' RIAZ AHMAD, J.-- The appellants Muhammad Rafique and Muhammad Mazhar both real brothers sons of Baqar Ali were tried along with the acquitted accused namely Nazar Muhammad son of Baqar Ali, Ghulam Nabi and Hashmat Ali sons of Muhammad Sharif by the Sessions Judge, Bahawalnagar on charges under sections 148, 302, 307, 452 and 149, P.P.C. For having formed themselves into an unlawful assembly, armed with deadly weapons and for having committed the murder of Ahmad Yar (deceased) by trespassing into the house of deceased and for having caused murderous assault on four counts i,e, to have caused injuries to Muhammad Akram, Khurshid Ahmad, Jehangir and Aslam.
2. Vide judgment, dated 31-10-1984, the learned Sessions Judge, Bahawalnagar, acquitted Nazar Muhammad, Ghulam Nabi and Hashmat Ali, co-accused but found the appellants Muhammad Rafique and Muhammad Mazhar guilty on all the charges and accordingly, the appellants were convicted and sentenced to death and to pay a fine of Rs,5,000 or in default thereof to suffer rigorous imprisonment for one year each. Both the appellants were further directed to pay Rs,5,000 as compensation to the heirs of Ahmad Yar (deceased) or in default thereof to suffer rigorous imprisonment for a term of six months each. On the charge under section 452, P.P.C. Each of the appellants was sentenced to suffer a term of three years' R.I. And to pay a fine of Rs,5,00 each or in default thereof to suffer rigorous imprisonment for one month each. For having committed the murderous assault on Muhammad Akram P.W., each of the appellants was sentenced to suffer rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof, to suffer further rigorous imprisonment for a term of six months. Each of the appellants was directed to pay Rs,1,000 as compensation to Muhammad Akram P.W.Or in default thereof to suffer rigorous imprisonment for a term of six months each. Similarly, for having caused injuries to Khurshid Ahmad P.W., each of the appellants was sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof to suffer six months R.I. Each of the appellants was directed to pay Rs,1,000 as compensation to Khurshid Ahmad, P.W. Or in default thereof to suffer rigorous imprisonment for a term of six months. For causing injuries to Jehangir P.W., each of the appellants was sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof to suffer six months' R.I. Each of the appellants was directed to pay Rs,1,000 as compensation to Jehangir P.W. Or in default thereof, to suffer rigorous imprisonment for a term of six months. On the fourth count, for having caused injuries to Muhammad Aslam P.W., each of the appellants was sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof to suffer six months' R.I. Each of the appellants was directed to pay Rs,1,000 as compensation to Muhammad Aslam P.W. Or in default thereof, to suffer rigorous imprisonment for a term of six months. These convictions were recorded under section 307, P.P.C. Read with section 34 of the Pakistan Penal Code.
3. Aggrieved by their convictions, the appellants assail the same through Criminal Appeal No, 106 of 1984 (BWP) while Criminal Appeal No, 3 of 1985 has been filed by the State challenging the acquittal of Nazar Muhammad, Ghulam Nabi and Hashmat Ali acquitted co-accused. The case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the aforesaid appeals as well as the reference.
4. The occurrence resulting into the death of Ahmad Yar (deceased) and the receipt of injuries by Muhammad Akram, Khurshid Ahmad, Jehangir and Muhammad Aslam took place on 20-7-1983 at 8-15 p.m. In the Dera of Ahmad Yar (deceased) in village Dadu Mamunka situated at a distance of 11-1/2 kilometers from Police Station Donga Bonga.
5. The occurrence was reported by Muhammad Afzal P.W.14, son of deceased, at the police station through a written application Exh.P.R. On the basis of which the F.I.R. Was drawn at 10 p.m. By Muhammad Alamgir, Head Constable, P.W.13.
6. The prosecution case as stated in the aforesaid F.I.R. Was that on the fateful evening at about 8- 15 p.m., the complainant Muhammad Afzal, his deceased father Ahmad Yar, his brother Muhammad Akram P.W. 16 alongwith their Munshi Ghulam Rasool, tractor Driver Khurshid Ahmad P.W.15, Jehangir and Muhammad Aslam were present in the Dera of the deceased and were watching the television. Suddenly, they heard a Lalkara from the southern side of the Dera. The complainant turned around and saw at his back, Nazar Muhammad armed with a .12 bore gun, Muhammad Mazhar armed with a rifle, Muhammad Rafique armed with a rifle, Ghulam Nabi armed with a .12 bore gun, Hashmat Ali armed with a .12 bore gun and Allah Yar armed with a rifle had appeared in the Dera. Nazar Muhammad at once fired a shot on the father of the complainant, Ahmad Yar (deceased) followed by a second shot fired by Ghulam Nabi and the third fired by Allah Yar hitting the deceased. On the receipt of these shots, the deceased Ahmad Yar who was sitting on a Pirhi fell down. The remaining accused also indulged into firing at the complainant and other inmates on account of which, Muhammad Akram, P.W., the brother of the complainant, Khurshid Ahmad, tractor driver, Jehangir and Muhammad Aslam were seriously injured. The complainant rushed and took the shelter behind a tractor. All the accused while firing escaped towards the northern side of the Dera. The complainant further alleged in the F.I.R. That he and the witnesses had identified all the assailants in the light of electric bulb.
7. The motive for the commission of crime as stated was that Allah Yar Mamunka is the stepbrother of the deceased, father of the complainant, and 9/10 years before, the real brothers of Allah Yar Mamunka namely Abdul Sattar and Abdul Ghaffar (stepbrothers of the deceased Ahmad Yar) were murdered. According to the complainant, his deceased father Ahmad Yar and his uncle were suspected of the said murders. As against Nazar Muhammad, Muhammad Mazhar and Muhammad Rafique, it was stated by the complainant that in exchange of the marriage of his uncle, his real sister had been betrothed with Muhammad Mazhar. Similarly, the marriage of Muhammad Rafiq accused had to take place with the daughter of Bahadar Ali in exchange of which the daughter of Baqar Ali father of the appellants was betrothed to Maqsood Ahmad son of Bahadar Ali. According to the complainant, the arrangements of these marriages were upset because his father Ahmad Yar (deceased) refused to give the hand of his daughter in marriage to Muhammad Mazhar and settled her marriage with Maqsood Ahmad son of Bahadar Ali, as a result of this disengagement, Bahadar Ali also refused to give the hand of his daughter to Muhammad Rafique accused and settled her marriage with Muhammad Akram P.W., the real brother of the complainant. As against Ghulam Nabi and Hashmat Ali, it was stated by the complainant that there was long-standing enmity between them and both sides had got cases registered against each other. In the recent past, the areas of the complainant and Hashmat Ali and Ghulam Nabi were tagged with each other to become one constituency for the election, while in the past election, the complainant side and Hashmat All and Ghulam Nabi had fought with each other, on account of which, the deceased father of the complainant and Ghulam Nabi entered into serious tug of political and legal battle to defeat each other. It was further stated by the complainant that on account of the background narrated above, all the accused by forming themselves into an unlawful assembly armed with deadly weapons had launched the attack.
8. On 21-7-1983 at 7 a.m., P.W. 3 Dr. Manzoorul Haq, Medical Officer, Civil Hospital, Haroon Abad, conducted the post-mortem examination on the dead body of Haji Ahmad Yar deceased and the following injuries were noticed:-
(1) Two punctured wounds of entrance of pellets 1-1/4 c.m. 1 c.m. And 1 x 1 c.m. Adjoining each other on back of right elbow joint with a single wound of exit 4 c.m. x 2 c.m. On back of right forearm 3 c.m. Below the wound of entrance.
(2) One punctured pellet wound of entrance 1 c.m. x 1 c.m. On back of right elbow joint 2-1/4 c.m.
Above wound of entrance No,1 with wound of exit 1-1/4 x 1 c.m. On front of right forearm 12 c.m.
Below bend of elbow.
(3) Two lacerated wounds 8 c.m. x 4 c.m. And 7 c.m. x 3 c.m. x skin deep on outer aspect and back of right forearm 2 c.m. Below elbow-joint. Wounds were separated by a tag of skin only.
(4) One abrasion mark 1-1/2 x 1-1/2 c.m. x superficial skin deep on back of right upper arm 3 c.m.
Above elbow joint.
(5) One punctured pellet wound of entrance 3/4 x 3/4 c.m. On back of right forearm 3 c.m. Above wrist joint with wound of exit 1-1/4 c.m. x 1 c.m. On front of right forearm 2 c.m. Above wrist joint.
(6) One punctured pellet wound of entrance 1 c.m. x 3/4 c.m. On back of right forearm 2 c.m. Above wrist joint with wound of exit. 2 c.m. x 1 c.m. Just above wound of exit No,5. Complete fracture of both radius and ulna bone was present.
(7) Three punctured wounds of pellets entrance 1 x 1 c.m. Each on front of left forearm 7 c.m., 9 c.m.
And 13 c.m. Above wrist joint with wounds of exit 1-1/4 c.m. x 1 c.m., 1 c.m. x 1 c.m. And 1-1/4 c.m. x 1 c.m. On back of left forearm 8 c.m., 8 c.m. And 13 c.m. Above wrist joint respectively.
(8) One punctured pellet wound of entrance 1-1/4 c.m. x 1 c.m. On front of right thigh 12 c.m. Above knee joint wound of exit 2 c.m. x 1 c.m. Of front of right thigh 13 c.m. Above knee joint and 4 c.m.
Medial to the wound of entrance.
(9) One lacerated wound 3 c.m. x 1 c.m. On front of right thigh 9 c.m. Above knee joint.
(10) One punctured pellet wound of entrance 1 c.m. x 3/4 c.m. On inner aspect of left thigh 6 c.m.
Above knee joint with wound of exit 1-1/4 c.m. x 1 c.m. On outer aspect of left thigh 2 c.m. Above knee joint.
(11) One punctured wound of entrance 1 c.m. x 1 c.m. x thigh deep on inner aspect of left knee joint.
Pellet was removed from the deeper tissues lying over the bone.
(12) One abrasion mark 1 c.m. x 1/2 c.m. x superficial skin deep on inner aspect of left thigh 10 c.m.
Above injury No, 11.
(13) One punctured wound of entrance of pellet 1-1/2 c.m. x 1 c.m. On inner aspect of left thigh 5 c.m.
Above injury No,
12. Pellet was removed from sub-cutaneous tissues on back of left knee joint.
(14) One lacerated wound 3 c.m. x 2-1/4 c.m. On inner aspect of terminal phalanx of left big toe
(15) Eight punctured pellet wounds of entrance 1 c.m. x 3/4 c.m. Each on back of right lumber region and upper part of buttock in an area of 8 c.m. x 7 c.m. With wounds of exit 1-1/4 c.m. x 1 c.m., 1-1/2 c.m. x 1 c.m., 1-1/2 c.m. x 1 c.m., 1-1/4 c.m. x 1 c.m., 1-1/2 c.m. x 1 c.m., 1-1/2 c.m. x 1 c.m. On outer part of the buttock on right side of lower abdomen in an area of 26 c.m. x 3 c.m. Two pellets were removed from fatty tissues of right side of abdomen 10 c.m., 13 c.m. Above umbilicus.
(16) Three abrasion marks 3 c.m. x 1 c.m. x superficial skin deep each on right side of abdomen 16 cm., 13 c.m. And 8 c.m. Above and lateral to umbilicus respectively.
(17) Seven punctured wounds of pellet entrances 1-1/4 c.m. x 3/4 c.m. Each x chest deep on back side of right chest in an area of 8 c.m. x 6 c.m., 12 c.m. Below tip of shoulder with three wounds of exit 1-1/2 c.m. x 3/4 c.m. Each on left side of chest in an area of 8 c.m. x 4 c.m., 10 c.m. Below left axilla. One pellet was removed from sub-cutaneous tissues of left chest 13 c.m. Below left nipple.
One pellet was removed from within the left chest cavity. One pellet was removed from sub- cutaneous tissues of left chest 10 c.m. Below and lateral to left nipple.
9. Both pleurae and both lungs were punctured at various places. In the opinion of the doctor, the death had occurred due to severe internal and external haemorrhage caused by injuries Nos. 1, 2, 5 to 11, 13, 15 and 17 which were sufficient to cause death in the ordinary course of nature collectively.
Injury No, 17, individually, was sufficient to cause death in the ordinary course of nature. All the injuries were opined to have been caused with fire-arms. Eight pellets were also recovered from the dead body.
10. On 21-7-1983 at 12-30 a.m., P.W.1 Dr. Muhammad Ismail, Medical Officer, Rural Health Centre, Donga Bonga, conducted the medico-legal examination of Jehangir son of Suleman and the following injuries were noticed on his person:-
(1) Multiple small rounded fire-arm wounds margins inverted and lacerated. No blackening or scorching was present around the wound in diameter 1/4 cm. Superficial skin deep on the right back of the trunk at the lumber region in the area of 17 x 10 c.m.
(2) Multiple small rounded fire-arm wounds. Margins inverted and lacerated. No blackening or scorching was present around the wounds in diameter 1/4 c.m. In the front of the right forearm 6 c.m. Above the wrist in the area of 7 x 5 c.m. Both the injuries were declared as simple;.
11. On the same day at 12-45 a.m. The said doctor examined Muhammad Aslam P.W. And noted the following injury on his person:- "An oblique lacerated fire-arm wound. Margins irregular. 4-1/2 x 3 x 21/2 c.m. On the line between the neck and the shoulder (right side) at the middle. No blackening or scorching was present around the wound."
12. On the same day at 1-10 a.m., the said doctor also examined Muhammad Akram P.W. And the following injuries were noticed on his person:- (1)
(b)
An oblique fire-arm wound 2-1/2 c.m. x 2 c,m. On the outer side of the left leg 7 c.m. Above ankle.
Margins were lacerated and inverted. No blackening or scorching around the wound was present.
This was a wound of entrance. Another fire-arm wound of irregular shape. Margins were everted and lacerated. No blackening or scorching was present. This was a wound of exit, on the inner side of the left leg 3 c.m. Above the ankle.
(2) A lacerated irregular shape fire-arm wound 3 x 2 c.m. x skin deep on the posterior aspect of right toe.
(3) A lacerated irregular in shape fire-arm wound on the posterior aspect adjoining the right toe.
(4) Five small rounded fire-arm wounds about 1/4 c.m. Superficial skin deep. No blackening or scorching was present around the wound. This wound was on the inner front aspect of right leg 2 c.m. Above ankle in the area of 15 x 8 c.m. The margins were inverted. Injury No, 1 had caused fracture of tibia and fabula and, therefore, the said injury was declared as grievous.
13. Khurshid Ahmad, injured, was also examined the same day at 1-20 a.m. By the said doctor and the following injuries were noticed:-
(1) An oblique lacerated fire-arm wound 8 x 4 c.m. On the outer frontal aspect of the left thigh 3-1/2 c.m. Above the knee. Margins were inverted. No blackening or scorching was present around the wound. This was a wound of entrance,
(2) (1)
A lacerated fire-arm wound irregular in shape. Margins were inverted 9-1/2 x 6-1/2 c.m. On the inner back of the left thigh 2 c.m. Above the popliteal fossa. No blackening or scorching was present around the wound. This was a wound of exit. An oblique lacerated fire-arm wound 3 c.m. x 1 c.m. On the outer side of the left leg at the middle. Margins were inverted. No blackening or scorching was present around the wound. This was a wound of entrance.
(4) A lacerated fire-arm wound irregular in shape 8 x 4 c.m. At the inner back of left leg 2 c.m.
Below popliteal fossa. This was a wound of exit.
(5)
An oblique lacerated fire-arm wound 3 x 2.c.m. On the back of left chest 18 c.m. Below tip of shoulder. This was a wound of entrance. Margins were inverted.
(6) A lacerated fire-arm wound irregular in shape 9 x 7 c.m. On the left side of chest below wdlla.
Margins everted. This was a wound of exit.
' All the injuries were caused by fire-arm. Injuries Nos. 1 and 2 were declared grievous and the rest as simple. Under injuries Nos. 1 and 2, left thigh had been fractured.
14. After having recorded the F.I.R., Muhammad Alamgir, Head Constable, P.W.13, reached the place of occurrence and inspected the spot. During inspection, he recovered blood-stained earth, a Chappal P.8, a broken Pirhi P.9, three wads P.10/1-3 and a pellet. All these articles were taken into possession vide memo. Exh.P.H. Attested by P.W.7 Ghulam Muhammad and Alam All (not produced) besides Muhammad Alamgir Head Constable, P.W.13. The complainant Muhammad Afzal P.W.14 also produced before Muhammad Alamgir Head Constable P.W.13, ten .12 bore crime empties, three empties of 7 mm rifle and two empties of .303 rifle. The same were taken into possession vide memo. Exh.P.J. Attested by P.W.7 Ghulam Muhammad and Alam All (not produced) besides Muhammad Alamgir Head Constable, P.W.13.
15. On 23-8-1983, P.W.2 Muhammad Amir Khan Niazi, Inspector/S.H.O., Police Station City Bahawalnagar, arrested the appellants Muhammad Rafique and Muhammad Mazhar.
16. On 31-8-1983, P.W.12 Syed Imdad Hussain Shah, S.I./S.H.O., Police Station Donga Bonga, on return from leave took over the investigation of the case. On 1-9-1983, Muhammad Mazhar, appellant, while in custody led the police and got recovered rifle P.7 which was buried in a heap of sand in village Dholiwal. It was taken into possession alongwith two live rounds P.7/1-2, vide memo. Exh.P.O.
Attested by Aslam Pervez Constable P.W.10 and Munshi Ghulam Rasool (not produced) besides the Investigating Officer Imdad Hussain Shah, S.I., P.W.
12. On 6-9-1983, appellant Muhammad Rafique while in custody led the police and got recovered a .303 rifle P.6 buried in a heap of sand in village Ramzan Shah, the same was taken into possession vide memo. Exh.P.N. Attested by P.W.9 Shah Muhammad and Munshi Ghulam Rasool (not produced) besides the Investigating Officer. On 7-9-1983, Imdad Hussain Shah, S.I. P.W.12 arrested Ghulam Nabi, Hashmat All and Nazar Muhammad acquitted accused.
17. On 9-9-1983, Nazar Muhammad acquitted accused requested his father Baqar Ali to produce licensed gun P.3 which was taken into possession vide memo. Exh.P.K. Attested by Mian Muhammad Sharif P.W.8 and Mian Muhammad Yar (not produced) besides the Investigating Officer. On 16-9-1983, Ghulam Nabi acquitted accused requested his real brother Ghulam All to produce his licensed gun P.4 and the same was taken into possession vide memo. Exh.P.L. Attested by Mian Muhammad Sharif P.W.8 and Mian Muhammad Yar (not produced) besides the Investigating Officer. On 20-9-1983, Hashmat All acquitted accused while in custody led the police and got recovered gun P.5 which he had hidden in his Kotha in the cotton crop in village Qaziabad, the said gun was taken into possession vide memo. Exh.P.M. Attested by Mian Muhammad Sharif P.W.8 and Mian Muhammad (not produced) besides the Investigating Officer.
18. The crime empties lying at the spot and handed over by the complainant to Muhammad Alamgir, Head Constable P.W.13 during inspection of the place of occurrence were sent to the Forensic Science Laboratory on 1.4-10-1983 but the parcel was returned on the next date and on 16th of October, 1983, it was brought back. Parcel was re-sent and was delivered to the Forensic Science Laboratory on 24-10-1984. The parcel containing the fire-arm weapons was dispatched to the Forensic Science Laboratory on 1-11-1983 and was actually delivered on 2-11-1983. According to the report of the Forensic Science Laboratory, the crime empties of .303 bore were found wedded with the .303 rifle which was got recovered by Muhammad Rafique appellant. The 7 mm crime empties were found wedded with the 7 mm rifle which was got recovered by Muhammad Mazhar appellant. Similarly, two crime empties of .12 bore were found wedded with the .12 bore gun which was got recovered from Nazar Muhammad. Another two empties of .12 bore were found wedded with the gun of Nazar Muhammad accused.
19. Towards the discharge of onus, to prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Muhammad Afzal, complainant P.W.14, son of the deceased Ahmad Yar, Khurshid Ahmad P.W.15, the tractor driver of the complainant and Muhammad Akram P.W.16 a real brother of the complainant and son of the deceased. The other injured eyewitnesses namely Muhammad Aslam and Jehangir and Munshi Ghulam Rasool were given up by the prosecution as unnecessary. In addition to the ocular testimony, the prosecution also placed reliance upon the recovery of the weapons of offence and the empties as well as the report of the Forensic Science Laboratory to corroborate its case. Prosecution also pressed into service, the medical evidence as well as the evidence as to the motive.
20. When examined under section 342, Cr.P.C., the appellants Muhammad Rafique and.
Muhammad Mazhar and their acquitted brother Nazar Muhammad son of Baqar Ali made similar statements. They denied the charges and gave the following account as an explanation to the evidence adduced against them by the prosecution. Muhammad fvfazhar appellant made the following statement:- "I am innocent. Mst. Shamim Akhtar daughter of Ahmad Yar deceased had been engaged to Maqsood son of Bahadar Ali. She was never engaged to me, Mst. Maqbool Elahi daughter of Bahadar All had been engaged to Shah Muhammad my brother and Mst. Zubaida younger daughter of Bahadar Ali was engaged to my elder brother Ata Ullah. Muhammad Afzal complainant had been engaged to Mst. Amna my younger sister. Muhammad Afzal was a man of bad character. This fact came to our notice later on. Mst. Sughran lodged a case of rape against him. He was arrested. Exh.D.F. Copy of the F.I.R. Of that case has been tendered in evidence by my brother Muhammad Rafique. My father broke the engagement of Mst. Amna with Muhammad Afzal complainant. Our relations became strained with Muhammad Afzal complainant. Allah Yar consanguine brother of Ahmad Yar had a grudge against A hmad Yar because the latter had murdered his two real brothers. He was not on speaking terms with him. Our relations with Allah Yar were normal but Ahmad Yar asked us to sever relations with Allah Yar but we refused to oblige him, therefore, our relations became strained with Ahmad Yar. Muhammad Afzal complainant nursed a grudge against us, therefore, he implicated me, Rafique and Nazar Muhammad my brothers falsely in this case."
21. The other acquitted accused Ghulam Nabi and Hashmat Ali, both real brothers sons of Muhammad Sharif also denied the charge against them. Ghulam Nabi made the following statement:- "I am innocent. Mazhar, Nazar and Rafique are not my friends rather they opposed me in the elections and supported Ahmad 'Vat deceased. In the election of 1979 four candidates namely Ahmad Yar deceased Muhammad Yousaf, myself and Khuda Bakhsh contested the elections individually. There were two seats in this constituency and two candidates securing the highest votes were to be elected. I secured the highest votes. Before the local council elections of 1983 Ahmad Yar deceased submitted an application to A.C., Bahawalnagar on 19-51983 and requested that his ward be separated from Qaziwala because the deceased was afraid of my popularity. The attested copy of which is Exh.D.G. Upon this request of the deceased, the A.C., Bahawainagar separated the ward of Dadu Mamunka from Qaziwala. Afterwards, D.C. Bahawalaagar formed two separate units of elections. If I had political fear from deceased, I would have been satisfied with the orders of A.C. Bahawalnagar. In the local council elections of 1983, my nomination papers were filed against Muhammad Yar, the brother of the deceased but same were rejected because I was behind the bars in this false case against me. After rejection of my nomination papers, the said Muhammad Yar, uncle of Muhammad Afzal was elected unopposed due to my false involvement in this case. I was P.W. In the rape case lodged by Mst. Sughran against Muhammad Afzal complainant. I tender in evidence the copy of the challan Exh.D.L. The licensed gun of my brother was secured by the police on the following day of occurrence and empties were prepared by police. I never absconded after the occurrence and I have been appearing before the Investigating Officers during investigation of this case. I and my brother offered oath of any respectable of their choice about our innocence to the complainant party during investigation but the complainant party refused to accept our such offer. None has identified the assailants due to darkness of the night. I have been falsely implicated in the case due to enmity and political rivalry."
22. In addition to this statement, Ghulam Nabi accused also produced documentary evidence in defence. Exh.P.D.H. a certified copy of the electoral units was placed on the record. Exh.D.I. a certified copy of the nomination paper filed by Ghulam Nabi in 1983 election and its rejection vide order, dated Exh.D...I. Was also brought on the record. Exh.D.K. a certified copy of the report under section 173, Cr.P.C. Was also brought on the record showing that the complainant was involved in a rape case in which Ghulam Nabi was a witness. He also placed a certified copy of an order Exh.D.M.
Showing that Ghulam Nabi was Chairman of Tehsil Ushr and Zakat Committee.
23. Hashmat Ali accused made the following statement:- "I am innocent. Mazhar, Nazar and Rafique are not my friends rather they opposed my brother Ghulam Nabi in the elections and supported Ahmad Yar deceased. In the elections my brother Ghulam Nabi was elected having secured highest votes. Ahmad Yar was afraid of his popularity, therefore, he got his ward separated from our ward from the A.C. Bahawalnagar but afterwards the D.C. Joined our Basti with Dadu Mamunka. Due to the political rivalry and being brother of Ghulam Nabi, the complainant party implicated me falsely in this case."
24. With the assistance of the learned counsel for the appellants and the State, we have carefully perused the record of this case and we have also heard the various contentions raised by both sides.
25. It was strenuously argued on behalf of the appellants, that this was an witnessed crime. The occurrence had taken place during the dark hours of the night, and the assailants had launched a surprise attack and had escaped unidentified, since there was no light in the Dera. To substantiate this argument, it was further argued that the introduction of the light of bulb and the existence of generator and the possibility of visibility on account of TN. Programmed being on was nothing but concoction. According to the learned counsel for the appellants, this had been introduced so as to give rise to the belief that the complainant and the eye-witnesses had seen the assailants. The learned counsel severely criticised the manner in which the F.I.R. Was lodged in this case. It was argued that the written application had been engineered with a view to implicate all the enemies falsely because this was the most opportune time for the complainant side to avenge themselves as against their enemies.
26. In this behalf, our attention was drawn to three sets of accused persons. It was argued that Allah Yar was named in the F.I.R., though he was not arrayed as an accused person but his inclusion took place on account of the fact that he had been suspecting the deceased and his brother to have a hand in the murders of Abdul Sattar and Abdul Ghaffar the real brothers of Allah Yar a stepbrother of the deceased Ahmad Yar. Likewise, Muhammad Rafique, Muhammad Mazhar and Nazar, all three brothers had been involved because of the grievance of the breaking of engagements and betrothals. To complete the list of their enemies, it was alleged that Ghulam Nabi and Hashinat All were involved on account of the serious political rivalry existing between the complainant side and Ghulam Nabi on account of the previous election. The learned counsel for the appellants thus invited us to analyse the three groups of the accused who had nothing common among them so as to become one group and, therefore, their involvement was not free from doubt. It was also contended that Allah Yar was found innocent and no complaint whatsoever was filed against him. It was further argued that Allah Yar had the main motive in this case because he suspected the deceased Ahmad Yar in the killing of his brothers. It was further contended that the complainant was not present, otherwise, he would have also been injured and the absence of injuries on his person excluded the possibility of his presence at the scene of occurrence. The eye-witness account was ceritcised and it was argued that their testimony could not be relied inasmuch as, they were interested witnesses because Khurshid Ahmad happened to be the employee of the complainant party while Muhammad Akram was the real brother of the complainant.
27. The learned counsel for the appellants with vehemence argued that the evidence of the recovery of guns, empties and the report of the Forensic Science Laboratory should be excluded from consideration in its entirety. It was argued that the empties were recovered on 20th of July, 1983 whereas they were delivered to the Forensic Science Laboratory on 24-10-1988 and this delay of three months in the despatch of crime empties casts a serious doubt on its genuineness. It was further argued that these empties had been manufactured from the guns which were recovered subsequent to the recovery of empties. It was also contended that the empties and the guns remained with the police and, therefore, its genuineness was open to serious doubt. It was argued that the recovery of guns had taken place in September, 1983 when the empties were lying with the police and had the recovery of empties been genuine, the same ought to have been despatched without awaiting for the recovery of guns. It was also brought to our notice that if at all crime empties were found from the spot, the complainant who was so careful as to have drafted an application for lodging the F.I.R. Before proceeding to the police station should have taken these empties alongwith him to the police station.
28. It was thus contended before us that this was a case which not only required strong corroborative evidence qua the version but also for the participation of each of the appellants.
According to the learned counsel, the corroborative evidence in this case should have come forth through unimpeachable source. Since no corroborative evidence existed on the record, therefore, it was unsafe to convict the appellants on the basis of tainted evidence because as per admission of the complainant himself, the enmity and rivalry existed as against all the three groups of the accused. It was further argued before us that as far as the appellants are concerned, in the F.I.R. As well as in their statements recorded under section 161, Cr.P.C. Neither the complainant nor the eye- witnesses had attributed any injury to the appellants and, therefore, the finding arrived at by the teal need trial Judge in holding them guilty was perverse. It was next argued that the acquitted appellants Nazar Muhammad, Ghulam Nabi and Allah Yar, who were declared innocent, were alleged to have fired at the deceased and as far as the role of the appellants was concerned that is that of firing in general. The learned counsel for the appellants also brought to our notice that the deliberations had taken place before lodging the F.I.R. The brother of the deceased Muhammad Yar was an Advocate at Maroon Abad and that is why, one person from each group of the accused had been attributed injuries to the deceased.
29. Adverting to the medical evidence, it was argued by the learned counsel for the appellants, that it could not be said with certainty that the deceased Ahmad Yar had received any injury with a rifle shot. Injury No,3 on the deceased could not be caused with a rifle shot, unless it was held that two shots were fired at the same place. The wounds on the deceased also show that blackening was alst) present and, thus the fires were shot from a close range but site plan belies it, inasmuch as, the site plan indicated that the shots were fired from a distance of 17 to 18 feet.
30. Mr. Akhtar Shabbir, the learned Assistant Advocate-General appeared for the State to argue the appeal, challenging the acquittal of Nazar Muhammad, Ghulam Nabi and Hashmat Ali, contended before us, that it was abundantly clear that two types of weapons namely rifles and guns were used in the commission of crime. As far as the appellants are concerned, they were armed with rifles. Injuries Nos. 3, 9 and 14 were the result of one the rifle shots. As far as the injury No, 3 is concerned, it could not be result of shot, it indicated two injuries. According to the learned Assistant Advocate-General, the acquitted accused were carrying guns and the deceased and the injured witnesses had also received gunshot wounds and, therefore, their acquittal on the ground that they had no motive had caused miscarriage of justice. It was argued that Nazar Muhammad respondent, acquitted accused, was the real brother of Muhammad Mazhar and Muhammad Rafique convicts appellants and thus the two brothers were aggrieved, the third would also be aggrieved and it was fallacy to hold that Nazar Muhammad had no motive. It was next pointed out that the medical evidence showed that the firing took place from a very close range and, therefore, the identification was not an impossibility. The learned Assistant Advocate-General further argued that it was 10th of the lunar month on which the occurrence took place and, therefore, in the presence of light of bulb, functioning of T.V. And moonlit night, the identification by the complainant and the eye-witnesses was not an impossibility. According to the learned Assistant Advocate- General, the testimony of Khurshid Ahmad, P.W.15 and Muhammad Akram P.W.16 who were injured witnesses could not be brushed aside.
31. Mian M.B. Zaman, Advocate, who appeared on behalf of the complainant contended, that the bulb found mention in the inspection note as well as in the F.I.R., hence it could not be said that it was an unwitnessed crime. The presence of injured witnesses could not be disbelieved and, therefore, their testimony was creditworthy. It was also contended by the learned counsel that most of the injuries on the deceased as well as on the persons of the eye-witnesses were on their back. Such locale of injuries clearly shows that it was a surprise attack because the deceased and the injured witnesses must have tried to run away to save themselves and that is why most of the injuries suffered by the deceased and the injured witnesses were received on their back.
32. We have carefully assessed and valuated all the contentions raised by the learned counsel for the parties in the light of the evidence adduced by the prosecution.
33. The first crucial question falling for determination is whether the eyewitnesses namely Muhammad Afzal P.W.14, IChurshid Ahmad P.W.15 and Muhammad Akram P.W.16, had seen the occurrence. If answer to this question is in the affirmative, then the next question is whether their testimony can be relied upon qua the appellants and the acquitted accused in its entirety and furthermore, whether in the circumstances of the case, it was necessary to bring on the record, the strong corroborative evidence to lend strength to such ocular testimony.
34. After anxious consideration, we are of the view, that the occurrence did take place at the Dera of the deceased. We repel the contention that it was an unwitnessed crime, which had taken place in the dark hours of the night and the identification of the assailants was difficult. In the first instance, the F.I.R. A mentions a bulb and also the running of a T.V. Programme being watched by the victims of the attack. It is further pertinent to mention that all the shots have been fired from a close distance and hence the identification of the assailants was not at all difficult.
35. After careful consideration of the facts of the case, we further believe thei prosecution story about the existence of a generator at the Dera. No doubt, the existence of a generator was not mentioned in the F.I.R., but that does not mean, that the generator could not have been kept by the complainant side. We cannot be unmindful of the plight of the complainant side when watching television, they were taken by surprise with an attack with lethal weapons. Soon after the occurrence, the preparation for lodging the F.I.R. Was made and the same was written in the state of shock and, therefore, at that crucial moment, it could not be expected that a human, brain would act as a computer and the F.I.R. Would be lodged with mathematical precision. Therefore, the omission to mention generator in the F.I.R., would not demolish the prosecution case qua the identification of the appellants.
36. As stated above, it is strenuously argued that very cleverly, the complainant side had tried to involve three factions, with whom they had the enmity. No doubt, it is true that in criminal law, the probability which is favourable to the defence has to be taken in favour of the accused but in the given circumstances of the case, we have to look at it from a different angle. In the given circumstances of this case, the complainant side being very strong would be C an eye sore, for these three factions and it is not impossible to believe that all the three opposing camps joined together against their common enemy. In our view, this is the exact position which emerges in this case. The enmity is a double-edged weapon and one has to scrutinize the evidence with caution.
In this context, we are reminded of the words of wisdom laid down by the Supreme Court of Pakistan in the case reported as Niaz v. The State PLD 1960 SC 387. The said August Court observed as under:- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for substitution is a thing of rare occurrence and cannot be assumed and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstances of each case. However, the circumstance itself must be proved beyond all reasonable doubt."
37. Yet in another case, the necessity arose to clarify the above reproduced dictum of law and thus the said August Court in the case titled as Nazir and others v. The State PLD 1962 SC 269, made the following observations:- "By what we said in Niaz v. The State, we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence. It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts.
But we had no intention of laying down any inflexible rule that the statement of an interested witness (by which expression is meant a witness, who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes.
In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty, the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration, it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness.
Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration, it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstance relied upon must have a bearing on this question. In the case of an interested witness, the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing."
38. Analyzing the facts and circumstances of the case in the light of the dictum laid down by the Supreme Court of Pakistan, we are of the opinion that keeping in view the number of the assailants, the type of the injuries and the weapons used, this case hardly needs any corroboration. P.W.15 Khurshid Ahmad, a tractor driver and P.W.16 Muhammad Akram the son of the deceased are both injured, hence their presence at the scene of occurrence cannot be doubtful. Similarly, the presence of Muhammad Afzal P.W.14 another son of the deceased in his own house is not open to doubt, at the time of the occurrence. It was evening time and, therefore, we are not prepared to believe, that these witnesses were not present and had not seen the occurrence. P.W.15 Khursbid Ahmad, is a tractor driver and an employee of the complainant side and thus, he has no personal animosity and hostility so as to involve the appellants and the acquitted accused falsely. The narration of an occurrence before the police and thereafter during the trial, in our system of administration of justice being an uphill task, is in reality a difficult mental exercise. What to talk of villagers, even the men of caliber have been noticed faltering while deposing an account in a witness-box, and particularly, so in such type of attacks with which we are dealing. That is why, the judicial wisdom has laid down certain principles governing the appraisal of evidence which leaves room for the human errors on account of the varying mental faculty of each person and that is why there are certain material and immaterial discrepancies. As far as the immaterial discrepancies are concerned, the same have no bearing upon the case.
39. In this case, the medical evidence proves beyond any shadow of doubt that two types of weapons were used, the guns as well as the rifles. It was rightly argued by the Assistant Advocate- General that injuries Nos. 3, 9 and 14 were caused by a rifle. We have considered the description of these injuries and undoubtedly, the injury No,3 cannot be the result of one shot. Similarly injuries Nos. 9 and 14 manifest the use of rifle, and, therefore, the appellants Muhammad Rafique and Muhammad Mazhar who were carryingrifles were rightly convicted by the learned Sessions Judge, Bahawalnagar.
40. Adverting to the appeal assailing the acquittal of the respondents Nazar Muhammad, Ghulam Nabi and Hashmat, we notice that reasons advanced for their acquittal by the learned Sessions Judge are perverse. The judgment is nothing but contradictions in terms. To illustrate this fact, we would like to reproduce paras. 23 to 25 of the judgment mentioned:-
(23) The occurrence took place one how- after the sunset when the dusk light was available. The moon must be giving full light, because it was 10th of the lunar month. T.V. Was also shedding the light in the walled Dera. Ahmad Yar was the main target of the assailants. The assailants fired at him from a close range after having identified him. The occurrence took place before Isha prayer, therefore, there must be some traffic in the village, because it was not an odd hour of the night. The assailants acted as dare devils, knowing fully that they were likely to be identified by the victims, therefore, they would not have taken any precaution to conceal their identity.
(24) The medical evidence shows that the assailants used two types of firearm weapons, a .12 bore gun and a rifle. The learned Prosecutor argues that the assailants fired at least ten gunshots and 5 rifle shots, therefore, the medical evidence justifies the number of accused implicated in this case.
The assailants fired at Ahmad Yar but Jehangir, Muhammad Aslam, Muhammad Akram and Khurshid Ahmad received stray shots. The rifle shots after injuring Ahmad Yar would have injured the other victims also because the assailant, armed with rifle must be standing by the side of his companion who had fired gunshots from the close range. Ahmad Yar received three rifle shots, therefore, it is evident that the assailant fired at least three rifle shots. The exact number of gun shots received by the victims cannot be determined on the basis of medical evidence in this case.
(25) The victims were unarmed and they were taken unaware, therefore, two assailants, one armed with a .12 bore gun and the other with a rifle could cause all the fire-arm injuries received by Ahmad_ Yar and the injured P.Ws. By repeated shots. According to the prosecution, the assailants were six in number, out of them three were armed with a .12 bore guns and three with rifles. Had it been so, then all time persons present in the Dera would have been murdered by them. The assailants acted in a dare devil manner. They had not adopted the strategy of 'hit and run' being not in any hurry. Keeping in view all the facts discussed above, I find that the medical evidence justifies the implication of only two assailants in this case."
41. It is strange to arrive at the conclusion that only the appellants and another person armed with a .12 bore gun would have done the damage. The finding that Muhammad Aslam, Muhammad Akram and Khurshid Ahmad received stray shots is not borne out from the record. To the contrary, it was most brutal, desperate and are devil act on the part of the respondents and the appellants who had joined hands together for avenging themselves. The legislature while enacting Pakistan Penal Code, had very wisely kept in view all the eventualities and that is why, the principles of vicarious liabilities were codified. A tendency is growing on to lightly treat the role of those members of unlawful assembly who are not the main culprits. We feel our duty to check such tendency and to lay down for the guidance of the subordinate judiciary that the prosecution of the common object of an unlawful assembly is also punishable, and it cannot be put off on the pretext that these were the stray pellets which had caused injuries to the victims. The intention is to be gathered from the act of the assailants and particularly, in this case, of the respondents who along with the appellants armed with lethal weapons had gone to the Dera of the complainant, where they indulged into indiscriminate firing. It is regrettable to note that such role of the respondents was taken very lightly and it was considered that alongwith the appellants, there could be one person armed with a .12 bore gun who could have caused such a damage which occurred in this case.
42. To be more precise, we would not hesitate to hold that motive lay with all the three factions opposed to the complainant side to cause them harm and, therefore, it is not odd, strange or improbable that these factions would have joined together to teach a lesson to the common enemy.
43. It was strenuously argued that Allah Yar who was attributed a fatal shot to the deceased was found innocent and no steps were taken by the complainant side to prosecute him or to at least file a private complaint against him. We have considered this aspect very carefully and we notice that on the basis of an oath taken by Lal Khan Lakhvera, the police declared Allah Yar innocent. The said oath was accepted and, therefore, the S.P. Bahawalnagar, also declared him innocent and was not challenged. This by itself would not be a ground to disbelieve the seemingly reliable eye- witnesses on the question of identification. The possibility cannot be ruled out of a compromise between the complainant side and Allah Yar and, therefore, this fact alone is not sufficient to demolish the State case. Furthermore, the complainant and the other eye-witnesses consistently named Allah Yar as one of the assailants.
44. Adverting to the corroborative evidence in the form of recovery of empties, fire-arms and the report of the Forensic Science Expert, it was argued by the learned counsel for the appellants that this evidence was worthless, inasmuch as, the empties were not taken to the police station by the complainant but were brought by him at the time of visit of the Investigating Officer to inspect the spot. The argument is untenable, inasmuch as, the perusal of para. 23 of the inquest report shows that the empties, Chappal and Peerhi were found near the dead body. A perusal of the inquest report reveals that the F.I.R. In this case was lodged through a written application. There is nothing odd in it, so as to shake the credit of the prosecution case. In the inquest report, the Investigating Officer has stated that a written application had been moved before him which is the F.I.R. And, therefore, no exception can be taken to the mode in which the F.I.R. Was lodged in this case. It is further noteworthy to mention that the sister of the appellants Muhammad Mazhar and Muhammad Rafique is married to the complainant and there is no reason to believe as to why the complainant should implicate them falsely.
45. We cannot help but to observe, that the acquittal of Nazar Muhammad the third brother of the appellants on account of lack of motive is erroneous.
' Similarly, the acquittal of Ghulam Nabi and Hashmat All because of the lack of motive is also perverse. Needless to repeat that the prosecution did prove that these acquitted accused had a motive to participate in the commission of crime. As far as the recovery of empties and guts and their match is concerned, by way of abundant precaution and for the safe administration of justice, we discard the same from consideration, but we hold that this was a case in which no corroboration was required in the light of the judgment delivered by the Supreme Court of Pakistan in the case of Niaz v. The State PLD 1960 SC (Pak.) 387 and Nazir and others v. The State PLD 1962 SC 269.
46. The upshot of the above discussion is that the appeal filed by the appellants must fail.
Accordingly, the same is hereby dismissed and the death sentence awarded to them is confirmed.
However, it may be added that since, we also accept the appeal filed by the State challenging acquittal of the respondents in Criminal Appeal No, 3 of 1985, therefore, the appellants are also convicted under section 148 of the Pakistan Penal Code, they are sentenced to suffer three years' rigorous imprisonment each on the said charge.
47. As far as the State appeal assailing the acquittal of respondents is concerned, the same is hereby accepted and we hold that their acquittal was unjustified on the record of the case. They are convicted under section 302 read with section 149, P.P.C. Since they had acted in the prosecution of the common object of the unlawful assembly and since the deceased also received a gunshot wound, therefore, we sentence them to death under section 302/149 of the Pakistan Penal Code, they shall be hanged by neck till they are dead and each of them is fined Rs,5,000 or in default thereof to suffer rigorous imprisonment for one year. They are further directed to pay Rs,5,000 as compensation to the heirs of the deceased or in default thereof to suffer R.I. For a term of six months each.
48. On the charge under section 307, P.P.C. On four counts i,e, for having caused injuries to Muhammad Akram P.W., each of the respondents in the State appeal is sentenced to suffer rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 each or in default thereof, to suffer R.I. For six months each. Each of the respondents is also directed to pay Rs,1,000 as compensation to Muhammad Akram P.W., or in default thereof to suffer further rigorous imprisonment for a term of six months each.
49. For the murderous assault on Khurshid Ahmed, P.W., each of the respondents is to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof to suffer rigorous imprisonment for a term of six months each. Each of the respondents is further directed to pay Rs,1,000 as compensation to Khurshid Ahmad, P.W., or in default thereof to suffer rigorous imprisonment for a term of six months.
50. For the murderous assault on Jehangir P.W., each of the respondents is further sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof to suffer rigorous imprisonment for a term of six months each. Each of them is directed to pay Rs,1,000 as compensation to Jehangir P.W. Or in default thereof to suffer rigorous imprisonment for a term of six months.
51. On the fourth count for hat ing caused injuries to Aslam P.W., each of the respondents is also sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof to suffer rigorous imprisonment for a term of six months each. Each of them is directed to pay Rs,1,000 as compensation to Aslam P.W., or in default thereof to suffer rigorous imprisonment for a term of six months.
52. Since the charge under section 452, P.P.C. Has also been proved, therefore, each of the respondents is sentenced to suffer rigorous imprisonment for a term of three years and to pay a fine of Rs,5,000 each or in default thereof to suffer rigorous imprisonment for a term of one month each. On the charge under section 148, P.P.C., each of the respondents is sentenced to suffer rigorous imprisonment for a term of three years.
' The reference is answered accordingly, the appeal preferred by the appellants is dismissed and the State appeal is allowed.
' The respondents in the State appeal are or bail, they shall be taken into custody forthwith.