JAVID IQBAL, J.---Aspain Gul son of Maseen Khan aged 33 years, Zar Gul son of Maseen Khan aged 20 years, Raees Khan son of Fateh Khan aged 40 years and Abbas Khan son of Mian Noor .Khan aged 70 years, have been convicted under section 302134, P. P. C. And each of them sentenced to death for the murder of Ghaffar Khan; they have also been convicted under section 307/34, P. P. C.
On three counts and sentenced to five years' R. I. Each for the attempted murders of Muzaffar Khan P. W. 11, Hawas Khan P. W. 14 and Niamat Khan P. W. 15 vide judgment dated the 11th of June 1970, of Mr. Bashir Ahmad, Sessions Judge, Lyallpur. Their appeal as well as reference for too confirmation of death sentence are being taken up and disposed oftogether by this judgment. Criminal Revision No. 956 of 1972 filed by Muzaffar Khan P. W. Shad considered and disposed of along with the aforementioned appeal as well as reference.
2. The relationship between the appellants is as follows: Aspain Gul and Zar Gul appellants are brothers. Races Khan appellant is father-in-law of Zar Gul appellant whereas the daughter of Abbas Khan appellant is married to a brother of Aspain Gul and Zar Gul appellants. Abbas Khan appellant is also a consanguine brother of Ghaffar Khan deceased.
3. The occurrence is stated to have taken place on the 8th of July 1969, at 7-15 a. m. In the area of Chak No. 659/G-B., District Lyallpur, at a distance of 3--miles in the direction of South from Police Station Dejkot. The F. I. R. Annex. (Exh. P. C.) is stated to have been lodged at 8-20 A. m. On the same date at Police Station Dejkot by Muzaffar Khan P. W. 11, maternal uncle of Ghaffar Khan deceased and it was recorded by Akhtar Saeed Farooqi, S. I. P. W. 16.
4. The motive for the offence as stated in the F. I. R. Is that about 7/8 years ago Sahib Gul brother of Muzaffar Khan P. W. Abducted Mst. Guldan Begum sister of Aspain Gul and Zar Gul appellants and she had not been returned on account of which the relations between the parties were strained.
Furthermore, 5/6 months prior to the occurrence Amir Gul nephew of Aspain Gul and Zar Gul appellants had been injured by gunshot and consequently a case was registered under sec--tion 307, P. P. C. Against Ghaffar Khan deceased, Khawas Khan, Hawas Khan P. W. And Muzaffar Khan P.
W. Which was pending. In addition to the above Ghaffar Khan deceased had been accused in a case under section 13 of the Arms Ordinance XX of 1965, for the possession of unlicensed gun.
Abbas Khan appellant was one of the prosecution witnesses in that case. The date of hearing of that case was the 8th of July 1969, when the occurrence took place. It is stated that a few days prior to the occurrence Ghaffar Khan deceased had dissuaded Abbas Khan appellant from appearing as P. W. In that case. But Abbas Khan appellant refused. This led to exchange of hot words and abuses between the two.
5. According to the F. I. R. The occurrence took place in the following manner: Muzaffar Khan P. W.
Was coming to Dejkot along with his two nephews, namely, Ghaffar Khan and Hawas Khan P. W.
And Niamat Khan P. W. 15 because his nephew Ghaffar Khan who had been challaned for the possession of unlicensed gun under section 13 of the Arms Ordinance XX of 1965, had to appear before the Magistrate Dejkot on the 8th of July 1969. At about 7-15 a.m. When they had reached near the dera of Sheru P. W. 13 opposite the canal bridge Gogera Branch, all the four appellants, each being armed with single---barrelled .12 bore gun came out from their hiding in Rajbah Korn minor canal and attacked them. The first gunshot was fired by Abbas Khan appellant which hit Ghaffar Khan on the right side. The second gunshot was fired by Raees Khan appellant which hit on the right side of Niamat Khan P'. W. The third gunshot was fired by Zar Gul appellant which hits the right knee of Hawas Khan P. W. Then Aspain Gul appellant fired a gun shot which did not hit any one. Muzaffar Khan P. W. Hawas Khan P.W. Niamat Khan P. W. And Ghaffar Khan ran in order to save their lives. They were chased by the four appellants who went on firing their guns. Aspain Gul appellant fired another gunshot in the process of chasing them. The shot hit on the back side of the head of Ghaffar Khan. Aspain Gul appellant fired one gun shot more from close range which hit Ghaffar Khan on the back. Thereupon Ghaffar Khan fell down'- on the ground at a site which was at a distance of 4 kanals in the direction of south from the dera of Sheru P. W.
13. Niamat Khan injured P. W. Fell down further away at the dera of Yusuf. On the hue and cry of these P. Ws. Sheru P. W. And Fayyaz Ahmad P. W. 12 were attracted to the scene of occurrence and also witnessed the same. On the alarm raised by them the appellants discontinued the chase and ran away. The result was that Ghaffar Khan died whereas Hawas Khan and Niamat Khan P. Ws, sustained injuries at the hands of the appellants.
6. From the perusal of the F. I. R. It is clear that the injury caused to Niamat Khan P. W. Is attributed to Races Khan appellant whereas the injury caused to Hawas Khan P. W. Is attributed to Zar Gul appellant. Both these appellants did not fire towards Ghaffar Khan deceased who is stated to have been injured by the gunshots fired by Aspain Gul and Abbas Khan appellants.
7. There are five eye-witnesses of the occurrence, namely, Muzaffar Khan P. W. 11, maternal uncle of Ghaffar Khan deceased and held to be an interested witness by the Sessions Judge; Fayyaz Ahmad P. W. 12, held to be an independent witness by the Sessions Judge but according to learned counsel for the appellants he was also an interested witness being tractor driver of Khawas Khan, a brother of Ghaffar Khan deceased. Sheru P. W. 13 held to be an independent witness by the Sessions Judge but according to learned counsel for the appellants an interested witness as he was brother-in-law of Fayyaz Ahmad P. W., Hawas Khan P. W. 14 a brother of Ghaffar Khan held to be an interested witness by the Sessions Judge and Niamat Khan P., W. 15 being husband of the sister of Ghaffar Khan deceased and found to be an interested witness by the Sessions Judge. Out of these five eye-witnesses Hawas Khan and Niamat Khan P. Ws. Are injured.
8. The relevant recoveries made in this case are as follows:------
(i) Blood-stained earth taken into possession from the place where the dead body of Ghaffar Khan was lying on the 8th of July 1965, vide memo. Exh. P. D. Witnessed by Hashmat Khan P. W. 10, Akhtar Saeed Farooqi S. I. P. W. 16 and Muhammad Yusuf (given up as unnecessary).
(ii) On the same date i. e. The 8th of July 1969, a pair of Shy P. 1/1-2, and a loin cloth P. 2 belonging to Ghaffar Khan deceased and taken into possession from inside the dhari (Haven) of Sheru P. W. Vide memo. Exh. P. E., the recovery witnesses being the same.
(iii) On the same date i.e. The 8th of July 1969, four crime empties P. 3/1-4 and one live cartridge P. 4 of T2-bore gun were taken into possession from near the dhari of Sheru P. W. Vide memo. Exh. P. F., recovery witnesses being the same.
Zar Gul appellant was arrested on the 9th July 1969, Aspain Gul and Raees Khan appellants were arrested on the 10th of July 1969, and Abbas Khan appellant was arrested on the 11th of July 1969, by Akhtar Saeed Farooqi S. I. P. W: After their arrest the following recoveries were made at the instance of Zar Gul and Aspain Gul appellants:
(iv) At the instance of Zar Gul appellant from his house in Chak No. 535/G. B., gun P. 7 and two live cartridges taken into possession vide memo. Exh. P. O. Dated the 9th of July --1969, recovery witnesses being Misri Khan F. C. P. W. 5. --Muhammad Ismail F. C. P. W. 6 (in his statement he does not' depose in respect of this recovery), Hashamat Khan P. W. 10 and Akhtar Saeed Farooqi S. I. P. W.
16.
(v) At the instance of Aspain Gul appellant, 11 days after his arrest i.e. On the 21st of July 1969, from near his hour gun P. 8 taken into possession vide memo. Exh. P. Q recover' witnesses being Muhammad Ismail F. C. P. W. 6, Akhtar Seed Farooqi S. I. 'P. W. 16 and Muhammad Ali F. C. (not produced).
At pages 45 and 46 of the Paper Book there are opinions of the Examiner of the Fire-arms, contained in two reports dated the 31st of July 1969. The report respecting gun P. 7 is to the effect that in its present condition it was not in working order as its firing pin was damaged which was self-induced. Respecting gun P. 8 the report is to the effect that crime empties P. 3/1-4 had not been fired from it. Anyway, although these reports were produced in the trial Court, they were neither proved nor exhibited because a Forensic Expert had not been summoned or examined in this case. According to learned counsel, therefore, these recoveries were not of much value.
Although Raees Khan appellant was arrested on the 10th of July 1969, and Abbas Khan appellant was arrested on the 11th of July 1969, no recovery had been made at their instance.
9. Dr. Safdar Ali P. W. 1 conducted the post-mortem examination on the dead body of Ghaffar Khan at 6-00 p. m. On the 8th of July 1969, and found on his person seven fire-arm wounds, viz. (1) on the back of head, brain deep, occipital region, making a hole in the left occipital bone and membranes of brain and brain matter were injured on left side; (2) on the back of right fore-arm fracturing the radius; (3) on the back of abdomen, left side near the spine, blasting left kidney and owing to the pellets entry in the left chest, perforating the left lung and heart; (4) on the back, on the abdomen, back side of lumber spine; (5) on the front of `right chest; (6) entry and exit wound on the front of right thigh and (7) entry and exit wound on the front of left hip. In his opinion death had resulted from injuries Nos. 1 and 3. Injury No. 2 was grievous. Injuries Nos. 4 and 5 were dangerous. Injuries Nos. 6 and 7 were simple. All the injuries had been caused by fire-arm. Injuries Nos. 1 and 3 were sufficient to cause death in the ordinary course of nature.
10. Dr. Anwar Hussain P. W. 2, medically examined Niamat Khan P. W. At 10-00 a. m. On the 8th of July 1969, and found six gunshot wounds on his person, on the right renal region, on the right hip back side, on the front of right thigh (entry wound), slanting gunshot wound (exit wound), on the right side of anus and on the left side of anus. In his opinion these injuries had been caused by fire- arm. All the injuries were grievous in nature.
On the same date and at the same time he medically examined Hawas Khan P. W. And found gunshot wound on his right knee-joint (which was a wound of entry). In his opinion the injury was grievous in nature and had been caused by fire-arm.
11. At the trial the prosecution witnesses, namely, Muzaffar Khan, Fayyaz Ahmad, Sheru, Hawas Khan and Niamat Khan introduced an account in the prosecution version which was omitted in the F. I. R.
As well as the statements of these witnesses recorded by the committing Magistrate. The Additional account was to the effect that while the P. Ws. Were being chased by the appellants Ghaffar Khan deceased entered the dera of Sheru P. W. By scaling over 3' or 3--' high wall on the eastern side and then ran out of the dera by jumping over the southern wall of the same height, that Abbas Khan and Aspain Gul appellants who were chasing him did not enter the dera but they followed him from the outer side and that Ghaffar Khan deceased crossed four kanals by running when he was fired at twice and injured in the head and the back at the hands of Aspain Gul appellant and he fell down on the ground and died. In the process of passing through the dera of Sheru P. W., the shoe's and loin cloth of Ghaffar Khan deceased went off his body and were subsequently recovered therefrom by the police. According to Muzaffar Khan P. W. Abbas Khan and Aspain Gul appellants did not enter the dera but according to Fayyaz Ahmad P. W. They chased him through the dera. According to Sheru P. W. Ghaffar Khan deceased entered his dera by scaling over the eastern wall while the other P. Ws. Entered the same from the gate of his dhari. According to Hawas Khan and Niamat Khan P. Ws. All of them scaled over the wall of le Sheru P. W. While the appellants were running after them.
12. The appellants denied the charge. Abbas Khan admitted his relationship to Zar Gul, Aspain Gul and Raees Khan appellants. He admitted the enmity between the complainant and the accused parties. Before the committing Magistrate he also admitted that few days prior to the occurrence Ghaffar Khan deceased had requested him to depose against him in the case under section 13 of the Arms Ordinance of 1965 and that he refused to oblige him on which there had been an exchange of abuses. He stated before the trial Court that he appeared in the Magistrate's Court as a P. W. In the Arms Ordinance case against Ghaffar Khan deceased on the day of occurrence. He further stated that the sister of Aspain Gul and Zar Gul appellants was abducted by the brother of Muzaffar Khan P. W. But later on a compromise was effected and Hawas Khan P. W. Married his sister to Aspain Gul appellant although Aspain Gul appellant turned her out from his house suspecting her chastity. He also stated that few, days prior to the occurrence Ghaffar Khan deceased was drunk 'and in a state of intoxication he said to him that he would not let him collect the land revenue and also abused him, and that he made a complaint to the S. H. O. But he did not request him to refrain from appearing as a witness against him. He denied participation in the occurrence and stated that the report of Medical Superintendent on his bail application was to the effect that his left elbow was injured and he was not capable of wielding a gun. He further stated that he was weak that he was a T. B. Patient, that both his eyes were operated upon and that his eye-sight was weak. He also stated that his father had gifted his land situated in Chak No. 535/G. B.
Along with Lambardari of that village to him, that Hawas Khan P. W., Khawas Khan and Ghaffar Khan deceased were given the land in village Kanjur, District Campbellpur as well as Lambardari of that village and they were also given the residential land and shops situated in Dejkot. He stated that this was resented by them as well as their mother. They brought a declaratory suit against him in 1946 but that suit was dismissed. He produced copies of the plaint Exh. P. E., khasra girdawari Exh.
D.F. And jamabandi Exh. D. C. In order to prove his contention. According to him the P. Ws. Wanted him to transfer that land in their names which he was not willing to do and thereupon they took illegal possession of the same and owing to enmity they falsely involved him in this case. He further stated that all the P. Ws. Were interested witnesses.
Aspain Gul appellant disowned gun P. 8 However he admitted that his sister eloped with Sahib Khan brother of Muzaffar Khan P. W. And maternal uncle of Ghaffar Khan deceased and had not been restored at all. He further stated that the sister of Ghaffar Khan deceased Mst. Nek Bakht was married to him. But he turned out her from his house because of her loose character and contracted a second marriage whereupon the complainant party became their enemies and had involved them in this case. He stated that his sister was also the wife of Khawas Khan brother of.
Ghaffar Khan deceased but they were not on visiting terms with the complainant party. He stated that he was granted pension from Army in 1962 as he was declared unfit stated that his right leg was defective and he could not run.
Zar Gul appellant also stated that after the elopement of his sister with Sahib Khan a compromise was effected according to which the sister of Ghaffar Khan deceased was married to his brother Aspain Gul appellant who turned her nut from his house because of her immorality. He disowned gun P. 7 and stated that he had been involved in this case due to enmity of P. Ws. With him and his brother Aspain Gul appellant.
Races Gul appellant stated that he was not present at the time of occurrence but had been involved due to enmity.
13. Ch. Nazir Ahmad Khan learned counsel for the appellants argues that the enmity between the complainant and the accused parties is clearly established from the record, that the eye- witnesses produced by the prosecution are highly interested and that, therefore, it is necessary that the rule of caution should be applied while assessing their testimony. There is no doubt in our mind that the parties are inimical to each other. Three of the eye-witnesses produced in this case, namely, Muzaffar Khan, Hawas Khan and Niamat Khan P. Ws. Are closely related to Ghaffar Khan deceased and have also been held as interested witnesses by the Sessions Judge. The remaining two, namely, Sheru and Fayyaz Ahmad P. Ws. Arm related to each other and since Fayyaz Ahmad P.
W. Was the tractor driver of Khawas Khan another brother of Ghaffar Khan deceased. According to the testimony of Hashmat P. W. 10, in our view they too are interested witnesses although the Sessions Judge has held them to be independent witnesses. We, therefore, agree with learned counsel that since the eye-witnesses are highly interested their testimony should be assessed with great caution and should be accepted only so far as it is supported by corroborative evidence. It may however be noted that in the instant case the recoveries made, namely, gun P. 7 at the instance of Zar Gul appellant and gun P. 8 at the instance of Aspain Gul appellant are of no value at alt because according to the reports of the Examiner of Fire-arms gun P. 7 was not in working order as its firing pin was damaged whereas crime empties P. 3/1-4 taken into possession from near the dera of Sheru P. W. Had not been fired from gun P.
8. Furthermore the aforementioned reports were neither proved nor exhibited because the Forensic Expert had not been summoned or examined in this case. Thus the only corroborative piece of evidence we are left with is the medical evidence.
14. Learned counsel further argues that the testimony of Muzaffar Khan P. W. Is totally unreliable for had he been present at the time of occurrence he would have certainly been murdered at the hands of the appellants. According to learned counsel he could have not accompanied Ghaffar Khan deceased but was made an eye-witness due to his cleverness and experience in order to act as the first informant. It is further argued that Sheru and Fayyaz Ahmad P. Ws. Might also have not witnessed the occurrence but were introduced as eye-witnesses so that their testimony could be believed as that of natural witnesses.
The testimony of Muzaffar Khan P. W. Indeed does not inspire confidence. He sustained no injury at the hands of the appellants. It is clear from his statement that he was a history---sheeter and en inmate of Register No. 10, that there were numerous decoity cases pending against him in Gujranwala District, that he was convicted and sentenced to imprisonment for 161 years which was subsequently reduced to 9J years by the appellate Court, that he was an approver in two decoity cases, that there were four decoity cases pending against him at Lyallpur, that he was one of the accused in a murder case relating to one Noora deceased but was acquitted, that he abducted the daughter of one Kasar Masih, that he along with others had been bound down under section 107, Cr. P. C. On the 19th of March 1970, that he had no source of income, and that he made his sister file a suit against Abbas Khan appellant for a declaration that the gift of land in Chak No. 535/G. B., made in favour of Abbas Khan appellant was illegal. It is in evidence that his brother had eloped with the sister of Aspain Gul and Zar Gul appellants and that it was at his instance that the gift of some land made in favour of Abbas Khan appellant had been challenged and that square No. 87 in Chak No. 535/G. B., gifted to Abbas Khan appellant by his father was under illegal possession of Hawas Khan P. W., Khawas Khan and Ghaffar Khan deceased his nephews. We have no doubt that if he had accompanied Ghaffar Khan deceased he would have certainly been the first target of the appellants. According to his own statement he is a history-sheeter, inmate of Register No. 10, a previous convict under dacoity charges and an accused in a murder case. In the circumstances his testimony is not worthy of any credit. We, therefore, agree with learned counsel that he may have not been present at the time of occurrence but because of his cleverness and experience was called in order to file the F. I. R. In this case. His testimony is accordingly discarded.
In regard to the testimony of Sheru and Fayyaz Ahm9d P. Ws. We are of the view that it is doubtful if they had witnessed the first part of the occurrence in which Abbas Khan appellant is stated to have fired the first gunshot which hit the right side of Ghaffar Khan deceased, the second gunshot was fired by Raees Khan appellant which hit on the right side of Niamat Khan P. W. And the third gunshot was fired by Zar Gut appellant which hit the right knee of Hawas Khan P. W. According to the statement of Sheru P. W.; his dhari was at a distance of 3/4 kanals from the Foot Bridge of Gogera Canal where the first part of the occurrence took place. He has stated that he was sitting at the thara of his dhari towards the West and was looking towards the direction of East where the occurrence took place. According to him his dhari was also known as haveli and it was open without containing any room although there were two rooms outside the dhari adjoining its western wall and that the thara on which he was sitting was in front of those two rooms. According to the statement of Fayyaz Ahmad P. W. He resided at the dera of Sheru P. W. And was putting fodder to his buffalo at the time of occurrence. According to him Sheru P.W. Was near the toka at the time of occurrence. He has stated that the dhari of Sheru P. W. Had only one room where nobody resided. There is nothing on the record to Show that Sheru and Fayyaz Ahmad P. Ws. Could not be present at the dera of Sheru P. W. At the time of occurrence. It is probable that their attention was directed to the scene of occur--rence on the report of gun-fire which constituted the first part of occurrence. We, therefore, are inclined to agree with learned counsel that they may have in fact not witnessed the first part of the occurrence. But there is no reason why it should be held that they did not see the subsequent part of the occurrence i.e. The chasing by the appellants of Ghaffar Khan deceased as well as Hawas Khan and Niamat Khan P. Ws. Consequently their testimony respecting the first part of occurrence is discarded.
15. Learned counsel further argues that the testimony of Hawas Khan, Niamat Khan, Sheru and Fayyaz Khan P. Ws. Must be rejected in its entirety for the following reasons:- ---.
(i) They all have falsely deposed that Muzaffar Khan P. W, was present at the scene of occurrence whereas it has already been observed by us that his presence was doubtful.
(ii) They all have falsely deposed that Ghaffar Khan deceased along with his injured companions entered the dera of Sheru P. W. By scaling over the wall and then exited therefrom leaving behind his shoes and loin cloth. This account of the eye--witnesses was an afterthought and had been introduced so that the testimony of Sheru and Fayyaz P. Ws. Be considered as that of natural witnesses.
(iii) They all have falsely deposed respecting the participation of Abbas Khan appellant in the occurrence who could have not been present for no recovery was effected from him, he was 70 years old; there was evidence on record that he could not wield a gun owing to a permanent injury sustained by him on his left elbow, the injury attributed to him (that gunshot fired by him hit on the right side of Ghaffar Khan deceased) did not tally with the medical evidence and that he was roped in only because be was an elder of the family and had refused to accede to the request of Ghaffar Khan deceased for not deposing against him in the Arms Ordinance case.
(iv) They all have deposed falsely respecting the participation of Raees Khan appellant in the occurrence from whom no recovery was effected and who had also been roped in because of being another elder of the family. He is father-in-law of Zar Gut appellant and is not directly connected with the motive.
We have indeed held that the presence of Muzaffar Khan P. W. At the time of occurrence was doubtful. Therefore, we place no reliance on the testimony of the eye-witnesses in this respect.
It is clear from the record that the entrance of Ghaffar Khan deceased in the, dera of Sheru P. W.
And exit therefrom had neither been mentioned in the F. I. R. Nor in the statements of the eye- witnesses recorded by the committing Magistrate. Similarly the leaving behind of the shoes and loin cloth of Ghaffar Khan deceased in the dera of Sheru P. W. Which were subsequently taken into possession from inside the dhari of Sheru P. W. By the police vide memo. Exh. P. B. Was neither mentioned in the F. I. R. Nor in the statements of these eye--witnesses recorded by the committing Magistrate. This account was given for the first time by the eye-witnesses before the trial Court and there are indeed material discrepancies in their statements respecting the same. According to the site plan the distance between the place where the first part of occurrence took place and the dhari of Sheru P. W. Is about 150 yards. Accord--ing to the story of the eye-witnesses Ghaffar Khan deceased was hit by the gun shot of Abbas Khan appellant on his right side, Niamat Khan P. W. Was hit by the gunshot of Raees Khan appellant on his right side and Hawas Khan P. W. Was hit on the right knee by the gunshot of Zar Gut appellant. This would mean that the three of them had sustained injuries before they started running in the direction of the dera of Sheru P. W. In order to save their lives. They ran a distance of about 150 yards then Ghaffar Khan deceased scaled over the wall of the dera, ran through the dera and jumped out of the wall again covering a distance of four kanals more before he fell down and died. But throughout the way there was no trail of blood, no blood or scortching marks were found on the walls which had been scaled over and no trail of blood was found inside the dhari of Sheru P. W. Or anywhere except that blood was found at the place where he fell down and died. The account of the eye--witnesses in this respect is also contradictory. According to Fayyaz Ahmad P. W. Hawas Khan P. W. Entered the dhari from the western side by scaling over the wall near the gate. Niamat Khan P. W. Came to the gate of the dhari and finding it closed he crossed the wall and Ghaffar Khan deceased scaled over the wall from the eastern side and entered the haveli. According to him none of the appellants entered the dhari in chase of Ghaffar Khan deceased and his injured companions, Ghaffar Khan deceased kept running and then scaled over the other wall and went out of the dhari and in the same way Hawas Khan and Niamat Khan P. Ws. Passed through the dhari without stopping there. He stated that all of them scaled over the southern wall to go out of the dhari whereas Abbas Khan and Aspain Gul appellants overtook them by going from eastern side of the dhari and the other two accused arrived from the western side of the dhari. According to Sheru P. W. Ghaffar Khan deceased entered the dhari by scaling over the eastern wall while his other companions entered from the gate of the dhari and there--after Ghaffar Khan deceased scaled over the wall in between east and west. He stated that the shoes and loin cloth of Ghaffar Khan deceased fell off at a distance of 5/7 steps from the wall inside the dhari. He further stated that the appellants followed them by running around the dhari. After crossing the haveli Ghaffar Khan deceased alone ran towards the eastern side whereas his other companions ran towards the western side. This witness had denied that he had stated in Exh. D. D. Before the police that Ghaffar Khan deceased scaled over the wall of his dhari after being injured and fell down. According to Niamat Khan P. W. Ghaffar Khan deceased entered the dhari from the eastern side whereas his companions entered by scaling over the northern wall. According to him when Ghaffar Khan deceased scaled over the wall in order to run out from the haveli his loin cloth fell off inside the haveli but he did not notice when his shoes fell off.
According to Hawas Khan P. W. Ghaffar Khan deceased scaled over the southern wall of the haveli and ran towards the south whereas his companions scaled over the wall of the haveli from south- western corner and ran towards the south-west.
Material discrepancies and contradictions in the statements of the eye-witnesses regarding the entrance of Ghaffar Khan deceased into the dhari of Sheru P. W. And exit therefrom while his loin cloth and shoes fell off inside the dhari, have made us arrive at the conclusion that this part of the testimony of the eye-witnesses was also unreliable. It has already been observed that the account of passing through the dhari of Sheru P. W. By Ghaffar Khan deceased and his companions was not mentioned in the F. I. R. As well as in the statements of the P. Ws. Recorded by the committing Magistrate. Similarly the leaving behind of the shoes and loin cloth of Ghaffar Khan deceased was not mentioned earlier. This account was added for the first time by the eye-witnesses in their statements before the trial Court. Since the account is contradictory and has material discrepancies and since it is not supported by any corroborative evidence this portion of the testimony of the eye-witnesses is rejected as unreliable.
As for the presence of Abbas Khan appellant we are inclined to agree with learned counsel that it is doubtful if he participated in the occurrence mainly for the reason that the injury which he is stated to have caused to Ghaffar Khan deceased does not tally with the medical evidence. It is in evidence that be fired the first gunshot which hit Ghaffar Khan deceased on his right side including flank (Wakhi). According to medical evidence no fire-arm wound was found on the right side including flank' of Ghaffar Khan deceased. He had one fire-arm wound of entry chest deep on the front of right chest I" below the right nipple entering the chest between 6th and 7th ribs and injuring right as well as left lungs. The other fire-arm wound of entry and exit had been sustained by him on the front of right thigh. Still another fire-arm wound of entry and exit was sustained by him on the front of left hip. In the opinion of the Medical Officer the chest wound which had damaged his right and left lung was dangerous. After sustaining this injury it is improbable that he could have run a distance of about 150 yards and covered a further distance of four kanals without even leaving a trail of blood. It is also correct that Abbas Khan appellant was 70, years old and it is on record that, owing to his defective left elbow he could have not wielded a gun. He may have been a liability on the other appellants owing to this injury as held W' Nazir and others v. The State (PLD 1962 S G 269) instead of being an asset. However he was to attend the hearing of the Arms Ordinance case against Ghaffar Khan deceased as he was a P. W. And according to his statement before the trial Court his appearance before the Magistrate in that case was recorded on the day of occurrence.
Therefore, it is probable that he accompanied the other appellants without actually participating in the occurrence but had been falsely implicated due to enmity of the complainant party, being an elder of the family add for having refused to accede to the request of Ghaffar Khan deceased for not deposing against him in the Arms Ordinance case. We are, therefore, of the opinion that in view of these considerations he should have been given the benefit of doubt.
The arguments of learned counsel respecting the non---participation of Raees Khan appellant do not appeal to us. It is in evidence that he fired a gunshot which hit the right side of Niamat Khan P.
W. According to the medical evidence on the person of Niamat Khan P. W. Gunshot wounds were found on the right renal region, on the right hip, on the front of right thigh, on the right and left side of the anus. Thus the injury attributed to him is supported by the medical evidence.
16. The argument of learned counsel that the entire testimony of Niamat Khan, Hawas Khan, Sheru and Fayyaz Ahmad P. Ws. Should be discarded because they had deposed falsely about the presence of Muzaffar Khan P. W., about the entrance of Ghaffar Khan deceased and his companions in the dhari of Sheru P. W. And exit therefrom leaving behind his shoes and loin cloth inside the dhari, as well as about the participation of Abbas Khan appellant in the occurrence, does not appeal to us. There is no doubt in our mind that previous enmity exists, between the complainant and accused parties and that Hawas Khan, Niamat Khan, Sheru as well as Fayyaz Ahmad P. Ws. Are highly interested witnesses. However it is in evidence that on the day of occurrence Ghaffar Khan deceased bad to appear before the Magistrate in the Arms Ordinance case in which he was the accused person and Abbas Khan appellant was to appear as a P. W.
Against him. It is, therefore, probable that Ghaffar Khan deceased was proceeding to the Court of the Magistrate Dejkot along with the two injured P. Ws., namely, Hawas Khan and Niamat Khan.
Similarly Abbas Khan appellant had also to appear as a P. W. Against Ghaffar Khan deceased in the Arms Ordinance case and, therefore, went to the Magistrate's Court along with the other appellants. Both the parties had to come from the same village. But since there existed enmity bet- -ween them the appellants except Abbas Khan appellant decided to murder the members of the complainant party and in furtherance of the common intention armed themselves with guns and way-laid them. The presence at the time of occurrence of Hawas Khan and Niamat Khan P. Ws.
Along with Ghaffar Khan deceased cannot be doubted because the two P. Ws. Bad sustained injuries which have been attributed to specific appellants. With the exception of the role ascribed to Abbas Khan appellant and excluding the testimony of Hawas Khan and Niamat Khan P. Ws.
Regarding the presence of Muzaffar Khan P. W., we have no reason to doubt the testimony of these two eye-witnesses so far as it relates to the first part of occurrence in which Hawas Khan P. W. Is stated to have been injured on the right knee at the hands of Zar Gul appellant and Niamat Khan P.
W. Is stated to have received injury on the right side at the hands of Rates Khan appellant The testimony of these two eye-witnesses is corro--borated by the medical evidence. After receiving these injuries it is probable that the three of them started running in order to save their lives and were chased by the appellants. We have already discarded the testimony of Sheru and Fayyaz Ahmad P. Ws: respecting the presence of Muzaffar Khan P. W. As well as their witnessing the first part of occurrence just as we have discarded the testimony of Hawas Khan, Niamat Khan, Sheru and Fayyaz Ahmad P. Ws. Respecting the entrance in the dhari of Sheru P. W. Of Ghaffar Khan deceased and his two injured companions by scaling over the wall and exit therefrom by jumping over the other wall. But we find no reason to doubt the testimony of these four eye-witnesses regarding Aspain Gul appellant who fired two gunshots one after the other which hit Ghaffar Khan deceased at the back of head and on the back, for these injuries are corroborated by the medical evidence which is to the effect that a wound of entry brain deep was found on the back of head occipital region 4--behind the left ear, an area of eight fire-arm wounds of entry on the back of abdomen left side near the spine and a wound of entry on the back side of lumber spine 2--" lower than the above injury and communicating therewith. We have already observed that there is nothing on the record to suggest that Sheru and Fayyaz Ahmad P. Ws. Could not be present at the dera of Sheru P. W. There is no doubt in our mind that all these P. Ws. Are highly interested witnesses and applying the rule of caution we have believed their testimony only to the extent and so far as it was supported by the corroborative evidence which in this case is the medical evidence. So far as the testimony of these P. Ws. Is concerned specific roles have been ascribed to the appellants and we have believed their testimony in respect of the roles ascribed to the appellants other than Abbas Khan appellant essentially because the, injuries attributed to them tallied with the medical evidence whereas the injury attributed to Abbas Khan appellant did not. We have indeed placed reliance only on those portions of the statements of the four P. Ws. Which were corroborated by the medical evidence and we have discarded the other portions which were not supported either by medical evidence or by other corro--borative evidence. We find it necessary in this case to sift the grain from the chaff in accordance with the principle laid down by their Lordships of the Supreme Court in Tawaib Khan and another v. The State (PLD 1970 SC 13) because, the P. Ws. Are highly interested witnesses. We, therefore, do not agree with learned counsel that if we have doubted the credibility of parts of the testimony of these P. Ws. Their statements should be disbelieved, totally.
17. Learned counsel further argues that Ghaffar Khan deceased could have been murdered and Hawas Khan as well as Niamat Khan P. Ws. Could have been injured at the hands of only two appellants, namely, Aspain Gul and Zar Gul who were directly connected with the motive and from whom recoveries of guns P. 7 and P. 8 had been effected. It is submitted that one pellet injury on the right knee joint was found on the person of Hawas Khan P. W. Which was attributed to Raees Khan appellant and that injury caused on the left side of Niamat Khan P. W. Was attributed to Zar Gul appellant. According to learned counsel both Niamat Khan and Hawas Khan P. Ws. Could have sustained injuries by one gunfire shot of Zar Gul appellant. It is, therefore, urged that Raees Khan appellant could have also not participated in the occurrence like Abbas Khan appellant.
We do not agree with the line of reasoning of learned counsel because according to Hawas Khan and Niamat Khan P. Ws. The injury caused on the right knee-joint of Hawas Khan P. W. Had been attributed to Raees Khan appellant and the same is corroborated by the medical evidence. As for the recoveries of guns P. 7 and P. 8 at the instance of Aspain Gul and Zar Gul appellants learned counsel had himself previously argued that they were of no worth at all and we agree with him.
18. Learned counsel also argues that in any case Raees Khan and Zar Gul appellants did not fire towards Ghaffar Khan deceased. According to him, therefore, their case was distinguishable. The argument of learned counsel has no force. We are of the considered opinion that it was a planned affair that the appellants except Abbas Khan appellant had decided to murder the members of the complainant party and in furtherance of their common intention they way-laid them and inflicted injuries to them which resulted in the death of Ghaffar Khan and grievous injuries to Niamat Khan and Hawas Khan P. Ws.1 There is hence no question of individual liability in this case.
19. Learned counsel finally argues that the appellants other than Abbas Khan appellant murdered Ghaffar Khan deceased and caused injuries to Hawas Khan and Niamat Khan P. Ws. In order to vindicate their family honour. Therefore, according to learned counsel the awarding of capital sentence was not called for and the lesser penalty could be sufficient to meet the ends of justice.
20. For the reasons discussed in para. 15 Abbas Khan appellant is given the benefit of doubt. His conviction under section 302/34, as well as section 307/34, P. P. C. And sentences thereunder are set aside and he is acquitted. His appeal is accepted. He shall be released from jail forthwith if he is not wanted in any other case.
As for the other appellants, namely, Aspain Gul, Zar Gul and Raees Khan, in the light of the above discussion, we are of the considered opinion that the prosecution has succeeded in establishing its case against them and their conviction under section 302/34, P. P. C. For committing the murder of Ghaffar Khan deceased as well as under section 307/34, P. P. C. On two Counts for the attempted murders of Hawas Khan and Niamat Khan P. Ws. Was well deserved and is accordingly maintained.The sentence of five years' R. I. To each to these appellants for the attempted murders of Hawas Khan and Niamat Khan P. Ws. Under section 307/34, P. P. C. Is maintained. However, their conviction and sentence under section 307/34, P. P. C. For the attempted murder of Muzaffar Khan P. W. Is set aside and they are acquitted of this charge because Muzaffar Khan P. W. Did not sustain any injury and we have doubted his presence at the spot. As for the sentence to each of them under section 302/34, P. P. C. We are inclined to agree with learned counsel that in the light of the motive for offence put forward by the prosecution itself the capital sentence is uncalled for. It is stated in the F.I.R. That about 7/8 years ago Mst. Guldan Begum sister of Aspain Gul and Zar Gul appellants was abducted by Sahib Gul brother of Muzaffar Khan P. W. And she had never been returned on account of which the relations between the parties had become strained. This has not been denied by the appellants. Indeed there were many other factors also which made the parties extremely inimical to each other. There is, therefore, a reasonable probability that apart from other factors which made them enemies of one another, the appellants had continuously smarted for a number of years under the insult hurled at them through the abduction of Mst. Guldan Begum by one of the members of the complainant party. In Ghulam Rasul v. Ali Akbar and others (PLD 1965 SC 363) the Supreme Court declined to enhance sentences where the accused had committed a murder to avenge after eight years the abduction of the sister of one of the accused and the sentences of death had been commuted to transportation for life by the High Court for the reason that the crime was committed out of sense of honour which was jealously nursed among rural classes.
In Muhammad Ramzan v. The State (PLD 1966 SC 129) it was held that murder by way of reprisal to vindicate family honour was a circumstance to be taken into consideration in awarding sentence.
In that case the sentence of the accused was altered to trans--portation for life.
In Kalu alias Kalandar Bux v. The State (1968 P Cr. L J 545) the accused murdered the deceased to vindicate family honour because the deceased had enticed away accused's sister and the sentence of death was reduced to that of transportation for life.
In Abdul Aziz and another v. The State (1968 P Cr. L J 1443) the accused murdered the deceased under terrible strain of wounded family a honour and prestige and this was recorded as an adequate reason for not imposing extreme penalty under law for the offence of murder. The sentence of death in that case was commuted to that of transportation.
In the present case the other factors which establish the enmity between the complainant and the accused parties are that 5/6 months prior to the occurrence Amir Gut nephew of Aspain Gul and Zar Gul appellants had been injured by gunshots and consequently a case was registered at the instance of the accused party under section 307, P. P. C. Against Ghaffar Khan deceased, Khawas Khan, Hawas Khan P. W. And Muzaffar Khan P. W. Which was pending at the time of occurrence; that Ghaffar Khan deceased had been accused under the Arms Ordinance for the possession of unlicensed gun and Abbad Khan appellant was one of the prosecution witnesses in that case; and that certain land belonging to Abbas Khan appellant was in illegal possession of Hawas Khan P. W., Khawas Khan and Ghaffar Khan deceased. The civil litigation between the parties in respect of the disputes pertaining to land was going on. However, the motive for offence as described by the prosecution and recorded in the F. I. R. Was that about 7/8 years prior to the occurrence Mst.
Guldan Begum sister of Aspain Gul and Zar Gut appellants had been abducted by the brother of Muzaffar Khan P. W. And she had not been returned. Although it has been stated by Abbas Khan appellant in his statement before the trial Court that afterwards a compromise was effected and Hawas Khan P. W. Married his sister to Aspain Gul appellant and that Aspain Gul appellant turned her out from his house suspecting her chastity, there is a reasonable probability that the appellants did not get over the abduction of Mst. Guldan Begum by a close relative of the complainant party and smarted under this insult for 7/8 years until the commission of the offence.
In the circumstances it is reasonably probable that the offence committed by the appellants was for vindication of their family honour and prestige. We are; therefore, of the considered view that in consideration of this mitigating circumstances the awarding of lesser penalty to them would have been sufficient to meet the ends of justice. We accordingly alter their sentence from death to that of transportation for life to each of them. The sentence of five years' R. I. Awarded to them under section 307/34, P. P. C. Shall run concurrently with the sentence of transportation for life in the case of each of them. Their appeal is accepted to this extent.
21. Reference' for the confirmation of death sentence is rejected.
22. In criminal Revision No. 956 of 1972 filed by Muzaffar Khan P. W. It is prayed that the order of the trial Court be amended and orders be passed for the payment of compensation as contemplated by section 544-A, Cr. P. C., to the heirs of Ghaffar Khan deceased and to the injured P. Ws. Namely, Hawas Khan as well as Niamat Khan. We note that in the judgment of the learned Sessions Judge while sentencing the appellants compensation as contemplated by section 544-A, Cr. P. C. Was not awarded.
23. Section 544-A was added under the Code of Criminal Procedure (West Pakistan Amendment)
Act, 1963 (Act XI of 1963) and it came into force on the 12th of July 1963. It reads as follows:---- "544-A. Compensation to the heirs of the person killed etc.----When any person is convicted of an offence involving death, hurt or injury to, loss, destruction or theft of property, the 'Court while sentencing the accused shall unless for reasons to be recorded it otherwise directs, award compensation to the heirs of the person killed, the person injured or the person whose property has been injured, lost or destroyed, as the case may be.
The amount of compensation awarded by the Court, under this section shall be regarded as a sentence of fine.
No person who has been directed to pay compensation under this section, shall, by reason of such order, be exempted from any civil liability in respect of such injury, loss or destruction. Any amount paid under this section shall be taken into account in awarding compensation to such person in any subsequent civil proceedings."
In the present case the occurrence is stated to have taken place on the 8th of July 1969. Thus it is obvious that when, the occurrence took place and the appellants were charged under section 302/307/34, P. P. C. The liability to pay compensation under section 544/ A, Cr. P. C. Did exist.
24. Learned counsel for the petitioner points out that section 544-A, Cr. P. C. Has been re-framed and re-constituted vide section 179 in the Law Reforms Ordinance, 1972 (Ordinance No. XII of 1974 and it reads as follows:----- "544-A. Compensation to the heirs of the person killed, etc.-.(1) Whenever a person is convicted of an offence in the commission whereof the death of, or hurt or injury to, any person is caused, or damage to or loss or destruction of any property is caused, the Court shall, when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay compensation to the heirs of the person whose death has been caused, 'or to the person hurt or injured person, or to tire owner of the property damaged, lost or destroyed, as the case may be, of an amount not exceeding the amount of the fine which the Court is empowered to impose for such offence.
(2) The compensation payable under subsection (1) shall be recoverable as if it were a fine imposed by the Court, and the Court may further order that, in default of payment, the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the third class, for a period not exceeding thirty days.
(3) The compensation payable under subsection (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted.
(4) The provisions of subsections (2-B), (2-C), (3) and (4) of section 250 shall, as far as may be, apply to payment of compensation under this section.
(5) An order under this section may also be made by an Appellate Court or by a Courtwhen exercising its powers of revision", and
(ii) Section 544-A inserted by the Code of Criminal Procedure (West Pakistan Amendment) Act, 1963 (W.P. Act No. XI of 1963), shall be omitted.
However under section 1(2) of the aforesaid Ordinance section 544-A, in the reconstituted form shall come into force in any province with effect from such date not later than the first day of January 1973, as the Provincial Government thereof may, by notification in the official Gazette, specify in this behalf.
25. An objection was taken by learned counsel for the appellants that from a perusal, of section 544-A; Cr. P. C. It is obvious that only the sentencing Court has the jurisdiction to award compensation under the aforesaid section and that the appellate or the revisional Court does not have such jurisdiction. Learned counsel for the petitioner on the other hand directed our attention to reconstituted section 544-A (5)(i) and (ii), Cr. P. C. He argued that section 544-A, Cr. P. C. In its old` form stood omitted and in its new form the appellate or the revisional Court was granted jurisdiction to pass an order under his section. The arguments of both learned counsel do not appeal to us. The argument of learned counsel for the petitioner can be disposed of simply on the ground that reconstituted section '544-A, Cr. P. C. Is not in force at present but shall come into force on or after, the first day of January 1973. Thus at present the section which is in force is old section 544-A, Cr. P. C.
26. The argument of learned counsel for the appellants is that this Court has no jurisdiction to award compensation under section 544-A, Cr. P. C. For it is the sentencing Court which could award the same. It is further submitted that even if the Sessions Judge has not recorded reasons in his judgment for not awarding compensation, it is an irregularity which is curable under section 537, Cr. P. C. And that this Court may not take note of it because it has not led to a failure of justice in any way. It is argued that the reasons can be recorded even now to the effect that since the appellants had committed the crime with an honourable motive, the payment of compensation in the circum-- stances of the case was uncalled for.
'We directed the attention of learned counsel to the powers of this Court under section 439, Cr. P. C.
Whereby in the exercise of its revisional jurisdiction this Court was competent to enhance the sentence. Learned counsel submitted that the awarding of compensation was entirely different from the enhancement of sentence. According to him the awarding of compensation was a special power given to the sentencing Court under section 544-A, Cr. P. C. Which was introduced for the first time only in 1963 and which did not exist as part of the Cr. P. C. Before. We not agree with learned counsel for under section 435, Cr. P. C., this Court has jurisdiction and power to call for the records of inferior Courts to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed.
Furthermore, it was held by their Lordships of the Supreme Court in Muhammad Sharif v. Saddar Din and 2 others (1971 Law Notes 202) as follows:------ "It was, however, brought to our notice by the learned counsel for the State that the Courts below failed to take notice of section 544-A of the Criminal Procedure Code which has been added by the West Pakistan Assembly. Under this provision of law, where any person is convicted of an offence involving death, hurt or injury to, loss, destruction or theft of property. The Court while sentencing the accused shall unless for reasons to be recorded, it otherwise directs, award compensation to the heirs of the person killed, the person injured or the person whose property has been injured, lost or destroyed, as the case may be, the amount of compensation awarded by the Court under this section shall be regarded as a sentence of fine. It is, therefore, quite clear that this is a mandatory provision of law and the respondents should have been sentenced to fine under it. We would, therefore, rectify this omission and sentence the respondents to a fine of Rs. 500 each under the above provision of law. This is in addition to the sentence of three years under section 304, Part II.
The fine will be paid within a week. In default, the respondents shall undergo rigorous imprisonment for three months each. The fine when realised will be paid as compensation to the heirs of the deceased."
In The State v. Abdul Hamid (PLD 1969 Lah. 319) where the accused had been sentenced to transportation for life, he was also fined to pay Rs. 10,C00 as compensation to the heirs of the deceased under section 544-A, Cr. P. C. By the H9gh Court.
27. Learned counsel for the appellants submits that before awarding compensation under section 544-A, Cr. P. C. Some evidence in regard to the financial position of the appellants should have been led by the prosecution in order to determine as to whether or not the appellants had the capacity to pity the same. Reliance was placed on Farzam Khan v. The State (PLD 1966 Pesh. 5) in which it was held as follows:---- "One point remains to be noticed and it is that before sentencing an accused to payment of fine and ordering the award of compensation under section 544-A, Cr. P. Code, it is incumbent on the prosecution to lead some evidence in regard to the financial position of the accused, so that in case of imposition of fine, the appellate Court on appeal or the High Court in revision might be able to decide about the propriety of imposi--tion of fine or the quantum of fine.
In the instant case, there is no material on the record to show that the petitioner had the means to pay the huge amount of compensation aggregating to Rs. 3,400. This being the position, I am constrained to accept the revision petition to the extent of setting aside the order in regard to the payment of compensation.
Before parting with .The case, I express the hope that in future in cases where the prosecution requires the Courts to inflict fine or order the award of compensation, it must lead evidence in regard to the capacity of the accused to pay fine."
The Peshawar judgment cited above is a Single Bench judgment passed much earlier than the Supreme Court judgment referred to above (1971 Law Notes 202), in which their Lordships of the I Supreme Court have held that the provisions of section 544-A Cr. P. C.- were mandatory :and the Court must ,impose fine as compensation in case of death, hurt or injury, loss or destruction or theft of property.
28. Respectfully following the view expressed by their Lordships of the Supreme Court we order that in addition to the sentences of imprisonment awarded to Aspain Gul, Zar Gul and Raees Khan appellants each of them should pay Rs. 700 (Rupees seven hundred only) as fine under section 544-A, Cr. P. C. Making thus a total amount of Rs. 2,100 (Rupees two thousand and one hundred only). Out of fine thus realised from the appellants Rs. 1,500 (Rupees fifteen hundred only) be paid to the heirs of Ghaffar Khan deceased whereas Rs. 300 (Rupees three hundred only) each should be paid to Hawas Khan and Niamat Khan injured P. Ws. The Criminal Revision is accepted in these terms.