' S.M. ZUBAIR, J.--Muhammad Masood, Arshad Mahmood, Abid Maqsood, Rehmat Hussain and Javed Akhtar alias Chief, were tried under sections 302/307/149 and 148 P.P.C. For committing rioting, for causing the death of Javed Akhtar deceased and for murderous assault on Rashid Akhtar P.W. The trial Court, vide his judgment dated 30-4-1987, convicted them under section 148 P.P.C. And sentenced them to two years R.I. Each, under section 302/149 P.P.C., Muhammad Masood was sentenced to death and a fine of Rs,5,000 or in default two years R.I. The remaining accused were sentenced to imprisonment for life and a fine of Rs,5,000 each or in default two years R.I.
Additionally, all the accused were ordered to pay Rs, 20,000 each as compensation to the legal heirs of the deceased, or in default six months R.I. Each. Abid Maqsood accused was further convicted under section 307 P.P.C. And sentenced to imprisonment for life. He was also ordered to pay Rs, 50,000 as compensation to Rashid Akhtar P.W.
2. The convict Muhammad Masood has challenged his conviction through Criminal Appeal No,39 of 1987, whereas Arshad Mahmood, Abid Maqsood, Rehmat Hussain and Javed Akhtar have filed Criminal Appeal No,38 of 1987 against the judgment of the trial Court. The learned Additional Sessions Judge has also referred the matter to us under section 374 Cr.P.C. For confirmation of death sentence.
' Muhammad Hussain has filed Criminal Revision No,61 of 1987, for enhancement of sentence from imprisonment for life to death of Arshad Mahmood, Abid Maqsood, Rehmat Hussain and Javed Akhtar.
' This judgment will dispose of all the four matters.
2-A. Briefly stated the prosecution version according to the F.I.R. Ex.PD lodged by Muhammad Hussain P.W.8 was that on 29-7-1985, at about 7.15 p.m. He alongwith his son Khalid Masood (not produced) was present in the field of Fazal Karim where they were grazing their animals. His son Javed Akhtar (deceased), Saharam Sultan P.W.7 and Rashid Akhtar (P.W.6) were also present in that field. In the meanwhile, the appellants came there from the direction of village Lodhran.
Arshad Mahmood and Abid Maqsood were armed with .12 bore pistols, Muhammid Masood was armed with .12 bore gun while Rehmat Hussain and Javed Akhtar were empty-handed. Rehmat Hussain and Javed Akhtar raised lalkara that Javed Akhtar should not escape alive and they would teach him a lesson for the abuses whereupon Muhammad Masood appellant fired with his .12 bore gun which hit Javed Akhtar on the chest and he fell down. Abid Maqsood appellant then fired with his .12 bore pistol which hit Rashid Akhtar P.W.6 in his abdomen. Arshad Mahmood then fired with his .12 bore pistol which hit Rashid Akhtar on his left upper arm. While seeing the occurrence, Saharam Sultan P.W.7 took shelter behind a Phulahi tree. The complainant and Khalid Masood (not produced) beseached the assailants, whereupon they went towards village Lodhran alongwith their respective weapons.
' Javed Akhtar succumbed to the injuries at the spot and the relatives of Rashid Akhtar P.W.6, removed him to Civil Hospital, Rawalpindi.
3. The motive of the assault was that about a week before the occurrence, there was an altercation between Muhammad Masood appellant and Javed Akhtar deceased on money matter, which was patched up, but Muhammad Masood bore a grudge and due to that he alongwith his co- appellants had launched the attack on the deceased and Rashid Akhtar.
4.
4. Leaving behind Khalid Masood (not produced) and others for guarding the dead body of Javed Akhtar, Muhammad Hussain (P.W.8) came to the Police Station Rewat, where he lodged F.I.R. Ex.PD which was recorded by Mir Afzal S.H.O. (P.W.13) the same day at .About 9.00 p.m.
' After recording the F.I.R. Mir Afzal visited the spot, examined the dead body of Javed Akhtar, prepared his injury statement Ex.PK and inquest report Ex.PL. He then despatched the dead body for post-mortem examination under the escort of Ghulam Muhammad P.W.2. On 30-7-1985, Ghulam Muhammad P.W.(FC) produced before the investigating officer the last worn clothes of the deceased i.e Shalwar P.2, Bunyan P.3, shirt P.4 and a sealed phial containing metatlic piece P.1, which were taken into possession vide memo Ex.PB. On the same day, Mir Afzal secured blood- stained earth from the place where Javed Akhtar had fallen and made it into a sealed parcel vide memo. Ex.PE. He also collected blood-stained earth from the place where Rashid Akhtar had fallen vide memo Ex.PF. Both these recovery memos were attested by Pervez Akhtar P.W.9. The S. H.O. Also collected three empty cartridges of .12 bore P.5 to P.7 and a live cartridge of the same bore P.8 and made them into a sealed parcel vide memo. Ex.PG. The S.H.O. Handed over the above-mentioned articles to Muhammad Nawaz MHC (PW4) for keeping them in safe custody and for onward transmission to the office of the Chemical Examiner.
' The S.H.O. On the same day inspected the spot, prepared the rough sketch Ex.PM. He also got prepared site plans Ex.PJ and Ex.PJ/1 of the place of occurrence by Sher Zaman Patwari (since dead).
' On 5-8-1985, Mir Afzal arrested Muhammad Masood, Rehmat Hussain and Javed Akhtar appellants. On 8-8-1985, Muhammad Masood led to the recovery of gun P.9 and two live cartridges P.10 and P.11 from his house which were taken into possession vide memo. Ex.PH. He prepared the rough site plan of the place of recovery Ex.PN. On 25-8-1985, Mir Afzal arrested Arshad Mahmood and Abid Maqsood. He also recorded the statements of the witnesses under section 161 Cr.P.C. After completing all the legal formalities and placing the names of Javed Akhtar and Arshad Mahmood in column No,2 he submitted the challan in the Court of law.
5. On 29-7-1985, Dr. Muhammad Tasneem P.W.5 the then C.M.O. DHQ Hospital, Rawalpindi, medically examined Rashid Akhtar P.W.6 and found a circular wound of entry at the middle of the right side of the front of chest, in anterior axillary line, 8 cm below the right nipple and 14 cm lateral to the central line on his person. Margins were slightly blackened and inverted. Corresponding cut on the shirt was present. No wound of exit was present. The injury was kept under observation and X-Ray chest was advised. The injury was inflicted by firearm weapon.
6. On 30-7-1985, Dr. Munawar Nadeem C.W.1 the then House Officer in Surgical Unit One in General Hospital, Rawalpindi, medically examined Rashid Akhtar at 1.30 a.m. With the history of bullet injury chest for last 7 hours and found wound on right chest in 3rd intercostal space in mid-axillary line, wound of entry was on shoulder-tip right and postero-lateral aspect of right arm. Movements on right side of chest diminished. Breathe sounds absent of right side.
7. On 30-7-1985 at 9.00 a.m. Dr. Nasir Mahmood P.W.1 Medical Officer, D.H.Q. Hospital, Rawalpindi, conducted the post-mortem examination on the dead body of Javed Akhtar and found the following injuries thereon:-
(1) A circular wound of entry, 1 cm x 1 cm, on the front of middle of chest, 7 cm below the upper end of sternum. Burning was present around the wound. The middle of wound was 10 cm from the right nipple and 11 cm from the left nipple. No wound of exit was present. Corresponding cut was present on the shirt and Bunyan.
(2) An oval wound of entry, 1.5 cm x 1.2 cm, on the left side of upper part of chest, just below the middle cf clavical. Burning was present around the wound. It was present on the back of left side of chest, 0.6 cm x 0.5 cm and it was 8 cm away from vertebral column. Corresponding cuts on the shirt and Bunyan were present.
' In the opinion of the doctor, death of the deceased occurred due to the above-mentioned injuries which were sufficient to cause death in the ordinary course of nature. All the injuries were ante- mortem and caused by firearm weapon. Time between injuries and death was immediate and between death and post-mortem was, within 12 to 16 hours.
8. The appellants professed innocence. Muhammad Masood appellant when examined under section 342 Cr.P.C. Denied the money dispute with Javed Akhtar deceased and his participation in the occurrence. He also denied his absconsion till 5-8-1985 and stated that he remained in the village. He denied the recovery of gun P.9. To a question as to why the P.Ws. Had deposed against him, he stated that the deceased was a desperate person. He was involved in many criminal cases and had enmity with many persons and was killed by somebody else. He stated that it was a blind murder; he and his co-accused had been involved in this case due to enmity and suspicion. He stated that Rashid Akhtar P.W. Was closely related to the complainant while the other P.Ws. Were interested in his prosecution and that of his co-accused as Shaharam's father was on litigation with one of his co-accused.
' Almost to the same effect was the statement of Rehmat Hussain appellant. The remaining appellants also made statements to the same effect. They declined to make statements under section 340 Cr.P.C. And did not produce any evidence in defence.
9. The trial Court placing explicit reliance on the ocular account furnished by Rashid Akhtar P.W.6, Shaharam Sultan P.W.7 and Muhammad Hussain complainant P.W.8, fortified by the evidence of recovery of crime empties at the spot, as well as the matching of the gun recovered at the instance of Muhammad Masood appellant and corroborated by the medical evidence, came to the conclusion that the prosecution has proved its case against the appellants be yond reasonable doubt and gave them the sentences as indicated above.
10. We have heard the learned counsel for the parties and with their assistance have carefully gone through the record of the case.
' The learned counsel for the appellants has assailed the impugned judgment of the trial Court on the basis of following grounds; that it was an unwitnessed crime, the appellants have been involved on account of suspicion, the ocular evidence is against the medical evidence and in view of the background of nefarious activities of the deceased, it should not be believed on its face value, the presence of Muhammad Hussain complainant (PW 8) and Saharam P.W.7 is doubtful as they are not the witnesses of the locality, the evidence of Rashid Akhtar injured P.W.6 does not inspire confidence, as his testimony is in contradiction of the medical evidence, the motive given in the F.I.R. Is too remote or insignificant which would prompt a person to commit such diabolic crime, the recovery of crime empty and the gun at the instance of Muhammad Masood appellant is fake, hence no corroboration can be sought from the recovery on the basis of positive report of the Forensic Science Laboratory Ex.PP., in the present case, Abid and Arshad appellants were found innocent during the course of investigation conducted by the ASP though not produced as a witness by the prosecution; the complainant and the other eye-witnesses have tendency to rope in as many as persons as possible, hence their evidence should not be accepted without any independent corroboration, which is not forthcoming, especially against Rehrhat Hussain and Javid Akhtar appellants who have been attributed proverbial lalkara, the occurrence took place all of a sudden, hence it is a mitigating circumstance in favour of Muhammad Masood appellant, the death sentence should not be confirmed, the investigation in this case has been conducted dishonestly and the appellants have been roped in this false, and cooked up case by the police on account of previous murder case of one Muhammad Iqbal A.S.I. Of P.S. Rewat, the eye-witnesses are chance witnesses and the explanation furnished by them for their presence at the scene of occurrence is not plausible, hence should be discarded forthwith.
11. The learned counsel for the State assisted by the learned counsel for the complainant has urged that there is no background of enmity between the eye-witnesses and the appellant, the occurrence took place in broad daylight, hence there is no possibility of false implication of the appellants, the ocular version is supported by the medical evidence and F.I.R. Was lodged without any delay which rules out the possibility of fabrication of evidence and false implication, the recovery of crime empties and gun at the instance of Muhammad Masood appellant and presence of Rashid Akhtar P.W.6 (injured) cannot be doubted, hence prosecution case stood proved against all the appellants. The learned counsel further submitted that common object was apparent from the nature of weapon used and injuries caused to the complainant party.
12. We have given our anxious consideration to the submissions of the learned counsel for the parties and find that there is no conflict in the medical evidence and the ocular account. Wounds of different shapes can be caused with one shot depending upon the nature of surface, such as hard and soft. The evidence of the eye-witnesses who are independent, natural and probable cannct is discarded on speculation, as to the manner in which the deceased was injured. The A testimony of seemingly reliable, natural and independent witnesses cannot be discarded on the basis of medical evidence, with respect to the distance, because villagers are not expected to give distance with scientific exactitude while deposing in the Court about the manner and distance from which the assailant fired at the victim. The presence of Rashid Akhtar P.W at the scene of occurrence cannot be denied as he received an injury in that transaction which took place in sufficient light, being corroborated by medical evidence, so far it relates to the appellants except Rehmat Hussain and Javid Akhtar who actually not caused injuries to the deceased as well as to the injured prosecution witness. The ', planation furnished by Muhammad Hussain P.W.8 that he took the animals for grazing about Degerwela rings true and he cannot be labelled as a chance witness when he is a resident of that locality. The minor and insignificant discrepancies occurring in the evidence of independent and natural witnesses are never deemed sufficient to disbelieve their evidence which is otherwise confidence inspiring. The contedilon of the learned defence counsel that according to the site-plan, crops are shown standing at a place of occurrence, hence the version of the prosecution is false, is devoid of force. It is specifically stated by all the eye-witnesses that the entire field was not under crop and half of it was lying vacant on which complainant was grazing his animals at the time of occurrence. The contention of the learned defence counsel that the police carried out investigation dishonestly is untenable, because from the perusal of the record, it appears that the police had soft corner= for the defence, hence they declared Abid and Arshad as innocent in the presence of overwhelming evidence coming from independent and unimpeachable source. The recovery of three crime empties at the B spot further corroborates the prosecution version. The recovery of gun P.9 cannot be attacked on mere technicalities, as it has been laid down in 1985 SCM R 854 that the mere fact that the recovery witness was not a person of locality was not proper reason for excluding his evidence as section 103 Cr.P.C. Is applicable to search made. Under Chapter VII of the Code of Criminal Procedure in pursuance of search- warrant. We find great force in the submission cf the learned counsel for the defence that it would not be safe to rely upon the bare statements of the eye-witnesses even if their presence is accepted, without any independent corroboration, with respect toD the part ascribed to Rehmat and Javid appellants, as they have not caused any injury to the deceased or the injured prosecution witness. We give benefit of doubt to Rehmat Hussain and Javid Akhtar appellants and acquit them. They should be released immediately if not required in any other case.
' We are not impressed by the arguments of the learned counsel as there is no mitigating circumstance in favour of Muhammad Masood appellant. Reference against him is accepted and sentence of death awarded to him is confirmed. The sentence of imprisonment for life with respect to Arshad Matimood and Abid Maqsood is maintained with the fine and compensation. They are also convicted under section 307/34 P.P.C. And sentenced to imprisonment for life and a fine of Rs,5,000 each or in default thereof one year's R.I. Each. The sentences shall run concurrently. Arshad and Abid would have the benefit of the provisions of section 382-B, Cr.P.C. In view of the acquittal of Rehmat Hussain and Javed- appellants, the conviction of Masood, Arshad and Abid under section 148 P.P.C. Is set aside. All the three convicted appellants shall also pay a sum of Rs,10,000 each by way of compensation under section 544-A, Cr.P.C. To the legal heirs of Javed Akhtar deceased. The fine, if realised from the appellants under section 307/34 P.P.C. Would be paid to Rashid Akhtar, the injured P.W. As compensation under section 544-A, Cr.P.C. The revision petition fails and is dismissed in limine..
Death .