' SH. RIAZ AHMAD, J.--- The appellants Bashir Ahmad and his brother Muhammad Khalid were tried by Sessions Judge, Mianwali on charge under section 302 read with section 34, P.P.C. For having committed the murder of Abdul Aziz. Vide judgment, dated 3rd of June, 1990, the learned Sessions Judge found both the appellants guilty on the said charge and thus, the appellants were convicted. Bashir Ahmad, appellant was sentenced to death and to pay a fine of Rs,25,000 or in default thereof to suffer rigorous imprisonment for a term of 5 years. Appellant Khalid was sentenced to undergo life imprisonment and to pay a fine of Rs,25,000. The learned Sessions Judge also directed that in the event of the recovery of fine, half of it, shall be paid as compensation to the heirs of the deceased.
2. Aggrieved by their convictions, the appellants have preferred this appeal and the Reference has also been made under section 374, Cr.P.C. Through this judgment, we shall dispose of the Appeal, Criminal Revision No316 of 1990 and the Reference.
3. The unfortunate occurrence resulting into the death of Abdul Aziz took place on 4th of January, 1987 at about 9 a.m. Near Bhaianwali Mosque in village Musa Khel situated at a distance of 2 furlongs from Police Station Musa Khel in District Mianwali.
' The occurrence was reported at the police station under the F.I.R. Exh.P.C. Lodged by Din Muhammad, P.W.6, uncle of the deceased and it was recorded by Sikandar Ijaz, Inspectoi Police, P.W.10 at 9-30 a.m. On 4th of January, 1987. The prosecution case in brief as disclosed by the complainant in the F.I.R. Was that he was a. Resident of village Musa Khel and on the fateful day at about 9 a.m. After easing himself had gone to Bhaianwali Mosque for a wash. At that time, Abdul Aziz, a nephew of the complainant was taking his mother Mst. Gullan towards Musa Khel Hospital for treatment. As soon as Abdul Aziz reached near the mosque, suddenly Bashir Ahmad and Muhammad Khalid, appellants armed with rifles emerged from their house and Khalid Khan fired a rifle shot hitting right hand of Abdul Aziz who to save himself rushed into the mosque. While he was running, Bashir Ahmad appellant fired another shot hitting beneath the left arm on the back side.
Abdul Aziz after receiving the injuries fell in the verandah inside the mosque. Mushtaq Ahmad who was present and had seen the occurrence rushed towards Abdul Aziz who succumbed to his injuries at the spot. In the meanwhile, the appellants escaped from the scene of occurrence.
4. The motive for the commission of the offence as disclosed in the F.I.R. Was that four months before this occurrence, Asmat Ullah, a cousin of the appellants was attacked by his relatives with lethal weapons and in respect of the said crime, a case had been registered at the Police Station Musa Khel and the deceased Abdul Aziz in this case was pursuing the case on behalf of assailants.
On account of the said grouse, the appellants killed the deceased.
5. On 4th of January, 1987 at 3 p.m. P.W.9 Dr. Mumtaz Khan, Medical Officer, D.H.Q. Hospital, Mianwali conducted the autopsy on the dead body of Abdul Aziz and following injuries were noticed:-
(1) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. On the back of right index finger, at the level of metacarpo phalyngeal joint.
(2) An exit wound 1 x 2 c.m. On the back of right hand, 3 c.m. From injury No,1.
(3) A fire-arm wound of entry 1 c.m. x 1 c.m. On the back of left chest, 4 c.m. Below the lateral border of left scapula 13 c.m. From the midline.
(4) An exit wound 9 c.m. x 2 c.m. Transversely over the front of chest at the stemo-clavicular joint level extending to left.
' On opening the thorax, left 5th rib on the back was found fractured. Left pleura was injured and the cavity was full of blood and blood clots. Left lung was punctured through and through in the lower zone. Thoracic aorta was ruptured. In the opinion of the doctor, the death had occurred due to shock and haemorrhage caused by injuries Nos.3 and 4 which were sufficient in the ordinary course of nature to cause death. All the injuries were caused with firearm.
6. On 28th of January, 1987, the appellants were arrested and on 6th of February, 1987, appellant Bashir Ahmad while in custody led the police and got recovered rifle P.5 and its licence P.6 from his house but no memo. Was prepared for taking the arm into possession. No recovery was effected from Khalid appellant. During the investigation, Khalid appellant was found innocent and his name was placed in column No,2.
7. To support its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by P.W.6 Din Muhammad uncle of the deceased, P.W.7 Mst. Gullan mother of the deceased and P.W.8 Mushtaq Ahmad, first cousin of the deceased and also son-in-law of P.W.6. In addition to the ocular testimony, reliance was also placed upon the motive part of the prosecution case and also the medical evidence.
8. When examined under section 342, Cr.P.C., the appellants denied the charge and stated that they have been falsely involved in this case on account of previous enmity. Appellant Bashir Ahmad also denied the recovery of rifle but stated that he had himself produced the same before the police. Appellant Khalid Khan also deposed that he had been leading defence evidence before the. Investigating Officer and that is why, his name was placed in column No,2. Appellant Bashir Ahmad led defence evidence and produced Haji Bashir Ahmad, Meter Inspector as D.W.1, who stated that in his Sub-Division, the Account No,1552 pertained to Nazeer Ahmad son of Muhammad Amir Mohallah Bhaianwala as consumer and the consumer was not being billed since February, 1985, and the premises were reportedly vacant and locked. However, in cross-examination, the witness admitted that the electricity was consumed from March, 1986 to June, 1986 for which the consumption had been billed.
9. With the assistance of the learned counsel for the appellants and the State, we have carefully perused the entire evidence on the record and we have also heard them at length. The prosecution case mainly rests upon the ocular testimony in this case furnished by three witnesses namely Din Muhammad, first informant, Mst. Gullan, mother of the deceased and Mushtaq Ahmad, another relative.
10. The learned counsel for the appellants vehemently contended that the ocular testimony in this case fell short of the standard of proof required in criminal cases to sustain the conviction. It was argued that Mushtaq Ahmad being son-in-law of the first informant had not seen the occurrence but his attendance was procured and he was a made-up eye-witness and his testimony is tailored.
11. We have carefully scrutinised the testimony -of Mushtaq Ahmad but we are not able to agree with the learned counsel for the appellants. The occurrence took place at about 9 a.m. In the morning and the witness stated that on the said day, he was proceeding to purchase vegetables and when he reached ahead of Bahaianwali Mosque in the lane, he was followed by the deceased and his mother and at that time, both the appellants emerged from their house carrying rifles. The house of the witness is also situated in Mohallah Bhaianwala at a distance of 1-1/2 furlongs from the spot. However, in cross-examination, the witness admitted that one Muhammad Nawaz was his paternal-uncle and he got a theft case registered against appellant Bashir Ahmad and his father namely Umar Hayat appeared as a prosecution witness but as a result of compromise, Bashir Ahmad was acquitted. The witness further admitted that his father and uncle on the one side and the accused party on the other side were bound down under security proceedings. It was further admitted by him under cross-examination that one Muhammad Ishaq got a 307, P.P.C. Case registered against the appellant Bashir Ahmad and the father of the witness had appeared as a prosecution witness and the aforesaid Muhammad Ishaq was also his paternal-uncle. It was also admitted by the witness that appellant Bashir Ahmad also got a similar case registered against his father, his uncle Muhammad Ishaq and Muhammad Nawaz. On account of this background, the evidence of this witness is required to be acted upon cautiously and by way of abundant precaution, its corroboration is also to be sought.
12. After anxious consideration, we are of the view that the star witness in this case is Mst. Gullan mother of deceased Abdul Aziz who appeared as P.W.7. Mst. Gullan deposed that on the fateful day at about 9 a.m. His son/ deceased was taking her to Musa Khel Hospital when the occurrence took place. A careful perusal of her statement reveals that it had proved all the material particulars of the prosecution case. She was cross-examined at length but her credit could not be shaken. She stood the test of cross-examination and clarified all the questions put to her in cross-examination.
She stated that continguous to her house and that of Aslam, another resident of Mohallah, the house of the appellants is situate and its main entrance is in the western lane. She further stated that the house of the appellants also had another door which opened towards the southern side of the lane leading to the Bhaianwali Mosque. She next stated that she and her deceased son had passed by the three sides of the house of the appellants on way to Bhaianwali Mosque street. She also stated that the appellants had another house near Bhaianwali Mosque which had only entrance in the western lane. She further clarified that before constructing the house in her neighbourhood, the appellants were living in the old house near mosque. She also stated that the accused/appellants were keeping both the houses. A suggestion was given to her that only one shot was fired and that too in self-defence from the new house of the appellants by one Asmat Ullah which hit the deceased on his back but this suggestion was denied.
13. As far as the testimony of first informant Din Muhammad, P.W.6, is concerned; he lodged the F.I.R.
With promptitude, the occurrence had taken place at 9 a.m. While F.I.R. Was recorded within half an hour at the police station at a distance of two furlongs from the place of occurrence. We are not prepared to believe that the first informant would falsely implicate the appellants in this case. The witness also deposed about the motive for the commission of offence. The witness was cross- examined at length to prove the innocence to Khalid Khan appellant but the witness stated that deceased's father was willing to take oath and had made an offer in this behalf to the effect that the appellants were guilty. The witness, however, admitted in cross-examination that in 1952, Muhammad Amir Khan, father of the appellants had got a theft case registered against him and one Azmat at Police Station Musa Khel. It was also admitted by the witness that Sheikh Abdullah, a maternal-uncle of the appellants divorced his wife Sahib Khatun who then married with one Muhammad Akbar and gave birth to Muhammad Aslam who is son-in-law of the witness. The witness further admitted that Muhammad Nawaz, a paternal-uncle of Mushtaq Ahmad P.W. Had got a theft case registered against the appellant Bashir Ahmad, on 27th of September, 1971 but the witness stated that a compromise then took place between the parties. The witness however, expressed his ignorance as to whether father of Mushtaq, Umar Hayat, and his brother Muhammad Nawaz on the one side and the accused/ appellants party on the other side were proceeded under the security proceedings in the aforesaid case. The witness next stated that he was unaware if a case under section 307, P.P.C. Was got registered by Muhammad Ishaq, an uncle of Mushtaq Ahmad, PM. Against appellant Bashir Ahmad and others. The witness also stated that he had no knowledge as to whether Umer Hayat father of Mushtaq had appeared as a prosecution witness against the appellant. The witness further stated that Muhammad Amir father of appellants Bashir Ahmad and Khalid Khan was murdered and Sher Muhammad was one of the accused in that case and the wife of Sher Muhammad, Sahib Khatun is the real paternal-aunt of Zohra widow of Abdul Aziz deceased in this case but the witness also admitted that the culprits responsible for the murder of the father of the appellants were convicted and had served out their sentences and were living in Musa Khel and no untoward incident had taken place.
14. As far as motive part of the prosecution case is concerned, it was admitted by the first informant Din Muhammad that before Asmat Ullah was injured, appellant Bashir Ahmad had given beating to Ghulam Akbar, nephew of Mst. Gullan. The witness also stated that Rafique brother of the deceased lived at Mor Dhalawala in District Jhang and one Ghulam Muhammad, the son of the sister of the appellants was working in a bank at Mor Dhalawala and a day prior to the incident in which Asmat Ullah received injuries, aforesaid Ghulam Akbar and Rafique brother of the deceased gave beating to Ghulam Muhammad at Mor Dhalawala.
15. After careful analysis of the statements of both; the first informant and Mushtaq, we are of the view that the parties had strained relations and, therefore, as already observed by us, the statements of both the witnesses need some corroboration and in our view ample corroboration of the statements of the witnesses is available on the record in the form of the statement of Mst.
Gutlan, the mother of the deceased. We are not prepared to believe that she would falsely implicate the appellants in this case and would substitute the real culprits with that of the appellants. Even otherwise, in all such like cases, it is also well-settled that it is not necessary to look for corroboration, if a Court is convinced that the eye-witnesses were present at the scene of occurrence and the number of injuries was commensurate with the number of the assailants. This test is laid down by the Supreme Court in a case reported as Niaz v. The State PLD 1960 SC 387.
Applying the test laid down in the foresaid case, we are of the view that the witnesses had seen the occurrence and their presence cannot be doubted being residents of the same Muhallah. F.I.R. Was lodged promptly, and the statements of both the eye-witnesses stand corroborated by the statement of Mst. Gullan.
16. In this view of the matter, we hold that the prosecution has brought guilt home to the appellants, therefore, this appeal must fail. The death sentence awarded to Bashir Ahmad appellant is confirmed and the sentence of life imprisonment awarded to Muhammad Khalid is also maintained. Sentences of fine are also maintained.
17. Adverting to the Revision Petition No,316 of 1990 filed by Din Muhammad complainant for the enhancement of sentence from life imprisonment to death, we do not find any merits in this revision, which is also dismissed accordingly. Reference is answered in the terms noted above.