' MUHAMMAD AMIR MALIK, J.-- Abdul Aziz and Muhammad Hanif (aged 52 and 60) sons of Qadir Baldish, real uncles of Fateh Muhammad complainant (P.W.8/6) were murdered at their Dhari on 28-8-1981 at Peshiwela, in the area of Chak No, 141/EB, at a distance of about six miles from Police Station Arifwala, District Sahiwal. The complainant reached the police station and lodged F.I.R.
(Exh.P.G.) at 3-30 p.m., which was recorded by Ghulam Muhammad, S.H.O. (P.W.10/12).
2. According to the F.I.R., Ibrahim, the real brother of Muhammad Rafiq, Khalil Ahmad, Mushtaq and Muhammad Aslam accused and father of Ahmad Hassan accused, was murdered about 5/6 years before the present occurrence and in it Muhammad Sharif, the brother of the complainant, and others were involved, but acquitted. With this motive, Muhammad Rafiq, Muhammad Aslam and Ahmad Ali alias Ahman accused, armed with rifles, Khalil Ahmad and Noor Hussain alias Bohti, armed with spears, Mushtaq, All Hassan, Pehalwan and Bagh All accused, armed with .12 bore guns and Fazil and Niaz Muhammad accused, armed with Dangs mounted the assault. The complainant alongwith Allah Ditta son of Khan Bahadur (P.W.7/8) and Muhammad All and Idrees (given up P.Ws.) were working in the field south of the Behni where the above-mentioned accused appeared and raised Lalkara that they would avenge the murder of Ibrahim. On reaching near the Behni they started firing. On it, Abdul Aziz deceased who was present inside the Haveli peeped over the wall and was simultaneously fired at by Muhammad Rafiq, Aslam and Ahmad Hassan hitting him in the head and he fell down. In the meantime, Hanif deceased taking his licensed rifle went up the roof of his Kotha, but was/fired at by Mushtaq accused hitting him in the chest and he too fell down.
Thereafter, Noor Hassan, Fazil, Niaz and Ahmad Ali went up the roof and injured him and he died of the injuries. Ahmad Ali accused picked up his rifle alongwith the bag containing licence and then all the five accused came in the courtyard of the Behni. Pehalwan and Bagh Ali continued firing.
Rafiq etc., the other accused, entered the house of Hanif and Aziz deceased and snatched the ornaments from Mst. `Saeed Bibi, widow of Hanif deceased and also carried away other valuables and cash from ihe house.
3. Mushtaq, Khalil, Noor Hassan and Fazil (convicts) alongwith seven co-accused were tried for the murders of Abdul Aziz and Muhammad Hanif by the learned Additional Sessions Judge (Khan Muhammad Arshad Khan) and vide judgment, dated 29-1-1989 convicted and sentenced as under:- Mushtaq, Khalil Ahmad and Noor Hassan: ' Under section 302/149, P.P.C. To death and a fine of Rs,5,000 each, in default whereof one year's R.I.
Each (on two counts).
Under section 148 to suffer two years' R.I. Each.
' Fazil: ' Under section 302, P.P.C. To suffer imprisonment for life, and a fine of Rs,5,000 in default whereof one year's R.I. (on two counts).
' Under section 148, P.P.C. To undergo two years' R.I.
' The case is before us for confirmation of the death sentences (Murder Reference No, 32 of 1986).
Ahmad Hassan accused was absconder and so separately tried, but was convicted and sentenced to death by a judgment of the same date. His case is also before us for confirmation of death sentence (Murder Reference No, 32/A of 1986). The convicts (other than Noor Hassan) have also filed appeal against their conviction and sentences--Criminal Appeal No, 150 of 1986. It is proposed to dispose of all the matters by this single judgment.
4. The autopsy on the dead bodies of Abdul Aziz and Muhammad Hanif was performed by Dr. Fazal Miran Chaudhri (P.W.1) on 29-8-1981 respectively at 2-15 p.m. And 3-45 p.m. On the person of the former the following injury was found:- "A crushed wound 21 c.m. x 13 c.m. x brain deep on top right side of forehead avid on back of head."
' And the latter had the following injuries:-
(1) A lacerated wound 2 c.m. x 1 c.m. x bone deep on right side of head, 11 NZ c.m. Above right ear.
(2) A fire-arm wound 3/4 c.m. x 3/4 c.m. x skin deep on front of chest on right side in upper part, 6 c.m. From midline.
(3) A fire-arm wound 3/4 c.m. x 3/4 c.m. x skin deep on left side of chest in front and upper part.
(4) An incised wound 15 c.m. x 3-1/2 c.m. x bone deep on the outer side of chest on right side in middle part.
(5) An incised wound 9 c.m. x 2 c.m. x going deep on outer and posterior sides of chest on right side in lower part.
(6) A lacerated wound 2 c.m. x 1/2 c.m. x bone deep on inner middle of right leg with swelling 5 c.m.
And 3 c.m. On the front and middle of right leg, both bones were fractured into pieces.
' In the opinion of the doctor the injury to Abdul Aziz deceased was ante-mortem and fatal and most likely by a fire-arm, though he did not exclude the possibility of its being the result of a blunt weapon. According to him, the deaths were immediate and the time between deaths and post- mortem was 18 to 36 hours.
5. Ghulam Muhammad, S.H.O. (P.W.10/12), after recording the F.I.R. (Exh.P.G.) reached the spot, prepared inquest reports of Abdul Aziz and Hanif deceased (Exh.P.K. And P.M.) as well as their injury statements (Exh.P.L. And P.N.) and collected blood-stained earth from the places of occurrences (Exh.P.O. And P.Q.) which were sealed into separate parcels. He recovered thirty crime empties of .12 bore (Exh.P.30/1-30) from various places at the spot vide memo. Exh.P.R., three crime empties of .7 mm (P.11/1-3) and twelve crime empties of .303 rifle (P.17/1-12) vide memos. Exhs. P.R., P.S. And P.V.
Respectively and sealed the same into two separate parcels. The recoveries of blood-stained earth and the crime empties were witnessed by Muhammad Ali and Idrees, the given up P.Ws. And these have only been stated to at the trial by the investigator, i,e, Ghulam Muhammad S.H.O. (P.W.10/12).
Spear (P.8) and gun (P.6) were also got recovered by Noor Hassan accused and Mushtaq appellant. The recovery of spear and gun is stated to by Fateh Muhammad, Allah Ditta and Lal Hussain, S.I. (P.Ws.).
6. At the trials, Allah Ditta and Fateh Muhammad (P.Ws. 7/8 and 8/6) gave the ocular account of the occurrence and motive part of the version, Muhammad Ali and Idrees were given up as unnecessary and the medical evidence is provided by Dr. Fazal Miran Chaudhri (P.W.1). The case was investigated by Ghulam Muhammad, Si. (P.W.10/12), thereafter by Atta Muhammad Khan (P.W.4/10), Lal Hussain Shah, S.I. (P.W.11/9) and finally by Muhammad Sarfraz Khan, S.P. Crimes Branch (C.W.1). According to the police investigations Niaz Ali and Ahmad Ali alias Ahman were found innocent. The learned trial Judge concluded that both the eye-witnesses were inimical and interested against the convicted as well as the acquitted accused, however, the medical evidence was used as corroboration against Mushtaq, Khalil, Noor Hassan and Fazil convicts. As against Ahmad Hassan appellant, corroboration was sought from the very strong motive, his father Ibrahim having been murdered previously, and his abscondence for a period of more than two years.
7. We have heard the learned counsel for the parties, the State and gone through the record of the two cases minutely. Learned counsel for the appellants contended, and rightly so, that both the eye-witnesses were extremely inimical, partisan and interested against the convicted as well as acquitted accused, therefore, unless there was strong corroboration, conviction could not have been recorded. He also asserted that both the eye-witness were not present at the spot as they would have been as good a target of the attack as the two deceased were, the previous enmity being equal, and so their version that they stood at a distance of 30/35 Karams from the Behni and were not fired at or attacked, was not believable. It was also pleaded by him that the eye- witnesses account was contradicted by the medical evidence, what to say of its being corroborated, as concluded by the learned trial Judge. He frankly conceded that Noor Hassan had absconded after the close of the trial, but before the announcement of the judgment and so he had no right of hearing. But in any case, as per Hayat Bakhsh's case 1981 SCMR 1 it was the duty of the Court to sift the evidence and to do justice in his case as well, if after perusal and appreciation of the evidence his case called for interference, and simply for the reason that he had absconded he was not to be condemned. We are inclined to agree with him in this respect.
8. Mushtaq and Khalil appellants are real brothers. Rafiq and Aslam, the acquitted accused, are also their real brothers. Ibrahim too was their real brother and father of Ahmad Hassan appellant.
He was murdered 5/6 years before the present occurrence. Admittedly, all the public witnesses are closely related inter se. For more than twelve years, admittedly the complainant family and the family of the above-mentioned appellants/accused are locked in serious criminal cases including murder cases. To quote a few:- For the murder of Ibrahim, Sharif, the brother of Fateh Muhammad complainant, alongwith his relative Sadiq son of Hashmat (given up P.W.) was tried; other seems to have been acquitted but Sadiq was sentenced to death and his sentence was upheld up to the Supreme Court. Rehmat, a brother of Hashmat P.W. Was also murdered before the present occurrence and in it Rafiq accused alongwith others, including one Gullu Sandhila was tried and acquitted. It appears that said Gullu was a relative of Fazil appellant, who is also a Sandhila. For the murder of said Ibrahim, Ashiq and Ghaffar, the near relatives of the complainant, who are residing in Tehsil Chunian of District Kasur, were also involved as. Accused. Similarly Sharif Chairman also seems to have been inimical to the appellants and their co-accused. These persons, as per the statement of Ghulam Muhammad, S.H.O. Had reached the spot on the very day of occurrence and were present during the investigation. Admittedly, Sardar Muhammad Ashiq was appointed as arbitrator vide written deed (Exh.D.A.) to make statement about the innocence or otherwise of Niaz and Ahmad All alias Ahman accused. The witnesses have tried to avoid and then admitted that both were found innocent by the police on the statement of the arbitrator, and that in any case the police was informed by the complainant that they were innocent. Yet in their statements at the trial the two eye-witnesses implicated them as per the version given in the F.I.R. And at the same time seem to admit that they were innocent. About six months before the present occurrence, Bagh All accused had reported a case under section 307, P.P.C. Against Hashmat, the maternal uncle of Allah Ditta P.W. It is admitted that about twelve criminal cases were pending between the parties and they were on inimical terms for 15/16 years and in the previous cases Fazil appellant, Ali Hassan, Noor Hassan and Bagh Ali accused were also involved. It is also an admitted fact that two days before the present occurrence the legs of Abdul Ghaffar son of Fateh Muhammad complainant had been fractured and for it Ahmad Hassan, Noor Hassan and Fazil convicts and Ahman accused were reported against. So, in this background of long-standing enmity, the learned trial Judge was correct not to place implicit reliance upon the eye-witness account furnished by the two witnesses. They have, as indicated above, tried to implicate Niaz and Ahmad Ali alias Ahman accused as per the version given in the F.I.R. And then admitted that they were innocent and not involved in the occurrence. Hence being self-confessed liars they could not be believed, as contended by the learned counsel for the appellants, unless there was very definite and strong corroboration regarding each of the convicts/appellants.
9. Learned trial Judge sought corroboration, as noted above from the medical evidence for recording conviction against Mushtaq, Khalil, Noor Hassan and Fazil convicts. The corroboration was tried to be established froth the nature of the injuries found on the persons of the two deceased which could be ascribed E and were ascribed by the eye-witnesses to the respective convicted accused/appellants. Learned counsel for the appellants has correctly referred to the dictum laid down in Machia's case PLD 1976 SC 695 wherein it was observed:- "Even on the assumption that the medical evidence is consistent with that of the eye-witnesses, can medical evidence corroborate ocular evidence which is tainted by enmity? Medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in the case of inimical evidence, it is this aspect of the ocular evidence which requires corroboration, because the danger in relying on the ocular evidence in such cases is that the witnesses may falsely implicate their enemies. At the highest, therefore, the fact that the medical evidence is consistent with the ocular evidence may furnish some limited corroboration of the ocular evidence if it can lead to the inference that the eye-witnesses have spoken the truth. This, however, would be in special circumstances."
' Learned counsel in this very respect stressed the statement of the doctor to point out that the injury to Abdul Aziz deceased was not possible by fire-shot(s) and the same was the result of blunt weapon. We are not impressed with this line of argument adopted by the learned counsel because as per the statement of the doctor the bones were smashed and the bone pieces missing, which could only be if the fire-shots had blown the bone pieces off. Had it been a crushed wound due to blunt weapon, the bone pieces would have remained in the wound. His contention, however, is correct that the medical evidence could not be used as a corroborative factor as to the identity of the actual accused who had caused the respective injuries. In the circumstances, the charge against Mushtaq, Khalil and F Fazil appellants as well as Noor Hassan, the absconder convict cannot be said to have been proved beyond any shadow of reasonable doubt. The appellants are, therefore, granted the benefit of doubt and acquitted. Though Noor Hassan did not file an appeal against his conviction and is still absconding, but his case is also before us under section 374, Cr.P.C. For confirmation of death sentence. For the reasons, discussed above, we are not inclined to confirm the death sentence recorded against him, and while exercising powers under section 376, Cr.P.C. Set aside his conviction and sentence.
10. So far as Ahmad Hassan appellant is concerned, his case stands on a different footing. As observed above, his real father had been murdered and so he had the strongest possible motive to mount the assault. He is a young man of 22/23 and this age of raw youth and exuberance particularly in our rural society H prompts one to indulge in daring activities. The motive and his abscondence for more than two years were taken as corroborative evidence by the learned trial Judge, and we think, very rightly. His abscondence is more than proved from the statements of Allah Rakha Constable (P.W.3) and Masood Ahmad, Inspector (P.W.11) who deposed that while posted as Inspector, C.IA. Sahiwal on 21-21984 he received secret information about the presence of Ahmad Hassan appellant in Chak No,128/9-L, Police Station Dera Rahim. He was a proclaimed offender in the present case. He raided the house of Muhammad Aslam Dogar in the said Chak and from there arrested the accused/appellant. Thus, he remained absconder for more than two years. Yet the snag/irregularity pointed out by the learned counsel for the appellant is that these two pieces of evidence, i,e, the strong motive and abscondence, had not been put to the appellant in his I statement under section 342, Cr.P.C. And so the same could not have been used against him. In this connection reference was made to Aminul Haq v. The Crown PLD 1952 FC 63, Abdul Wahab v. The Crown PLD 1955 FC 88, Murtaza Ali Khan v. The State PLD 1986 Kar. 121, Allah Dad v.
The State PLD 1978 SC 1 and Mst. Saeeda v. The State 1987 P Cr. L J 676. Learned State counsel also relied upon Allah Dad's case as well as Akram Khan v. The State 1988 SCMR 1595 to canvass the point that the only consideration to be weighed in such an eventuality is the possible prejudice to the accused caused by not allowing an opportunity to explain the vital pieces of evidence against him, but unless there was miscarriage or failure of justice section 537, Cr.P.C. Would cure the irregularity. Both the learned counsel relied upon Allah Dad's case referred to above. And in it while dealing with Aminul Haq's case PLD 1952 FC 63 their Lordships observed:- "In effect the observations (in Aminul Haq's case) point to the prejudice being caused to the accused if he was not allowed an opportunity to explain the vital pieces of evidence against him but in the subsequent case reported as Abdul Wahab v. The Crown PLD 1955 FC 88 it was held that unless miscarriage or failure of justice is proved, section 537, Cr.P.C. Would cure the irregularity. "Notice was also taken in this very case of Munawar Ahmad v. The State PLD 1956 SC 306 and Muhammad Sanafar Ali v. The State 1969 5 C M R 461 as well as Din Muhammad v. The Crown 1969 SCMR 777. It was also observed: "... Again it was open to the counsel (for the accused) to have brought it to the notice of the trial Court that this piece of evidence was not put to Dost Muhammad (accused) which was not done, and therefore, there was no compliance with the requirement of the explanation to section 537, Cr.P.C. That an objection should have been raised at an earlier stage in the proceedings. Accordingly it is not possible to presume failure of justice... " Clause (b) to section 537 ibid was added by the Law Reforms Ordinance 1972 according to which no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the mode of the trial unless such error, omission or irregularity has in fact occasioned a failure of justice. The prime consideration, therefore, is whether there has been a failure of justice. The explanation added to section 537, Cr.P.C. Is a further pointer in this respect. It provides that for determining whether any error, omission or irregularity in any proceedings under the Code has occasioned a failure of justice the Court shall have regard of the fact whether the objection could and should have been raised at an earlier stage in the proceedings. In the present case the appellant was duly represented by a counsel, the evidence of motive, which was the same against the appellant and his co-accused as well as that of his abscondence for more than two years after the occurrence, was led and when he was examined no explanation was offered nor any irregularity pointed out by his counsel. In the circumstances of the case, we do not think that the irregularity of not putting the evidence as to motive and abscondence has occasioned any prejudice or miscarriage of justice to the appellant.
We, therefore, concur with the conclusion of the learned trial Judge and would conclude that the eye-witness account furnished by the two eye-witnesses, in spite of being interested and partisan and suffering from other infirmities, as pointed out above, is sufficiently corroborated by the motive and abscondence to clinch the charge against Ahmad Hassan appellant. His appeal is dismissed and the death sentence passed upon him, on two counts, is confirmed. The appeal of others is accepted and they stand acquitted.
11. The references are answered accordingly.