' MUHAMMAD SHARIF, J.--- This murder reference, Criminal Appeal No, 27 of 1989 (Muhammad Iqbal and Maqbool Ahmad v. The State) and Criminal Appeal No, 134 of 1984 (The State v. Maqbool Ahmad), which are being decided by means of this consolidated judgment emerge out of the judgment, dated 4-3-1989 prounounced by Mr. Javaid Iqbal Siddiqi, the learned Additional Sessions Judge-II, Bahawalnagar, who had convicted Muhammad Iqbal, the appellant, under section 302 of the P.P.C. And had awarded him death penalty and a line of Rs,10,000 or to suffer two years' R.I. In default thereof. A moiety of the fine, if recovered, has been directed to be paid to the heirs of the deceased, as envisaged under section 544-A of the Cr.P.C. The learned Additional Sessions Judge has referred this case to us for the confirmation of the death sentence.
' Muhammad Iqbal, the appellant, was also held guilty under section 326 of the P.P.C. On each count for causing grievous injuries to Muhammad Din and Ghulam Rasool and was awarded ten years' R.I. On each count and a fine of Rs,10,000 on each count. In default of the payment of fine, he was directed to undergo two years' R.I. On each count. A moiety of the fine, if realized, was directed to be paid to Muhammad Din and Ghulam Rasool, the injured persons.
2. Maqbool Ahmad, the appellant, was exonerated of the charge under section 302 of the P.P.C. And has been convicted under section 325 of the P.P.C. For injuring Ghulam Rasool and was awarded five years' R.I. And a fine of Rs,5,000 or to suffer six months' R.I. In default thereof. One-half of the fine, if recovered, was ordered to he paid by way of compensation to Ghulam Rasool. Maqbool Ahmad was further convicted under section 323 of the P.P.C. For injuring Muhammad Din and was awarded one year's R.I. And a fine of Rs,1,000 or to suffer two months' R.I. In default thereof. One-half of the fine, if recovered, was directed to he paid to Muhammad Din injured. All the sentences awarded to both the appellants were, however, ordered to run concurrently. Both Muhammad Iqbal and Maqbool Ahmad have lodged a joint appeal intended for their acquittal.
' The State has also lodged Criminal Appeal No, 134 of 1989/BWP against Maqbool Ahmad, the respondent, for the enhancement of his sentence.
3. The facts, which led to the detection of this crime, in substance, are that Ibrahim son of Noor Bakhsh, the complainant, is a cultivator and is a resident of Mauza Landi Dhah Wazirka. About a year prior to this incident, the cattle of Maqbool ALmad had strayed in the crops of the complainant and had damaged the same. They had a light inter se and cross-cases under sections 307 and 148/149 of the P.P.C. Were initiated against both the parties. In the case lodged by Maqbool Ahmad, there were fourteen accused and the investigation of the said cases was entrusted to the P.D.S.P. Minchinahad, who declared Ibrahim complainant, Ghulam Rasool son of Muhammad Ali and Allah Bakhsh son of Anwar as innocent. Both the parties were proceeded against under the security cases under section 107/151 of the Cr.P.C. All these cases were pending before the learned Judicial Magistrate Section 30, Bahawalnagar. Maqbool Ahmad and others felt chagrined on the declaration of the complainant, Ghulam Rasool and Allah Bakhsh as innocent as a consequence of the said inquiry and they were on a look out to slake the instinct of revenge against the complainant party. Early in the morning, on 30-9-1987 Ibrahim complainant, Muhammad Akbar son of Muhammad Din, Muhammad Din son -of Noor Bakhsh, Ismail son of Noor Bakhsh, Ghulam Rasool son of Muhammad Ali and Ibrahim son of Ghulam Rasool were taking their cotton for sale to Bahawalnagar. The cotton had been loaded on two donkey carts belonging to Sadiq son of Khurshid and Allah Ditta son of Fazil. At about 6-00 a.m., when they neared Basil Kotla Dakhli, village Attar Singh Sani, Maqbool Ahmad son of Muhammad Sharif armed with a Sota and Muhammad Iqbal armed with a double-barrel gun emerged from the reed bushes near a Sem drain and a sand dune. They were lying in ambush before the arrival of the complainant party there. Muhammad Iqbal fired at Muhammad Akbar, which hit him on his chest, who fell down.
Muhammad Iqbal fired a second shot, which hit Muhammad Din on his left leg. Maqbool Ahmad injured Muhammad Din with his Sota, who received injuries on his head and legs. Muhammad Iqbal loaded his gun and fired a third shot at Ghulam Rasool son of Muhammad Ali and Maqbool Ahmad gave Sota blows to Ghulam Rasool on his legs. Muhammad Iqbal then fired the fourth shot and its pellets hit Muhammad Akbar son of Muhammad Din and Ghulam Rasool. The complainant party wanted to apprehend the appellants, but they threatened them with dire consequences and ran away with their weapons of offence. According to the F.I.R., Bagh Ali, Muhammad Farooq and Muhammad Hussain had hatched a criminal conspiracy and abetted this offence.
4. Ibrahim, the complainant, went to the Police Station Saddar Bahawalnagar and lodged the F.I.R.
Exh.P.J. At 8-15 a.m. On the same day, which was recorded by Muhammad Ramzan, S.H.O. The police went to the spot and picked up four empty cartridges Exh.P.14/1-4, which were taken into possession vide memo. Exh.P.Q. They also collected the blood-stained earth from the spot. The dead body of Muhammad Akhar was sent to the mortuary for autopsy and the injured witnesses were got medicaly examined.
5. Dr. Shamshad Hussain P.W.6 performed the autopsy on the dead body of Muhammad Akhar on the same day at 12-00 noon and found the following injuries on his corpse:--
(1) A lacerated wound 6 c.m. x 5 c.m. x 6 c.m. Deep under the angle of right mandible with clotted blood. No exit wound.
(2) An abrasion 5 c.m. x 1/2 c.m. With burning of skin around the wound in front of neck placed obliquely.
(3) An abrasion 3 c.m. x 1/2 c.m. With burning of skin .Around immediately above injury No,2.
(4) A lacerated wound 3 c.m. x 2 c.m. With burning of the tissues around in front of chest on left side in the second intercostal space immediately close to the left sternal boarders with fracture of second rib. No exit wound.
(5) A lacerated round wound 1 c.m. x 1 c.m. Immediately right to injury No,4 with blackening of its edges. No exit wound.
(6) A lacerated round wound 1 c.m. x 1 c.m. Immediately under injury No,4 on its left side blackening with fracture of third rib. No exit wound.
(7) A lacerated wound 1 c.m. x 1 c.m. Immediately under injury No,4 on its right side with fracture of the 4th rib. No exit wound.
' This Medical Expert has opined that injuries Nos.4, 5, 6 and 7 were collectively sufficient to cause death of Muhammad Akbar in the ordinary course of nature and injuries Nos. 1 to 3 were fired from a distance of one yard whereas injuries Nos. 4 to 7 were fired from a distance of two yards.
6. He had examined Muhammad Din and Ghulam Rasool, the injured persons, on the same day and had found the following injuries on their persons respect ive ly:-- ' Injuries on Muhammad Din.--
(1) A lacerated entrance wound of fire-arm 4 c.m. x 3 c.m. x muscle deep with inverted margins and slight blackening of edges in front of left thigh at the upper part.
(2) An exit wound of injury No,1, lacerated 1 c.m. x 1 c.m. x muscle deep with everted margins on the back of left upper thigh.
(3) A lacerated entrance wound of fire-arm 3 c.m. x 2 c.m. x muscle deep with margins inverted and blackening on the front of left thigh above injury No,1.
(4) An exit wound of injury No,3 lacerated 2 c.m. x 2 c.m. With everted margins on the back of left upper thigh.
(5) A lacerated wound 2.5 c.m. x 1 c.m. In front of left middle leg with swelling and tenderness.
(6) A lacerated wound 3.5 c.m. x 1 c.m. On the inner side of right lower leg with swelling and tenderness.
(1) A destructive wound with lacerated margins at the middle of right leg. Bones were fractured into pieces. All the tissues were destroyed and blackened.
(2) Multiple oval lacerated superficial wound on the back of left arm and elbow joint.
(3) Swelling, tenderness and pains at the lower end of right fore-arm.
(4) Swelling, tenderness and pains at the left wrist joint.
' Injury No,2 was declared simple whereas injuries Nos. 3 and 4 were kept under observation, which were subsequently declared as grievous in nature and were caused by a blunt weapon. Injuries Nos. 1 and 2 were sustained by a firearm.
7. Muhammad Iqbal and Maqbool Ahmad, the appellants were arrested on 2-10-1987 by Muhammad Ramzan P.W.15. On the same day, he got removed blood-stained Chaddar P.5 and blood-stained shirt P.6 from the body of Muhammad Iqbal, which was taken into possession vide memo. Exh.P.F. On 5-10-1987, Muhammad Iqbal produced his licensed gun P.7, which was secured into a sealed parcel vide memo. Exh.P.G. On the same day, Maqbool Ahmad appellant produced his blood-stained Sota P.8, which was taken into possession vide memo. Exh.P.H. After the completion of the investigation, the Challan of the appellants and their accomplices under sections 302, 307 and 109/34 of the P.P.C. Was submitted. As a sequel to the impugned trial, the appellants were awarded the afore-mentioned punishment whereas Muhammad Hussain, Muhammad Farooq and Bagh Ali were acquitted.
8. In this case, the learned trial Court has relied on the following pieces of evidence:--
(1) Motive;
(2) Ocular evidence;
(3) Recoveries and
(4) Medical evidence.
' As regards the motive for the commission of this offence, it has been stated by the complainant that they had a fight against each other when his crops were damaged and cross-cases under sections 307 and 148/149 of the P.P.C. Were initiated against both the parties and the parties were involved in cross security cases. This motive is enough for the commission of a crime of murder.
9. The ocular account of this incident has been furnished by Ibrahim son of Noor Bakhsh, who is the complainant. He has endorsed the facts narrated in the F.I.R. And has stated that when they were transporting their cotton on the donkey carts, they were waylaid by Muhammad Iqbal and Maqbool Ahmad when they had neared village Attar Singh Sani and Muhammad Iqbal had fired at Muhammad Akbar deceased on his chest, who succumbed to the said injuries and Muhammad Iqbal had also opened fire on Muhammad Din and Ghulam Rasool. According to him, Maqbool had given Soti blows to Muhammad Din and Ghulam Rasool and Muhammad Iqbal had fired four shots at the spot. He has pointedly stated that he had lodged the F.I.R. Exh.P.J. At the police station, which was read over to him and he signed the same in token of its correctness. Ismail and Muhammad Din P.Ws. Happen to be the brothers of the complainant. When subjected to the cross-examination, he has told the weight of cotton loaded on each donkey cart and has conceded the fact that his both the feet were crippled but he could walk on Katcha path. He denied the suggestion that Muhammad Iqbal had a Sota in his hand and Maqbool was armed with a gun. He has added that they had traversed a distance of 5 to 6 miles when they were attacked by the appellants and Ghulam Rasool was at a distance of five or six Karams from Muhammad Iqbal when he was fired at and the fourth shot was fired almost on the same place from where he had fired the third shot.
10. Ghulam Rasool P.W.9 and Muhammad Din P.W.10 are the injured witnesses. Ghulam Rasool has corroborated the fact that Muhammad Iqbal had fired at them and injured the legs of Muhammad Din and Maqbool had given Sota blows to Muhammad Din and had also injured his (Ghulam Rasool) arms. He has corroborated the fact that Iqtral had fired on the chest of Muhammad Akbar, who died instantaneously. He has added that Ibrahim had informed the cart owners that they would go to Bahawalnagar early in the morning for selling cotton and both the carts had come separately from the village and had accidentally met outside the village and were driven together towards Bahawalnagar. He has explained that Muhammad Din was fired at from a distance of about two Karams and Akbar deceased was fired at from a distance of three Karams and the last shot was fired from a distance of five or six Karams from Akbar deceased by Muhammad Iqbal. It was suggested to him that the incident had taken placed in the darkness of the night when Akbar, Ghulam Rasool and Muhammad Din were present and the remaining P.Ws. Were not present there and somebody had lootted their belongings and the appellants were involved on account of enmity against them. He has emphatically denied this suggest ion.
11. Muhammad Din P.W.10, who was injured at the hands of both the appellants, has lent support to the fact that Muhammad Iqbal was armed with a gun and Maqbool Ahmad was armed with a Sota and Muhammad Iqbal killed Muhammad Akbar on the spot and he was injured at the hands of both the appellants.
12. Ibrahim son of Ghulam Rasool P.W.11 has lent credence to the fact that both the appellants had emerged from the reed bushes growing on a sand dune and Muhammad Iqbal had killed Muhammad Akbar with his gun and had also injured Muhammad Din and Ghulam Rasool whereas Maqbool had given Sota blows to Muhammad Din and Ghulam Rasool. He is a relative of the complainant party. Muhammad Isma il P.W.12, who had accompanied the complainant and others, has borne testimony to the fact that the prosecution case was correct.
13. Sadiq P.W.13, who was transporting the cotton of the complainant on his donkey cart, is an important witness in this case. He has corroborated the fact that he had loaded the cotton alongwith Ismail and Ibrahim and when they reached near Village Attar Singh Sani, Muhammad Iqbal while armed with a gun and Maqbool having a Sota emerged from the reed bushes and attacked the complainant party. According to him, Iqbal appellant fired at Muhammad Akbar on his chest and the second fire hit Muhammad Din and Maqbool appellant injured Muhammad Din and the third shot of Muhammad Iqbal injured Ghulam Rasool and Maqbool appellant gave Sota blows to Muhammad Din and Ghulam Rasool. He has elaborated that he is a Cobbler like his father and they are the Kammeens of both the parties. The father of Sadiq P.W. Rendered services to the villagers in lieu of wheat and grain. Sadiq is an independent witness and a question was put to him that lqbal appellant had given him shoe beating when he refused to lift the refuse on his cart and he has denied this suggestion.
14. Muhammad Ramzan P.W.15 had recorded the F.I.R. Exh.P.J. On the dictation of Ibrahim, the complainant, and had effected the recoveries from the spot and from both the appellants. He could not properly explain as to why an interpolation in the F.I.R. Had been made regarding the weapons of offence wielded by the appellants. He has stated it as correct that in the statement of Salahud Din, Head Constable P.W.1, the date of forwarding the crime empties was written as '5' which had been altered to '4'.
It may be noted that the weapons of offence were sent on 5-10-1987 and the date was altered to 4-10-1987 for the sending of the crime empties so that it could be shown that both the parcels were sent on different dates.
15. The appellants pleaded to be innocent and have stated that they have falsely been implicated in this case on account of enmity.
' The learned counsel for the appellants has contended that the interested testimony without cogent corroboration is not enough to convict an accused under the capital charge. He has cited Sikandar v. The State PLD 1963 SC 17, Bagh Ali and 4 others v. The State PLD 1973 SC 321, Sahib Masih and others v. The State 1982 SCMR 178, Sardar Muhammad and others v. The State 1983 P Cr. L J 1015 and Khushdil v. The State 1984 SCMR 390. All these precedents show that the interested witnesses should not be relied on unless there is sufficient and cogent corroboration to carry conviction on the capital charge. In PLD 1963 SC 17, the principle of benefit of doubt was extended and made applicable when there was a choice between doubting the statement of an eyewitness or that of Sub-Inspector of Police. The principle enunciated in all these precedents cannot safely be extended to the facts of the instant case because, in this case, apart from the statement of Ibrahim complainant, two injured witnesses namely, Muhammad Din and Ghulam Rasool have appeared the presence of whom on the spot cannot be doubted. They have consistently stated that both the appellants had injured them and Muhammad Akbar was murdered by Muhammad Iqbal with his gun. They had enmity against the appellants, as criminal litigation was going on between them, but their statements have been corroborated by an independent witness like Sadiq P.W.13, who is a Saipy' of the village and renders services to both the factions. He has specifically stated that Muhammad Iqbal had killed Akbar and the appellants had injured Muhammad Din and Ghulam Rasool.
17. With reference to the original F.I.R. It has been contended that the scribe of the F.I.R. Had written therein that Iqbal appellant was having a Sota whereas Maqbool appellant had a double-barrel gun. This interpolation is obvious from the FIR. But towards the conclusion of the F.I.R. The right weapons of offence have been given. In the inquest report too, the right weapons, wielded by each appellant have been mentioned. It could be the slip of pen of Muhammad Ranizan S.H.O. Police Station Saddar, Bahawalnagar, but he has tried to avoid the questions put to him in this regard. The learned counsel for the appellants was posed a question as to what was the advantage of changing the weapons of offence in respect of each appellant in the F.I.R. He could not give a satisfactory answer to this question. It appears that it was a slip of pen, which was corrected by the Police Officer ... And the later part of the F.I.R. Has been written as correct. It does not appear that this overwriting was made subsequent to the writing of the entire F.I.R.
18. The recoveries of the blood-stained clothes of Muhammad Iqbal appellant have been rightly disbelieved by the learned trial Court, as the incident took place on 30-9-1987 and it was not expected of Muhammad Iqbal appellant to have roamed about with the blood-stained clothes till 2-10-1987 so as to incriminate him in this offence. The licensed gun of Muhammad Iqbal was recovered and four empty cartridges had been recovered from the spot and a positive report was received from the Forensic Science Laboratory that these empties had been fired through the gun P.7.
' It may he noted that the parcel containing the empties was sent on 4-10-1987 and the parcel containing the gun was sent on 5-10-1987. Muhammad Ramzan, the Police Officer, has conceded the fact that the date of sending the parcels has been changed from '5' to '4', which suggests that both the parcels were sent on one and the same date and there was a possibility that the police had fired the cartridges through gun P.7 and the same were sent to the Forensic Science Laboratory. In this manner, the recovery of the gun and the empties is doubtful. Furthermore, even if four fires were shot at the spot, it was not expected of Muhammad Iqbal appellant to have thrown all the empties there and he could have carried at least two empties from the spot in his gun.
19. The recovery of the blood-stained Sota is also doubtful because the recovery was made on 2- 10-1987 and Maqbool Ahmad appellant could have destroyed the said Sota or throw it away in the canal. All the recoveries are, therefore, doubtful and do not serve as a good substitute for corroboration of the ocular account of this incident. Suffice to say that Muhammad Iqbal had a licensed gun, which he could use on the hour of need.
20. The medical evidence is indicative of the fact that two weapons, a firearm and a blunt weapon, were used in this crime. The learned counsel for the appellants has stated that blackening has been found on the wounds and the complainant and the injured witnesses have described the distance between Muhammad Iqbal appellant and his victims as two to five Karams.
' It may be noted that the incident took place before sunrise and the rustic villagers like Ibrahim, Muhammad Din and Ghulam Rasool did not possess the minute sense of distance between the appellants and the victims. This fact is not enough to brush aside their evidence. The medical evidence corroborates the fact that Muhammad Akbar was killed by a gunshot and Ghulam Rasool and Muhammad Din were injured by the pellets as well as by a blunt weapon.
21. Much prominence has been attached to the investigation of this case which, according to the learned counsel for the appellants, was dishonest. The recoveries in this case have, therefore, been doubted and this is why, the recoveries effected by the Police Officer have been disbelieved. The partial tainted investigation of this case does not prove fatal to the prosecution case because the ocular evidence of the complainant and the injured witnesses has been supported by an independent witness like Sadiq P.W.13, the medical evidence and the motive for the commission of this crime.
22. It has been argued that the F.I.R. Had been written at the spot. The statement of Ghulam Rasool P.W.9 has been referred to, who has stated that his statement was recorded by the Police Officer at the spot and the statement of Muhammad Din P.W.10 was also recorded at the same time in his presence. He could not tell if the police had recorded the statement of anybody else at that time when he was not in his proper senses. This fact does not suggest that the F.I.R. Was-recorded at the spot because Ibrahim P.W.8, the complainant, and Muhammad Ramzan P.W.15, the scribe of the F.I.R., have pointedly stated that the F.I.R. Was recorded at the police station.
23. The prosecution case has been established against Muhammad Iqbal and Maqbool Ahmad appellants. There is no mitigating or extenuating circumstance in favour of Muhammad Iqbal for the reduction of his sentence. The learned counsel for the appellants did not moot this point at all in his arguments. We, therefore, confirm the death sentence awarded to Muhammad Iqbal appellant and dismiss his appeal. Maqbool Ahmad appellant has also been found guilty and his appeal also merits dismissal.
24. The State has lodged an appeal for the enhancement of sentence awarded to Maqbool Ahmad appellant. On the background of enmity, both Muhammad Iqbal and Maqbool Ahmad appellants were hiding in the reed bushes in order to murder the complainant party and in their bid to do so, Maqbool Ahmad appellant shared the common intention to kill Muhammad Akbar and injured the others.
' Mr. Abdul Rehman Tayyib, Advocate, learned counsel for the appellants has cited Bashir Ahmad and others v. The State PLD 1988 SC 86 and has defended Maqbool Ahmad on the plea that the common intention can develop at the spur of the moment and the negative of it can also be presumed in the circumstances of the case. We are in respectful agreement with the principle enunciated in this precedent, but the circumstances do not warrant that Maqbool Ahmad had changed his mind to share the common intention at the spur of the moment. Had he not injured any person in this crime, then it could be presumed that he had changed his mind to share the common intention of his accomplices. The principle embodied in this precedent is not applicable to the case of Maqbool Ahmad.
25. Even if Maqbool Ahmad did not touch the deceased, his common intention is evident that he had gone with Muhammad Iqhal appellant and was lying in ambush in the reed bushes to attack and kill the persons of the complainant party. He is, therefore, found guilty under section 302 of the P.P.C. And is awarded imprisonment for life and a fine of Rs,10,000. In default of the payment of fine, he shall suffer R.I. For two years. A moiety of the fine, if recovered, shall be given to the heirs of Muhammad Akhar deceased. The remaining sentences awarded to Muhammad Iqbal and Maqbool Ahmad appellants have been kept intact. The reference is answered accordingly.
26. The appeal filed by the State (Criminal Appeal No,134 of 1989/BWP.) succeeds and the sentence of Maqbool Ahmad has been accordingly enhanced.