IJAZ NISAR, J.--Azim .(55) son of Mohammad Bakhsh and his sons Nazru and Bashir were tried along with Abdullah, Mohammad, Siddique, Allah Ditta, Pir Bakhsh, Atlah Bakhsh, Mohammad Amin, Hasnain, Imam Bakhsh, Abdul Ghafoor arid Amir Shah for the murder of Rahim Bakhsh (65), abduction of Kaneez Mai (P.W.8), Karim Khatoon (P.W.9) and Mst. Irshad Mai (P.W.11) and for murderously assaulting Sardar Mohammad and Allah Bakhsh. The learned Addl. Sessions Judge, Vehari, by his judgment dated 1-6-1983, convicted Mohammad Azim, Nazru and Bashir under section 302/34, P.P.C. And sentenced Mohammad Azim to death and to pay a fine of Rs.4,000, or in default to undergo six months' R.I. Nazru and Bashir appellants were sentenced to imprisonment for life plus a fine of Rs.2,000 each or in default to undergo six months' R.L They were also convicted under section 365/34 P.P.C. And sentenced to four years' R.I. Plus a fine of Rs.1,000 each. They were further convicted under section 324/34, P.P.C. And sentenced to two years' R.I.
The convicted accused have filed an appeal challenging their conviction and sentences while the trial Court has made a reference for confirmation of the death sentence of Mohammad Azim under section 374, Cr.P.C. Both these matters are being disposed of together by this judgment.
2. The prosecution case is that Mst. Karim Khatoon (P.W.9) was previously married to one Allah Rakha. Out of the said wedlock Mst. Kaneez Mai (P.W.8), Mst. Irshad Mai (P.W.11), Mst. Mumtaz Mai (P.W. 12) and Mst. Atta Elahi were born. After the death of Allah Rakha, Mst. Karim Khatoon P.W.
Contracted marriage with Mohammad Azim appellant about 6/7 years prior to the occurrence.
Mumtaz Mai (P.W.12) was given in marriage to Nazru appellant son of Muhammad Azim appellant while the Nikah of Mst. Irshad Mai (P.W.11) was solemnised with Allah Wasaya (P.W.19) son of Karim Bakhsh. But the Rukhsati had not taken place. Later on Mohammad Azim appellant backed out and refused to give the hand of Mst. Irshad Mai in marriage to Allah Wasaya aforementioned. This led to estrangement of relations between Mst. Karim Khatoon and Mohammad Azim appellant. Mst. Krim Khatoon P.W. Informed her brother Karim Bakhsh P.W. About it who proceeded to village Hametian, District Bahawalpur and brought Mohammad Azim appellant, his wife Mst. Karim Khatoon (P.W.9) and his daughters to his village Halim Khichi, P.S. Mailsi, District Vehari but the situation did not improve and Mohammad Azim appellant continued to quarrel with Mst. Karim Khatoon. About two months prior to the occurrence Mohammad Azim appellant on being annoyed with Mst. Karim Khatoon left for his village Hametian, District Bahawalpur.
On the night between 13/14-10-1979 at about mid-night Mohammad Azim, Nazru and Bashir appellants armed with guns accompanied by 3/4 other persons carrying sticks and hatchets came to Mauza Halim Khichi in two wagons. They straightaway proceeded to the house of Rahim Bakhsh, brother of Karim Bakhsh P.W. And declared that they had come to take Mst. Karim Khatoon, Mst. Kaneez Mai, Mst. Mumtaz Mai and Mst. Irshad Mai. Rahim Bakhsh deceased, Karim Bakhsh (P.W.7), Allah Bakhsh (P.W.16) and Sardar Mohammad (D.W.1) told them that they had not acted well whereupon the appellants fired shots in the air. On hearing the guns shots Allah Wasaya (P.W.
19) and Ghulam Haider (P.W.20) reached the spot carrying torches. In the meantime, the appellants forcibly lifted Mst. Karim Khatoon, Mst. Kaneez Mai, Mst. Irshad Mai and two minor daughters of Mst.
Mumtaz Mai and put them in the wagons. Mst. Mumtaz Mai (P.W.12), however, managed to escape by scaling over a wall. The deceased and the other P.Ws. Mentioned above tried to intervene whereupon Mohammad Azim appellant fired from his gun at Rahim Bakhsh deceased hitting him in the chest resulting in his instantaneous death. Nazru appellant fired at Allah Bakhsh (P.W.16) hitting him at his right foot while Bashir appellant fired at Sardar Mohammad (D.W.1) hitting him on his left leg. Karim Bakhsh (P.W.7) was given injuries by the other companions of the appellants.
Later a fight ensued between them. The appellants and their companions succeeded in abducting Mst. Karim Khatoon, Mst. Kaneez Mai, Mst. Irshad Mai P.Ws. And the minor daughters of Mst. Mumtaz Mai. Karim Bakhsh (P.W.7) left for Police Station Mailsi and lodged the F.I.R. Exh.P.F. On the same night at 2-30 a.m. The distance between the place of occurrence and the police station, being four miles.
3. After recording the F.I.R. Mohammad Ali Bajwa (P.W.21) reached the spot, prepared the injury statement Exh.P.B. And inquest report Exh.P.W. Of Rahim Bakhsh deceased. He secured from there seven empties P.2 to P.8 and three live cartridges P.9 to P.Il through memo. Exh.P.K. He also took into possession a pair of shoes belonging to Mst. Karim Khatoon through memo. EXh.P.J Later the investigation was taken over by Malik Ashiq Hussain A.S.I. (P.W. 24) who got Mst. Irshad Mai, Mst.
Kaneez Mai and Mst. Karim Khatoon medically examined on 15-10-1979. The appellants were arrested by Ghulam Safdar Bhatti, S.D.P.O., Mailsi (p.W.17) on 20-10-1979 after they had been produced before him by Abdul Haq (P.W. 15) along with weapons P.26 and P.27. Mohammad Azim and Bashir appellants led to the recoveries of guns P. 18 and P.19 through memos. Exh.P.N. And P.O.
Respectively on 26-10-1979. The crime empties recovered from the spot reportedly matched with the guns P.18 and P.19. It would not be out of place to mention here that the trial Court had not relied on the recoveries and the matching of the crime empties with the guns because of their late despatch to the Forensic Science Laboratory and non-production of the report of Forensic Science Laboratory.
4. Dr. Mohammad Iqbal (P.W.1) conducted the post-mortem on the dead body of Rahim Baklish on 14-10-1979 at 11-30 a.m. And found the following injury thereon:- Gunshot lacerated wound 9 c.m. x 5 c.m. On the front of right chest, 6 c.m. Below the clavicle with multiple small pellet wounds around the margin of the wound. There was charring of the edges of the wound.
The injury was ante-mortem and had been caused by fire-arm. Death occurred due to shock and haemorrhage resulting from the above injury.
He also examined Karim Bakhsh (P.W.7) and found the following injuries on his person:-
(1) Lacerated wound 5-1/2 c.m. x 1/2 c.m. x bone deep on the left eyebrow and left side of the face 1- 1/2 c.m. Away from the left eye.
(2) Abrasion 2 c.m. x 1/2 c.Rn. With swelling around on the back of left hand and left wrist.
The injuries were caused by blunt weapon.
He also examined Allah Bakhsh (P.W.16) and found the following injuries on his person:-
(1) Gunshot lacerated wound 5 c.m. x 2 c.m. x bone deep on the back of right foot with small multiple pellet wounds around it. Scattered in area of 8 c.m. x 7 c.m. On the back of right foot and greater toe and second toe. There was no charring on the edges of the wound.
(2) Gunshot lacerated wound 6 c.m. x 3 c.m. x bone deep on the front of left ankle with multiple small pellet wounds scattered in area of 26 c.m. x 12 c.m. On the front of left leg, left ankle and back of the left foot.
Lady Dr. Shahnaz Akhtar (P.W.3) examined Mst. Karim Khatoon (P.W.9) on 15-10-1979 and found two simple blunt weapon injuries on her person of the duration of 36 hours. She also examined Mst.
Irshad Mai (P.W.11) and found three blunt injuries on her person. She had also examined Mst. Kaneez Mai (P.W.8) and found a simple blunt weapon injury of 36 hours duration on her person.
Dr. Mohammad Iqbal (P.W.1) medically examined Mohammad Azim appellant on 21-10-1979 and found the following injuries on his person:-
(1) Lacerated wound 2 c.m. x 1/4 c.m. With pus formation and not properly healed and with granulation tissue formation at the base of the wound. It was situated on the front of the terminal phalynx of the left thumb.
(2) Lacerated wound 1 c.m. x 1/8 c.m. With pus formation and not properly healed and with granulation tissue formation on the base of the wound. It was situated on the front of the terminal phalynx of the left middle finger.
The injuries were simple caused by blunt weapon within the duration of 7 days.
On the same day he examined Nazru appellant and found the following injuries on his person:-
(1) Healed wound 2 c.m. In length on the anterior part of the right side of the head with full granulation tissue formation.
(2) Healed wound complete 1-1/2 c.m. In length on the back of the right side of the head with full granulation tissue formation.
Both the injuries were simple caused by blunt weapon within the duration of 7 days.
He had also examined Sardar Mohammad (D.W.1) on 14-10-1979 and found the following injuries on his person.
(1) Multiple small gunshot pellet wounds scattered in an area of 35 c.m. x 28 c.m. On the front of left thigh (lower part) left knee and in front of left leg (upper half?. There was no charring of the edges of the wounds.
(2) Lacerated wound 6 c.m. x 1/2 c.m. Scalp deep on the right side of head.
(3) Lacerated wound 1 c.m. x 1/4 c.m. On the back of left elbow.
Injury No. 1 was caused by fire-arm while the rest were caused by blunt weapon within the duration of 3 hours.
5. The appellants pleaded not guilty to the charge and denied the prosecution allegations. They attributed the case to enmity of the P.Ws. Mohammad Azim appellant, however, admitted having remarried Mst. Karim Khatoon P.W. And marriage of Mst. Mumtaz Mai (P.W.12) daughter of Mst.
Karim Khatoon from her former husband to his son Nazru appellant. He also admitted having abandoned residence in village Halim Khichi two months prior to the occurrence and his shifting to village Hametian. Explaining his involvement he stated that certain persons of their tribe were not happy over his marriage with Mst. Karim Khatoon and the Nikah of his son with Mst. Mumtaz Mai P.W. And hence they got them involved in the case. The appellants examined Sardar Mohammad (D.W.1) in their defence. He is an injured eye-witness mentioned in the F.I.R. He was given up by the prosecution as having been won over. According to him he was sleeping at his house and woke up on hearing shots and was proceeding to the spot when he received fire-shot at his knee. According to him it was a dark night and he did not see the appellant abducting the ladies in wagons.
6. The prosecution examined Karim Bakhsh (P.W.7) injured. Mst Kaneez Mai (P.W.8), Mst. Karim Khatoon (injured) (P.W.9), Mst. Irshad Mai (injured) (P.W.11), Mst. Mumtaz Mai (P.W.12), Allah Bakhsh, injured (P.W.16), Allah Wasaya (P: JV.19) and Ghulam Haider (P.W.20) to prove the ocular account.
Yar Mohammad (P.W.6) and Malik Ashiq Hussain, A.S.I. (P.W.24) were examined to prove the recoveries of guns at the instance of Mohammad Azim and Bashir appellants. According to Mst.
Karim Khatoon the appellants took them to Adam Wahan Railway Gate in wagons and from there took them towards Hametian on foot Through river and when they reached a tube-well across the river an unknown person enquired from the appellants as to what was the matter on which they got perplexed and fled away leaving them there. The said gentleman escorted the ladies to bus stand and arranged their homeward journey by a bus from where they reached village Halim Khichi on the following evening.
7. Relying on the ocular testimony furnished by the above-mentioned P.Ws. And the motive, the trial Court convicted and sentenced the appellants as described above. The other accused were, however, acquitted mainly for the reason that their names did not figure in the F.I.R. And no identification parade was held for their identification.
8. Learned counsel for the appellants has argued that all the eye--witnesses examined by the prosecution are closely related inter se as well as to the deceased and are thus not worthy of credence without any independent corroboration. Sardar Mohammad an independent witness named as eye-witness in the F.I.R. Did not support the prosecution version and appeared in defence of the appellants. The recoveries of guns from Mohammad Azim and Nazru appellants which could corroborate the eye-witnesses, as already stated above, were not relied upon by the trial Court. The acquittal of majority of the accused has rendered the testimony of the eye- witnesses totally unreliable, it is stated.
9. No doubt, all the eye-witnesses are closely related to one another as well as the deceased but this fact by itself is not sufficient to discard their testimony. They are natural witnesses because the occurrence had taken place in their house. The presence of injuries on their persons lends further corroboration to their testimony. Of them, Karim Bakhsh (P.W.7), Mst. Kaneez Mai (P.W.8), Mst. Karim Khatoon (P.W.9), Mst. Irshad Mai (P.W.11) and Allah Bakhsh (P.W.16) were injured and were medically examined and the duration of their injuries tallies with that of the deceased. They were equally related to the appellants. Karim Bakhsh (P.W.7) is stated to be a cousin of Mohammad Azim appellant. Mst. Karim Khatoon (P.W.9) is wife of Mohammad Azim appellant while Mst. Mumtaz Mai (P.W.12) is wife of Nazru appellant. In view of such a close relationship they could not be expected to depose falsely against the appellants. The presence of injuries on the person of Mohammad Azim and Nazru appellants proves their participation in the occurrence. They were of the same duration as that of the deceased and other injured P.Ws. The appellants had a strong motive to commit the crime. According to the prosecution the appellants were opposed to the marriage of Mst.Irshad Mai daughter of Mst. Karim Khatoon with Allah Wasaya son of Karim Bakhsh (P.W.7). It is also an admitted fact that Karim Khatoon (P.W.9) was not living with Mohammad Azim appellant and was instead living with her brothers Karim Bakhsh P.W. And Rahim Bakhsh deceased in village Halim Khichi. It is established from the evidence that Mohammad Azim appellant had left village Halim Khichi about two months prior to the occurrence and had gone to village Hametian, District Bahawalpur. It is further proved from the evidence that the appellants had come prepare carrying guns in order to abduct Mst. Karim Khatoon arid her daughters They not only succeeded in their, mission but also caused the death of Rahim Bakhsh and injured Karim Khatoon and her daughters and other P.Ws. When offered resistence. The return of the abducted women after the matter had been reported to the police is a strong piece of evidence lending corroboration to the prosecution version as set forth in the F.I.R. Had they not been abducted and forcibly taken away by the appellants Karim Bakhsh would not have mentioned it in the F.I.R. The falsity of the prosecution version would have come to light on the arrival of the police there.
The acquittal of the other accused would not render the eye-witness account unworthy of belief.
They were neither named in the F.I.R. Nor was any identification parade held so the trial Court considered it unsafe to convict them. The Courts are competent to sift grain from the chaff and the maxim falsus in uno falsus in omnibus has been discussed by the Courts in Pakistan. The rule that the integrity of witnesses is indivisible has not been endorsed by the superior Courts of this country.
Furthermore, it is not one of universal application not The appellants being closely related to one another could reasonably be expected to share the common intention. It is in evidence that Mohammad Azim appellant was annoyed over the marriage of Mst. Irshad Mai with Allah Wasaya P.WW. Leading to a temporary separation between Mohammad Azim and his wife Mst. Karim Khatoon as well as between Mumtaz Mai (P.W.12) and her husband Nazru appellant. It was for this reason that the appellants had resorted to violence. Their pre-concert and arrangement can be inferred from their conduct of coming together to the village of the complainant party at dead of night carrying lethal weapons like guns. Assuming that their primary object was to abduct the womenfolk but keeping in view the facts of the case, particularly the inhuman manner in which they had acted, it could be safely presumed that they intended to carry out the unlawful design at all costs, even at the cost of overcoming resistance by taking life which justifies the application of section 34, P.P.C. And each one of them would be constructively liable for the acts of another.
For the reasons discussed above the prosecution case stands full established against the appellants beyond all shadow of doubt. They were, therefore, rightly convicted and properly punished. Their conviction and sentences are accordingly maintained and the appeal is dismissed.
The death sentence of Mohammad Azim is confirmed.