' MUHAMMAD MUNIR KHAN, J.-- This criminal appeal arises from the judgment of learned Judge, Punjab Special Courts for Speedy Trials No, VI, Bahawalpur, whereby he on 31-8-1988, convicted Muhammad Ashraf (30/32) and Noor Muhammad alias Laloo (24/25) appellants under section 302/34, P.P.C. For the triple murder of Qabil Khan, Ahmad Yar and Mst. Sarwar Bano and sentenced them to death and a fine of Rs,20,000 each in default thereof 5 years' R.I. Each on 3 counts, with the direction that the fine if recovered be paid to the heirs of the three deceased in equal share as compensation under section 544-A, Cr.P.C.
2. The occurrence took place on 1-5-1988 in the Bethak of Mushtaq Ahmad P.W.8 situate in Chak No, 10/I.R. At a distance of 15 Km. From police Station Haroonabad. The F.I.R. Exh.P.I. Was lodged by Manzoor Khan, brother of Ahmad Yar deceased on the same day at 10-00 a.m. And was recorded by Ghulam Hussain S.I. P.W.
11.
3. Muhammad Ashraf, Noor Muhammad are brothers inter se. The third accused namely Ghulam Muhammad was their father. He had died before the trial. Qabil Khan, Mst. Sarwar Bano and Ahmad Yar deceased are father, mother and brother respectively of the complainant Manzoor Khan. The parties are also related inter se. Ghulam Muhammad was brother of Qabil Khan deceased. Noor Muhammad and Muhammad Ashraf appellants are step uncles of the complainant.
4. There arose a dispute over the intervening boundary line of land, between Muhammad Ashraf appellant and Qabil Khan deceased. So, a Punchayat was convened, the dispute was settled and the boundary line was demarcated in accordance with the decision of the Punchayat. Muhammad Ashraf subsequently demolished the boundary line. Two days before the occurrence, Ahmad Yar deceased went to Chak No, 7/I.R. To apprise Muhammad Khan and Mst. Murad Khatoon of the situation. On his coming back from Chak No, 7/I.R. Muhammad Ashraf appellant abused and threatened him with dire consequences. To settle the dispute between the parties, a Panchayat was convened in the Bethak of Mushtaq Ahmad P.W. At the eventful time. Manzoor Khan complainant, Mst. Murad Khatoon, Muhammad Khan, Ahmad Yar deceased, Qabil Khan deceased, Muhammad Suleman P.W.9, Mushtaq Ahmad P.W.8 Muhammad Ashraf appellant, Noor Muhammad appellant and their father Ghulam Muhammad participated in the Panchayat. Qabil Khan deceased insisted that the boundary line demarcated in accordance with the decision of the Panchayat should be restored. Muhammad Ashraf appellant declared that he will draw the boundary line according to his own wishes. Ghulam Muhammad raised Lalkara asking his sons, the appellants, to teach lesson to Qabil Khan and others. On this Muhammad Ashraf and Noor Muhammad appellant took out pistols from the folds of their loin cloths. Muhammad Ashraf fired at Qabil Khan hitting near his right ear who fell down on the ground. On this Manzoor Khan and Ahmad Yar appellant ran out of the house to save themselves. Noor Muhammad then fired shot hitting Ahmad Yar on the back of his neck, who fell down. At this juncture Mst. Sarwar Mai, mother of Ahmad Yar came running to the spot, Muhammad Ashraf fired shot hitting in front of her head.
Muhammad Ashraf fired second shot hitting her chest. She also fell on the ground. While running away Manzoor Khan complainant struck against the door of the Bethak and received injuries on his shoulder. The appellants and the co-accused ran away taking away their respective weapons with them.
5. On 1-5-1988 at about 7-00 p.m. Dr. Manzoor Hussain Anjum, P.W.1 examined Manzoor Khan P.W.
And found the following injury on his person:- "An abrasion on the right shoulder joint on the lateral side about 6 c.m. In length. Colour of the skin is red."
' The injury was simple and caused by blunt weapon.
' On the same day he conducted post-mortem examination on the three dead bodies. He found following injuries on the person of Qabil Khan:-- "(1) Clotted blood present on the right pinna. No mark of injury present.
(2) 1-1/2 c.m. x 1 c.m. Oval shaped wound on the scalp with burnt edges about 5-1/2 c.m. On the right ear, lateral to occipital behind right ear.
(3) 1/1-4 c.m. x 1 c.m. Oval shaped wound 3 c.m. From the back of the right ear, with burnt edges.
(4) 1-1/2 c.m. x 1 c.m. Oval shaped wound, on scalp right side, just near the occipital 8 c.m. From the auricle."
' In his opinion the death was due to shock and haemorrhage as a result of injuries Nos.2, 3 and 4.
The injuries were caused by fire-arm. ' All these injuries were sufficient to cause death in the ordinary course of nature.
' On the same day at about 9-00 p.m. He cdnducted post-mortem examination on the dead body of Ahmad Yar and found following injuries:-
(1) "A gaping wound 3 x 2 c.m. Behind left angle of mandible at the upper lateral left side of the neck with burnt edges.
(2) Two exit wounds of 1 x 1 c.m. Round shaped on the back of the neck, just lateral on the right side.
Injury to cartoid artery on the left side and lateral muscles of the neck sternocledomastoid and injury to cervical vertebrae Nos.2 and 3 and fractures of the lateral process present."
' The death was due to injury No, 1, which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and was caused by fire-arm.
' The same doctor, on the same day at about 7-45 p.m. Peformed autopsy on the dead body of Mst.
Sarwar Bano and found following injuries on her person:- "(1) A wound 4 x 5 c.m. On the frontal part of the scalp with burnt edges. Blood clot present. Brain matter visible through it.
(2) An oval shaped wound 6 x 3 c.m. With laceration on the right of chest at the upper quardrant of the right breast.
(3) A lacerated wound 11 x 4 c.m. Extending to bone on the medial side of the right hand and distal part of right lower forearm medial side.
(4) Two injury marks oval shaped on the medial side of left knee joint measuring about 1-1/2 x 1 c.m.
With burnt edges."
' In his opinion the death was due to shock and haemorrhage as a result of injuries Nos. 1, 2 and 3, which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm and were ante-mortem. Injuries Nos. 1 and 2 were individually sufficient to cause death in the ordinary course of nature. In all the three post-mortem examination the doctor opined that the time between injuries and death was few hours and between death and postmortem about 48 hours.
6. On 1-5-1988, Ghulam Hussain S.I. P.W.11 lifted two crime empties Exh.P.11/1 and 2 from the place of occurrence and took them into possession vide memo. Exh.P.M. Attested by Mushtaq Ahmad P.W.8 and Muhammad Khan (not produced). On 5-5-1988 Muhammad Ashraf appellant was arrested by Ghulam Hussain S.I. P.W.11. He led to the recovery of pistol Exh.P.11 from his house which was taken into possession vide memo. Exh.P.N. Attested by the same witnesses. On 8-5-1988 Noor Muhammad was arrested by Muhammad Ramzan Inspector, P.'W.12. He led to the recovery of pistol Exh.P.13 from his house Which was taken into possession vide memo. Exh.P.O. Attested by the same witnesses. Since sufficient data was not available, therefore, the Fire-arm Expert could not give his opinion. The recovery of the crime empties and pistols from Noor Muhammad and Muhammad Ashraf appellants is thus of no consequence.
7. To prove its case, prosecution examined 12 witnesses. Manzoor Khan P.W.7 Mushtaq Ahmad P.W.8 and Muhammad Suleman P.W.9 have given the ocular account of the occurrence. They claim to have seen the two appelalnts firing shots on the three deceased resulting in their immediate death.
Manzoor Khan has also deposed about the background of the occurrence. Mushtaq Ahmad and Ahmad Khan P.W.10, Ghulam Hussain S.I. P.W.11 and Muhammad Ramzan, Inspector P.W.12 have supported the recovery of crime empties from the spot and of pistols from Muhammad Ashraf and Noor Muhammad appellants. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. They raised the plea of false implication on account of election rivalry. In reply to Question No, 13 Muhammad Ashraf appellant stated:- "I am innocent. I have been involved because I am son of Ghulam Muhammad accused (now dead). In the Panchayat Mst. Sarwar Bano abused and insulted Ghulam Muhammad on which he lost his temper and took out pistol from his Dab and fired at the three deceased. I was empty- handed and did not fire at any of them.
' In defence they produced Samand Khan D.W.1 and Ali Muhammad D.W.4. Muhammad Ashraf and Noor Muhammad appellants gave evidence on oath in disproof of the charge against them as D.Ws. 2 and 3, respectively. Samand Khan stated that on the day of occurrence, he along with Manzoor Khan complainant were present in Chak Pathanwala at a distance of 2 miles from the place of occurrence when Noor Khan, younger brother of the complainant came there and told about the murder of the 3 deceased. He stated that the complainant is his maternal-cousin. In cross-examination he stated that Muhammad Ashraf appellant is his paternal-cousin. Ali Muhammad D.W.4 stated that at the eventful time, he was present in the Panchayat convened in the Bethak of Mushtaq Ahmad P.W. Mst. Sarwar Bano deceased abused and insulted Ghulam Muhammad, deceased father of the appellants, who on provocation took out pistol from his Dab and fired shot at Qabil Khan. On this Mst. Sarwar Bano and Ahmad Yar ran out of the Bethak but Ghulam Muhammad followed them and killed them near the corner of the street. The witness stated that Muhammad Ashraf appellant was present in the Panchayat. He was unarmed and had not fired at the deceased and that Noor Muhammad appellant was not present in the Panchayat at the time of occurrence. Muhammad Ashraf appellant stated that he had opposed Mushtaq Ahmad P.W. In the election. Suleman is his (Mushtaq) relative so they were aggrieved against him.
He further stated that Mushtaq Ahmad and Suleman had good relations with Qabil Khan deceased. He further stated that at the time of occurrence Mst. Sarwar Bano had abused Ghulam Muhammad co-accused who on provocation lost his temper, took out pistol from his Dab and killed the 3 deceased. Noor Muhammad appellant stated that he was present in his house situated in Chak No, 7/I.R. At the time of occurrence. He was involved falsely in the case and that he had no grievance against Qabil Khan deceased.
9. Believing the motive, ocular evidence and medical evidence and disbelieving the plea raised by Muhammad Ashraf appellant in his statement recorded under section 342, Cr.P.C. And also disbelieving the defence evidence, the trial Court has convicted and sentenced the appellants as stated above.
10. Learned counsel for the appellants contended that the prosecution has failed to prove its case beyond reasonable doubts against the appellants; that Manzoor Khan complainant being son of Qabil Khan and Mst. Sarwar Bano and brother of Ahmad Yar deceased, is an interested witness, that there was enmity between Mushtaq Ahmad P.W. And Muhammad Ashraf appellant on account of election, that Muhammad Suleman is closely related to Musthaq Ahmad P.W.8, that there are contradictions and discrepancies in the prosecution evidence and that the three deceased were, in fact, killed by Ghulam Muhammad, father of the appellants, on grave and sudden provocation. Learned Assistant Advocate-General has supported the judgment of the trial Court.
11. We have devotedly considered the arguments of the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, statements of the appellants recorded under section 342, Cr.P.C., statements made by them on oath under section 340(2), Cr.P.C., statements made by Samand Khan D.W.1 and Ali Muhammad D.W.4 and the circumstances appearing in the case. We have not been able to persuade ourselves to agree with the learned counsel for the appellants. We find that the occurrence took place at 9-00 a.m. And the F.I.R. Was lodged at 10-00 a.m. On the same day i,e, after an hour of the occurrence. There is no evidence to show that the F.I.R. Was not recorded at the time and place as it purports. The promptitude with which the F.I.R. Was lodged excludes the possibility of procuring false eye- witnesses including the complainant. The names of the appellants, the weapons carried by them and the part played by them in the occurrence are mentioned in the F.I.R. The names of the eye- witnesses namely Mushtaq Ahmad P.W.8. And Suleman P.W.9 are also given therein. We are convinced that the F.1.R. Exh.P.I. Is a genuine document and can safely be used to corroborate the statement of its maker i,e, Manzoor Khan complainant P.W.7
12. Taking up the ocular evidence, we find that Manzoor Khan is closely related to the deceased.
Ghulam Muhammad (since dead), father of the appellants was his grandfather and the appellants are his step-paternal uncles. In this view of the matter, his statement cannot be thrown away on account of his relationship with the deceased. Mushtaq Ahmad P.W.8 and Muhammad Suleman P.W.9 are respectable persons. Mushtaq Ahmad is a Councillor of the Union Council Muhammad Suleman P.W.9 is Lumbardar of the village. The occurrence took place in the Bethak of Mushtaq Ahmad P.W.8. His presence, at the time of occurrence, is, therefore, quite natural. Mushtaq Ahmad P.W.8 and Muhammad Suleman P.W.9 are neither related to the complainant party nor had any enmity with the appellants or their father Ghulam Muhammad. The statements made by the 3 eye- witnesses are in consonance with probabilities and materially fit in with B the rest of evidence and surrounding circumstances. They have successfully faced the test of cross-examination. Except for minor and immaterial discrepancies and contradictions here and there, the learned counsel has not been able to point out any major or significant contradictions or dishonest improvement in their statements. It was a case of triple murder. The eye-witnesses could easily involve more persons. They at least could assign one of the fire-arm injuries to Ghulam Muhammad deceased but they did not do so. We are very much impressed by the straightforward manner in which they have given evidence. It seems to us that they are dependable witnesses and can safely be relied upon without corroboration qua appellants.
13. Adverting to the defence version that Ghulam Muhammad co-accused had alone killed the three deceased on being provoked by the abuse hurled by Mst. Sarwar Bano, we find that the same is highly ridiculous. According to Ali Muhammad D.W.4, Mst. Sarwar Bano alone had abused and insulted Ghulam Muhammad but he fired first shot at Qabil Khan and when Mst. Sarwar Bano and Ahmad Yar ran out of the Bathak, he followed and shot them dead near the corner of the street.
This version was not told to the police by Muhammad Ashraf appellant immediately after his arrest.
It is quite obvious that since Ghulam Muhammad has died before the trial and cannot be punished by the Court, therefore, false-story has been concocted by Muhammad Ashraf to save himself and his co-accused Noor Muhammad. To show that Manzoor Khan complainant was not present at the time of occurrence, it has been brought in defence evidence furnished by Samand Khan that Noor Khan, younger brother of Manzoor Khan, had gone to Chak Pathanwala, where Manzoor Khan P.W.
Was present, to inform about the murder of the three deceased. Noor Khan has not appeared as a witness, so statement of Samand Khan D.W., that Noor Khan had told them about the triple murder is not admissible. For all these reasons, we are C convinced that the learned trial Court has rightly believed the ocular account of the occurrence given by the three eye-witnesses and has justifiably discarded the defense version and defence evidence.
14. Now we proceed to consider the question of the vicarious liability of the two appellants for the three murders committed by them during the same transaction. The question of the vicarious liability always requires utmost care on the part of the Court. In the instant case, the two appellants have been convicted and sentenced to death on 3 counts. There can be no two opinions that the question of existence of common intention is a question of fact and has to be determined in the circumstances of each case. In the case in hand, we find that the 2 appellants had not come to the Bethak of Mushtaq Ahmad P.W. With pistols in their hands. Mushtaq Ahmad P.W.8 has stated that a rival bickering took place between the parties and Ashraf Khan took out a pistol from his Dab and fired at Qabil Khan. Manzoor Khan P.W.7 has stated that Noor Muhammad had also taken out pistol from his Dab before firing the same at Ahmad Yar. There is no evidence that Noor Muhammad knew that Muhammad Ashraf was concealing pistol in his Dab. Similarly, there is no evidence that Muhammad Ashraf knew that Noor Muhammad was keeping pistol in his Dab. Muhammad Sulaman stated that during the Panchayat, the situation became hot to some extent and Muhammad Ashraf took out pistol from his Dab and fired at Qabil Khan. Mushtaq Ahmad and Muhammad Suleman P.Ws. Have not deposed about the alleged Lalkara raised by Ghulam Muhammad, father of the appellants before the appellants could take out pistols from their Dabs.
In the peculiar circumstances of this case, it seems to us that the appellants were responsible for their individual acts. Noor Muhammad was not directly responsible for the murder of Mst. Sarwar Bano and Qabil Khan, so his conviction under section 302/34, P.P.C. For their murders (on two counts) is not sustainable. Similarly, Muhammad Ashraf appellant was not directly responsible for the murder of Ahmad Yar. So his conviction under section 302/34, P.P.C. For the murder of Ahmad Yar cannot be sustained. So Noor Muhammad is acquitted of charges of the murder of Mst. Sarwar Bano and Qabil Khan deceased. Muhammad Ashraf appellant is acquitted of the charge of the murder of Ahmad Yar. The conviction of Muhammad Ashraf for the murders of Qabil Khan and Mst.
Sarwar Bano and the conviction of Noor Muhammad for the murder of Ahmad Yar are maintained.
15. This brings us to the question of sentence of the appellants. We have carefully considered this question. We do not see any mitigating or extenuating circumstance in their favour for lesser penalty. So, the sentence of death awarded to Muhammad Ashraf on two counts i,e, for the murder of Qabil Khan and Mst. Sarwar Bano is upheld. The sentence of death awarded to Noor Muhammad for the murder of Ahmad Yar is also maintained. .