MUHAMMAD MUNIR KHAN, J.--- This Criminal Appeal No. 76 of 1988 and connected Murder Reference No. 106 of 1988, arise from the judgment of learned Additional Sessions Judge, Sheikhupura, whereby he on 21-12-1987 while acquitting Altaf, Arif, Ghulam Qadir and Sadaqat co- accused, convicted Javed Iqbal (27), Ata Ullah (48), Idalat (55) and Nasir Mehmood (22) appellants and Riaz (who has not filed appeal against his conviction and sentence) under section 302, P.P.C. For the tripple murder of Muhammad Siddiq (55), Ali Muhammad (70) and Muhammad Nawaz (middle age) and sentenced them as under: Under section 148, P.P.Cto one year R.I. Each Under section 302/149, P.P.C.To death and a fine of Rs.2,000, in default thereof 6 months R.I. Each on three counts, with the direction that the fine if recovered be paid to the legal heirs of the deceased.
2. The occurrence took place on 31-3-1985 at 3 p.m. Near Canal Bank of Mehta Suja situate in P.1 Marhi at a distance of 6 miles from P.S. Narang of District Sheikhupura. The F.I.R. Exh. P.G. Was lodged by Muhammad Sharif P.W. 6, father of Muhammad Nawaz deceased and brother of Muhammad Siddiq and Ali Muhammad deceased on the same day at 4-30 p.m. And was recorded by Ghulam Ali, A.S.I. P.W. 14.
3. The motive as alleged by the prosecution was that about 8/9 years before the present occurrence, Yousaf, brother of Riaz convict (not appellant) was murdered. Muhammad Siddiq deceased, Nasrullah, Tariq, Murad; Basharat and Muhammad Sharif complainant P.W. 6 were challaned and were sentenced to imprisonment for life. On appeal they except Nasrullah and Tariq were acquitted. The sentences of Nasrullah and Tariq were reduced to 10 years R.I. Each. After 3 months of the decision of the High Court, Shafaqat son of Ghulam Qadir, acquitted accused and a cousin of Riaz convict were murdered and Muhammad Siddiq deceased of this case, Muhammad Sharif complainant, Arshad and Basharat were challaned.
4. Arshad was son of Ali Muhammad, deceased of this case. Riaz convict and Javed Iqbal appellant are real brothers. Salabat Ali,, acquitted accused and Idalat Ali appellant are brothers inter se. Riaz Ahmad convict is husband of their sister. Altaf acquitted accused is cousin of Riaz convict. Nasir Mehmood appellant is son of Altaf acquitted accused. Ata Ullah appellant and Arif acquitted accused are the nephews of Altaf acquitted accused. According to the prosecution the three deceased have been killed by the appellants and their co---accused in order to take revenge of the murders of Shafaqat and Muhammad Yousaf.
5. As for the main occurrence, it has been stated that at the eventful time, Muhammad Sharif complainant, the -three deceased namely Muhammad Siddiq, Ali Muhammad and Muhammad Nawaz, Falak Sher P.W.7, Waris, Nasrullah, Amjad and Muhammad Yaqoob were on their way to their village after attending Consolidation Officer on P.1 Mehta Suja and had hardly covered 1-1/2 Killa from P.1 Mehta Suja, when Javed Iqbal armed with gun, Riaz convict armed with rifle, Nasir Mehmood, Ata Ullah, Idalat Ali appellants and Sadaqat acquitted accused armed with carbines, Altaf, Ghulam Qadir and Arif, co-accused empty handed emerged from a wheat field. Altaf, Ghulam Oadir and Arif raised Lalkara that the enemies of Yousaf and Shafaqat were there and it was a time to take revenge from them. Javed fired shot from his gun hitting Muhammad Siddiq deceased, who fell down in the Khaal. Riaz convict fired shot at Muhammad Siddiq. Sadaqat acquitted accused then fired at Muhammad Siddiq with his carbine hitting on the left side of his abdomen. Riaz convict fired from his rifle hitting Ali Muhammad in his chest. Idalat Ali appellant,, fired shot from his carbine hitting on the back of the shoulder of Ali Muhammad deceased. Nasir Mehmood,, appellant fired shot from his carbine on the back of the right shoulder of Ali Muhammad deceased. Ata Ullah appellant fired shot hitting on the back of the left shoulder of Ali Muhammad deceased. Riaz, convict fired shot from his rifle hitting on the back of the chest of Ali Muhammad deceased. Thereafter, the accused party declared that all the relatives of Ali Muhammad and Muhammad Siddiq should not be spared. On this the complainant and others except Muhammad Siddiq and Ali Muhammad deceased ran towards the village to save their lives.
When Muhammad Nawaz reached near the mosque of Mayos, Javed Iqbal appellant fired shot from his gun on the chest of Muhammad Nawaz, who fell down on the ground and died. The complainant and others succeeded in taking refuge in the houses of the Mayos. The appellants and their co-accused decamped taking the weapons with them. Muhammad Siddiq and Ali Muhammad succumbed to the injuries on the spot.
6. On 31-3-1985, Dr. Muhammad Ilyas P.W.5 conducted post-mortem examination on the dead bodies of Muhammad Siddiq, Ali Muhammad and Muhammad Nawaz. He found following injuries on the body of Ali Muhammad: "(1) An entrance wound 1 x 1 c.m. On the outer upper left chest encroaching lower part of neck with blackening over it.
(2) An entrance wound 1 x 1 c.m. On the lower neck 1 c.m. Left to injury No. 1 with blackening all round.
(3) An entrance wound 1 x 1 c.m. On the left upper chest below the clavicle with blackening.
(4) An entrance wound 1 x 1 c.m. On the upper left chest 2 c.m. Below injury No: 3, with blackening.
(5) An entrance wound 1 x 1 c.m. On the left upper chest 5 c.m. Left to injury No. 4. Blackening was there.
(6) An entrance wound 1 x 1 c.m. On the left chest 5 c.m. Below injury No. 4 with blackening.
(7) An entrance wound 3 x 2 c.m. On the lower chest 8 c.m. Below left nipple with blackening.
(8) An entrance wound 1 x 1 c.m. On the anterior axillary line near deltoid, with blackening.
(9) Multiple exit wounds 7 in number, measuring each 0.6 x 0.5 c.m. On the back of right chest in the lower part.
(10) Multiple exit wounds 4 in number, each measuring 1 x 1 c.m. On the back of left chest and scapular area.
(11) An entrance wound 1 x 1 c.m. On the back of upper left arm.
(12) An entrance wound 1 x 1 c.m. On the back left arm 0.5 c.m. Away left to injury No. 11."
(1) An entrance wound 1 x 1 c.m. On the left forehead above the left eye--brow with blackening around it. After injuring the muscles pellet reflected back.
(2) An entrance wound 1 x 1 c.m. On the left cheek.
(3) An entrance wound 1 x 1 c.m. On the tip of nose.
(4) An entrance wound 1 x 1 c.m. On the left cheek near the lip.
(5) An entrance wound 1 x 1 c.m. On the right side of chin.
(6) An entrance wound 1 x 1 c.m. On the left side of neck with blackening around it. Injuring skin muscles trachea coming out through exit wound No.7.
(7) An exit wound 1 'x 1 c.m. On the right side of neck.
(8) An entrance wound 1 x 1 c.m. On the back of upper right chest in mid line.
(9) An entrance wound 1 x 1 c.m. On the right mid back chest. Tatooing was present over the injury.
(10) An entrance wound 1 x 1 c.m. On the right back of chest on outer side.
(11) An entrance wound 1 x 1 c.m. On the back lower mid chest.
(12) An entrance wound 1 x 1 c.m. On the right lower back of chest.
(13) An entrance wound on the back of left arm at its upper part.
(14) An entrance wound 1 x 1 c.m. On the back of middle chest.
(15) An entrance wound 1 x 1 c.m. On the back of left chest 5 c.m. Below injury No. 14.
(16) An entrance wound 1 x 1 c.m. On the back of left chest 4 c.m. Below injury No. 15.
(17) An entrance wound 1 x 1 c.m. On the back of left chest near middle line on lower part."
"(1) An entrance wound 3 x 2 c.m. x on the front of left chest 5 c.m. Above and medial to left nipple.
(2) Multiple entrance wounds four in number, each measuring 1 x 1 c.m. Present around injury No. 1, one on the above, two below and one on the left side."
7. Ata Ullah, Ida lat Ali, Nasir Mehmood appellants and Sadaqat Ali acquitted accused were arrested on 10-5-1985. Arif, Altaf and Ghulam Oadir acquitted accused were arrested on 7-5-1985.
Riaz convict was arrested on 26-5--1985. On 26-5-1985, Riaz convict got recovered rifle Exh.P.13 and its. Licence from his house which was taken into possession vide memo. Exh. P.N. Attested by Ahmad Ali P.W.9, Zulfiqar (not produced) and Raja Zafar Hussain, Inspector, P.W.15. On 26-5-1985 Javed Iqbal got recovered gun Exh.P.14 from his house, which was taken into possession vide memo. Exh. P.T. Attested by Murad P.W.13, Muhammad Yaqoob (not produced) and Ata Ullah (not produced). On 22-5--1985 Nasir Mehmood appellant got recovered carbine Exh P.Ll which was taken into possession vide memo. Exh. P.L. Attested by Ahmad Ali P.W.9, Arshad (not produced) and Raja War Hussain, Inspector, P.W.15. On the same day Sadaqat Ali, acquitted accused got recovered carbine Exh.P.12 from his house, which was taken into possession vide memo. Exh. P.M.
Attested by Ahmad Ali P.W.9, Arshad (not produced) and Raja Zafar Hussain, Inspector, P.W.15. No empty was recovered from the spot. Forensic Science Laboratory Report Exh P.GG. Reveals that rifle Exh.P.13, Gun Exh.P.14, Carbine Exh.P.11 and Carbine Exh.P.12 were in working order.
8. During investigation, Altaf and Ghulam Qadir acquitted accused and Idalat Ali appellant were found innocent and placed in column No.2 of the challan.
9. To prove its case, prosecution produced 15 witnesses. Muhammad Sharif P:W.6 and Falak Sher P.W.7 have given the ocular account of the occurrence. They have fully supported the prosecution case as detailed above. They claim to have seen Javed Iqbal firing shots hitting Muhammad Nawaz deceased and Muhammad Siddiq deceased. They also claim to have seen Riaz convict and Sadaqat acquitted accused causing fire-arm injuries to Muhammad Siddiq deceased. They also claim to have seen Riaz, Idalat Ali, Nasir Mehmood and Ata Ullah appellants firing shots from their weapons hitting Ali Muhammad deceased. The eye-witnesses named in the F.I.R. Namely W'aris, Nasrullah, Amjad and Muhammad Yaqoob were not produced. Ahmad Ali P.W.9, Murad, P.W.13 and Raja War Hussain, Inspector, P.W. 15 have supported the recoveries of carbine Exh. P.Ll, carbine Exh.P.12, rifle Exh. P.13 and Gun Exh. P.14 from Nasir Mehmood appellant, Sadaqat acquitted accused, Riaz convict and Javed Iqbal appellant respectively. Dr. Muhammad Ilyas P.W.5 has proved the post-mortem examination reports of the three deceased. The rest of the evidence is more or less of formal nature.
10. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. They raised plea of false implication on account of enmity. Riaz, convict, produced two witnesses namely Dr. Muhammad Anwar D.W.1 and Dr. Mushtaq Ahmad Shad D.W.2 in defence to prove his alibi. Sadaqat Ali, acquitted accused, produced Zaheer Ahmad D.W.3 and Muhammad Munawar Virk D.W.4-in his defence.
11. While giving the benefit of doubt to Altaf, Ghulam Oadir, Arif and Sadaqat Ali, co-accused, the trial Court acquitted them and believing the statements of the eye-witnesses namely Muhammad Sharif, and Falak Sher and disbelieving the defence witnesses produced by Riaz convict, the trial Court has convicted and sentenced the appellants and their co-accused Riaz Ahmad, as stated above.
12. Learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants beyond reasonable doubts. He argued that the F.I.R. Was recorded on the spot after preliminary investigation: that the two eye-witnesses are closely related to the deceased and inimical towards the appellants; that although about 1000 persons, as stated by the complainant had seen the occurrence yet not a single independent person has been produced by the prosecution; that the presence of Muhammad Sharif P.W.6 and Falak Sher P.W.7 is doubtful, in that had they been present on the spot they would not have been spared alive; and that the statements of the eye-witnesses have been disbelieved to the extent of 4 acquitted accused.
It may be noted here that an application,, under section 428, Cr.P.C. For permission to produce additional evidence in the shape of attendance register of the school and witnesses in proof of the alibi of Idalat Ali appellant, has been filed by the learned counsel for the appellant at this stage.
Learned counsel submitted that it was due to carelessness on the part of the learned counsel appearing for Idalat Ali appellant that the evidence in proof of his alibi could not be produced in the trial Court. Conversely, the learned counsel for the State has supported the judgment of the trial Court.
13. We have considered the submissions made by the learned counsel for the appellants with care.
We do not feel persuaded to agree with him. We find that the occurrence took place at 3-00 p.m.
On .31-3-1985 and the F.I.R. Exh. P.G. Was recorded after 1-1/2 hours on the same day. Except suggestion to Ahmad Ali, A.S.I., P.W.9, there is nothing in evidence to show that the F.I.R. Was actually recorded at the place of occurrence after preliminary investigation or consultation. In this respect no suggestion at all was given to Muhammad Sharif complainant. No clear suggestion that the F.I.R. Exh. P.G. Was recorded on the spot after preliminary investigation was put to Falak Sher P.W.7.
No doubt Falak Sher P.W. Has stated in cross-examination that the police had recorded the statements of his father Muhammad Sharif and other P.Ws. But this does not mean that the statement of Muhammad Sharif recorded in his presence was F.I.R. Exh P.G. And no other document.
On further cross-examination, he expressed his ignorance about the obtaining of the signatures of his father on that statement. We are convinced that the F.I.R. Exh. P.G. Is a genuine document and was recorded at the time and place as it purports. The motive alleged by the prosecution. i.e. The murder of the close relatives of the accused party is an ~ admitted fact. So, it cannot be said that the motive attributed by the prosecution was false. Despite this finding we are not prepared to give benefit of the motive to the prosecution because the motive being a double edged weapon, it could also be a reason for the false implication of members or exaggeration of number of the accused party.
14. Taking up the ocular evidence produced by the prosecution, we find that Muhammad Sharif P.W.
6 and Falak Sher P.W.7 are closely related to the three deceased; that in murder case of Muhammad Yousaf, brother of Riaz Ahmaa convict, Muhammad Sharif complainant and others were accused and in murder case of Shafaqat son .Of Ghulacri Qadir, acquitted accused, Muhammad Sharif P.W. 6 and Muhammad Siddiq deceased were challaned as accused and that in the murder case of Ramzan Kumhar, Muhammad Sharif P.W. 6 was eye-witness against Raiz Ahmad convict and Liaqat son of Ghulam Qadir, acquitted accused. It may be noted here that Falak Sher P.W.7 was neither accused in the murder cases of Shafaqat and Yousaf nor was he a witness in any case against the appellants and co-accused. In a criminal case, the, evidence of relation/hostile witness cannot and should not be discarded straightaway, as there may be inimical witness in capable of falsely implicating an innocent person and as such they may be found entitled to be believed even without corroboration because proposition that testimony of interested witnesses requires independent corroboration is not of universal application. Reliability would depend upon the quality of the evidence. The facts of the two cases seldom coincide So, no specific rule for the appreciation of evidence can/should be laid down. The general rule, however, seems to be that want of relationship with the complainant or absence of his enmity with the accused will not stamp the statement of a particular witness with truth. Similarly relationship with the deceased/interested in the prosecution and enmity with the accused will not render his statement as false or wholly unreliable. So, the safest rule of appreciation of evidence is as to whether the statement of a particular witness is in consonance with probabilities, materially fits in with the other evidence so as to inspire confidence of truth in a reasonable and prudent mind. If these elements are present, the statement of the worst enemy of the accused may be accepted and relied upon without corroboration and if these elements are missing then statement of a pious/Naik Mard may be discarded without second thought. Furthermore, there are 3 categories of witnesses:
(i) Absolutely dependable,
(ii) Absolutely not dependable, (i.e) Partly dependable.
15. As for application under section 428, Cr.P.C. For additional evidence, we do not see any justification to summon the record of the school or examine the witnesses in proof of alibi pleaded by Idalat Ali appellant in his statement recorded under section 342, Cr.P.C. It may be noted here that no suggestion with regard to his alibi was given to Muhammad Sharif P.W.6, Falak Sher P.W.7 and the Investigating Officer Raja Zafar Hussain Inspector, P.W.15, although suggestion with regard to the alibi of Sadaqat Ali was put to them when Idalat Ali was asked as to whether he was prepared to lead any evidence in defence, he declined. Furthermore, the appellants including Idalat Ali have failed to give evidence on Oath in disproof of the charge against them. We do not see any compelling reason to record additional evidence at this stage.
16. Now we proceed to examine the extent to which the four appellants and Riaz Ahmad convict were responsible for the murder of individual deceased. The appellants and Riaz Ahmad convict had formed an unlawful assembly, in furtherance of the common object whereof Muhammad Siddiq and Ali Muhammad were done to death. So, they are criminally liable on two counts for the murders of Ali Muhammad and Muhammad Siddiq under section 302 read with section 149, P.P.C.
As for the murder of Muhammad Nawaz deceased he was not murdered at the place where Muhammad Siddiq and Ali Muhammad were killed. According to the eye-witnesses it was after the murder of Muhammad Siddiq and Ali Muhammad that Javed lqbal appellant overtook ,,Muhammad Nawaz deceased when the latter was running towards the village to save his life and fired shot without any instigation or abetment by the co-accused. So, the act of Javed Iqbal of killing Muhammad Nawaz seems to be his individual act for which the remaining appellants and Riaz convict are not responsible.
17. This brings us to the question of sentence of the appellants and Riaz convict under section 302, P.P.C. For the tripple murder. We have considered this question with utmost care on our part. We do not see any mitigating circumstance in favour of the appellants for lesser penalty. They have brutally murdered two brothers and their nephew. Ali Muhammad and Muhammad Nawaz deceased were not accused of the murder of Muhammad Yousaf and Shafaqat, the relatives of the appellants. No exception can be taken to the conviction and sentence of the appellants by the trial Court under section 148, P.P.C.
Pursuant to the above discussion, Riaz Ahmad, convict (although he has not filed appeal) and the appellants other than Javed Iqbal are acquitted of the charge of the murder of Muhammad Nawaz deceased. The sentence of death awarded to Javed lqbal on three counts for the murder of Muhammad Siddiq, Ali Muhammad and Muhammad Nawaz, is confirmed. The sentence of death awarded to Javed lqbal, Ata Ullah, Idalat Ali, Nasir Mehmood and Riaz Ahmad for the murder of Muhammad Siddiq and Ali Muhammad on two counts, is confirmed. The fine imposed by the trial Court and the sentence in lieu thereof and direction for its payment to the legal heirs of the deceased are also upheld.
Death Sentence is confirmed.