GULBAZ KHAN, J.-----Karam Khan aged 26 years, his brothers Lal Khan aged 30 years and Liaqat aged 17 years, all residents of Qaziabad, Police Station, Sadar Campbellpur, were convicted by the learned Sessions Judge, Campbellpur, vide his judgment dated 31-7-1972. Their father Karim Dad aged 70 years was given the benefit of doubt and acquitted. Karam Khan accused was sentenced to death, while Lal Khan and Liaqat to imprisonment for life. Karam Khan, Lal Khan and Liaqat preferred an appeal against their convictions and sentences. The learned Sessions Judge referred the case to this Court under section 374, Cr. P. C. For the confirmation of death sentence passed upon Karam Khan. State filed an appeal under section 417, Cr. P. C. Against the acquittal of Karim Dad. All the matters would be disposed of by this judgment.
2. On 13-7-1971, at evening time, Muhammad Younas (P. W. 15) and his uncle Abdur Rehman deceased residents of Qaziabad, were going to the house of their relative Abdul Wahid, who lived in Lawrancepur. When they reached the place known as Kas Darmiana of Qaziabad, which was at a distance of two furlongs from Railway Station, Lawrancepur, Karam Khan, Lal Khan, Liaqat accused- appellants and their father Karim Dad stood in the way. Karam Khan and Lal Khan were armed with guns, while Liaqat and Karim Dad with hatchets. They gave out Lalkara that they would kill Abdur Rehman. Muhammad Younas took to his heels. Karam Khan fired gun shot at Abdur Rehman deceased and thereafter all the four accused encircled the deceased. Muhammad Ashraf (P. W. 9) who was going towards Lawrancepur, also witnessed the occurrence. Muhammad Younas informed his maternal cousin Abdul Wahid (not produced) about the occurrence and then both of them searched for the deceased, but in vain. Karam Khan accused suspected his wife Mst. Hakam Jan to have illicit relations with Abdur Rehman deceased. Muhammad Younas and Abdul Wahid reached Police Post. Lawrancepur, at about 10 p.m., where Muhammad Younas made statement Exh. P. G./1, which was recorded by Muhammad Nawaz, Head Constable (P. W. 16).
3. Muhammad Nawaz, Head Constable sent statement Exh. P. G./1, at Police Station, Sadar Campbellpur and formal F. I. R. Exh. P. G. Was recorded on 14-7-71, at 0-15 a.m. The Head Constable reached the spot at 10-20 p.m, although it had started raining when he left for the spot. He took an umbrella with him. He summoned Muhammad Ashraf (P. W. 9) and Ghulam Sarwar (P. W. 10) at the spot and recorded their statements. Jan Muhammad, Sub-Inspector (P. W. 17) reached next morning at 6-3) a.m. And took over the investigation. He searched for the deceased. He reco-- vered the dead body of the deceased from a dry deserted well, which was at a distance of 119 karams from the spot. The dead body was brought out of the well by Allah Ditta F. C. (P. W. 3). He also collected blood-stained earth from the well and it was sealed into a parcel vide memo. Exh. P.
C After preparing the injury statement and inquest report, the Sub-Inspector sent the dead body for post-mortem examination. One live cartridge P. 6 was recovered from near the well and taken into possession vide memo, Exh. P. F, Lal Khan accused was arrested on 15-7-1971. On interrogation, Lal Khan accused offered to produce gun. He led the police party to his house near Railway Station, Lawrancepur and produced gun P.
7. Which was sealed into a parcel vide memo. Exh. P. H. Karam Khan accused was arrested on 23-7-1971. On 24-7-1971, Karim Dad accused produced blood-- stained hatchet P. 8 from his bhoora (cave) and it was sealed into a parcal vide memo. Exh. P. J.
Liaqat accused produced blood-stained hatchet P. 9, the same day and it was sealed into a parcel vide memo. Exh. P. K. On 1-8-1971, Karam Khan accused produced gun P. 10, which was wrapped in a piece of cloth P. 11, from his residential kotha and it was sealed into a parcel vide memo. Exh. P. L. No empty cartridge was found at the spot or near the well. Thus the Fire-arms Examiner was not examined at the trial.
4. The post-mortem examination was conducted by Doctor Shamas---ud-Din (P. W. 1) on 15-7-1971, at 4-30 p.m. On the dead body of Abdur Rehman aged 50/60 years. Following injuries were noticed on his body :- (1)An incised wound on the right ear at the pinna at its middle. The ear was cut at its middle and at its junction with skin behind the ear.
(2)An abrasion at the right side of neck at its root one inch into half inch, superficial opithelium was peeled off.
(3)An incised wound on the right palm at the space between the first and second fingers (index and middle) 1' x -- 'x skin deep.
(4)An abrasion on the right fore-arms, near the elbow, one inch circle.
(5)An abrasion on the right fore-arm, above the wrist, 1" x 3/4".
(6)Contusion below the right eye.
(7)An abrasion on the right knee-cap, half inch circle.
(8)An abrasion below injury No. 7, half inch circle.
(9)An abrasion on the outer side of the right knee, half inch circle.
(10)An abrasion on the right leg, below the knee-joint -- ' x -- ".
(11)An abrasion on the outer ankle of the right leg -- ' x -- '.
(12)An abrasion on the right leg, above ankle-joint, on the front -- " x --'.
(13)An abrasion on the right ankle of right leg, above injury No. 11, -- x 4".
(14)Lacerated wound on the left fore-arm, below elbow joint --x 1/3 ".
(15)An abrasion on the left fore-arm, above the wrist, one inch circle.
(16)A circular charred wound on the left knee-joint on the inner side -- circle. The medial condyle of femur was torn and fibula was fractured.
(17)Abrasions three in number varying from -- ' to -- ' x -- ' on the left knee outside.
(18)A circular charred wound on the middle of the left leg, I' circular (entry wound).
(19)A circular wound on the left leg, inner side, below the knee joint, --' circular (exit wound).
(20)An abrasion on the left leg outer side, -- " x -- '.
(21)An abrasion on the left leg below and in front of injury No. 20, --x 1/3.
(22)A circular charred wound on the left leg in front of ankle-joint, --' x --" (entry wound).
(23)A circular wound on the left leg behind the outer ankle, --' circle (exit wound).
(24)Lacerated wound on the right hand, dorsum of hand, --' x --', (25)Circular hole on the right thigh charred --' x --'. At the site of injury No. 13, the fibula was fractured.
(26)Multiple abrasions on the right iliac fossa varying from --' to 1"x -- x --.
(27)An abrasion on the right side of the head one inch circle. The right thigh and left leg, were X- rayed for evidence of foreign body.
There was haemorrhage under the scalp and meanings. The brain was flabby and in the state of decomposition.
First to fifth rib on the left side were fractured at the posterior side while the first rib was fractured on the right side at its posterior side and left cheat cavities contained blood and there was evidence of surgical emphysema on the right side. Right side of heart contained blood. The medial condyle of left femur, upper and of left fibula and lower and of right fibula were fractured.
5. The prosecution examined Muhammad Ashraf (P. W. 9), Ghulam Sarwar (P. W. 10) and Muhammad Younas [P. W. 15) as the eye-witnesses of this case. Muhammad Younas supported the report Exh. P. C./I in his statement during the trial. Muhammad Ashraf (P. W. 9) a fruit-vendor in Court premises at Rawalpindi, came to his native village Lawrancepur on the fateful day, at about sun-set time. After having a look at his house, he set out for Qaziabad, where his in-laws lived.
When he reached near a kas, he saw Karam Khan, Lal Khan armed with guns, Karam Dad and Liaqat with hatchets. He was at a distance of 45 karams from the accused. He noticed Abdur Rehman deceased and Muhammad Younas P. W. Coming from the side of Qaziabad and when they reached near the accused, the accused raised lalkara. On hearing the challenge, Muhammad Younas P. W. Started running. Karam Khan accused fired gun shot at Abdur Rehman deceased and it hit him. The deceased fell down. Thereafter, all the four accused pounced upon him and inflicted blows. Then they physically lifted the deceased and went towards the West. On seeing the occurrence, he returned towards Lawrancepur and informed Abdul Wahid. Some time later, Muhammad Younas P. W. Also reached there. They set out for the search accompanied by some other persona. They noticed blood lying on the ground In the meanwhile, it started raining and a storm blowing.
Muhammad Younas (P. W. 15) is sister's son of' the deceased. Muhammad Ashraf (P. W. 9) is sister's husband of the deceased. Both these witnesses are closely related to the deceased. Both of them are chance witnesses. Muhammad Younas (P. W. 15) was accompanying the deceased at the time of occurrence and was going to the house of his maternal cousin Abdul Wahid in Lawrancepur. He had no other business except to meet his relative. Muhammad Ashraf (P. W. 9) was a fruit-vendor in Court premises at Rawalpindi. According to him, he first went to his native village Lawrancepur reaching there at about sun-set time. After having look at his house, he left for Qaziabad in order to go to the house of his in-laws and on the way saw the present occurrence. The statements of both the eye--witnesses, namely, Muhammad Younas (P. W. 15) and Muhammad Ashraf (P. W. 9) are contradicted by the medical evidence. According to both the eye-witnesses, the gun shot fired by Karam Khan accused hit Abdur Rehman deceased who fell down. Muhammad Ashraf (P. W. 9) gave the distance between Karam Khan and Abdur Rehman as 8/9 karams, when the former fired shot at the latter. This witness heard only report of one fire shot. Muhammad Younas gave the distance between Karam Khan and Abdur Rehman as 28 karams. The medical evidence reveals that the deceased had received gun shot injuries on the left knee, middle of the left leg, left ankle joint and right thigh. Injury No. 18 which was on the leg, was a wound of entry, while 19 was wound of exit. Injury No. 22 we, wound of entry, while No. 23 was a wound of exit. Injuries Nos. 16 and 24 were wounds of entry. Injuries Nos. 16, 18, 21 and 25, which were wounds of entry, had charring. According to Medical Jurisprudence, charring can be caused if the shot is fired from within a distance of about 6 to 9 inches. Muhammad Younas and Muhammad Ashraf P. Ws. Clearly told a lie when they stated that Karam Khan fired a shot from the distance given by them in their statements.
According to Muhammad Ashraf (P. W. 9), Karim Dad and Liaqat gave hatchet blows to the deceased from sharp side. In all, out of 27 injuries, these injuries had been caused with sharp- edged weapon. One incised wound was on the right ear at the pinna; second incised injury was on the right palm while the third on the dorsum of right hand. Since two persons had been armed with hatchets, more injuries with sharp-edged weapon should have been found on the person of the deceased. Muhammad Younas (P. W. 15) left the spot immediately in order to inform Abdul Wahid, while Muhammad Ashraf stayed there for a while and he saw the accused inflicting injuries to the deceased. Muhammad Younas is aged 30 years while Muhammad Ashraf 50 years, but it is strange that Muhammad Ashraf reached the house of Abdul Wahid earlier than Muhammad Younas. Both Muhammad Younas and Muhammad Ashraf stated that they left the house of Abdul Wahid for the search of the deceased and were accompanied by Abdul Wahid and some other persons. But Muhammad Younas mentioned in his report Exh. P.G /1 that after informing his maternal cousin Abdul Wahid he and Abdul Wahid searched for Abdur Rehman deceased. He did not mention in the report that Muhammad Ashraf P. W. Had also reached the house of Abdul Wahid before his arrival. At trial, Muhammad Ashraf denied to have taken a Head Constable with him for the search of the deceased after informing Abdul Wahid. He was duly confronted with his statement made before the committing Magistrate where it was recorded that Abdul Wahid, a Head Constable and Muhammad Ashraf had gone out for the search of Abdur Rehman. Ghulam Sarwar (P. W. 10), a disinterested eye-witness of this case, clearly stated during the cross- examination that he did not see Ashraf and Younas P. Ws. Nearby. During the examination-in-chief or the cross-examination he did not name them as eye-witnesses of this case. From the above discussion we come to the conclusion that Younas and Ashraf P.Ws did not see the occurrence.
6. Ghulam Sarwar, Pointsman at Railway Station, Lawrancepur (P. W. 10) deposed that on the day of occurrence, at about 7 p.m., he went to lit the signal light, which was towards the West of Railway Station, Lawrancepur. He heard the report of gun shot while he was still on the stairs of the signal.
He hurriedly lit the lamp and came down and went up a mound. He saw Karam Khan, Lal Khan, Liaqat and Karim Dad carrying away Abdur Rehman deceased towards their dhok and were coming from the side of kas. The accused noticed him standing on the mound and shouted towards him to get aside otherwise be would be killed. The witness further stated that he got scared and hurriedly went towards the station. The witness knew Abdur Rehman deceased since he had been coming to Lawrancepur in order to meet his relative Abdul Wahid. He also knew the four accused who belonged to Qaziabad. The signal was 1--furlongs from the Railway Station. The witness resided at a distance of about 100 karams from the signal. The witness saw the clothes of the deceased besmeared with blood when the accused were carrying him away. The well and dhok of the accused were in the same direction. The conduct of the witness was quite natural. He was not supposed to inform the police directly. He narrated the occurrence to Assistant Station Master. He explained that he could not go to the house of Abdul Wahid to inform him because he could not leave his place of duty. He was not under the influence of any body. If he wanted to support the prosecution case falsely he could easily name Ashraf and Younas as the eye-witness and the manner of the infliction of injuries. He was summoned by the police at about 10 p.m. Since his house was near the spot of occurrence, he appeared before the Head Constable and made statement. As observed earlier, this witness was absolutely disinterested person. He was a natural witness. He had the occasion to be present near the spot as he had gone to lit the signal light.
During the cross-examination, no material could be elicited out of his statement in order to prove that he made a false statement. We find no material on record to reject his testimony. The witness stated nothing else but the truth. Large number of witnesses are not required to prove a case.
Conviction can validly be based on the single true statement of disinterested witness.
7. The recoveries of the two guns at the instance of Lal and Khan cannot be taken to be a corroborative piece of evidence. No empty cartridge had been recovered from the spot and the guns not ked with the commission of the present occurrence. Liaqat accused while police custody, produced blood-stained hatchet P. 9 and it was sealed into a parcel vide memo. Exh. P. K. Which was attested by Muhammad Riaz (P.W. 11) and Tasaddiq Hussain (P. W. 12). According to the rep of Serologist Exh. P. R., hatchet P. 9 was found to be stained with human blood. Eye-witnesses Muhammad Ashraf (P. W. 9) a brother of Muhammad Riaz (P. W. 11) is married to a sister of the deceased. Tasaddiq Hussain denied that Mulazam Hussain and Thrar Hussain P. Ws. Who are brothers inter se, joined him in the third degree. He had admitted it before the committing Magistrate. He was confronted with that statement. He admitted that he was challaned in a case under section 307, P. P. C. a Mulazam Hussain and Feroze. Muhammad Riaz admitted that Abdur Rehman deceased. Mushtaq and Ferozo were challaned for causing Injuries to a dog belonging to Ghulam Haider. Sister's husband of Tasaddiq Hussain named Anwar Shah was challaned in a case under section 304-A, P. P. C Tasaddiq Hussain denied to have knowledge that Muhammad Iqbal son of Muhammad Nawaz was a prosecution witness against Anwar Shah. He admitted that Muhammad Iqbal is sister's son of Karim Dad accused. During statement before the trial Court, Karim Dad acquitted accused mentioned that since his sister's son was a prosecution witness against Anwar Shah, Tasaddiq Hussain and his relatives Mulazam Hussain and Ibrar Hussain made false statements against them. The accused produced certi--fied copy of the statement of Muhammad Iqbal Exh. D. C. It stands established that Muhammad Iqbal sister's son of Karim Dad accused was a prosecution witness against Anwar Shah sister's husband of Tasaddiq Hussain.
Thus Tassaddiq Hussain cannot be said to be disinterested witness. Only interested persons came forward to prove the recovery of blood-stained hatchet P. 9 from Liaqat accused. We cannot place reliance on the Interested evidence of Muhammad Riaz and Tasaddiq Hussain. Thus, the recovery of blood-stained hatchet P. 9 at the instance of Liaqat accused was not proved.
8. The occurrence had taken place on the evening of 13-7-1971. The case was registered on 14-7- 1971, at 0-15 a.m. Head Constable had reached the spot at 10-20 p.m. Jan Muhammad, Sub- Inspector, reached the spot 6-30 a.m, on 14-7-1971. He searched for the accused but the accused were not available. He arrested Liaqat accused on 19-7-1971. Karam Khan accused was not available till 23rd July although the Sub-Inspector kept on searching for him. It is a circumstance against Liaqat and Karam Khan accused.
9. The deceased was suspected to have illicit relations with Mst. Hakam Jan wife of Karam Khan. It was argued by the learned counsel for the appellants that the motive was falsely introduced in this case because the deceased was an aged person of about 60 years and he could not contact illicit relations with Mst. Hakam Jan because she had her own husband aged 26 years living. There was no other enmity between the accused and the deceased except the one mentioned. The defence also failed to bring on record besides the motive given by the complainant party in his report that some other enmity existed between them and on account of that enmity, they had been involved falsely in this case. Young ladies do contact illicit relations with aged person for certain purposes.
Abdur Rehman deceased was a bachelor. Muhammad Younas admitted that he was a gentleman and no body had any complaint regarding his immorality. But in his report as well as in his statement before the trial Court, he clearly mentioned that Karam Khan accused suspect Abdur Rehman to have illicit relations with his wife Mst. Hakam Jan. On account of suspicion of illicit relations with his wife Mst. Hakam Jan, Karam Khan accused and his brothers had motive to commit the murder.
10. The accused had denied the prosecution allegations before the committing Magistrate as well as before the learned Sessions Judge. They alleged that they had been involved in the case due to the annoyance of the prosecution witnesses. As mentioned earlier, Ghulam Sarwar (P. W. 10 had absolutely no enmity with the accused and there was no reason for him to make false statement.
11. The upshot of the whole discussion is that the case stood proved against Karam Khan. Lal Khan and Liaqat accused-appellants beyond any doubt. They were rightly convicted under section 302/34, P. P. C. Karam Khan was awarded the sentence of death on the ground that he gave out lalkara and opened the attack with gun on the deceased. It is to be noticed that according to the first report, all the accused had given out lalkara and it was not Karam Khan alone. Karam Khan had fired gun shot, but the injuries are not on any vital part of the body and the death was not due to the result of gun shot injuries. According to the medical evidence, death was due to haemorrhage under meninges on account of injury No. 27 and due to haemorrhage in chest cavity due to fracture of ribs. It is again to be noticed that there was no injury on the ribs and the fracture of ribs occurred when the deceased was thrown in the well. In case of Karam Khan, death was not the proper sentence. We alter his sentence to imprisonment for life and a fine of Rs. 2,000.00 or in default is payment of fine, to undergo further rigorous imprisonment for two years. The fine, if recovered, shall be paid to the heirs of the deceased.
12. With this modification of sentence of Karam Khan, the appeal filed by Karam Khan, Lal Khan and Liaqat is dismissed. The death sentence passed upon Karam Khan is not confirmed.
13. We have not relied upon the statements of Muhammad Riaz (P. W. 11) and Tasaddiq Hussain (P.
W. 12) regarding the recovery of blood--stained hatchet P. 9 at the instance of Liaqat accused by holding them to be interested witnesses. For that reason, we cannot place reliance on the statements regarding the recovery of blood-stained hatchet P. 8 against the acquitted accused Karim Dad. Since Karim Dad aged about 70 years was given the benefit of doubt by the trial Court and the State appeal had been admitted and ordered to be heard alongwith Murder Reference No. 199 of 1972, we do not feel inclined to accept the appeal against his acquittal. It would not be in the fitness of things.