the deceased, nor has the deceased received any bullet injury. Then according to the version given in the F.I.R. Ghulam Abbas appellant fired a shot through his carbine which hit the deceased on his left flank, but the deceased attempted to run away towards the village. He was chased by all the four members of the accused party who encircled him in a field. Thereafter, Faqir Muhammad appellant fired a shot through his gun which hit the deceased on his right armpit. The deceased fell down on the ground and while he was in that condition Ghulam Abbas appellant fired a shot at his head through his carbine and Muhammad Sharif appellant fired a shot through his carbine which hit on his right shoulder. As a result the deceased died on the spot. At the trial stage Talib Hussain P.W. According to learned defence counsel, had made certain improvements. Now we come to the testimony of Mst. Irahad Begum and Mst. Farzana P.Ws. Both of them in their statements under section 161, Cr.P.C. Had attributed the neck/shoulder injury to Ghulam Abbas appellant and the head injury to Muhammad Sharif appellant. But at the trial stage they had stated that they had not so stated earlier and that Ghulam Abbas appellant had fired a shot at the head of the deceased and Muhammad Sharif appellant had fired a shot at his right shoulder. Talib Hussain P.W. Also had at the trial stage first stated that the deceased had been hit on the left flank, whereas at the later stage it was stated that he had been hit on the right flank. Lea--rned defence counsel has attempted to assess the ocular testimony before us in the light of the medical evidence. His arguments are that at the trial stage material improvements had been made in order to make the ocular testimony conform to the medical evidence. He cited Muhammad Iqbal etc. v. State 1978 P Cr. L J 670 in which it was held that if there was conflict between the medical evidence and ocular evidence, then the medical evidence was to be preferred over the ocular evidence. Reliance was also placed on Siddique v.
The State 1977 P Cr. L J 30 in which it was held that if ocular testimony was directly in conflict with the medical evidence regarding the number of injuries caused to the deceased, then the conviction as well as sentence must be set aside. In our view these authorities are not applicable to the facts of the present case. According to the medical evidence the deceased had sustained fire- arm injuries out of which injuries Nos. 1, 2 and 4 which have been specifically attributed to the three appellants, were individually sufficient to cause death in the ordinary course of nature. It was and attack on the deceased and, therefore, if the eye-witnesses had witnessed the same in a melee of this nature it would not make the discrepancy material if the head injury was attributed to one person and the shoulder injury to another or vice verse or if the right flank is hit or the left flank.
Learned counsel also argued that there were contradictions between` the eye-witnesses' statements before the police and those at the trial, stage and that these contradictions must not be lightly ignored. In this connection reliance was placed on Fazla etc. v. The State PLD 1960 (W.P.)
Lah. 373. We have carefully examined this aspect of the case. In our view there are no contradictions as such in the statements, of the eye-witnesses at different stages but there is more elaboration) at the later stage. Then it was also argued that the eye-witnesses were interested and, therefore, their testimony must not be accepted unless there was exceptionally strong corroboration which was not forthcoming in the present case. In support of this reasoning reliance was placed on Wasiullah v. Mirza Ali etc. PLD 1963 SC 25. We have carefully considered this aspect of the case but in order to properly assess the worth of this argument we must examine as to why the trial Court has not relied upon the, recovery evidence in the instant case. Looking at the recovery evidence we note that Ghulam Abbas appellant was arrested on 9-3-1981 and on the same day carbine (Ex.P.11) was recovered from trim. Faqir Muhammad and Muhammad Sharif appellants were arrested from Sahiwal Jail on 28-2-1981 and from them gun (Exh.P.8) and carbine (Exh.P.7) were recovered respectively on 8-3-1981. Muhammad Tufail acquitted co-accused was arrested on 8-3-1981 and on the same day revolver (Exh.P.9) was recovered from him alongwith five live bullets. There are four crime empties which were picked up from the spot on 26-2-1981. Out of these according to the report of the Fire-arms Expert (Exh .P.T.) three crime empties matched with carbine (Exh.P.11) recovered from Ghulam Abbas appellant, gun (Exh.P.8) recovered from Fakir Muhammad appellant and carbine (Exh.P.7) recovered from Muhammad Sharif appellant. It may be pointed out at this stage that according to the testimony of Hanif Hussain Shah A.S.I. (P.W.6), the crime-empties were sent to the Forensic Science Laboratory on 10-3-1981, whereas the weapons of offence recovered were delivered to the Forensic Science Laboratory on 14-3-1981. Furthermore Exh.
P.T. At page 1, of the printed paper book which is the report of the Fire-arms Expert also indicates that different lab numbers' were given of the four crime-empties and the fire-arms in the description of articles column. Thus, it is evident that the crime-empties and the firearms recovered, in the instant case, had been separately sent to the Forensic Science Laboratory Now the question arises as to whether the recoveries of the fire-arms should be discarded merely because the public attesting witness of these recoveries produced namely, Arshad Javed P.W. Was not from this locality but belonged to Sargodha and was also related to the deceased. In our view this was not sufficient reason to discard all the recoveries, in the instant case, particularly when Muhammad Ashraf S.I. P.W. Was also the attesting witness of these recoveries and there is nothing on the record to indicate that lie had conducted the investigation dishonestly. In our considered opinion, therefore, the recovery evidence particularly pertaining to Ghulam Abbas, Fakir Muhammad and Muhammad Sharif appellants, was quite reliable and should not have been discarded. Proceeding on this basis we would say that even if the ocular testimony way to be considered as interested or hostile, it is finding strong corroboration from the recovery evidence and is further being supported by the motive version as well as the medical evidence. Now we may examine the question raised by learned counsel as to whether the eye-witnesses were present on the spot or not. It may be noted that admittedly the occurrence took place at 7-30 a.m. On 26-2- 1981 and the F.I.R. Was promptly lodged by 8-30 a.m. While the police station was at a distance of two miles from the spot. This F.I.R. Was lodged by no other person than Talib Hussain P.W. The stomach contents, according to the medical evidence, of the deceased indicated that at the time of his death he had possibly taken some breakfast. Therefore, there is no dispute about the time of the occurrence. The prosecution version is that the deceased alongwith his were, daughter, two small children and Talib Hussain P.W. Brother, was proceeding to a wedding and while they were going the two children sat on the bicycle. This was the position when the party was attacked. So, in our view the eye-witnesses in the instant case, should be considered as natural witnesses of the occurrence. The testimony of Mst. Irshad Begum and Mst. Farzana P.Ws. Is in substance corroborated by the testimony of Talib Hussain P.W. And the recovery evidence and it is further being supported by the medical evidence and the motive version. Therefore, in our view there is no reason why we should discard the ocular testimony merely for the reason that the defence argues that eye-witnesses were not present at the of the commission of crime and that it was an unwitnessed occurrence. We tried to enquire from learned defence counsel as to whether there were any other enemies of the deceased who could have accomplished the job. He took us through the cross-examination of Talib Hussain P.W. Who had stated at page 45 of the printed paper book that the wheat crop of the deceased had caught fire and they had shown suspicion on Heeru, Naqi Shah and Riaz. However, Heeru had died before the occurrence. Naqi Shah had left the country eight years prior to the present occurrence and Riaz was in jail in connection with the murder of Muhammad Hanif, brother of the accused party, alongwith Talib Hussain P.W. And the deceased. He further stated in the cross-examination that some other Ghulam Abbas had fired on the father of the deceased but subsequently a compromise had been -effected. Learned counsel wanted us to believe that this passage indicated that there were also other enemies of the deceased who could have done the job. But we are not persuaded by his reasoning in the light of the cross-examination of Talib Hussain P.W. On this point. Then learned defence counsel attempted to argue that Ghulam Abbas appellant who has been awarded death sentence, had raised the plea of alibi and that he was not present at the time of the commission of crime. It is correct that in his statement before the trial Court he had taken up this plea but he did not produce any, defence witnesses to establish his alibi. Then learned counsel for Fakir Muhammad and Muhammad Sharif appellants also took up the same plea that these two appellants were not present on the spot at the time H of the occurrence. He stated that according to Syed Zawwar Hussain Shah, Inspector Police (D.W.3) Muhammad Sharif and Fakir Muhammad appellants were arrested from Chak No. 10/3-L at about 12 noon or 1 P.M. On 26-2-1981 and from there they were sent to the Central Jail Sahiwal. He further stated in the cross-examination that since there was not much weight in the defence evidence, therefore, these appellants were not shown in column No.2 of the challan. We have carefully studied all the documents on which the plea of alibi of Fakir Muhammad and 1 Muhammad Sharif appellants is based but in our considered opinion the evidence is not convincing and it could not be established that they were not present on the spot at the time of the commission of crime. The distance between the place of occurrence and Police Station Harappa, Sahiwal, is about 145/150 miles. The occurrence in the present case took place at 7-30 a.m. On 26- 2-1981. It is not evident from the record as to when these two appellants arrived in District Sahiwal from District Gujranwala and when were they arrested there in connection with proceedings under section 107/151, Cr.P.C. In Aminullah v. The State PLD 1976 SC 629 it was laid down that when a plea of alibi is raised, best available evidence has to be produced to establish the same, but if the accused could not produce best available evidence and the evidence produced was unsatisfactory, unconvincing or of dubious nature, then the plea should be rejected. Obviously the onus of disproving evidence produced by the accused party in respect of alibi lies on the prosecution, but if the evidence of alibi produced by the defence is not convincing and does not even raise doubt in the mind of the Court, it could be of no avail to the accused party. After carefully considering the arguments of learned counsel on this point we are convinced in our mind that the plea of alibi advanced by the appellants was totally unconvincing and unreliable and, therefore, had been rightly rejected by the trial Court. We also heard learned counsel for the complainant in Criminal Revision No. 263 of 1984. He stated that there was no justification in the acquittal of Muhammad Tufail co-accused under section 302/307/34, P.P.C. As well as against acquittal of the appellants under section 307/34, P.P.C. So far as Muhammad Tufail, acquitted co- accused is concerned, only ineffective firing has been attributed to him. He did not fire at the deceased. The crime empties picked up from the spot did not match with the revolver recovered from him and that for these reasons there was justification in giving him the benefit of doubt and acquitting him. In our view, therefore, the trial Court had rightly acquitted him of the charges under section 302/307/34, P.P.C. So far as the appellants are concerned, learned counsel for the complainant while placing reliance on Muhammad Sharif v. Muhammad Javed etc. PLD 1976 SC 452 argued that if there were, more than one accused persons and it was a case of premeditated concerted attack launched with the intention of killing and furthermore when there was no mitigating circumstance, then all the accused persons must be awarded normal penalty of death.
His argument was that in the instant case Fakir Muhammad and Muhammad Sharif appellants who had been awarded sentence of life imprisonment, should also be awarded sentence of death like Ghulam Abbas appellant, as each injury which was attributed to them according to the medical evidence was fatal. We have carefully examined this aspect of the case but in our view the principle laid down therein is only applicable where there is no mitigating circumstance but when there is a mitigating circumstance for instance murder being committed by a convict to avenge the murder of his father by the deceased, it had been treated by the Supreme Court as a mitigating circumstance justifying lesser sentence and in that case the Supreme Court reduced the Heath sentence awarded by the trial Court and confirmed by the High Court to life imprisonment. The citation is Muhammad Aslam v. The State PLD 1985 SC 257.
So far as, Ghulam Abbas appellant is concerned, he has been awarded death sentence plus fine of Rs.5,000 or in default to undergo one year rigorous imprisonment. If the fine was realized from him, half of the same is to go to the legal heirs of the deceased. Now since the appellants are brothers and had committed the murder of the deceased in order to avenge the murder of their brother by the deceased, in our view this should be considered as a mitigating circumstance justifying lesser penalty to Ghulam Abbas appellant. We order accordingly. The result is that the sentence of death awarded to Ghulam Abbas appellant is reduced to that of imprisonment for life as awarded to Fakir Muhammad and Muhammad Sharif appellants. But he would pay fine of Rs.10,000 instead of Rs.5,000 or in default to undergo two years rigorous imprisonment and if the fine is realized from him, half of the same should go to the legal heirs of the deceased. The appeal of the appellants is dismissed with this modification. The death sentence awarded to Ghulam Abbas appellant is NOT confirmed.