' FALAK SHER, J.--- Murder Reference No,67 of 1986 and Criminal Appeal No,188 of 1986 have stemmed out of the judgment of learned Additional Sessions Judge, Mianwali, dated 23-2-1986 awarding death sentence to appellants Rab Nawaz aged 36 years, Umar Hayat aged 39 years and Ghulam Abbas 42 years old under section 302/34, P.P.C. For the murder of Jalandher deceased aged 50 years with a fine of Rs,3,000 each, in default to suffer one year's R.I. Each and half of the fine, if realised, to be paid to the heirs of the deceased under section 544-A, Cr.P.C. Whereas Criminal Appeals Nos.189 to 191 of 1986 are directed against judgment of even date of the same Court convicting and sentencing each of the appellant to one year's R.I. With a fine of Rs,100 each in default to undergo further term of 3 months' R.I., under section 13 of the Arms Ordinance, 1965, for keeping illicit fire-arm during the same occurrence, hence are disposed of together.
2. Khizar Hayat P.W.8 on 11-8-1984 at 10-30 a.m. Lodged F.I.R. Exh.P.G. Recorded by Iftikhar Ahmad S.I., S.H.O. P.W.10 at Police Station Issa Khail, Mianwali, under section 302/34, P.P.C. Regarding murder of his maternal-uncle Jalandher deceased, against Rab Nawaz, Ghulam Abbas and Umar Hayat appellants respectively real brothers and brother-in-law inter se, alleging that at about 9 a.m. The appellants armed with .12 bore gun emerging from cotton crop near the lands of Latif Ullah Khan in village Kallur embushed the complainant, his father-in-law Gulistan P.W.9, Bahi Khan (given up P.W.) and the deceased while they were proceeding towards the latter's Dera. Rab Nawaz, appellant exorting that the deceased will not be spared fired at him, which hit the deceased on the chest just below the neck, fire of Umar Hayat appellant landed on his upper left thigh, while that of Ghulam Abbas appellant hit him on the left flank and was followed by the last shot of Rab Nawaz appellant hitting on the right wrist and left upper arm; as a consequence whereof the deceased succumbed to the injuries on the spot, while the appellants disappeared. As to motive it was stated that about 4 years preceding the occurrence, Nawab brother of Rab Nawaz and Umar Hayat appellants was murdered, of which the deceased was the suspect. Iftikhar Ahmad P.W.10 after recording the F.I.R. Came to the spot, prepared injury statement Exh.P.L., inquest report Exh.P.K., rough site plan Exh.P.M. And despatched the dead body to Tehsil Headquarter Hospital Issa Khail through Habib Ullah Constable P.W. 1 for post-mortem examination. Further from the place where Rab Nawaz appellant had fired, he took into possession two crime empties (P.11/1 and 2) vide memo Exh.PJ (make Shaheen red colour) attested by Gulistan P.W. 9 and Bahi Khan P.W. (given up as unnecessary). Blood-stained earth was aloes taken into possession vide memo Exh.P.H. Attested by the same witnesses. On the same day last-worn clothes of the deceased viz Chaddar P1 and shirt P.2, tendered by Habib Ullah Constable P.W.1, after the post-mortem examination were taken into possession, vide memo Exh.PA. He aloes got prepared site plan Exh.P.B. From Qadir Bakhsh Patwari Halqa P.W. 4, at the pointation of the witnesses. Subsequently on 25-8-1984, upon information received he arrested Rab Nawaz appellant from village Kallurwala, alongwith unlicensed gun P.4, and three live cartridges P.5/1 to 3 which were taken into possession vide memo Exh.P.D, attested by Sultan P.W.7 and Muhammad Ashraf (given up P.W.). Of which Exh.P.N is the site plan. On the same day Umar Hayat appellant was arrested from his Derh with unlicensed gun P.6 and two live cartridges P.7/1-2, which were taken into possession vide memo Exh.P.E, attested by the same witnesses, of which site plan is Exh.P.O. Whereas arrest of Ghulam Abbas appellant was effected on 29-8-1984 from village Kallur near railway line together with unlicensed gun P.8 and two live cartridges P.9/1-2, which were taken into possession vide memo Exh.P.F attested by the same witnesses, and Exh.P.Q is its site plan:
3. Qutab Sher A.S.I. P.W.6, then posted as Moharrir Head Constable, on 11-8-1984 was entrusted with the sealed parcels containing earth and crime empties recovered from the spot, which he despatched to the Chemical Examiner on 18-8-1984, through Habib Ullah Constable P.W.1, to whom on 25-8-1984 gun P.4 recovered from Rab Nawaz appellant was aloes entrusted which was sent to Forensic Laboratory through Ghulam Rasul P.W.2 27-8-1984. At this juncture it is relevant to mention that the guns recovered from the remaining two appellants were not referred to the Ballistic Expert for opinion on account of the possibility that the same might have been changed during the interregnum.
4. Chemical Examiner vide Exh.P.R opined the earth to be stained with human blood, which was affirmed by the Serologist vide Exh.P.R/1. Whereas the Ballistic Expert in Exh.P.S. Opined that the crime empties were fired with gun P4 (recovered from Rab Nawaz appellant).
5. Dr. Muhammad Tariq Masud Khan P.W.5, Medical Officer, Tehsil Headquarter Hospital Issa Khail, , on 11-4-1984 examined dead body of the deceased and upon external examination observed the following injuries:--
(1) Fire-arm wound of entry 5 c.m. x 4 c.m. On the junction of the chest and neck in the mid-line. No burning and no charring around.
(2) Fire-arm wound of entry 1-1/2 c.m. x 1 c.m. On the front of the left upper arm 12 c.m. Below the tip of left shoulder.
(3) Fire-arm wound of exit 2 c.m. x 1 c.m. On the posterolateral aspect of the left-arm 1 c.m below and behind injury No,
2. A probe pass in the injury No,2 came out to injury No,3. There was fracture of the left humerus.
(4) Fire-arm wound of entry 5 c.m. x 3 c.m. On the medial side of the left forearm, 13 c.m below the medial epicondly.
(5) Wound of exit corresponding to injury No,4 and 1-1/2 c.m. Interior to 1 x 2 c.m. In dimension.
(6) Fire-arm wound of entry lacerating the skin over an area of 12 c.m. x 10 c.m. On the outer aspect of left thigh, 18 c.m. Below the anterior superior spine. Slight grazing was present on the lower margin of wound. 2 card-wads were delivered from this wound.
(7)Wound of exit 1-1/2 c.m. x 1 c.m. x 1 c.m. Posterior to injury No, 6 on the left thigh.
(6) Wound of exit 2 c.m. x 2 c.m. x 2 c.m. From injury No, 7 slightly above and medial to it.
(7) Wound of exit 1/2 c.m. x 1/2 c.m. x 1 c.m. Above injury No,8.
(8) Wound of exit 1/2 c.m. x 1/2 c.m. x 3 c.m. Above injury No,9.
(9) Wound of exit 1/2 c.m. x 1/2 c.m. x 4 c.m. Above injury No,10.
(10)Fire-arm wound of entry 2 c.m. x 1 c.m. Oblique horizontally with grazing around on the back of the left side of chest 7 c.m. Medial to the tip of left shoulder.
(11)Fire-arm wound of exit 1 c.m. x 1 c.m. On the back of the left side of the chest, 5 c.m. Away from the centre corresponding to injury No, 12.
(12)Fire-arm wound of entry 2 c.m. x 1-1/4 c.m. With grazing over an area of 6-1/2 c.m. x 2 c.m. On the costal margin on the right side 10 c.m from mid-line.
(13)Fire-arm wound of exit 2 c.m. x 2 c.m. x 5 c.m. Below and to the right of injury No, 14 corresponding to it.
(14)Fire-arm wound of exit 1/2 c.m. On the right side of abdomen, 5 c.m. Away from injury No, 15 probe-pass from injury No,14 did not come out from injury No, 16.
(15)Fire-arm wound of exit 1/2 c.m. x 1/2 c.m., 2 c.m. Away from injury No, 16 and just above it on probing it came out through the abdomen.
(16)Fire-arm grazing wound 2 c.m. x 1/2 c.m. On the front of right side of chest, 4 c.m. From the centre and 7 c.m. From the right nipple.
On internal examination found the following: "thorax, the upper part of Imbrium was fractured and the places of bone were driven into the wound. Pleaurae was full of blood. Thraches was broken into fragments at its bifurcation. Right lung was lacerated at its Hilm and was perforated by its big hole of 4 c.m x 7 c.m dimension oblique including the hole of the medial side of the lower lobe. There were four small wounds of exit 1/2 c.m x 1/2 c.m on the diaphragmatic surface of right lung. Rupturing the diaphragm one big laceration continued up to the diaphragm on the medial side of right lung and there was a big hole in the diaphragm. Pericardium and heart were healthy. Arch of acrta was lacerated and there was a big hole on the convex side rupturing the origin of great vessels. Pulmonary trunk and crotide were also ruptured specially on the right side.
Abdominal examination.
' There was slight blackening around injuries No, 15, 16 and 17. Hard foreign bodies were palpable around this area. Perionium was punctured on the right lateral wall of the abdomen by seven separate openings. Two of them leading to wounds of exit No,
16. And 17. Five pellets were delivered from the right side of the abdomen wall. Mouth and pharynx and esophagus were healthy.
Diaphragm was ruptured on the right side by five openings, four separate on the right dome and one big hole near the centre. Stomach contains 12 ounces of semi-digested food.
' Pancreas was healthy. Small intestines were not ruptured and contained slight amount of faecal matter. Large intestines were not ruptured only mesentry at places contained bit of clotted blood.
Liver was lacerated into several places on the diaphragmatic surface and the under surface.
Spleen kidneys and organs of generation were healthy. Bladder contained eight ounces of urine.
' Manubraum starni was broken into fragments by injury No,1.
' Left humerus was fractured almost in the middle by injury No,2."
' He opined that injury No,1 was sufficient to cause immediate death in the ordinary course of nature and was ante-mortem and homicidal. The cause of death was shock due to rupture of aorta, laceration of right lung and excessive haemorrhage. The death was instantaneous and the post-mortem was performed within 4 to 8 hours.
6. In cross-examination he replied that injuries Nos. 1, 2, 4, 6, 12 and 14 were the wounds of entry.
Injury No,3 is exit of injury No,2, while injury No, 5 is the exit of injury No,4, injuries Nos.7, 8, 9, 10 and 11 are exits of injury No,6. Injuries Nos. 16 and 17 are exits of injury No,1. He stated that he could not say that all the injuries were caused with the same weapon or different ones. He affirmed that cardboards were extracted from injury No, 6 and that all the five lead pieces entered through injury No,1, and were lying on the right abdominal wall, and, that the pellets travelled slantingly.
7. Before the trial Court prosecution tendered ocular account through the testimony of Khizar Hayat complainant P.W.8, who reaffirmed the contents of the F.I.R, Exh.P.G. And, in cross-examination stated that he reported the murder of Nawab, at police station Kamar Mushani vide F.I.R. No,49 of 18-7-1979 against Ghulam Abbas appellant who was eventually acquitted, that concerning the same occurrence private complaint was lodged against him (Khizar Hayat P.W.8), wherein the deceased was also summoned. He also stated that his sister Mst. Fateh Khatoon was having illicit liaison with Ghulam Abbas appellant, and he apprehended her abduction. He further stated that Rab Nawaz appellant fired the first shot from a distance of 2-1/2 to 3 Karams from the deceased, while the remaining appellants were at a distance of 6 to 8 Karams from the latter. He also admitted that since Nawab's murder, enmity persisted between the parties. He was corroborated on material particulars by Guliitan P.W.9. Whereas Iftikhar Ahmad S.I. P.W.10, the Investigating Officer testified as to recording of the F.I.R. Exh.P.G., making of the injury statement Exh.P.L., inquest report Exh.P.K., sketch plan Exh.P.M., recovery of blood-stained earth Exh.P.H., crime empties P11/1-2 (Exh.P.J.), last-worn clothes of the deceased, arrest of the appellants anti recoveries of their respective weapons of offence. On the latter counts he was corroborated by Sultan P.W.7 while Dr.Muhammad Trig Masud Khan P.W.5 furnished the medical evidence and tendered the post- mortem report Exh.P.C. While Qadir Bakhsh Patwari P.W.4 testified to the site plan. The remaining evidence was of formal nature.
' The appellants in their statements both under section 342 as well as under -Section 340(3), Cr.P.0 denying the allegations stated that they have been falsely roped in at the instance of Khizar Hayat complainant P.W.B.
' Learned Additional Sessions Judge on the basis of the evidence referred to supra convicted and sentenced the appellants in terms mentioned above vide judgment dated 23-2-1886.
8. Learned counsel contended that complainant Khizar Hayat P.W.8 is admittedly inimically disposed towards the appellants, therefore, his testimony requires corroboration from independent source which is lacking, because Gulistan P.W.9 is his father-in-law while the other eye-witness Bahl Khan has not been produced, that presence of the witnesses is doubtful, that medical evidence is not in conformity with the ocular testimony, viz., according to the doctor the pellets have travelled slantingly in the deceased's body meaning thereby that he was fired at from height on which count the ocular testimony is silent and lastly motive has not been proved. On the other hand, learned counsel for the State has supported the judgment.
9. Having appraised the evidence and considered the arguments we are of the opinion that the case of Rab Nawaz appellant is distinct from that of Ghulam Abbas and Umar Hayat viz the guns recovered from the latter, respectively P.6 and P.8 were not referred to the Forensic Expert, therefore cannot form the basis of connecting them with the crime in question, furthermore their enmity with Khizar Hayat, complainant P.W.8 since the murder of the former's brother Nawab is borne out by the record. Independent thereof not only the two crime empties P.11/1-2 have been found to match with the gun P.4, recovered from Rab Nawaz appellant, number and nature of injuries divulged by the post-mortem report tend to show that it is a case of one man's doing, out of the 18 injuries 11 are the wounds of exit, while the others seem to have been caused by spreading of the pellets since the shots were fired from a distance, as no burning and charring around the wounds have been noticed, credence whereto is lent by the recovery of two cardwads from the body, manifesting decrease in the momentum, which also explains that the pellets after striking against bones changed their route. The cumulative effect of the aforegoing renders their involvement in the case doubtful; consequently giving them the benefit of doubt, appeal to their extent is allowed and they are accordingly acquitted. And, if they are not required in any other case, should be released forthwith.
10. However, the case of Rab Nawaz appellant stands on a different footing. The two crime empties P.11/1-2 recovered by Iftikhar Ahmad P.W.10, from the spot where the former had fired at the deceased were despatched to the Forensic Laboratory before his arrest was effected and are found to have been fired with gun P.4 recovered from him, ruling out the question of fake matching, which is an unrebuttable and independent piece of evidence, furnishing corroboration to the consistent eye-witness account furnished by Khizar Hayat and Gulistan P.W.9 vouched by the medical evidence to which credence is lent by the recovery witnesses Sultan P.W.7 and Iftikhar Ahmad P.W.10, who is an independent person and has no motive to falsely implicate the appellant, consequently, the prosecution has proved its case beyond any manner of doubt qua Rab Nawaz appellant, resultantly dismissing his appeal sentence of death is confirmed, and that of fine is also maintained.
11. During the course of investigation of the above case unlicensed guns P.4, P.6 and P.8 were recovered from the appellants respectively for which complaint was lodged by Iftikhar A mad S.I.
Under section 13 of the Arms Ordinance, 1966, at Police Station Issa Khaii, wherein the learned trial Court, on the basis of the complainant's evidence corroborated by the testimony of Sultan, the recovery witness, convicted and sentenced the appellants to one year's R.I with a fine of Rs,500 each in default to undergo another term of 5 months' R.I. Vide judgment of the even date, which has been impugned in Criminal Appeals Nos.189, 190 and 191 of 1986.
12. Since the recoveries of unlicensed guns stand proved therefore, the impugned judgment is unexceptionable, consequently, the appeals are dismissed; however, sentence of Ghulam Abbas and Umar Hayat appellants is reduced to that already undergone, while that of Rab Nawaz appellant is maintained.