RAJA AFRASIAB KHAN, J.- Muhammad Ilyas (30) son of Inayat and Muhammad Iqbal (40) son of Jhanda were convicted and sentenced to death under section 302 read with section 34 PPC for having committed the murder of Hidayat Ullah (45/46) son of Ahmad Hassan and Muhammad Akram (21/22) son of Muhammad Abdullah by the learned Additional Sessions Judge, Sheikhupura, on 2.7.1988. Both of them were sentenced to a fine of Rs. 25,000/- each on each count or in default thereof to undergo R.I. For two years on each count. It was directed that in case of recovery of fine, a sum of Rs. 40,000/- each shall be paid to the legal heirs of the deceased under section 544-A Cr.P.C, as compensation. Vide the same Judgment, the co-accused Muhammad Abbas (27) son of Inayat was acquitted by the learned trial Judge by giving him the benefit of doubt. By means of joint appeal (Cr A. No. 744 of 1988) both the convicts have challenged their conviction and sentences while a Reference (M.R. No. 12 of 1989) has been sent by the learned trial Judge for confirmation of their death sentence. Cr.Rev.No. 214 of 1990 has been filed by Faiz Muhammad, complainant, praying that the Judgment of acquittal of Muhammad Abbas co- accused may be set aside and he may be proceeded against in accordance with law. We propose to dispose of all the matters together by this consolidated Judgment.
2. According to the prosecution story, Faiz Ahmad (complainant) is a resident of Dera Baghail Singh and is a cultivator. On 22.8.1985 at about 2-30 p.m. Nasir Mahmood son of the complainant gave a beating to Muhammad Ali son of Muhammad Husaain. However, people of the village separated them. Muhammad Ali told the incident to his uncle Muhammad Iqbal son of Jhanda who in turn narrated it to Muhammad Ilyas and Abbas sons of Inayat by summoning them in his house. It was told by him that an excess has been done to them and that it should be avenged. On receipt of this information, Hidayat Ullah and Abdullah sons of Ahmad Hassan, Muhammad Akram son of Abdullah who were close relatives of the complainant came to his house. In the meantime at about 3-30 p.m., Muhammad Iqbal armed with 12-bore gun, Muhammad Ilyas armed with 12- bore gun and Abbas armed with a Revolver came at the spot in execution of their common intention.
Muhammad Iqbal and Muhammad Ilyas ascended to the roof of the house of Muhammad Qasim alongwith their weapons and Abbas, the 3rd accused remained .In the street duly armed with his Revolver to stand as a Guard. Abbas started firing in the air from his Revolver. On hearing the sound of firing, Hidayat Ullah and Muhammad Akram who were present in the house of the complainant came out in the street. Muhammad Iqbal and Muhammad Ilyas started firing at them. Muhammad Iqbal fired which hit Muhammad Akram. Similarly, Muhammad Ilyas fired and injured Hidayat Ullah.
They died at the spot, on account of these injuries. The occurrence was witnessed by Faiz Ahmad, Abdullah and Muhammad Aslam. The accused ran away from the place of occurrence with their weapons. Abdullah and Muhammad Aslam were asked to guard the dead bodies while the complainant left the place to give information to the Police.
3. Syed Inayat Ali Shah Sub-Inspector (PW-15) recorded the FIR Ex.PL on the statement of Faiz Ahmad, complainant on 22.8.1985 at 5-30 p.m. And investigated the case. He visited the spot anti prepared the injury statement Ex.PN and inquest report Ex.PN/! Of the deceased Muhammad Akram. Similarly, injury statement Ex.PO and inquest report Ex.PO/1 of the deceased Hidayat Ullah were prepared by him. The dead bodies were sent to mortuary for post-mortem under the escort of Muhammad Rafique and Muhammad Ashraf constables. Statements of the witnesses under section 161 Cr.P.C, were recorded by the Police Officer. Blood-stained earth was taken into possession vide memos Ex.PE and PF on 23.8.1985. Four empties P7/1-4, were taken into possession vide memo Ex.PG from the roof of house of Muhammad Qasim. These empties were secured in a sealed parcel. Last worn clothes of Muhammad Akram (deceased) PI and P2 and that of Hidayat Ullah (deceased) P4 to P6 were taken into possession alongwith two sealed bottles containing pellets P3 and P5 vide memo Ex.PC and PD.
Muhammad Ashraf SI PW-16 also partly investigated the case. He deposed that Muhammad Ilyas was declared a proclaimed offender. This accused was arrested by him on 18.6.1986. Muhammad.
Ilyas while in police custody led to the recovery of 12-bore gun P-14 from his house which was taken into possession vide memo Ex.PK.
The remaining investigation was conducted by Abdul Ghafoor S.I. (PW-17). Muhammad Iqbal and Muhammad Abbas were arrested by him on 11.9.1985. He obtained warrants of arrest against Muhammad Ilyas and entrusted it to Aftab Ali Shah ASI for their execution. On 17.9.1985 Muhammad Iqbal led to the recovery of 12-bore shot gun from his residential house. He also produced two live cartridges P.12/1-2 and licence P.13, which were taken into possession vide memo Ex.PJ. On 19.9.1985, Muhammad Abbas led to the recovery of Revolver 32-bore (P.8) from his residential house. The weapon was taken into possession vide memo Ex.PH. Three live cartridges P-10/1.3 and two empties P9/1-2 were taken out from the Revolver P8 and were taken into possession vide memo Ex.PH. He got prepared site-plans Ex.PM and its duplicate Ex.PM/1 from Rab Nawaz Shah Draftsman. The reports of the Chemical Examiner on earth (Ex.PP and Ex.PP/1) and that of Serologist (Ex.PQ and Ex.PQ/1) were positive inasmuch as it was opined that the earth was stained with human blood.
The Director Forensic Science Laboratory, vide his reports Ex.PR and Ex.PR/1 gave the following opinion:- "1. The crime empty of 12-bore marked as C1 had been fired from the shotgun of 12-bore No. 148455, Butt and body signed.
2. The crime empty of 12-bore marked as C3 had not been fired from SBBL shotgun of 12-bore No. 148455, Butt and body signed.
3. The crime empty of 12-bore marked as C2 bears external marks due to which the marks of identifications are intermingled, therefore, no opinion could be expressed about it as to whether or not it had been fired from the SBBL Shotgun of 12-bore No. 148455, Butt and body signed.
4. The crime empty of 12-bore marked as C4 is without percussion cap (the place where most of the identifiable data is available), therefore, no opinion could be expressed about it as to whether or not it had been fired from the SBBL shotgun of 12-bore No. 148455, Butt and body signed."
"No foulings were recovered from the barrel of the said shotgun. Hence, nothing can be said as to when it was last fired."
4. Dr. Muhammad Rafique Chaudhry PW-1 conducted the Post-mortem examination on the dead body of Muhammad Akram on 23.8.1985 at 7-00 A.M. And found the following injuries on it:-
1. A wound of entry 1-1/2 cm x 1-1/2 cm x ? On the right side of the neck 3h cm above the right clavical bone. Scorching around the wound was present.
2. Five wounds of entry 1-1/4 cm x 1-1/4 cm x? Each on the interior and left side of the chest inner side of the left nipple:Scorching around the wound was present.
3. A wound of entry 1-1/4 cm x 1-1/4 cm x ? On the outer part of the right nipple. Scorching around the wound was present.
4. 4 wounds of exit 1 cm x 1 cm x ? Each on outer side of the chest.
5. A wound of entry 1-1/4 cm x 1-1/4 cm x ? On the interior side of the left elbow joint. Scorching around the wounds was present.
6. A wound of exit 1 cm x 1 cm x ? On the inner side of the left elbow joint.
7. A wound of entry 1-1/4 cm x 1-1/4 cm x ? On the back of the right hand near the right wrist joint.
Scorching around the wound was present.
8. A wound of exit 1 cm x 1 cm x ? On the interior side of the right hand near the right wrist joint.
9. An abrasion 1-1/4 cm x 1-1/4 cm x on the upper and right side of the abdomen. Tattooing mark was present around the abrasion.
In the opinion of the Doctor, all injuries were ante-mortem. Injuries No. 2 and 3 were grievous. The rest were simple and were caused by fire-arm. The death occurred due to severe shock and haemorrhage. The injuries No. 2 and 3 were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was within five minutes and that between death and postmortem was 14 to 17 hours.
On the same day, the same Doctor at about 8-30 a.m. Conducted the Post Mortem Examination upon the dead body of Hidayat Ullah and found the following injuries: -
1. Five wounds of entry 1-1/4 cm x 1-1/4 cm x? Each on the left iliac fossa, Scorching around the wounds was present. A piece of omentum was protruding through the one hole.
2. Two wounds of entry 1-1/4 cm x 1-1/4 cm x ? On the interior side of the left iliac crest bone.
Scorching around the wounds was present.
3. A wound of entry 1-1/4 cm x 1-1/4 cm x ? On the interior and upper part of the left thigh. Scorching around the wound was present.
Three wounds of exit 1 cm x 1 cm x ? On the back of the left buttock.
All the injuries were ante-mortem. Injury No. 1 Was grievous. The rest were simple and were caused by fire-arm. In the opinion of the Doctor, death occurred due to severe shock and haemorrhage.
Injury No. 1 was sufficient to cause death in ordinary course of nature. Probable time between injuries and death was reported to be within 1 to 2 hours and between death and post-mortem was about 14 to 18 hours.
5. Eye-witness account was furnished by Faiz Ahmad PW-11 and Muhammad Abdullah PW-14.
Muhammad Ilyas appellant in his statement under section 342 Cr.P .C, denied the allegations levelled against him. He took the plea that he was innocent and had been implicated in .The case on account of enmity. To the same effect is the statement made by the remaining accused.
6. The learned trial Judge believed the ocular account and medical evidence and convicted and sentenced the accused as stated above. However, motive part of the prosecution story was not believed by the learned trial Judge. The recovery of the weapons of offence was also not believed because it was not made according to section 103 Cr.P.C.
7. Learned counsel contends that in case Faiz Ahmad PW-11 and Muhammad Abdullah PW-14 were present they would have been attacked by the accused and would not have been spared because of their enmity. Their presence at the spot is, therefore, not above board. It is argued that despite availability of independent witnesses at the spot, they were not produced by the prosecution for unknown reasons. According to the learned counsel, this would create doubt in the truthfulness of the prosecution case. He argues that the medical evidence is in conflict with the ocular account inasmuch as the Doctor found scorching on the wounds of the deceased. The prosecution evidence has not at all been corroborated by some independent evidence. Learned counsel for the complainant states that there is no conflict in the medical evidence and the ocular account. He says that FIR was promptly lodged. According to the learned counsel, the evidence of Faiz Ahmad and Muhammad Abdullah is consistent and confidence inspiring. It is a broad day-light occurrence and that there was absolutely no motive for substitution and false implication of the appellants in this case. The learned Assistant Advocate-General supported the conviction and sentence of the appellants.
8. We have heard the learned counsel for the parties at length and have read the record with care.
The evidence of Faiz Ahmad PW11 inspires confidence inasmuch as the said witness reported the matter to the Police promptly. He deposed that on the day of occurrence at about 2-30 p.m., a quarrel took place between Nasir Mahmood his son and Muhammad Ali son of Muhammad Hussain but the parties were separated by the people present at the spot. However, Muhammad Ali rushed to his house and informed about the incident to his uncle Muhammad Iqbal, Muhammad Abbas and Muhammad Ilyas. On information, Hidayat Ullah, Abdullah and Muhammad Akram came to the house of the informers and gave information about the design of the accused. At about 3-30 p.m., a sound of firing was heard whereupon Hidayat Ullah and Muhammad Akram came out followed by the complainant, Abdullah and Muhammad Aslam PWs. The complainant deposed that Muhammad Ilyas and Muhammad Iqbal accused were armed with 12-bore gun and were standing on the roof of the house of Muhammad Qasim. The fire-shot of Muhammad Iqbal hit Muhammad Akram on his chest. Similarly, his second shot hit Hidayat Ullah on his abdomen. On receipt of injuries, Muhammad Akram and Hidayat Ullah fell down and died at the spot. This evidence of Faiz Ahmad PW-11 was materially corroborated by Muhammad Abdullah PW-14. We are convicted with facts and circumstances of the case that Faiz Ahmad PW-11 and Muhammad Abdullah PW-14 were present and saw the occurrence. The site-plan Ex.PM shows that PW-11 and PW-14 were standing in an open place from where they could easily see the accused while firing from the roof of the house of Qasim at their targets. The site-plan also shows. That the house of Qasim is situated on the main road. The objection that witnesses could not see the accused when they fired has not convinced us because as observed above, the witnesses were standing on an open place when the occurrence took place. It is in the evidence that the witnesses were sitting in the house of Faiz Ahmad alongwith the two deceased when sound of firing was heard by them and they came out from the said house together. The place where the dead bodies were found and the places where the witnesses were standing and the roof of the house of Qasim from where firing was made would demonstrate that the prosecution version reflects truth beyond doubt. The case of the prosecution may also be seen from another angle inasmuch as the occurrence took place on 22,8.1985 at 3-30 p.m. And the information was conveyed to the Police Station at 5; 30 p.m. On the same day after about two hours. Faiz Ahmad disclosed that he went to the Police Station on his bicycle. He also told that it took about half an hour to reach the Police Station. Thus, the evidence of Faiz Ahmad PW-11 shows that the information was given to the Police Station at the earliest. We hold that the information was given to the police with promptitude. We also hold that the PWs saw the occurrence. Two persons on the complainant side already were done to death and as such the appellants might not have thought fit to continue their carnage. Thus, the argument that they were not attacked by the accused would pale into insignificance. The other argument that the medical evidence is in conflict with the ocular account is equally devoid of force. It is in the evidence that height of wall of Qasim's house is about 7 feet. It .Is in the evidence that the accused fired from the roof of Katcha Kotha of Muhammad Qasim. Thus, keeping in view the distance of 7 feet height of the wall plus the height of the accused with which they fired, would persuade us to hold that there is no conflict in the medical evidence and the ocular account. Even otherwise, we have believed the ocular account in its entirety. The expert's evidence is merely an opinion and can not bind the court. The expert may commit errors in his examination of the dead body. It is well settled that expert's evidence cannot weigh-out the direct evidence which is not otherwise found deficient in quality. In this behalf, reference may be made to Yaqub Shah Vs. The State (PLD 1974 SC 87) and Asif Shah Vs. The State (1985 SGMR 850). Respectfully following the aforesaid authorities, we proceed to hold that the evidence of the eye-witnesses is worth reliance in the given circumstances.
9. Upshot of the above discussion is that there is no substance in the appeal which is dismissed.
The Murder Reference is answered in the positive. The death sentence of the appellants IS confirmed. We do not find any sufficient reason to interfere in the Judgment of acquittal of Muhammad Abbas and as such the revision petition is dismissed.