' AUSAF ALI KHAN, J.--- This judgment shall dispose of Murder Reference No,122 of 1990, Criminal Appeal No,329 of 1990 and Criminal Revision No,527 of 1990 as all the three arise out of the same judgment, dated the 26th of May, 1990, passed by the learned Additional Sessions Judge, Lahore, whereby the appellant Aftab was convicted and sentenced to death and to pay a fine of Rs,5,000 (Rupees five thousand only) or in default whereof to further undergo R.I. For one year on the charge under section 302/34, P.P.C. The appellant Iftikhar was convicted and sentenced to undergo life imprisonment with a fine of Rs,5,000 (Rupees five thousand only) or in default thereof to further undergo R.I. For one year on the same charge. In the event of recovery of fine, the same was ordered to be paid to the legal heirs of the deceased to the extent of one-half: The co-accused Muhammad Yousaf Amjad was acquitted of the charge under section 109, P.P.C., while giving the benefit of doubt to him. The trial Court also extended the benefit under section 382-B, Cr.P.C. To the appellant Iftikhar.
2. The occurrence had taken place on. The 8th of March, 1988, at 4-00 p.m. In the area of village Karoolwar near the shop of Nawab Arain. Zafar Iqbal complainant alongwith Nazir P.W.6, his brothers Sardar Muhammad deceased and Sherbaz P.W.2 had brought sand on a tractor-trolley for putting in a vacant plot of one Nazir AhnIad son of Ghulam Muhammad. They disentangled the trolley from the tractor. Sardar Muhammad deceased went away to a nearby shop of Nawab Arain to fetch cigarettes. He had hardly reached the shop that Aftab Ahmad accused armed with 7 mm rifle and Iftikhar accused carrying .12 bore gun, while standing on the roof of the house of their maternal-uncle Abdul Haleem, started firing. Aftab accused fired a shot from his rifle which hit Sardar Muhammad's head, blood oozed out and he fell down. Iftikhar also fired from his gun at the complainant and also on Nazir and Sherbaz P.Ws., without causing injury to any of them. The P.Ws.
Raised Lalkara whereupon both the accused climbed down the roof of the house and went away firing. According to the complainant, the accused persons had committed the offence on abetment of their father Yousaf Amjad. Sardar Muhammad was removed to Mayo Hospital, Lahore, but he succumbed to the injuries before reaching there.
3. The motive of the offence is civil litigation pending between the complainant side and Yousaf Amjad accused who eleven months before the occurrence had caused firing on Sherbaz P.W., whereupon a criminal case was registered under section 307/148/149, P.P.C. At Police Station Munawan, Lahore, in which Yousaf Amjad accused alongwith three others were challaned.
4. After the occurrence, the complainant rushed to Police Station Munawan who informed the police about the incident. The Inspector Zafar Ullah Khan (P.W.12) recorded the statement (Exh.PA.) of the complainant and on the basis thereof, F.I.R. (Exh.PA./1) was drawn up. The Inspector thereafter commenced investigation and visited the spot and the Mayo Hospital where he had prepared the injury statement (Exh.P.H.) and the inquest report (Exh.P.H./1). From the spot the Investigating Officer had taken blood-stained earth and secured it vide memo. (Exh.P.B.) which is sealed in a parcel. He had drawn a sketch of the spot (Exh.P.J.). The next important step in investigation came on the 15th of March, 1988, when he had arrested Aftab and Yousaf Amjad accused. The rifle (P.1) and cartridges (P.2 to P.6) were secured from the possession of Aftab accused and were taken into possession vide memo. Exh.P.C. Which subsequently at the trial was proved through Muhammad Hanif P.W.4. Iftikhar accused was, however, arrested a bit late on the 5th of April, 1988, when he led to recovery of .12 bore gun and cartridges (P.8 to P.11) from the house of his relation in village Karoolwar. The Investigating Officer also secured them vide the possession memo. (Exh.P.D.). The witness from the public attesting the recovery memos. Was Abdul Majeed (P.W.5). The said weapon had been duly sealed into parcels. The Investigating Officer had also got prepared the site plan (Exh.P.F. And Exh.P.F./17) from Younas Ali (Draftsman P.W.8) who had drawn up plans on scale of 1" = 6'. Muhammad Aril Constable P.W.13 and Abdul Qayyum F.C. (P.W.14) had dealt with parcels. The reports of the Chemical Examiner and the Serologist respectively vide Exh.I'.M. And Exh.P.N. Opined that the blood was of human origin.
5. Dr. Ahmad Saeed, Demonstrator Forensic Medicine, King Edward Medical College, Lahore, had conducted post-mortem examination on the dead body of Sardar Muhammad (20) on the 9th of March, 1988, at 3-10 p.m. He found gutter wound measuring 7 x 1 c.m. Postero-anteriorly placed on the top of left side of head 2 c.m. From the midline and 9 c.m. Above the left eyebrow. The report of the doctor is at Exh.P.G. With sketches (Exh.P.G./1 and Exh.P.G./2).
6. The defence plea of the accused persons, as spelt out from their statements under section 342, Cr.P.C. And later reiterated on oath in statements under section 340, Cr.P.C. Is that the complainant party including Sardar Muhammad deceased had waylaid Iftikhar accused who was coming on a motor-cycle. They had blocked the road and on seeing the accused raised Lalkara. The accused threw away his motor-cycle and ran back on foot. Sardar deceased, however, chased him in order to apprehend him, simultaneously exhorting his brother Sherbaz and Zafar Iqbal carrying respectively 7 mm rifle and .12 bore gun to finish him up. His fire was made from back side with 7 mm rifle which, however, missed the target and hit Sardar deceased who fell down. However, as to the recovery of rifle and bullets from him, he took up the plea that the same had been secured by the Investigating Officer from his house while he was in police custody. Iftikhar accused even denied his presence at the spot at the relevant time and stated that after the complainant party had incidentally killed the deceased, instead of Aftab accused, he alongwith his brother was falsely involved. He also denied recovery of the gun and cartridges from his house stating that it was also planted on him.
7. The accused had also examined in defence witnesses namely, Maqsoodul Hasan D.W.1 and Haji Muhammad Saeed D.W.2 who both supported the defence version. The prosecution case as usual rests on motive, ocular and medical evidence besides recoveries.
8. The common ground was that the accused and the complainant parties were pitted against each other in civil and criminal litigations. The complainant had said so and the accused have also admitted the fact of previous civil litigation which gave birth to criminal case under section 307, P.P.C. Which is still pending. In the instant case the motive may not be treated as corroborative evidence in the scenario of litigation and enmity between the parties. In such a situation, a complainant party can have motive to involve an accused and conversely it prompts an accused to commit an offence. In the circumstances we have to fall back upon other evidence produced by the prosecution.
9. The ocular account in this case is furnished by the complainant Zafar Iqbal as well as his brother Sherbaz P.W.2 and their co-villager Abdul Ghafoor P.W.3. They have stated in detail about the offence and the offenders, stating how Aftab accused with a rifle and Iftikhar with a gun had fired at Sardar deceased and the said P.Ws. While standing on the roof of the house of Abdul Haleem.
Fire-shots of Aftab hit the head of the deceased but all the fire-shots of Iftikhar accused proved ineffective. The site plan shows that the fire had been shot from a distance of 45 feet. Zafar Iqbal complainant, however, had reduced the distance to 5/5 Karams (that is 27-1/2 a few inches over 30 feet).
10. Learned counsel for the appellants wishes us to discredit the ocular account on three premises; first that Zafar Iqbal and Sherbaz being real brothers inter se and of the deceased are not independent witnesses and also not truthful; secondly that the third eye-witness Abdul Ghafoor is a chance witness; and thirdly that the ocular evidence stands contradicted by the medical evidence.
11. Both Zafar Iqbal and Sherbaz had successfully withstood searching cross-examination. It was quite natural for them to accompany their deceased brother on a tractor-trolley as they had brought sand on it for throwing in the vacant plot. It was not a one-man job, and it is a matter of common observation in villages that the family members do their own job, of course, soliciting help of co-villagers if need be there. The learned counsel could only pick up a few discrepancies from the statements of the eye-witnesses. For instance the P.W.3 stated that the deceased was not facing towards the direction of the accused whereas P.Ws.1 and 2 had stated that the deceased was facing the accused. Not only the statements of both the brother witnesses are consistent and free from contradictions but elicit full support from a disinterested witness Abdul Ghafoor P.W.3. He cannot be dubbed as a chance witness. He belongs to the same locality where the occurrence had taken place and at the relevant time he was coming back home and was chatting with one Aslam at the corner of the street. He has no special interest with the complainant party or any animus or grudge against the accused to falsely involve them in a case of capital punishment. He could not possibly pick up enmity with them without any background. Even if he was passing through the place of wayfarers and had witnessed the occurrence, still we can have faith in his words if he puts them before us truthfully. The Supreme Court had ruled in The State v. Fateh Sher etc. PLD 1970 SC 491 that many crimes take place on public path, the natural witnesses would be wayfarers and not residents of nearby abodes. Here, Abdul Ghafoor is quite a natural witness being resident of the locality and he could possibly be present on the place of occurrence at the relevant time. The learned defence counsel is unnecessarily sceptic about his credibility as he admittedly had given statement under section 161, Cr.P.C. The next day after the occurrence. The occurrence had taken place on the preceding evening. After the case had been registered with Police Station Munawan at 6-30, the Investigating Officer had visited the place after passing a distance of 17 K.Ms. He had done a part of the investigation on that very day and recorded the statements of witnesses except Abdul Ghafoor. His statement was recorded next day morning. This insignificant delay in recording the statement does not in any way react on the credibility of the witness.
12. The main thrust of the arguments of the learned counsel, however, was that the ocular account is in direct conflict with the medical evidence and on that account it be thrown out of consideration. This brings us to medical evidence.
13. The doctor (P.W.10) had found gutter wound measuring 7 x 1 c.m. Postero-anteriorly placed on the top of left side of head 2 c.m. From the midline and 9 c.m. Above the left eye-brow. On exploration, scalp bruised around the . Wound and small collection of blood was present between the scalp and skull and oval shape depressed fracture on the top of skull was present under injury No,1, with anterior part wider than the posterior part. Bone chips were impacted in wounds in the posterior part and a fracture line was radiating forward from this part. According to the learned defence counsel, this type of injury could not be received by the deceased from a place with high altitude as in this case from the roof top of the house. Learned counsel for the complainant and the State, however, contended that the injury could not be caused had the assailant and the deceased been at the same level but was possible only by fire from a place of higher level. Locale of injury and nature of the weapon a high muzzle velocity weapon used, as stated in ocular account, is in conformity with medical evidence. The learned defence counsel also contended that the deceased had received the injury on the back side of the head and not on the forehead and that it was in line with the defence version. Report of the post-mortem examination dispels this argument. The statement and the report with sketches at Exh.P.G., Exh.P.G./1 and Exh.P.G./2 are clearly pointing to the fact that the bullet hit the head slightly on its left side and had damaged the skull and brain matter as explained in the reports. The injury could not possibly be given to the deceased from the back as stated by the defence witnesses. The medical evidence thus is in conformity with the ocular account and cannot in any way be termed as having conflict with it.
14. There is no substance in the contention of the learned defence counsel that the defence version has probability or possibility of its correctness which in turn leaves room for doubt. The injury could not be caused to the deceased from back side accidentally during chase. Ignorning medical evidence, the statements of D.Ws.1 and 2 are not confidence inspiring. They are chance witnesses.
They had not appeared before the police to speak for their innocence during investigation. D.W.1 says that his statement was not recorded by the police, but he had not complained against the Investigating Officer before his superiors. Yousaf Amjad acquitted accused, father of the co- accused, is employed in the dailies 'Pakistan Times' and 'Imroze'. On the issue of non-association of the D.Ws. With investigation and high handedness of the police, the accused had also not filed private complaint about their counter-version, if at all, that was spurned by the police. In fact, D.Ws.1 and 2 were not present at the place and so is clear from the admission of D.W.2 in the cross- examination that he did not know as to on which part of the body Sardar had received the bullet injury. We would like to agree with the views of the learned trial Court and the learned counsel for the complainant that the defence version is absolutely devoid of possibility or probability of its correctness. The contention of the learned counsel which, however, has found favour with us is with respect to guilt of Iftikhar accused. Since the Courts in Pakistan do not follow the principle "Falsus in uno falsus in omnibus", we had to separate the grain from the chaff. We are not inclined to accept the statements of the eyewitnesses vis-a-vis Iftikhar accused. He is alleged to have fired from his .12 bore gun upon Zafar Iqbal P.W.1, Sherbaz P.W.2 and another witness Nazir (given up) but none of them was injured. As per statement of P.W.1 Zafar Iqbal the fire was made from a distance of 5/5 Karams. Further, the witness has admitted that the accused continued firing for about ten minutes and that during the fire they continued standing at the place. It is next to impossible that none was injured in spite of the firing for so long a time and from a .12 bore gun which spreads pellets. The witnesses have admitted that even tractor-trolley were not hit. The Investigation Officer had not recovered pellets from around the place of occurrence, nor were they sent to expert for analysis. So obviously happened possibly because Iftikhar accused was not present there at the relevant time.
Recovery of gun from his likewise recovery of rifle from Aftab accused is inconsequential as both the weapons had not been sent to Forensic Science Laboratory alongwith the pellets and bullets so as to ascertain if they were wedded to the weapons used. Thus, ocular account, besides being unnatural to the extent of assigning role to Iftikhar accused, does not receive corroboration from any quarter. The recovery of gun is not incriminating and the medical evidence is non-existent, there being no injury to anybody at the hands of this accused, we, therefore, reverse the finding of the learned trial Court and giving him benefit of doubt set aside the conviction and sentence passed on Iftikhar accused. The prosecution has, however, proved beyond any shadow of doubt on the basis of ocular account, corroborated by medical evidence, that it was Aftab accused who alone had caused solitary fatal injury to the deceased by his rifle. He had taken the life of a young man and does not deserve lesser punishment. The conviction and sentence to this extent are maintained. The sentence of death of Aftab appellant is confirmed.
15. Consequently, the revision petition about enhancement of sentence of Iftikhar stands dismissed; the appeal of Aftab stands dismissed and that of Iftikhar is accepted. He is on bail and his bail bonds are discharged. The murder reference is answered in the terms mentioned above. The rifle shall stand forfeited to the State whereas .12 bore gun may be returned to Iftikhar accused if he holds licence therefor and the weapon is not required in any other case.