' Muhammad Hayat and his two brothers Nazar Abbas, Iftikhar Hussain and Rajab Ali son of Noor Muhammad, Zafar son of Waryam and Muhammad Nawaz were tried by a Judge of Special Court for Speedy Trials, on charges under sections 148, 452/149, 302/149, 307/149, 327/149, P.P.C. For having formed an unlawful assembly, armed with deadly weapons in the prosecution of the common object of which Liaqat Hayat aged about 9 years was murdered and for causing murderous assault on Mst. Ghulam Fatima P.W.10 the mother of the deceased and on Muhammad Nawaz P.W.11 and for such assault on Sikandar, the brother of the complainant Hayat.
2. Vide judgment dated 1-12-1987, all the appellants were found guilty on the aforesaid charges.
Accordingly, the learned Judge convicted all the respondents and sentenced them under section 148, P.P.C. To undergo rigorous imprisonment for a term of two years each and pay a fine of Rs,2,000 each. On the charges under section 451/149, P.P.C. The appellants were sentenced to undergo rigorous imprisonment for a term of 5 years each and to pay a fine of Rs,2,000 each or in default to suffer rigorous imprisonment for a term of six months each. On the charge under section 302/149, P.P.C., the appellants Ghulam Muhammad and Muhammad Nawaz were sentenced to death and to pay a fine of Rs,10,000 each or in default thereof to suffer another term of one year's R.I. Each. The rest of the appellants on this charge were sentenced to undergo life imprisonment and to pay a fine of Rs,5,000 each or in default thereof to suffer rigorous imprisonment for a term of one year. For having committed murderous assault on Mst. Ghulam Fatima P.W., all the appellants under section 307/149, P.P.C. Except Muhammad Nawaz were sentenced to undergo rigorous imprisonment for a term of 7 years and to pay a fine of Rs,5,000 each or in default thereof, to suffer R.I. For a term of one year each. On this charge Muhammad Nawaz was sentenced to life imprisonment and to pay a fine of Rs,5,000 in default thereof suffer R.I. For a further period of one year. For murderous assault on Sikandar, all the appellants under section 307/149, were sentenced to undergo rigorous imprisonment for a term of 7 years each and to pay a fine of Rs,5,000 each or in default thereof to undergo one year's R.I. Each. On the charge under section 323/149, P.P.C. For having caused simple injuries to Muhammad Nawaz P.W. Each of the appellants was sentenced to undergo rigorous imprisonment for a term of six months. Each of the appellants was further directed to pay Rs,10,000 as compensation under section 544-A, Cr.P.C. To Mst. Ghulam Fatima, the injured P.W., mother of deceased. All the sentences were however, ordered to run concurrently.
3. Aggrieved by their conviction, the appellants have preferred this Appeal No, 412 of 1988 under section 12(2) of the Special Court for Speedy Trials Act, 1987. This judgment shall dispose of the said appeal.
4. The occurrence in this case took place on 9-4-1986 at 4 p.m. In the house of the complainant, Muhammad Hayat P.W.9 in Chah Sudhianwala of village Murad Maan situated at a distance of 13 miles from the Police Station Sarai Sidhu in District Khanewal. The occurrence was reported at the police station on the same day vide F.I.R. Exh.P.H. Lodged by Muhammad Hayat P.W.9 and the same recorded at 5-30 p.m. By Ghulam Shabbir, S.I./S.H.O., P.W.14.
5. In brief the complainant in the F.I.R. Stated that on the fateful day at about 4 p.m. He along with his wife and deceased son Liaqat Hayat aged about 8/9 years, his real brother Sikandar and Muhammad Nawaz his servant and Sultan, a guest, were present in their house. At that time, the appellants Muhammad Nawaz, Ghulam Muhammad, Nazar Abbas and Iftikhar sons of Haji Hayat armed with .12 bore guns, appellants Zafar armed with a pistol and appellant Rajab armed with a rifle entered their house. On the sight of the appellant, Ghulam Fatima wife of the complainant along with her deceased' son Liaqat Hayat, out of fear, rushed to the residential Kotha. Sikandar the brother of the complainant also entered his residential Kotha. Ghulam Muhammad appellant raised a Lalkara that all the inmates of the house should be killed and simultaneously fired a shot into the residential Kotha of the complainant where Mst. Ghulam Fatima and her deceased son were present. A plank of the door of the residential Kotha was closed while the other was open. The fire shot by Ghulam Muhammad hit the chest of Liaqat Hayat deceased. Mst. Ghulam Fatima while holding Holy Qur'an came out of the residential Kotha and begged the appellants not to cause further damage. At the time, appellant Muhammad Nawaz fired a shot with his gun at Mst. Ghulam Fatima and the pellets hit her abdomen, chin and arms. The appellants Nazar Abbas and Raja proceeded towards the Kotha of Sikandar, the door which was closed. In the first instance, they tried to break open the door and then Nazar fired a shot on the door. The pet dog of the complainant started barking and the appellants Iftikhar fired a shot at the chest of the dog.
Muhammad Nawaz and Sultan who were also present in the house tried to intervene but the appellant Ghulam Muhammad inflicted injuries on the back side of the neck of Muhammad Nawaz with the Butt of his gun. Appellants Zafar and Rajab allegedly fired shots in the air causing panic and thereafter, all the appellants escaped from the scene of occurrence. The deceased Liaqat Hayat died at the spot.
6. Motive for the commission of crime as stated by the complainant was that a few days before the occurrence, the complainant and his brother had a quarrel with Ghulam Muhammad and Muhammad Nawaz over the plying of wagon in which abuses were exchanged. Appellants Ghulam Muhammad and Muhammad Nawaz had threatened that they would not allow the complainant and his brother to ply their wagon and they will also avenge the insult. It was on account of the previous quarrel that the appellants variously armed had launched an attack on the complainant side.
7. On 10-4-1986 at 11-45 a.m. Dr. Shabbir Suleman P.W.4, Senior Medical Officer, T.H.Q. Hospital, Kabirwala, conducted the post-mortem examination on the dead body of Liaqat Hayat aged 9 years and the following injuries were noticed:- "Multiple small scattered fire-arm lacerated wounds of the size of 1/3 c.m. x 1/3 c.m. And 1/2 x 1/3 each on front of chest, abdomen, both shoulders, neck and face and right thigh on the upper part.
All these pellet wounds were 70 in number found by him on the dead body."
' The second rib on the right side of chest was fractured. The chest walls were perforated. The pleura was also perforated. Right lung was also perforated. Liver was also perforated. In the opinion of the doctor, death had occurred due to the fire-arm wound caused to the deceased which also caused shock and hemorrhage. The injuries were sufficient in the ordinary course of nature to cause death. All the injuries were ante-mortem.
8. On 10-4-1986 at 9-45 a.m. Mst. Ghulam Fatima P.W.10, was medically examined by Lady Doctor Mrs. Naseeb Akhtar (P.W.3) and the following injuries were noticed on her person:-
(1) A gunshot wound with abrasion and tattooing on the left shoulder.
(2) A gunshot wound on the right ear. Its entry wound was on the front of right ear and its exit wound was on the back of the same ear.
(3) A gunshot wound on the right side of the neck.
(4) A gunshot wound on the right arm on the upper part.
(5) A gunshot wound on the right side of lower part of the chest.
(6) A gunshot wound 9 c.m. Below injury No,5.
(7) A gunshot wound 5 c.m. Below injury No, 6 on front side on the upper part of the abdomen.
(8) Two gunshot wounds in the area of 5 c.m. On the right upper most part of the right thigh.
(9) A gunshot wound on the chin.
' All the injuries were caused by a fire-arm. The injuries were kept under observation but after X-ray, all the injuries were declared simple in nature. The pellets were also recovered from the wounds.
9. On 13-4-1986 at 10-00 a.m. Dr. Khalid Mahmood Tariq P.W.5 Medical Officer, Civil Dispensary Serai Sidhu medically examined Muhammad Nawaz P.W.11 and found the following injuries on his person:-
(1) A contusion mark 3.5 c.m. x 2 c.m. Below right eye.
(2) A contusion mark 3 c.m. x 1-1/2 c.m. On the upper right eye-lid.
(3) A contusion mark 3-1/2 c.m. x 1-1/2 below the left eye.
(4) An abrasion 1/4 c.m. On the left ear.
(5) Complained of pain on the left shoulder.
(6) Complained of pain on the back of right chest. All the injuries were simple in nature caused with blunt weapon.
10. On 14-4-1986 Dr. Safdar Hameed Chaudhry, P.W.6, Veterinary Officer, P.W.6, examined pet dog of Muhammad Hayat and the following injuries were noticed:-
(1) Ruptured wound 1/2 c.m. x 1/4 c.m. On the left side of the head. No foreign body was found in the wound.
(2) Ruptured wound 2 c.m. x 0.5 c.m. On the head in the middle of the two eyes.
(3)Ruptured wound .4 c.m. x .2 c.m. On the dorsal side of the nasal bone.
11. During the spot inspection on 9-4-1976, no empty was found but two door planks P.3 and P.4 were found on the scene of occurrence and the same were taken into possession vide memo.
Exh.P.M. And Exh.P.O. Attested by Muhammad Hayat P.W.9, and Sikandar (not produced) besides Ghulam Shabbir, S.I. The Investigating Officer P.W.14.
12. On 14-4-1986, all the appellants were arrested by P.W.13 Muhammad Abdul Rafiq, Inspector Police. On 28-4-1986, Ghulam Muhammad while in police custody got recovered gun P.8 from his house with an empty in the barrel and the same was taken into possession vide memo. Exh.P.R.
Attested by Muhammad Hayat, P.W.9, Sikandar (not produced) and Ghulam Shabbir, S.I. P.W.14. On the same day, Nazar Abbas, appellant while in police custody, got his licensed gun P.9 recovered from his house and the same was taken into possession vide memo. Exh.P.S. Attested by Muhammad Hayat P.W.9, Sikandar (not produced) besides Ghulam Shabbir, S.I. P.W.14. On 28-4- 1986, Rajab appellant while in police custody, got his licensed gun P.10 recovered from house and the same was taken into possession vide memo. Exh.P.T. Attested by Muhammad Hayat P.W.9, Sikandar (not produced) besides Ghulam Shabbir, S.I. P.W.14. On 30-4-1986, appellant Iftikhar while in police custody, got his gun P.11 recovered from his house and it was taken into possession vide memo. Exh.P.U. Attested by Muhammad Hayat P.W.9, Ghulam Muhammad (not produced) besides Ghulam Shabbir, S.I. P.W.14. On the same day, Muhammad Nawaz while in police custody got his gun P.12 alongwith the empty in the barrel recovered from his house and the same was taken into possession vide memo. Exh.P.V. Attested by Muhammad Hayat P.W.9, Gul Muhammad (not produced) besides Ghulam Shabbir S.I. On 30-4-1988, appellant Zafar while in police custody got pistol P.13 recovered from his house and the same was taken into possession vide memo. Exh.P.X.
Attested by Muhammad Hayat P.W.9, Gul Muhammad (not produced) besides the Investigating Officer Ghulam Shabbir P.W.14. Ten pellets P.6/1-10 were also taken into possession vide memo.
Exh.P.N. Attested by Muhammad Hayat and Sikandar (not produced) besides the Investigating Officer Ghulam Shabbir S.1. P.W.14.
13. The weapons recovered from the appellants were sent to the Forensic Science Laboratory and according to the report of the Laboratory Exh.P.GG, no empty was fired from these weapons.
14. The case has a cheered history of investigation for more than a year and a half. It remained under investigation and two D.S.Ps namely Muhammad Shaft Saleem (C.W.1 and Haleem Sabir C.W.2) also conducted the investigation. According to both the Police Officers, only appellant Muhammad Nawaz was involved in the affair. Haleem Sabir C.W. 2 also found that the recoveries in this case were fake.
15. At the trial to prove its case, the prosecution placed reliance upon the testimony furnished by Muhammad Hayat P.W.9, the complainant father of the deceased Mst. Ghulam Fatima P.W.10 injured eye-witness mother of the deceased and Muhammad Nawaz P.W.11 another injured eye- witness. Sikandar a brother of the complainant and Sultan a guest who were present in the house and sighted as eye-witnesses were given up by the prosecution. In addition to the ocular testimony, the prosecution also placed reliance upon the recoveries and the evidence of motive.
15-A. The appellants were asked to make their statements on oath under section 340(2), Cr.P.C. But the appellants denied to do so. When examined under section 342, Cr.P.C. The appellants denied all the charges, their arrest and also the recoveries alleged to have been effected. The appellant Ghulam Muhammad stated that he had been involved due to enmity because his father was a political figure of the area and was opposed by Syed Fakhar Imam and Syed Khawar Ali Shah and Muhammad Iqbal Ex-M.N.A. Who had joined hands in implicating him as well as his brothers. The appellant Ghulam Muhammad further stated that Muhammad Hayat complainant was related to Khizar Hayat Hiraj, an officer of the P.C.S. Cadre and Muhammad Iqbal Ex-M.N.A. The appellant further stated that the deceased had not been killed but had died in a sudden affair. He also stated that his father Haji Muhammad Hayat got Umer Hayat P.W. And Majha Sheikh tortured by the police, in course of the investigation of a theft case of mare owned by Khalid Saeed and also in an abduction case lodged by Khizar Abbas. According to the appellants, on the fateful day, his father was going in a jeep driven by his cousin Qaisar Abbas when Muhammad Nawaz P.W. And Umer Hayat P,W. And Majha Sheikh hurled bricks on the jeep and ran thereafter and thus Qaisar Abbas alongwith others chased Muhammad Nawaz who ran to the Bheni of his father-in-law Mutalli. The appellant denied his presence at the spot and produced documentary evidence. A copy of Jamabandi Exh.D.L. Was placed on the record to show that Muhammad Nawaz P.W. Was not a servant of the complainant but was a landlord in his own right. The appellant also placed on the record the list of voters Exh.D.M. And Exh.D.N. Of three different villages and a certified copy of Khasra Girdawari Exh.D.P. He also placed on the record, a copy of mutation Exh.P.Q. As well as a certified copy of the statement of Muhammad Nawaz P.W. Recorded in some theft case. The appellant also placed on the record, an uncertified copy of F.I.R. Lodged under section 365/34, P.P.C.
16. Muhammad Nawaz appellant also said that he has been involved due to enmity and denied the recovery of gun P.12. He said that a case under section 307, P.P.C. Had been registered against him and he was admitted to pre-arrest bail on 9-4-1986 and that he had furnished hail bonds on 10-4- 1986. The appellant Muhammad Nawaz also placed on record a certified copy of the bail order Exh.D.U. And bail bonds Exh.D.V. Besides their statements, no evidence was led in defence.
17. We have heard the learned counsel for the appellants and the State at length and we have also minutely perused the record. It was vehemently contended by the learned counsel for the appellants that both the complainant and the accused side have deep rooted enmity and in fact were two opposing groups. The appellants had enmity with the complainant and his brother and, therefore, in the background of such enmity, the conviction cannot be sustained unless strong corroborative evidence from an independent source is placed by the prosecution on the record.
According to the learned counsel, the prosecution case suffers from this infirmity and, therefore, in the absence of corroborative evidence, the testimony of the witnesses should be disbelieved. It was further argued that six appellants armed with fire-arms had entered the house of the complainant but strangely enough, they did not cause any injury to Hayat complainant, P.W., P.W.9 or his brother Sikandar. It is, therefore, obvious that Hayat and Sikandar were not present and had not seen the occurrence at all. It was also contended that if Hayat and Sikandar had been present, they would have been the target because of the motive to take revenge from Hayat and Sikandar for the insult.
18. We have carefully considered these contentions raised by the learned counsel for the defence but we regret our inability to agree with the learned counsel for the defence. No doubt, there is some friction between the parties and that alone would not be sufficient to discard the testimony of Mst. Ghulam Fatima an injured eye-witness and the mother of the deceased. Similarly, the testimony of Muhammad Nawaz P.W.11 who is also an injured witness cannot be doubted. No doubt, it is a rule of prudence that corroboration should be sought of the interested testimony but it is not absolute, even such testimony can be believed without corroboration and in our view it is a case which does not require any corroborative evidence to believe the witness. We can well imagine the manner of the attack in this case and also the helplessness of the inmates of the house. Mst.
Ghulam Fatima and his son Liaqat Hayat deceased aged about 9 years rushed to the Kotha and a fire was shot in the Kotha hitting Liaqat Hayat deceased. It is well-known that none can ascertain or predict how the mind of a criminal works at the time of the attack. Human beings can become the worst beasts and in this case, in our view, as soon as the appellants entered the house, the inmates rushed to take shelter. They fired a shot at the sight of Liaqat deceased which was another way to take revenge so that the enemy got maximum pains. This would only show the callousness of the degree of motivation for seeking revenge. Furthermore, we are not prepared to believe that real mother would substitute for the real culprits responsible for the murder of her son. The real mother would not let the real culprits go scot free. In this view of the matter, we are not prepared to believe that the eye-witnesses Sikandar and Muhammad Hayat were not present and had not seen the occurrence. No doubt, that Sikandar and Muhammad Hayat complainant both real brothers would be targets but if they were not fired at that does not mean that the appellants had not trespassed and had not launched the attack.
19. It was next contended by the learned counsel for the defence that Muhammad Nawaz P.W.11 who was described by the first informant Muhammad Hayat, in the F.I.R. As his servant was in fact a landlord. According to the learned counsel for the appellant he was a party man and was deliberately described as a servant to show his presence at the spot. Muhammad Nawaz P.W.11 was cross-examined and he admitted that he was a land-owner but he also stated that he jointly owned bullock cart with the complainant and he used to drive the same, therefore, he also described himself as a servant of the complainant. The worth of his testimony will not depend upon his description by the complainant or through his own motive. The crucial question is whether the eye-witness was present or IF not at the time of occurrence; our answer to this question is that he was present because he had stamp of injuries on his person and, therefore, his presence cannot be doubted.
20. It was also argued that for 3/4 days, the witness Muhammad Nawaz P.W.11 did not get himself medically examined and, therefore, he should be disbelieved. We are not convinced with the argument raised by the learned counsel, inasmuch as it has not been brought on the record that his injuries were self-suffered. The age of the injuries corresponds to the time of occurrence and, therefore, nothing turns upon the late medical examination. The medical evidence qua Muhammad Nawaz P.W.11 was also criticized and it was contended that the injuries on the person of Muhammad Nawaz P.W.11 were not caused by the Butt as deposed by the complainant in the F.I.R. But in fact the injuries were contusions and were caused with different substance. We have considered this aspect of the case as well but in our view, the argument is devoid of force. The complainant at the sight of the appellants had rushed and had taken shelter and it was in course of the attack that Muhammad Nawaz P.W.11 suffered injuries. The Butt of a gun is a hard substance and could have caused injuries received by the witness. Furthermore, it is a fallacy to think that in criminal cases, the evidence of the witnesses should have a mathematical precision. In such like attack launched in a sudden manner, the complainant is unable to controvert it. None of the victims of attack would at that time know with precision the type of injuries and in what manner such injuries being caused and, therefore, appraisal of evidence revolves around the knowledge of the human reaction and behaviour. We, therefore, repel the contention that since Muhammad Nawaz P.W. Had not been injured with the Butt of gun, therefore, his testimony should be discarded.
21. Similarly, it was argued that on the person of Mst. Ghulam Fatima, there was a tattooing and in fact two shots had been fired and if it was believed that she had received two shots, then she was not narrating the truth. The contention has no force. Mst. Ghulam Fatima being a rustic lady had rushed to the residential Kotha with her deceased son. She would have lost all senses at that time in the shock to ascertain and know how many shots were fired at her. She was inside the Kotha and how can it be expected that she should be alert to hear and know the number of shots fired. She had come out of the Kotha with Holy Qur'an in her hand and had beseeched the appellants to take mercy. In this context it is pertinent to mention that the deceased had received as many as 70 pellets. Can it be said that it was the result of one shot. We, therefore, do not believe that Mst. H Ghulam Fatima is not a truthful witness. Her solitary statement under the circumstances of the case is sufficient to sustain the conviction.
22. It was also contended that part ascribed to Nazar Abbas appellant is not supported by the medical examination of the dog because it has ruptured injuries and the dog had not received any fire-arm injury. In our view, nobody would tell a lie to involve a person on account of the injury caused by him to a pet dog. He had accompanied the assailants as a member of the unlawful assembly and, therefore, had acted in the prosecution of its common object and he cannot save himself from the liability.
23. The learned counsel for the appellants also drew our attention to the discrepancies as to the locale of injuries on the dead body but nothing turns upon them because such discrepancies are inmate ail and did not demolish the I prosecution case. It is pertinent to mention that it was a day time occurrence and the F.I.R. Was lodged with promptitude and, therefore, we are not prepared to believe that substitution had taken place.
24. The upshot of the above discussion is that the prosecution has proved its case beyond any shadow of doubt and, therefore, the appeal preferred by the appellants is hereby dismissed. The death sentence awarded to Ghulam Muhammad is confirmed. As to the sentence of death awarded to Muhammad Nawaz, we are of the view that no doubt, he was a member of the unlawful assembly, yet the fatal shot is not attributed to him, therefore, he deserves lesser penalty.
Accordingly, we will alter sentence of death awarded to Muhammad Nawaz into life imprisonment.
' The conviction and the sentences of all the appellants on other charges are hereby maintained.
With these observations, this appeal is dismissed. .