' SARDAR MUHAMMAD DOGAR, J.-- Ashiq All (55), Mukhtar Ahmad (34) real brothers, Mahmud Ahmad (28) and Abdul Sattar (18) sons of Ashiq Ali, Abdul Majid (25) and Muhammad Iqbal (32) nephews of Ashiq All were tried by Additional Sessions Judge, Gujranwala along with Waris Ali brother of Ashiq Ali, Akhtar Ali son of Waris Ali and Abdul Ghaffar nephew of Ashiq Ali, under section 302/307/148/149, P.P.C. For having formed unlawful assembly, for having murdered Muhammad Sarwar and Abdul Rauf real brothers and for having launched murderous assault and inflicting injuries to Nabi Ahmad (P.W.15) and Sarnawaz (P.W.16) on 22-6-1982 at 6-30 p.m. In the fields in the area of village Nangal Doona Singh, at a distance of 12 miles from Police Station Wandho, District Gujranwala. Learned trial Judge acquitted Waris Ali, Akhtar All and Abdul Ghaffar vide judgment, dated 27-4-1985 and convicted Ashiq Ali, Mukhtar Ahmad, Mahmud Ahmad, Abdul Sattar, Abdul Majid and Muhammad Iqbal, vide same judgment, under sections 148, P.P.C. 307/149, P.P.C. (on two counts) and under section 302/149, P.P.C. (on two counts), and awarded the ' Under section 148, P.P.C.
' All the six appellants namely, Ashiq Ali, Mukhtar Ahmad, Mahmud Ahmad, Abdul Majid, Muhammad lqbal and Abdul Sattar to undergo one year's R.I. Each.
' Under section 302/149, P.P.C.
(i) For the murder of Muhammad Sarwar, Ashiq Ali appellants has been sentenced to death, while the other five have been sentenced to imprisonment for life. Each of the appellants has been sentenced to pay a fine of Rs,5,000 in default whereof to suffer R.I. For one year each. They have also been directed to pay a sum of Rs,10,000 each as compensation to the heirs of Muhammad Sarwar deceased, in default of payment of which to suffer further R.I. For six months each.
(ii) For the murder of Abdul Rauf, Mukhtar Ahmad and Mahmud Ahmad appellants have been sentenced to death. The other four, namely Ashiq Ali, Abdul Majid, Muhammad lqbal and Abdul Sattar have been sentenced to imprisonment for life. All the six appellants have been sentenced to pay a fine of Rs,5,()00 each, in default whereof to suffer R.I. For one year each. They have also been directed to pay a sum of Rs,10,000 each as compensation to the heirs of deceased, in default whereof to suffer R.I. For 6 months each.
' Under section 307/149, P.P.C.-- ' All the six appellants have been sentenced to undergo R.I. For 5 years and to pay a fine of Rs,5,000 each, in default whereof to suffer further R.I. For 6 months each, for murderous assault on Nabi Ahmad P.W.
' They have been sentenced to undergo the same imprisonment and to pay the same amount of fine, for having launched murderous assault on Sarnawaz P.W. They have also been directed to pay a sum of Rs,2,000 each to Nabi Ahmad and Sarnawaz P.Ws. Each, as compensation. In case of failure of payment of compensation amount, they have been directed to undergo R.I. For 3 months each.
' The sentences of imprisonment awarded on different counts have been ordered to run concurrently.
' They have also been given the benefit of the provisions of section 382-B of the Code of Criminal Procedure.
2. Learned Sessions Judge has made a reference for confirmation of sentences of death awarded to Ashiq Ali, Mukhtar Ahmad and Mahmud Ahmad. The convicts have filed appeal. The complainant has filed Criminal Revision wherein prayer has been made for enhancement of sentences of imprisonment for life, to death. As all the matters arise from one judgment, they are being disposed of together.
3. F.I.R. Exh.P.B. Was recorded at Police Station Wandho at 6-20 a.m. On 23-6-1982 by Amjad Karim Butt, S.I./S.11.0. (P.W.17) on the statement of Muhammad Salch (P.W.14) real brother of both the deceased.
' According to F.I.R. The complainant was residing in Kotli Korotana, Police Station Narang, District Shcikhupura. He owned land in village Sanian Afghana also, which was under his self-cultivation.
This land was irrigated through canal water. The watercourse (Khaal) for the use of canal water originated and passed through the area of village Nangal Doona Singh, District Gujranwala. Scarp had installed a tuhewell on the left side of the watercourse in the area of village Nangal Doona Singh. The water of the said tuhewell irrigated the land on the western side of the watercourse but on the eastern side of the watercourse Mukhtar Ahmad etc. (accused) Rajputs of village Nangal Doona Singh used to take water of the tubewell through the watercourse of the complainant which used to result in the loss of canal water of the complainant. This was in practice since 4-5 years prior to the occurrence. The complainant used to object and say that they should take the water by constructing a syphon so that none suffers but Mukhtar Ahmad etc. Insisted that the syphone should he constructed by them (the complainant). This was a cause of dispute between the parties. Permanent turn of water of the complainant used to he from Tuesday morning till midnight.
On Tuesday previous to the day of occurrence, Mukhtar Ahmad, etc. Tried to take the water of the tuhewell through the watercourse, in which the canal water was flowing, whereupon Muhammad Sarwar deceased stopped them sternly which resulted in dispute, between the parties. Mukhtar Ahmad and Ashiq All appellants went away issuing threats of taking revenge. On Tuesday (the day preceding the day of lodging the F.I.R.) the complainants had started watering their fields in the morning per their turn. In the afternoon the complainant, his two deceased brothers Muhammad Sarwar and Ahdur Rauf, Nahi Ahmad P.W.15 also their brother, Sarnawaz P.W.16, and Muhammad Yusuf P.W.13 went to have a round of the watercourse. In the evening they were returning after seeing Nakkas etc. Muhammad Sarwar, Ahdur Rauf, Nabi Ahmad and Sarnawaz were walking ahead of the complainant and Muhammad Yusuf P.W.13. When Muhammad Sarwar, Abdul Rauf, Nabi Ahmad and Sarnawaz reached near the Scarp tubewell at 6-30 p.m. They were confronted by Ashiq Ali, Mukhtar Ahmad, Waris Ali, Muhammad lqbal, Abdul Majid armed with guns, Abdul Sattar armed with a rifle, Abdul Ghaffar, Akhtar All and Mahmud Ahmad armed carbines, after coming out from near around the Scarp tuhewell. Mukhtar Ahmad and Ashiq All raised a Lalkara that they had come to avenge the insult hurled on Tuseday last and that none of them shall be allowed to escape. Ashiq Ali appellant then fired a shot which struck Muhammad Sarwar on the left side of abdomen and hip. The shot fired by Mukhtar Ahmad struck Abdur Rauf on the left side of chest and abdomen. Muhammad lqbal fired a shot which hit Nahi Ahmad P.W. On the right arm and ribs.
Abdul Majid gave a blow with the butt of his gun on the head of Muhammad Sarwar. The complainant and Muhammad Yusuf P.W. Took shelter by lying down in the watercourse. The other assailants also started firing from their respective weapons, as a result of which Muhammad Sarwar, Abdul Rauf and Nabi Ahmad fell down after suffering injuries. The assailants ran away from the spot.
4. The occurrence, apart from the complainant and the two injured witnesses, was also seen by Abdul Ghaffar and Allah Ditta, who were given up at the trial as unnecessary.
5. Muhammad Sarwar, Abdul Rauf, Nahi Ahmad and Sarnawaz were removed to Mayo Hospital.
Muhammad Sarwar and Rauf were declared dead while Nabi Ahmad and Sarnawaz were admitted to the hospital. Leaving the dead bodies of the two brothers in the hospital, the complainant went to the Police station and lodged the F.I.R.
6. Amjad Karim Butt, S.I./S.H.O. P.W.17 after recording the FIR. Deputed Munir Ahmad H.C. And Naseer Ahmad Constable to reach the place of occurrence and protect the spot, while he himself went to the Mayo Hospital alongwith other Constables and the complainant. He prepared inquest reports Exh.P.X. And P.Z. Of the bodies of Muhammad Sarwar and Abdul Rauf, and injury statements Exhs.P.Y.
And P.AA. Of both respectively. The dead bodies were entrusted to Zulfqiar Ali and Mukhtar Constables for post-mortcm examination. He recorded statements of Nahi Ahmad and Sarnawaz P.W. Under section 161, Cr.P.C., who were admitted to the same hospital, after obtaining opinion about their fitness, vide applications Exhs.P.C. And P.D. Respectively. Thereafter he went to the spot, wherefrom he collected blood-stained earth from three places, i,e, the place where Muhammad Sarwar deceased had fallen, the place where Abdur Rauf deceased had fallen and the place where Nahi Ahmad P.W. Had fallen after receipt of injuries, vide memos. Exhs.P.R. P.S. And P.T. Respectively.
He also collected 8 crime empties P.13 to P.20 during the inspection of spot and took the same into possession vide memo. Exh.P.U., after sealing them in a parcel. Statements of Abdul Ghaffar, Allah Ditta and Muhammad Yusaf were recorded by him at the spot.
' All the accused were arrested by him on 10-7-1982 on their appearance before him. On 17-7-1972 Ashiq Ali led to the recovery of gun P.8 from his residential house. The same day, Muhammad Ahmad led to the recovery of carbine P.9 from his house. Mukhtar Ahmad also led to the recovery of gun P.10 from his residential house on the same day. Muhammad lqbal then got recovered gun P.11 from his house on the same day. Abdul Majid also got recovered gun P.12 the same day. The recovered weapons were taken into possession vide memos. Exhs.P.L. P.M. P.N., P.O. And P.O.
Respectively after sealing the same into parcels.
' Gun P.7 was got recovered by Waris Ali (acquitted accused) on 24-7-1982, which was taken into possession vide memo. Exh.P.K. The challan was submitted to Court after the completion of necessary investigation.
7. Statements of nineteen prosecution witnesses were recorded at tho trial. Exh.P.DD report from the office of the Chemical Examiner, Exh.P.EE from the Office of the Serologist and Exh.P.FF from the office of Forensic Science Laboratory were also tendered in evidence. The other P.Ws. Were given up as unnecessary.
8. Dr. Capt. Muhammad Bashir who had medically examined P.Ws. Sarnawaz and Nabi Ahmad on 22-6-1982 in the hospital, appeared as P.W.7. He had noted a bullet injury on the person of Sarnawaz, which was of 1 c.m. Diameter in front of middle part of right thigh. The duration of injury was opined to be fresh. On the person of Nabi Ahmad, he had noted the following injuries:-
(1) Bullet injury 1 c.m. Diameter on the right posterior axilliary fold below right axilla.
(2) Bullet injury 1 c.m. Diameter right side of chest at level of 6th rib.
(3) Bullet injury on right wrist 1 x 1 c.m. Diameter.
' The nature of injuries was kept under observation while the duration was opined to be fresh.
' During cross-examination the doctor stated that by 'fresh' he meant `within 24 hours'. He admitted that he had not received medico-legal education specifically and had only 5-6 months' experience in that field. He stated that he had been serving with the A.M.C. Prior to joining the present service.
8. Dr. Anees Sheikh who had performed autopsies on the dead bodies of Muhammad Sarwar and Abdul Rauf on 23-6-1982 at 4-30 p.m. And 3-00 p.m. Repsectively, was examined as P.W.R. He had noted following injuries on the body of Muhammad Sarwar deceased:-
(1) Oval lacerated wound 2 c.m. x 1 c.m. With contused irregular inverted and abraded margins on the left of lower abdomen 18 c.m. Outer and in line with umblicus.
(2) Abrasion 3 c.m. x 2.5 c.m. 4 c.m. Outer to injury No,1.
(3) Four rounded to oval lacerated wounds varying in size 1 c.m. x 1 c.m. To 2.5 c.m. x 2 c.m. On the outer upper left hip around the anterior superior iliac spine within an area of 12 c.m. x 12 c.m.
Margins were inverted and irregular.
(4) Circular lacerated wound 1.5 c.m. x 1.5 c.m. With inverted irrgular contused and abraded edges on the outer upper left thigh.
(5) Lacerated wound 3 c.m. x 0.5 c.m. x scalp deep on the mid top of head.
' On exploration, injuries Nos. 1 and 3 were found to have entered the abdominal cavity while small and large intestines were found perforated. Two metallic pieces were recovered from the peritonial cavity. A small metallic piece was also recovered from beneath injury No,4 which had resulted into fracture of left thigh.
' Injuries Nos. 1, 3 and 4 were opined to have been caused by fire-arm while injuries Nos. 2 and 3 were opined to have been caused with blunt weapon. Injuries Nos. 1, 3 and 4 were individually opined to be sufficient to cause death in the ordinary course of nature. The death was opined to have resulted due to excessive bleeding and shock. Probable time between death and post- mortem was opined to be within 12 to 24 hours.
' Following injuries were noted on the dead body of Abdul Rauf deceased:-
(1) Oval lacerated wound 1.5 c.m. x 1 c.m. With contused, irregular and inverted margins on the outer mid left arm.
(2) Lacerated wound with averted and irregular abraided margins 2.5 c.m. x 2 c.m. On the inner left arm. On exploration, injuries Nos. 1 and 2 were found communicating each other under the humorous bonds. Injury No,1 was the entry wound, whereas injury No,2 was the exit wound.
(3) Circular lacerated wound 1 c.m. x 1 c.m. With irregular abraided contused and inverted margins on the back of left elbow.
(4) Lacerated wound with irregular inverted margins 2 c.m. x 2 c.m. On the inner aspect of lower left arm. On exploration, injury No,3 and injury No,4 were found communicating each other. Injuries Nos.
3 and 4 were entry and exit wounds respectively.
(5) Oval lacerated wound 2 c.m. x 1.5 c.m. With inverted irregular abraided and contused margins on the left upper outer front chest, in the mid axilliary line.
(6) Circular lacerated wound with inverted irregular and contused margins on the upper outer left chest, 4 c.m. Inner and lower to the injury No,5.
(7) Circular lacerated wound 1.25 c.m. x 1.25 c.m. With inverted irregular and contused margins on the front left chest 12 c.m. Below and in the line to the left nipple.
(8) Rounded lacerated wound with inverted irregular abraided and contused margins on the outer lower left abdomen.
(9) Two rounded lacerated wounds with inverted irregular shattered edges on the front upper right chest on the anterior axilliary line. Wounds were varying in size from 2.5 c.m. x 2 c.m. To 3 c.m. x 2 c.m.
(10) Circular lacerated wound 1.5 c.m. x 1.5 c.m. With inverted contused and irregular margins on the front right chest 10 c.m. Below and in line to the right nipple.
' On exploration, injuries Nos. 5 and 6 were found to have perforated the upper lobe of left lung and heart through the through. Injury No,7 after going through and diaphragm and abdomen, had shattered the liver. A metallic piece was recovered from the liver region. Injury No,8 had also caused multiple perforation in the small intestines. A metallic piece was also recovered from abdominal cavity. Injury No, 10 had perforated the right arm and had gone upto posterior chest wall where a metallic piece was found embedded.
' All the injuries were opined to have been caused by fire-arm.
' Injuries Nos. 5, 6, 7, 8 and 10 were opined individually to be sufficient to cause death in the ordinary course of nature. Cause of death was opined to be excessive bleeding and shock. Probable time between death and injuries was opined to be almost immediate.
' During cross-examination the doctor staid.' that the deceased might have taken meals 2-3 hours prior to the occurrence. He stated that he had given the time of death of Muhammad Sarwar as 10- 45 p.m. And of Abdur Rauf as 10-43 p.m. Per death certificates. He explained that by 'almost immediate' he meant `within 5 to 10 minutes'. He expressed inability to say the number of shots fired at each of the deceased. He expressed inability to give the exact distance from where the deceased were fired at. He, however, categorically stated that it would have been more than 3 feet.
In answer to another question he stated that he had been delivered the inquest reports and the injury statements by the police before he had performed the post-mortem examination. He Beni, d the suggestion that post-mortem had been performed at late hours of the night. He explained that injuries having been caused within 3 hours of the medical examination are described to be fresh and of duration of more than that are described as having been caused within 12 hours, and the injuries of still more duration are described as within less than 24 hours. In answer to another question he stated that injuries Nos. 1, 3 and 4 on the person of Muhammad Sarwar had been caused by pellets.
' Muhammad Shafi Constable who appeared as P.W.4 stated that he had deposited the sealed parcel containing empty cartridges in the office of the Forensic Science Laboratory on 1-7-1982. He explained that the parcels had been entrusted to him on 29th but he could not deposit them earlier as he had to get the necessary documents prepared in that regard.
' Abdul Haq, Constable who had appeared as P.W.2 verified the fact of having deposited six sealed parcels pertaining to this case in the office of the Forensic Science Laboratory on 9-8-1982. He explained that the parcels had been entrusted to him on 8-8-1982 but he could not deposit the same on the said date as he got late in getting the docket prepared.
' Bashir Ahmad, Moharrir A.S.I. With whom the parcels pertaining to this case had been deposited and who had made over the parcels to Abdul Haq Constable P.W2 and Muhammad Shafi P.W.4 for onward transmission, appeared as P.W.S. All the three P.Ws.Stated that the parcels remained intact so long they had remained in their custody.
' Muhammad Yusuf P.W.13 verified the fact of collection of blood-stained earth from three places at the spot, and of collection of eight crime empties by the S.H.O. During spot inspection. He stated that he was present at the spot to protect the same when the S.H.O. Had arrived. He also stated having attested the relevant memos.
' During cross-examination he stated that the crime empties were spread around the place of occurrence in 2/2 and 3/3, on its southern side and the same were recovered from a point at a distance of 5-6 Karams from the place of occurrence. He admitted that his father was real brother of father of the complainant. He denied the suggestion that he had made a false statement on account of relationship.
9. The ocular account was narrated by Muhammad Saleh complainant (P.W.14), Nabi Ahmad P.W.15 and Sarnawaz P.W.16 ' Muhammad Saleh complainant repeated the facts given by him in the F.I.R. During cross- examination he stated that the accused originally were residents of village Dinga in District Sheikhupura. He admitted that Mukhtar Ahmad was a school teacher but expressed lack of knowledge about place of his posting. He admitted that first time the accused came into connection in village Nangal Doona Singh when Mukhtar Ahmad had purchased 64 Acres of land in that village. He denied the knowledge that the land was purchased by him for Rs,40,000. Although he denied that Munshi Khan father of Abdul Ghaffar had filed a suit for pre-emption at their instance against Mukhtar Ahmad challenging the purchase of said land and also denied the knowledge that the suit was dismissed or that during appeal a compromise was effected wherein 5 Acres of land were given to Munshi Khan free of cost, but he admitted that out of the 64 Acres of land, 5 Acres which were adjacent to their land, were in their possession and they were cultivating the same as tenants of Munshi Khan. He expressed lack of knowledge that the share of water of said land was not transferred to Munshi Khan by Mukhtar Ahmad accused. He denied the suggestion that real motive for the occurrence was their attempt to forcibly take the share of water for the said 5 Acres of land from the turn of water of Mukhtar Ahmad appellant. He admitted that none of their land was irrigated from the tubewell from which the accused used to water their land.
He gave the distance of the tubewell from the place of occurrence to he 8 Acres. He expressed lack of knowledge that the accused used to take the turn of water from the tubewell at 8-(X) p.m. Till 4-
(X) a.m. He denied the suggestion that on the day of occurrence the two deceased alongwith their injured companions had gone to forcibily take the turn of water for the land which was in their possesion and the occurrence took place as the servants of Mukhtar Ahmd accused resisted, resulting into cross-firing. He admitted that the incident of previous Tuesday had not taken place in his presence but added that the same had been narrated to him by Muhammad Sarwar deceased. He explained that the watercourse which irrigated their land was in existence before installation of the tubewell by the Scarp. In reply to another question he stated that normally one man diverts the water to his fields but on the day of occurrence they had gone in large numbers because of previous Tuesday's incident. He admitted that his father was a licence-holder of .12 bore double barrel gun.
' In answer to another question he stated that on the day of occurrence the accused were not diverting the water illegally to their fields as their turn of water had not yet started.
10. Nabi Ahmad P.W.15 and Sarnawaz P.W.16, both of whom had suffered injuries during the occurrence, corroborated the statement made by Muhammad Saleh complainant. The suggestions put to Saleh Muhammad during cross-examination were also put to these witnesses but they too denied like Muhammad Saleh. Nabi Ahmad P.W. Specifically stated about Abdul Sattar having fired a shot from the rifle and of having hit him on the thigh. This was stated by Sarnawaz P.W. Also.
11. Learned trial Judge before recording the statement of Nabi Ahmad P.W. Made a note that, 'the witness has been brought in Court on a cot. He is unable to stand. His evidence is being recorded while lying on the cot'.
' The witness after narrating the whole occurrence, specifically stated that, `due to the injuries, I sustained, I have become disabled and am unable to move'.
12. Amjad Karim S.I. Who had recorded the F.I.R., the statements of the P.Ws. Taken into possession the blood-stained earth and empties from the spot, and during whose custody the appellants other than Abdul Sattar had led to the recoveries of weapons of offence, appeared as P.W.17. His statement about the recoveries from the spot has been corroborated by Muhammad Yusuf P.W.13 while his statement about the recoveries of weapons of offence at the instance of the appellants other than Abdul Sattar has been corroborated by Muhammad Sarwar Khan P.W.12, the gist of whose testimonies has been noted earlier.
' Amjad Karim, S.I. During cross-examination admitted that Akhtar Ali (acquitted accused) and Mukhtar Ahmad appellant had pleaded innocence on appearance before him. He admitted that the investigation of the case had been conducted by D.S.P., Daska also and he had directed the S.H.O. Police Station Wandho (who had succeeded him) to place the names of Akhtar Ali and Mukhtar Ahmad in column No,2 of the challan. He admitted that after recording the F.I.R. He had not noted the names of all the accused in the Roznamcha register while giving brief facts of the case but added that he had mentioned therein that the case was registered against Ashiq Ali and others, nine in number. He denied that the F.I.R. Was recorded after preliminary investigation, after he had visited the hospital, where the deceased were lying and Ahe injured P.Ws. Stood admitted, and the spot.
' He denied the suggestion that all the accused had appeared before him on 25-6-1982 but he had not shown their arrest till 10-7-1982 and that he had recorded their formal arrest after application was made to the Superintendent of Police and the Deputy Inspector-General of Police in that regard. He admitted that in the certificate of identification of Abdul Sattar appellant his age was given as 16/17 years, while Abdul Ghaffar was mentioned to 17/18 in regard to the certificate prepared on his arrest. He denied the suggestion that no recoveries were effected from the accused and that he had planted the same and had falsely challaned them.
13. Ch. Sultan Ahmad, D.S.P. P.W.18 stated that he had partly investigated the case while being posted as D.S.P. Crime Branch when the same was entrusted to him by the Superintendent of Police, Crime Branch. He stated that he had directed the S.H.O. Police Station Wandho to challan all the nine accused by placing their names in column No,3 of the challan.
' During cross-examination, on having gone through the case diary he stated that Ahmad Khan, D.S.P. Had expressed opinion about the innocence of Akhtar Ali and Mukhtar Ahmad. While answering the question during reexamination he stated that Akhtar Ali (acquitted accused) was found innocent by him, but the higher authorities had not agreed with his report and so he was also challenged.
' The statements of the remaining witnesses are more or less of formal nature. C.1, C.2 and C.3 out of the empties recovered from the spot, were found to have been fired from gun P.10, recovered from Mukhtar Ahmad appellant while crime empty P.4 was found to have been fired from gun P.8 recovered at the instance of Ashiq Ali. The other empties were not found to have wedded with any of the guns.
14. All the appellants and the acquitted accused during their statements under section 342, Cr.P.C.
Denied the prosecution case as a whole and pleaded innocence and false involvement.
15. Mukhtar Ahmad appellant stated as follows in answer to the question `why this case against you and why the P.Ws. Have deposed against you'?
I am resident of village Dinga. Besides my land in this village, I am a school teacher in this village. I purchased 64 Acres of land in village Nangal Doona Singh in the sum of Rs,40,000 and got it cultivated through my servants. The price value of the suit land was enhanced and came to Rs,25,000 per Acre, therefore, complainant party became annoyed with me and Abbas brotherof Saleh Muhammad wmplainant got filed a suit for possession through pre-emption, through Munshi Khan brother of Ghaffar P.W. Which was dkmissed and an appeal was preferred against the dismissal order. During the pendency of the appeal, I compromised with the complainant party and gave 5 Acres of land to Munshi Khan which is still in possession of Saleh Muhammad. At that time, it was agreed that 1 will not give water to the fields of my own turn but the deceased and Saleh Muhammad insisted and threatened me that they will take water from my turn. On the day of occurrence, there was my turn for water which started from 8-00 p.m. And when I was present in village Dinga and the turn of water was diverted by my servant Sain Sindhia, Sharif Boora and Munir Isai. When the water was being diverted, Sarwar, Rauf, deceased persons Nabi Ahmad and Sarnawaz P.Ws. Armed with fire-arms came and started diverting water by force. My servants resisted and deceased party started firing at them. My servants also in self-defence fired. As a result of the above cross-firing in the dark, the deceased persons, Nabi Ahmad, Sarnawaz P.Ws.
Were injured.
' I learned about this occurrence in village Dinga where I remained on the previous day and night of occurrence. I had been saying my prayers in congregation in the village mosque. I produced evidence in my defence before all the Police Officers. D-S.P. Daska who was entrusted with the investigation declared me innocent. He had obtained affidavits from the large number of persons in my defence. He had filed the said affidavits on the police file. The then S.P. Was helping the complainant party. The investigation of this case was transferred to the Crime Branch. I produced the same defence evidence before Sultan Ali, D.S.P., Crime Brnach."
' He also produced in defence certified copy of electoral roll of village Dinga Exh.D.B., copy of Jamabandi Exl.D.C. Copy of Jamabandi of village Nangal Doona Singh Exh.D.D. Copy of Jamabandi of village Doona Singh Exh.D.E. Service book Exh.D.F. And copy of his National Identity Card Exh.D.G.
All the accused denied to appear as their own witnesses.
16. Learned counsel for the appellants after taking us through the evidence, criticised the impugned judgment and contended that the complainant wrongly reported the occurrence to have taken place at 6-30 p.m. And that in fact the occurrence appears to have taken place after 8-00 p.m. As stated by Mukhtar Ahmad appellant, during his statement under section 342, Cr.P.C. In support of this contention learned counsel referred to the note made in the post-mortem reports of both the deceased about the time of death to be 10-45 p.m. And 10-43 p.m. It was also argued by him that the turn of water of the accused even according to the complainants was to start after 8-00 p.m.
And as such it cannot be believed as to for what the accused would have gone to the spot at 6-30 p.m. Learned counsel contended that the fact of the complainant party having gone there in a large number shows that the purpose was something else than to water their land. Learned counsel submitted that from this angle also the version putforth by Mukhtar Ahmad appellant seems to be more probable and nearer the truth. In the alternative, learned counsel argued that the prosecution had failed to prove the case putforth on their behalf. Learned counsel submitted that the eyewitnesses in this case are related, interested and inimical, and so it would be unsafe to maintain the conviction of the appellants on the strength of their testimonies unless some strong corroborative evidence is available, which is not forthcoming in this case. Learned counsel pointed out that Mukhtar Ahmad appellant had earned displeasure of the complainant party by purchasing 64 Acres of land in their village, against their wishes and his refusal to give proportionate water for 5 Acres of land which he had surrendered by way of compromise at the appeal stage of the pre-emption suit filed against him, proved to be further aggravation of the annoyance. Learned counsel added that it was on that account that Mukhtar Ahmad appellant and his brothers and nephews were involved in this case. Learned counsel submitted that none of the appellants resided in this village and so also it looks highly improbable as to why they all would have been together at the spot at the alleged time of occurence. Learned counsel pointed out that if the story of the incident which allegedly had taken place 8 days before the occurrence, is accepted that would further deteriorate the credibility of the eye-witnesses as it would mean that annoyance already in existence had turned into enmity. Learned counsel submitted that conviction of the appellants cannot be sustained on the statements of the witnesses who have been disbelieved by the trial Court qua the three acquitted accused. In support of the arguments that no reliance can be placed on the testimonies of the witnesses who are related, inimical and whose statements have been discarded qua some of the accused, reference was made by him to Haji Ahmad and 2 others v. The State 1971 SCMR 326, Muhammad Nawaz v. Abdul Khaliq and others 1971 SCMR 500. And Ilahi Bakhsh v. The State 1982 SCMR 57. Reference was also made by learned counsel to Muhammad Aslam and others v. The State 1988 SCMR 940, wherein it has been observed that mere fact that some of the accused were ascribed specific role, cannot by itself furnish sufficient basis for conviction by drawing distinction, has been cited in support of the fact that mere allegation of specific injury against any of the accused cannot be taken as a corroborative evidence.
' Lastly, learned counsel submitted that the case of Abdul Sattar appellant is distinguishable. In that he submitted that the only injury, specifically ascribed to him, to P.W. Sarnwaz does not appear to have been caused by bullet fired from the rifle; that no empty of rifle was recovered from the spot; that no recovery of rifle was effected from him and that even according to the S.I./S.H.O. He was 1617 years old at the time of arrest.
17. Learned counsel for the State/complainant controverted the arguments advanced by learned counsel for the appellants and submitted that the prosecution had succeeded in proving motive for the occurrence; that mere inter se relationship of the witnesses was no ground to discard their testimonies; that statements of the two injured witnesses whose presence during the occurrence had not been denied even in the version put forth by Mukhtar Ahmad appellant, cannot be thrown away; that the interest of the appellants in the land regarding the supply of water to which the parties were arraigned against each other, is by itself corroborative of the ocular account; that the number of injuries suffered by the deceased and the two witnesses, the recoveries effected from the appellants and the report from the Forensic Science Laboratory about the wedding of two guns with the empties recover from the spot, lend strong corroboration to the ocular account.
' Learned counsel submitted that the three accused were not acquitted by holding the witnesses as unreliable and that in fact the trial Judge acquitted them by way of abundant caution. In this connection learned counsel referred to paragraph 55 of the impugned judgment, wherein learned trial Judge observed that; 'participation of Akhtar, Abdul Ghaffar and Waris Ali accused in the commission of the offences was not free from doubt. Accordingly as a measure of abundant caution and in the safer administration of justice, I also give benefit of doubt to them and proceed to acquit each of them of the offence with which they were charge-d".
18. The argument of learned counsel for the appellants that the occurrence had not taken place at 6-30 p.m. As reported by the complainant party but had taken place sometime between 8-00 and 8-30 p.m. As put forth by Mukhtar Ahmad appellant, in our view does not possess any strength. The argument is mainly placed on the fact that the time of death entered in the relevant columns of the post-mortem reports, by the doctor who had performed autopsies was 10- 45 and 10-43 p.m.
Learned counsel argued that the factum of 'death certificates' introduced in suppport of that was a noval method, never heard of earlier.
19. Notwithstanding the fact that the doctor who had made these entries had explained that he had recorded them on the basis of information derived by him from the certificates of death, the other important aspect which the learned counsel seems to have failed to take note of, is that the doctor who had performed autopsies and prepared post-mortem reports had noted therein the duration between the injuries and death to be immediate. At the trial he explained that by 'immediate' he meant between 'five and ten minutes'. If the occurrence had taken place between 8-00 and 8-30 p.m. As argued by learned counsel for the appellants, the time of death in that case could also not have been 10-43 and 10-45 p.m. This fact alone shows that the time of death noted in the columns of the first pages of the post-mortem reports was not the time when the two deceased had actually expired. It was the time when their having expired, was noted by the doctor.
It was never the case of the prosecution or for that matter the case of the appellants that the occurrence had taken place after 10-00 p.m. Because had that been so the dead bodies of the two deceased, and the two injured eye-witnesses could not have been in the hospital at 10-40 p.m. On 22-61982 (this is the time noted on the medico-legal examination of Nabi Ahmad P.W.)
20. The argument of learned counsel for the appellants that the alternative version put forth by Mukhtar Ahmad appellant during his statement under section 342, Cr.P.C. Seems to be true, appears to be absolutely without foundation. If the complainant party had gone to forcibly stop the accused party from watering their fields, armed with fire-arms, the result would not have been, the one, for which the accused faced trial and the complainant party suffered the loss of lives and limbs (Nabi Ahmad P.W. For making statement was brought to Court on a cot and he had stated that he was disabled from performing normal function of life). Even if by a wild imagination the losses suffered by the complainant party are accepted, the non-suffering of injuries by anyone from the opposite side cannot be imagined by any stretch of imagination. The one sided A loss and sufferings of acute type in this case in itself is a proof of the fact that the complainants were not the aggressors.
' In this view of the matter we have no doubt that the alternative version' B put forth by Mukhtar Ahmad appellant was absolutely unbelievable.
21. Although all the appellants during their statements under section 342, Cr.P.C. Denied that they used to irrigate their land from the Scarp tube well through the watercourse which was meant for the use of canal water by the complainant party, through simple answer 'this is incorrect'. But it is a fact that this was not specifically denied during cross-examination. Mukhtar Ahmad appellant in his statement under section 342, Cr.P.C. Also conceded that there was a dispute of water between him and the complainant party. In fact, according to him the occurrence had resulted because of that. There is nothing on record to discard the statements of the eye-witnesses that the appellants had been using the watercourse for the last 4-5 years against the wishes of the complainant party and that they had refused to construct, siphon also, for taking the water over that.
' The statement made by the complainant that a dispute had arisen between Muhammad Sarwar deceased and Mukhtar Ahmad etc. On preceding Tuesday of the occurrence (8 days before the occurrence) over the use of Khaal and that Muhammad Sarwar had sternly stopped them from doing so, whereupon a dispute had erupted and Mukhtar Ahmad and Ashiq Ali had left the place by issuing threats, find corroboration from the evidence of dispute existing since 4-5 years.
Although the complainant himself was not a witness to the incident but it was Muhammad Sarwar deceased himself who had told about it.
The accused party also had the grievance that they had to surrender 5 Acres of land to get rid of the suit for pre-emption filed against them, even after having won the suit from the trial Court.
What appears is that these matters had a consolidated effect of unhappiness and annoyance in the mind of the accused party and so they decided to have it settled with the complainant party by using force. The occurrence in our opinion followed the events from resistance of the complainant party to allow peaceful use of the watercourse and taking over of the 5 Acres of land free of cost. It is worth repeating that except the differences appurtuating from the use of Khaal and the objections thereto and the unhappiness that resulted because of the 5 Acres of land which Mukhtar accused had to surrender to get rid of the pre-emption suit, there were no other differences or enmity, between the parties and so it cannot be considered by any stretch of imagination that the complainant or the witnesses would have thought of cooking up entirely a false story, after happening of the occurrence.
22. There is no doubt that Muhammad Saleh complainant, Nabi Ahmad P.W.15 and both the deceased were real brothers while Sarnawaz P.W. Is the son of their first cousin, while Muhammad Yusuf P.W.13 who had attested the taking into possession of blood-stained earth and empties from the spot, is also cousin of the deceased. The contention of learned counsel for the appellants, therefore, that the witnesses were closely related is undisputedly true.
23. The important aspects that have to be specificaly kept in mind before placing reliance on the testimonies of the eye-witnesses, are; (i) can their claim of having witnessed the occurrence be believed? (ii) do their statements inspire enough confidence to base conviction or would it be unsafe to record conviction on the strength of their statements only without corroboration from other independent evidence"?
Here, in this case, out of the three eye-witnesses, who deposed the ocular account, two had suffered injuries. They were medically examined within the shortest possible time and were admitted to the hospital. Fire-arm injuries were found on their person. Their presence is mentioned even in the version purtforth by one of the appellants, i,e, Mukhtar Ahmad. The presence of these witnesses, therefore, at the spot and of their having suffered injuries during the occurrence, stands proved undisputedly.
' Muhammad Saleh complainant although had not suffered any injury and so there is no documentary proof of his presence at the spot yet there are circumstances which show that he was also present at the spot. In that, it was he, who had taken the two deceased and the injured to the hospital immediately after the occurrence. His presence in the hospital is proved from the entry of his name in relevant columns of the medico-legal certificates Exhs.P.E. And P.R of Sarnawaz and Nabi Ahmad respectively. These documents which proved that he had accompanied the two injured to the hospital, lend complete support to his assertion that the occurrence had taken place in his presence and he had taken his deceased brothers and the two injured to the hospital.
24. Apart from the testimonies of these witnesses there is evidence of recoveries of weapons of offence from the appellants other than Abdul Sattar. The guns recovered from Ashiq Ali and Mukhtar Ahmad were found wedded with the crime empties taken into possession from the spot.
The opinion of the Fire-arm Expert is a strong corroboration of the ocular account against Ashiq All and Mukhtar Ahmad appellants. The ocular account involving the other three appellants, i,e, Abdul Majid, Muhammad lqbal and Mahmud Ahmad stands corroborated by the other material on record. In that, their relationship with Mukhtar Ahmad appellant and the interest they had in the lar I purchased by Mukhtar Ahmad (a part of which was being cultivated by Muhammad Iqbal and Ashiq Ali, according to the documents produced by Mukhtar Ahmad appellant in defence) would have been the reasons for them to have participated in the occurrence. (two are nephew of Mukhtar Ahmad and Ashiq Ali while Mahmud Ahmad is son of Ashiq Ali and nephew of Mukhtar Ahmad). The number of injuries, that the deceased and the injured P.Ws. Had suffered, also lends support to the fact that a number of accused would have participated in the occurrence. Although corroboration of the ocular account of medical evidence is generally not considered a singular aspect of good corroboration but in the case in hand the statements of the eye-witnesses against Abdul Majid of having given a butt blo on the head of Muhammad Sarwar deceased is a strong corroboration in our vie considering the fact that all the accused were holding fire-arms, they had used the same and it was only Abdul Majid who had allegedly used the butt side of the gun by inflicting an injury. The blunt weapon injury, therefore, found on the body o the deceased, in the circumstances of this case, in our assessment is a stron corroboration of the ocular account.
25. The judgment reported at page 326 of SCMR 1971 wherein one person was acquitted and the appeal of the two dismissed, in our view is not helpful to the appellants in this case, as in that case, although, it was observed, that he was being acquitted as there was no corroboration in the form of recovery from him, in comparison to the others, whose appeal was dismissed, it was also observed therein that the motive alleged by the prosecution was of a weak type and not proved. It is also apparent from the reading of the judgment that except the ocular account against the acquitted person, there was no evidence at all while in the case in hand various types of evidence are available which lend corroboration to the ocular account.
' The judgment reported at page 500 of SCMR 1971, which was appeal against acquittal also, in our view is not helpful to the appellants as in that case also the only evidence apart from the ocular account available to the prosecution was the recovery of Dangs, which were not found stained with blood, while the position in the case in hand is different. We would also like to note here that in the end of that judgment it was observed that:- "In the ultimate analyses it is purely a question of appraisal of the evidence and we are unable to find any fault with the High Court in its appreciation of the evidence."
26. The case reported at page 57 of SCMR 1982 also contains different facts. In that, the conduct of the prosecution in effecting recoveries was considered as grossly dishonest, reflecting adversely on the veracity of the prosecution version. The witnesses were also found to have been anxious in making false statements. It was held that no amount of corroboratory evidence can rectify the defects in the prosecution case.
27. The argument of learned counsel for the appellants that since three of the accused were acquitted by the trial Court no reliance can be placed for maintaining conviction of the appellants on the same evidence, in the circumstances of this case, in our view does not possess strength as in the case in hand the trial Judge had acquitted them by way of abundant caution observing that their participation in the occurrence seemed doubtful.
' For all the reasons enumerated above, we find no merit in the appeal, in so far as it pertains to Mukhtar Ahmad, Ashiq Ali, Abdul Majid, Muhammad lqbal, and Muhammad Ahmad. However, the case of Abdul Sattar in our view stands on a different footing. He was 16/17 years old at the time of occurrence even according to the Investigating Officer who had effected his arrest. He had produced a certified copy of his matriculation examination, according to which he was 15 years and a few days less than nine months old at the time of occurence. He was allowed bail on the ground of minority by the learned trial Court and his sentence was suspended on that very account, after his conviction. Although it is alleged that he had fired shots from the rifle but not empty of rifle was recovered from the spot. The injury alleged to have been caused by him to Sarnawaz P.W. As noted by Dr. Capt. Muhammad Bashir P.W.7, was of 1 c.m. Diameter. The said doctor had not only mentioned this injury to be bullet injury but had mentioned the three injuries found on the person of Nabi Ahmad P.W. Also to be bullet injuries. The injuries on the person of Nabi Ahmad P.W., according to the prosecution resulted from gunshots. He himself conceded that he had only 5/6 months experience on the medico-legal side and had not specifically received any medico-legal education. Learned trial Judge observed that he seemed to be an inexperienced person. The opinion expressed by trial Court qua him in our view is based on correct appreciation of his performance.
' The injury found by the doctor on the person of Sarnawaz, therefore, cannot be accepted to have been caused by rifle only on account of the fact that the doctor had also described the same to be bullet injury.
The dimension of the injury on the person of Sarnawaz., i,e, 1 c.m. Diameter, rather gives an indication that instead of being the result of a bullet fired from a rifle it might have resulted from a pellet. In this regard we are fortified by the statement made by Dr. Anees Sheikh P.W.8, during cross-examination, that the injuries (Nos. 1, 3 and 4) on the body of Muhammad Sarwar deceased had been caused by pellets. The dimension of injury No,1 on the body of Muhammad Sarwar deceased was 2 c.m. x 1 c.m. The dimension of wound described as injury No,3 varied in size from 1 c.m. x 1 c.m. To 2.5 c.m. To 2.5 c.m., while the dimension of the injury No,4 was noted to be 1.5 x 1.5 c.m. If the injuries of the said dimensions were of pellets, the injury, of 1 c.m. x 1 c.m. Dimension would also have been the result of a pellet. The participation of Abdul Sattar in the occurrence, for the foregoing reasons, in our view, appears to be doubtful. His appeal is, therefore, allowed and he is acquitted by way of grant of benefit of doubt. He is on bail. The bail bonds and the sureties are discharged.
30. The appeal of the other five appellants, namely Ashiq Ali, Mukhtar Ahmad, Mahmud Ahmad, Abdul Majid and Muhammad lqbal is dismissed. The, sentence of death awarded to Ashiq Ali, Mukhtar Ahmad and Mahmud Ahmad is confirmed.
31. The revision petition wherein prayer has been made for awarding capital sentence to all the appellants, who have been sentenced to imprisonment for life, which is still at motion stage, in our view, does not possess substantial force warranting enhancement of sentence of imprisonment for life to death. In fact learned counsel for the complainant himself did not press the same forcefully.
The revision petition is, therefore, dismissed.