1. ' RAJA AFRASIAB KHAN, J.--- Zafar Shah son of Noor Zaman, Maqsood Shah son of Shahabal Shah Ghulam, Shabbir son of Shahabal, Waryam son of Bhalak, Mamma son of Sultan and Mamma son of Yara, were tried by Ch. Muhammad Aslam Zia learned Additional Sessions Judge, Faisalabad, on the charge of murder of Ghulam Ali and also for making a murderous assault on Muhammad Nazir P.W. Zafar Shah (30/32), Waryam (45) and Mamma (30) son of Yara were convicted under section 302/307/34, P.P.C. Zafar Shah was sentenced to death plus a fine of Rs,5,000 and in default thereof to suffer 2 years' R.I. Waryam and Mamma son of Yara were sentenced to life imprisonment plus a fine of Rs,5,000 each and in default of payment they were ordered to undergo further two years' R.I.
2. Each. The above-named three appellants were also sentenced to undergo 7 years' R.I. Each plus a fine of Rs,3,000 each and in default thereof to suffer one year's R.I. Each under section 307/34, P.P.C.
3. They were ordered to pay a sum of Rs,4,000 each to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. And in default thereof to suffer six months' R.I. Each. All the sentences of the appellants were ordered to run concurrently vide the judgment, dated 21-5- 1986. However, Maqsood Shah, Ghulam Shabbir and Mamma son of Sultan were acquitted by the learned trial Judge on the ground that no case was proved against them by the prosecution, vide the same judgment.
4. ' The learned trial Judge has sent us a reference under section 376, Cr.P.C. (Murder Reference No,154 of 1986) for confirmation of sentence of death against Zafar Shah. Zafar Shah has appealed against his conviction and sentence vide Criminal Appeal No,360 of 1986. Similarly Waryam and Mamma son of Yara have come up in separate appeals namely Criminal Appeals Nos. 464 of 1986 and 547 of 1986, respectively, challenging their conviction and sentences. All these matters arise out of the impugned judgment and as such shall be disposed of together by this judgment.
2. Shortly stated, the prosecution story is that about 7 months prior to occurrence, Pehlwan son of Muhammad undertook to give the hand of his divorced daughter Mst. Aisha to Sikandar, a brother of the Complainant Muhammad Nazir. Later on, Pehlwan himself took both Sikandar and Mst. Aisha to Chak No,214/R.B. Thudhiwala, Police Station Saddar where he joined the couple into a wedlock. In exchange, Pehlwan demanded the hand of Mst. Pathani a sister of Nazir P.W. For his own marriage with her. This demand of Pehlwan was turned down by father of Nazir P.W. Zafar Shah, appellant, on this matrimonial dispute, took the side of Pehlwan. On persuasion of Zafar Shah, a criminal case was also registered on the statement of Pehlwan with Police Station Saddar. Mst. Aisha, the abductee was recovered by the police. She made a statement in Court favorable to Sikandar. She was allowed to accompany her husband Sikandar of her own accord. Sikandar started living in Chiniot. During those days, Sikandar had come to the village with Mst. Aisha on account of harvesting season. Last night, as usual, he, along with Mst. Fatima, Ghulam Ali, his father, was sleeping in an open place in front of his house. Shahabal son of Sohani, his uncle, Mamma son of Ahama were sleeping nearby on the same place. At about 11 p.m. a pet dog barked whereupon they got up and saw that Zafar Shah, Waryam, Muhammad Yar and Muhammad alias Mamma were standing there and were also armed. The first two were armed with guns whereas the remaining two were holding hatchets. Nazir, complainant, shouted whereupon Ghulam Ali went towards his side. Muhammad Yar gave a hatchet blow on his right shoulder. Zafar Shah fired from his gun which hit Ghulam Ali on his chest. Waryam fired from his gun which hit Nazir both on his hand and neck. In the meantime, Mst. Fatima wife of the complainant, Shahabal (given up)
5. Mamma also got up and witnessed the occurrence. Zafar Shah, appellant, made the abduction of Mst. Aisha a question of his prestige. On account of this abduction, the accused committed these offences. Ghulam Ali died at the spot on account of the injuries. Nazir injured was taken to hospital on a trolley. It was disclosed in the F.I.R. That Sikandar had also filed a civil suit before the Civil Court Chiniot against Zafar Shah. Zafar Shah had a grudge against the complainant party on account of this civil litigation as well.
3. Ghulam Muhammad S.I. P.W.11 investigated the case. A statement Exh.P.B. Of Muhammad Nazir was recorded by the witness on 28-4-1984 and on the basis thereof formal F.I.R. Exh.P.B./1 was recorded by Asmat Ullah M.H.C. 1066 P.W.2. The witness visited the place of occurrence. Injury statement Exh.P.O. And inquest report Exh.P.P. Of the deceased were prepared by him. The dead body was brought to hospital for post-mortem examination. Blood-stained earth from the place of murder and place of hurt to Nazir was also taken into possession vide memos. Ddi.P.D. And Ex.P.E.
6. Respectively. Crime empties Exhs.P.3 and P.4 were taken into possession vide recovery memos.
7. Exhs.P.F. And P.G. Lantern P.5 was also taken into possession vide memo. Exh.P.H. All these recoveries were attested by Sikandar and Shahabad P.Ws. On 28-4-1984, bloodstained shirt P.1, Chadar P.2 with the sealed phial containing pellets were taken into possession by the witness vide memo.
8. Exh.P.C. He also recorded the statements of all the witnesses. Zafar Shah, Waryam and Mamma son of Sultan and Mamma son of Yara were arrested by the Police Officer on 2-6-1984. On 7-61984, a double-barrel gun P.6 was recovered at the instance of Zafar Shah which was taken into possession vide memo. Exh.P.I. Maqsood Shah and Ghulam Shabbir were arrested on 22-6-1984 and got recovered carbine P.7 alongwith one live cartridge P.8 at the pointedness of Maqsood Shah from his house which was taken into possession vide memo. Exh.P.Q. Shabbir led to the recovery of bloodstained hatchet P.9 which was taken into possession vide memo. Exh.P.R. The witness stated that during the investigation conducted by him he found Waryam, Mamma son of Sultan and Mamma son of Yara innocent and accordingly placed them in Column No,2 of the Challan. Positive reports Exhs.P.S., P.S./1, P.T., P.T./1 and P.U. From the office of Chemical Examiner, Serologist and Forensic Science Laboratory, respectively, were also tendered in evidence.
4. Dr. Iqbal Ahmad Javed P.W.10 on 28-4-1984 at 11 a.m. Performed the post-mortem examination on the dead body of Ghulam All and found the following injuries on his person:--
(1) An incised wound on the front and outer aspect of the right arm 3" above the front of the crease of right elbow joint, 3" x 2-1/2" x all muscles and blood vessels were found cut through and through and the right humerus bone was found fractured. The direction of the wound was oblique. A corresponding cut was present in his shirt which is blood-stained.
(2) Six circulated lacerated wounds of fire-arm of entrance on the front and outer aspect of the right side of the chest 1/2" below x lateral to right nipple each 1/4" x 1/4" into probe passed deep into the chest cavity. The edges of all the wounds were inverted and ecchymosed. The skin surrounding the six wounds was scroched and blackened. Corresponding holes were present on the shirt which was blood-stained. The shirt was burnt at that area and blackened.
(3) Three circulated lacerated wounds of fire-arm of entrance on the front of lower end of the sternum 1/4" x 1/4" into bone deep a ad two in front of the right side of the chest close to the sternum 3" x 1/4" x 1/4" and passed deep into the chest cavity.
(4) Two incised wounds on the back surface of right thumb 1/2" x 1/4" into muscle deep and 3/4" x 1/4" x muscle deep. The direction was oblique.
9. ' It was opined by the doctor that the death resulted on account of shock and hemorrhage which was due to injuries Nos. 1 to 3. Injuries Nos. 2 and 3 appeared to be the result of one shot and independently caused death. Injuries Nos.1 and 4 were caused by sharp-edged weapon and injuries Nos. 2 and 3 were caused by fire-arm. These injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2 and 3 were grievous and injury No,4 was simple. All the injuries were ante-mortem. It was opined that the victim died immediately after receipt of the injuries. The probable time between death and post-mortem examination was about 12 hours. The said doctor on 28-4-1984 at 3-00 a.m. Examined Muhammad Nazir P.W. And found the following injuries on his person:--
(1) A circular lacerated wound of fire-arm of entrance at the top of the right side of the chest just above the lateral end of the right calvical bone 1/4" x 1/4" x not probed, the edges of the wound are inverted ecchymosed. A lacerated wound with inverted edges 1/2" x 1/4" x skin deep is also seen below the hole of above-mentioned was continued with the hold.
(2) A circular lacerated wound of fire-arm of entrance on the right side of the neck 1" above the injury No,1, 1/4" x 1/4" x probed passed through and through upon the wound of"the exit situated 2- 1/2" posterior to wound of entrance on the back surface of the right side of the chest. The edges of the round are inverted x ecchymosed. A lacerated wound 1" x 3/4" x skin deep adjoining and below the hole of wound of entrance.
10. (3)A fire-arm wound of exit with irregular and inverted edges situated 2-1/2" posterior to injury No,2, on the back surface of right side of the chest, 1/6" x 1/6".
(4) A fire-arm wound of exit with ragged and evated edges situated 2" below the injury No,3, 1/6" x 1/6".
11. (5)An irregular lacerated wound of fire-arm of entrance on the right side of the neck below the right mendibular angle 1" x 1/4" into not probed. The edges of the wound were inverted and ecchymosed.
(6) An irregular lacerated wound of fire-arm entrance with inverted and ecchymosed edges situated 1" below injury No,5, 1/2" x 1/4" into not probed.
12. (7)An extensive, irregular, lacerated wound of fire-arm entrance, with inverted and eccphymosed edges on the back surface of right hand on the area in between the right middle and right index finger extending up to the palmer surface of the right hand. The wound was also extending to the back and medial side of the both right middle and index finger involving the middle and proximal phalani of both fingers 4" x 2" into , bone deep. The edges were scorched, blackened and contused.
13. ' All the injuries were caused by fire-arm within a probable duration of four hours. In cross- examination the witness stated that the injuries on the person of Nazir P.W. Could be caused with fire-arm within a distance of four feet approximately. He, however, stated that he could not give the exact distance. Regarding injury No,7, he observed that the distance could be four feet whereas the other injuries could have been caused within a distance of 12 feet approximately.
5. The eye-witness account in the case was provided by Nazir Ahmad P.W.6 and Mst. Fatima P.W.7.
14. Nazir Ahmad P.W.6 is the son of the deceased Ghulam All whereas Mst. Fatima P.W.7 is the wife of Nazir Ahmad P.W.6. Muhammad Nazir P.W.6 testifies that on the day of occurrence all the appellants were seen by him while armed with a double-barrel gun, single-barrel gun and hatchets. In cross-examination Muhammad Nazir deposed that Zafar Shah was the resident of, his village and that he owned a Pacca house there. He further stated that he saw the accused persons from a distance of 4/5 Karams. He conceded that Waryam appellant and Mamma son of Yara appellants and Mamma son of Sultan acquitted co-accused were found innocent during the investigation conducted by .1 different Police Officers. Almost to the same effect is the statement made by Mst. Fatima P.W.7. She states that Zafar Shah and Waryam appellants were armed with double-barrel and single-barrel guns respectively whereas the appellant Mamma son of Yara held a hatchet. She also deposed in cross-examination that Mamma son of Yara appellant and Mamma son of Sultan acquitted co-accused and Waryam were found innocent by the Investigating Officer.
15. ' The appellants while making statements under section 342, Cr.P.C. Denied the allegations levelled against them. Zafar Shah appellant took the plea that he was innocent and was implicated in the case on account of enmity. The recovery of gun from him was also denied by him. Waryam appellant pleaded his innocence and took the plea that he was not present at the time of occurrence and that he was sleeping in his house. He further stated that he had been implicated in the case on account of enmity. Mamma son of Yara appellant also pleaded his innocence and stated that he had been implicated in the case on account of enmity. He stated that he was not present at the time and place of occurrence. The appellants produced Talib Hussain D.W.1, Ameer D.W.2, Imdad Ali D.W.3, Javed Feroze Inspector F.I.A. D.W.4 in their defence. Talib Hussain D.W.1 states that on the day of occurrence, there was a Mahfil-e-Qawali being held in his village at the residential place of Ashiq Hussain. Mamma son of Sultan, acquitted co-accused, was present in the said Mehfil-e-Qawali. He stated that the Qawali continued from evening till morning of the night of occurrence Ameer D.W.2 deposed in his evidence that on the night of the occurrence a puppet show was arranged in his house by him on the birth of a son to him. He stated that Mamma son of Yara appellant was present there and joined the show referred to above. He said that the show started at about 8 p.m. And continued till 2-00 a.m. The next day. He further deposed that the appellant being a penial of the village was present and was serving water etc. To his guests. Imdad Ali D.W.3 stated that Waryam appellant was sleeping in his house at the time of occurrence. He disclosed that he was a member of the Union Council. Javed Feroze Inspector F.I.A. Stated in his evidence that Waryam and Mamma son of Yara appellants and Mamma son of Sultan acquitted co-accused were found innocent by him and were placed by him in Column No,2 of the challan. He stated that he prepared a report under section 173, Cr.P.C. On 27-6-1984 vide Exh.D.D. And the said report was forwarded by him to the Assistant Superintendent of Police. He continued to say that on the basis of the evidence deposed by the witnesses, he came to the conclusion that the abovesaid appellants were innocent. He mentioned that the witnesses took oath on Holy Qur'an regarding the innocence of the said appellants as well.
6. The learned counsel contends that the motive as set up by the prosecution has not at all been proved beyond doubt and that at any rate Zafar Shah appellant has got nothing to do with the motive for commission of the crime. It is argued that the evidence of Nazir Ahmad P.W.6 and Mst.
16. Fatima P.W.7 being interested cannot at all be relied upon in the peculiar facts and circumstances of the case for convicting and sentencing the appellants. Learned counsel maintains that considerable improvement has been made by the witnesses in the case of the prosecution during trial inasmuch as lantern has been introduced in the case later in order to establish the identity of the appellants with its light. Even otherwise, the learned counsel urges that it is established beyond doubt that it was dark night and as such the witnesses were not at all in a position to identify the assailants because of darkness. In these circumstances, the learned counsel forcefully argues that in order to register conviction against the appellants, some corroboration from unimpeachable source should be available which is certainly missing from this case. The learned counsel appearing on behalf of Mamma son of Yara and Waryam appellants submits that the prosecution has miserably failed to prove any case whatsoever against them and that the two appellants had no motive to participate in the commission of the crime. He says that no weapons of offence were recovered from the appellants. He, therefore, pleads for their acquittal forthwith.
7. We have heard the learned counsel for the parties and have read the whole record very carefully.
17. To begin with, so far as Waryam and Mamma son of Yara, appellants are concerned, there is absolutely no evidence available on record to connect them with the commission of the crime.
18. Muhammad Nazir P.W.6 admitted in his evidence that Waryam and Mamma son of Yara and Mamma son of Sultan acquitted co-accused were found innocent by three different Police Officers at different stages of the investigations of the case. In this behalf, our attention has been drawn to the admission made by the witness in his cross-examination saying that Ghulam Muhammad S.I.
19. Javed Feroze Inspector and Javed Noor Inspector conducted intensive investigation in the case and that they all unanimously came to the conclusion that these appellants were innocent. The witness also stated that Mamma son of Yara and Mamma son of Sultan are not the residents of his village. Mst. Fatima P.W.7 also endorsed the deposition having been made by Nazir Ahmad P.W.6 inasmuch as she states that Mamma son of Yara and Mamma son of Sultan are not the residents of their village and that they along with Waryam were found innocent by the Investigating Officers.
20. Ghulam Muhammad P.W.11 also stated in his evidence that Javed Feroze and Javed Noor, Inspectors found these three persons as innocent. He further deposed that this fact was mentioned in the case diary and that he had been joining and associating with their investigation of the case.
21. Admittedly, no weapons of offence were recovered from the possession of these two appellants and they had also no direct or indirect motive to participate in the commission of the offence with their co-accused. The learned trial Court in its judgment gave the benefit of doubt to Mamma son of Sultan and acquitted him almost under similar facts and circumstances. In our considered view, in absence of any reliable corroborative evidence, it is not at all possible for us to maintain the conviction and sentences of these two appellants. Muhammad Nazir P.W.6 and Mst. Fatima P.W.7 although implicated the appellants in their evidence but their evidence is not at all corroborated by some other independent evidence. As observed earlier, they are related and interested witnesses and as such cannot be believed unless their evidence is corroborated by other credible evidence. It is needless to observe that it is the duty of the prosecution to prove its case against accused beyond reasonable doubt. There are inherent doubts in the case regarding participation of Waryam and Mamma son of Yara in the commission of the crime. Further, the same set of evidence has specifically been disbelieved for acquittal of Mamma son of Sultan and as such we do not find any justification to maintain the conviction and sentence of these two appellants on the basis of the same set of evidence. This being so, we find considerable force in the arguments of the learned counsel for the appellants and feel inclined to agree with him. Consequently, we proceed to set aside the conviction and sentences of the appellants Waryam and Mamma son of Yara and acquit them. They are on bail and shall be discharged from their bail bonds. Resultantly Criminal Appeal No,464 of 1986 and Criminal Appeal No,547 of 1986 succeed and are allowed.
8. So far as the appellant Zafar Shah is concerned the prosecution has been able to prove its case qua him. Nazir Ahmad P.W.6 and Mst. Fatima P.W.7 have specifically stated in their evidence that Zafar Shah was armed with a double-barrel gun with which he fired at Ghulam Ali deceased. These witnesses had demonstrated in their evidence that Zafar Shah had throughout been siding with Pehlwan in the abduction case of his daughter Mst. Aisha. The medical evidence deposed by Dr. Iqbal Ahmad Javed P.W.10 is wholly in line with the ocular account provided by Nazir Ahmad P.W.6 and Mst. Fatima P.W.7. Injuries Nos. 2 and 3 on the person of the deceased were inflicted with fire- arm and have been found on his chest. These injuries were attributed specifically to Zafar Shah appellant. Double-barrel gun P.6 was recovered at the instance of Zafar Shah on 7-6-1984 vide memo. Exh.P.I. And this recovery was witnessed by Sikandar P.W.8 and Ghulam Muhammad S.I.
22. P.W.11. Ghulam Muhammad S.I. P.W.11 took into possession empties P.3 and P.4 vide memo. Exh.P.F.
23. And Exh.P.G. On 24-6-1984 from the place of occurrence. This recovery was witnessed by Sikandar P.W.9 and Ghulam Muhammad S.I. P.W.11. The report of the Forensic Science Laboratory Punjab regarding the use of the gun is also positive. It was opined vide Exh.P.U. That the crime empties P.3 and P.4 were fired from the weapon in question which was recovered at the instance of the appellant Zafar Shah. These recoveries provide sufficient corroboration to the evidence of Nazir Ahmad P.W.6 and Mst. Fatima P.W.7. The medical evidence, as observed earlier does provide corroboration to the ocular account. Thus, there is overwhelming evidence available on record to connect the appellant Zafar Shah with the commission of the crime. Zafar Shah is the co-villager of Nazir Ahmad and Mst. Fatima and it was not at all difficult for them to identify him at the time of occurrence. The medical evidence demonstrates that the fire made by the appellant Zafar Shah was from a very close range inasmu ch as the doctor says that the injuries would have been caused within a distance of four feet approximately. From such a close distance, the witnesses were certainly in a position to identify the appellant who was also their co-villager. Therefore, there is no force in the contention of the learned counsel that the night being dark, it was not possible for the witnesses to have identified the assailant. At any rate, from the ocular account it is established that lantern was burning at the time of occurrence. This was so mentioned into the site plan Exh.P.A.
24. The Investigating officer also recovered the lantern from the place of occurrence. It is correct that in the F.I.R. And the inquest report there is no mention of the lantern P.S. However, in our view, this is just a very minor discrepancy which can certainly be ignored. It may also be noted that the F.I.R.
25. Was lodged with the police promptly inasmuch as the occurrence took place at about 11 p.m. On 27-4-1984 and the report was lodged at 4-45 a.m. On 28-41984 although the distance between the place of occurrence and the police station was about two miles. It may also be noted that Muhammad Nazir P.W.6 was seriously injured and he was brought to the hospital for treatment wherein his statement was recorded by the Investigating Officer, therefore, it is established that the information was conveyed to the Police Officer about the commission of the offence without delay.
26. Thus, there is absolutely no scope that the complainant would have falsely implicated the appellant Zafar Shah in the case. The prosecution has been able to prove its case against Zafar Shah appellant beyond reasonable doubt. However, regarding the quantum of sentence, we are of the view that the motive as alleged in the case is shrouded in mystery qua Zafar Shah appellant.
27. Admittedly, the appellant Zafar Shah is not directly linked with the motive of abduction of Mst.
28. Aisha. We are, therefore, persuaded to refrain from confirming his death sentence. The sentence of death of Zafar Shah is altered to life imprisonment. However, the sentence of fine and compensation is maintained. The death sentence is not confirmed. The murder reference is answered accordingly. Resultantly, Criminal Appeal No,360 of 1986 is partly allowed.