' SH. RIAZ AHMAD, J.---Appellants Tairi Khan alongwith his two sons namely Mashal Khan and Aman Ullah, Muhammad Ali, Shah Alam Khan, Gulzar alias Gulzari and Shahbaz Khan were tried by the learned Sessions Judge at Mianwali on charges under section 148/149/302, P.P.C. for having caused the murders of Asmat Ullah, Habib Ullah and Abdul Razzaque. Vide the judgment, dated 31st of January, 1991, the learned trial Judge acquitted Gulzar and Shahbaz Khan of the aforesaid charges, and found the appellants guilty on the charges under section 148, P.Pr., and sentenced them to undergo R.I. for three years each, and to pay fine of Rs,two thousand each, or in default thereof, to suffer further R.I. for six months each. Under section 302/149, P.P.C. all the appellants were sentenced to death on three counts, and to pay fine of Rs, twenty-five thousand each, or in default thereof, to suffer further R.I. for four years each. Out of fine under section 302/149, if realized half of it was ordered to be equally distributed among the heirs of the deceased as compensation under section 544-A, Cr.P.C. Aggrieved by their conviction and sentences the appellants have preferred this appeal, while the case has also been referred to us under section 374, Cr.P.C. A revision has also been filed to call in question the acquittal of both Gulzar Khan and Shahbaz respondents. This judgment shall dispose of the appeal, revision and the Reference.
2. The unfortunate occurrence resulting into the death of three deceased took place on 9th of August, 1987 at 5-30 p.m. in an open place near the house of one Nasar Ullah in village Wanda Mir Alam Wala Dakhli Mala Khel situated at a distance of 16 miles from Police Station Kamar Masani.
Complainant Nasar Ullah P.W.13 proceeded to lodge the F.I.R. and his statement Exh.PL was recorded by Salabat Khan A.S.I. P.W. 16 at 9-00 p.m. at Police Post Makar Wal. Statement Exh.PL was sent to the Police Station, where the formal F.I.R. Exh.PL/1 was drawn by Aman Ullah, Muharrir A.S.I.
P.W. 7 at 9-45 p.m. Prosecution case in brief, as disclosed by the complainant in his statement Exh.PL was that on the fateful day at about 5-30 p.m. the complainant, Habib Ullah Khan, Asmat Ullah Khan, Aziz Ullah Khan, Razzaquc and Ghulam Yasin were present in their land, and were constructing the embankment, when appellant Tairi Khan empty handed, his sons Mashal Khan and Aman Ullah and one Shahbaz armed with .12 bore guns, Shah Alam Khan armed with rifle, Muhammad All Khan armed with a gun and Gulzar Khan armed with a rifle reached the scene of occurrence. Appellant Tairi Khan allegedly exhorted his companions to kill the complainant side.
Mashal Khan fired a gunshot hitting the brother of the complainant Asmat Ullah Khan injuring the left side of his chest, who fell down. Aman Ullah Khan, Shahbaz Khan, Shah Alam Khan one after the other fired shots hitting Abdul Razzaquc, who also fell down. Thereafter, Gulzar and Muhammad Ali also fired shots in succession hitting Habib Ullah father of the complainant who also fell down.
Complainant, Aziz Ullah Khan and Ghulam Yasin rushed to their Dera to save their lives, while all the appellants left the scene of occurrence firing and raising Lalkaras. After the escape of the assailants, the complainant went near the injured persons and noticed that Asmat Ullah brother of the complainant had succumbed to his injuries, while Habib Ullah and Abdul Razzaquc were still alive. Motive for the commission of this offence, as narrated by the complainant was that the land where the embankment was being constructed fell into their share as a result of the operation of the consolidation of holdings, and the possession thereof had also been taken by the complainant side. Aggrieved by this apportionment of land during the consolidation, the appellant Tairi Khan challenged the said decision, but the Commissioner Sargodha Division decided the issue in favour of the complainant side. Dissatisfied with the aforesaid decision and bearing a grudge thereof, the appellants formed themselves into an unlawful assembly, and in furtherance of their common object killed Asmat Ullah and injured Habib Ullah and Abdul Razzaque. Another cause of the occurrence was that Ghulam Yasin, an associate of the complainant side had injured one Ghulam Habib, an unlce of Tairi Khan appellant for which, the appellants' side had grouse. Both Abdul Razzaque and Habib Ullah were removed to the Civil Hospital Kala Bagh for their treatment, while the dead body of Asmat Ullah Khan was brought on a cot to the Police Post.
3. On 9th of August, 1987 P.W.6, Dr. Sher All Khan, Medical Officer, ' Civil Hospital Kala Bagh medically examined Abdul Razzaque, and noticed the following injuries on his person:---
(1) An oval-shaped entrance fire-arm wound 1 x 1 c.m. on the left side of the lower chest.
(2) An oval-shaped fire arm wound measuring 1/2 x 1/2 c.m. on the front of left upper chest.
(3) A contused wound 2 x 1/2 c.m. x muscle deep on the left side of chin.
(4) A fire-arm wound 1/2 x 1/2 c.m. on the inner side of right fore-arm.
' Injured Abdul Razzaque was referred to D.H.Q. Hospital Mianwali immediately after the medical examination.
4. On 9th of August, 1987 the said doctor also medically examined Habib Ullah Khan and found the following injuries on his person:
(1) An oval fire-arm wound 1/2 x 1/2 c.m. on the right side of the abdomen. It was 7 c.m. to the right side of umblicus. It was an entrance wound.
(2) A fire-arm wound measuring 3 x 3 c.m. on the back of abdomen (right side). It was 7 c.m. away from vertebral broove.
' All the injuries were kept under observation, and were opined to have been caused by fire-arm. In view of the precarious condition, the injured was immediately referred to D.H.Q. Hospital, Mianwali.
4-A. On 10th of August, 1987 the said doctor conducted the post-mortem examination on the dead body of the deceased Asmat Ullah Khan, and the following injuries were noticed on his body:
(1) A circular fire-arm wound measuring 1 x 1 c.m. Its edges were black on left side of chest. On its chest's lateral side 4 c.m. away to left nipple.
' The pleural cavity and pleura were perforated on left lateral side. Pleural cavity was full of blood.
There was entrance in the lung. It traversed the fissure and entered the lower lobe and was discovered near the cardiac surface of lower lobe. In the opinion of the doctor, death had occurred due to shock and haemorrhage caused because of the sole injury.
5. On 11th of August, 1987, P.W.9 Dr. Rana Muhammad Abdullah conducted the post-mortem examination on the dead body of deceased Habib Ullah Khan, and noticed the following injuries:
(1) A lacerated oval wound 1/2 x 1/3 c.m. on the right side of abdomen 7 c.m. right to the urnblicus with inverted margins and blackening around. It was a wound of entry.
(2) A lacerated wound of exit 1/3 c.m. x 1/3 c.m. on the back of right side of abdomen 7 c.m. from the vertebral groove without any blackening.
' Under Injury No.1 skin, subcutaneous tissues, muscles peritoneum and ileum were perforated through and through on two sides 1 c.m. apart from each other. In the opinion of the doctor, death and occurred due to shock and haemorrhage brought by Injury No.1 which was sufficient to cause death in the ordinary course of nature.
6. Injured Abdul Razzaque a military personnel was shifted to the C.M.H. Hospital Sargodha where he died, and his detailed post-mortem examination was conducted by the Military Doctor, vide the post-mortem report Exh.PCC.
7. On 11-8-1987 Abdul Razzaque injured while alive in D.H.Q. Hospital Sargodha made a statement Exh. PN which was recorded by Salabat Khan A.S.I. P.W.16 after P.W. 10 Dr. Ghulam Hussain Faizi declared him fit to make a statement.
8. On 22-8-1987 P.W.15 Allah Bakhsh arrested appellant Tairi Khan, while Shahbaz, Shah Alam and Gulzar were arrested on 24-8-1987 and Mashal Khan, Muhammad All and Aman Ullah were arrested on 1-9-1987. At the time of his arrest, Shah Alam surrendered his rifle Exh.P7 vide Memo.
Exh.PD. Shahbaz Khan produced his .12 bore gun P8, which was taken into possession vide Memo.
Exh.PE. Both Shah Alam and Shahbaz had no licence to keep the arms in their possession. On the same day appellant Gulzar produced a 7mm rifle which was taken into possession vide Memo Exh.PF. All these recoveries were attested by Allah Bakhsh, Sub-Inspector, Shah Nawaz Khan, A.S.I. and Ghulam Mustafa Head, Constable.
9. On 9th of September, 1987 appellant Mashal Khan while in custody led the police to his residential Kotha and got a single-barrle .12 bore gun P11 recovered which was taken into possession vide Memo. Exh.PG. Since no empty was recovered from the scene of occurrence as inspected by the Investigating Officer, therefore, recovery of the arms is of no avail to the prosecution.
10. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by complainant Nasar Ullah Khan P.W.13 and Aziz Ullah P.W.14. Another eye-witness namely Ghulam Yasin though cited in the F.I.R. was given up.
11. When examined under section 342, Cr.P.C., the appellant Tairi Khan stated that as far as litigation over the land was concerned, it was decided between the parties that Ata Muhammad retired Girdawar who had been a Patwari in our area be called alongwith one Ghulam Rasool Halqa Patwari, and the demarcation of land be got carried out by them. Both of them came to the spot, and remained engaged in demarcation of land till about 4 p.m. Thereafter, appellant went to his Dera for taking his meals. Mashal Khan son of the appellant who was working as Munshi at D section Makkarwal Colliery was present at his duty. Aman Ullah Muhammad Ali and Shah Alam were also not with him at the spot. Mashal Khan had returned to the house after Isha prayer, because he had to receive his wages. Appellant Tairi Khan further deposed that he alongwith his sons and nephews had been falsely involved in this case because of political rivalry. The other appellants also made statements in line to the statement of appellant Tairi Khan, and thus, the charge was denied by them.
12. It may be stated here that the prosecution also produced P.W.1 Ghulam Rasool, Patwari in this case. His deposition in fact was designed to substantiate the case of the appellants. According to the witness, he had gone to the scene of occurrence at the request of the parties for carrying out the demarcation of the land. Ata Muhammad Girdawar was also with him. At that time both the complainant and the accused party was present there. P.W.1 who had also prepared the site plan deposed that he had taken Ata Muhammad Girdawar alongwith him because he knew all about consolidation proceedings. Since a compromise had taken place between the parties, therefore, at the request of both the parties, he had demarcated the land. Witness further stated that when he arrived at the spot, Tairi Khan, Aman Ullah, Mashal Khan, Shah Alam, Muhammad Ali and Golzari were not armed with any weapon. According to P.W.1 demarcation proceedings lasted for about 1- 1/2 hours, and suddenly there was an altercation between Shahbaz Khan accused and Habib Ullah deceased, and the dispute arose over the fixation of Burji. During his examination-in-chief, a request was made by the prosecution to declare P.W.1 as hostile inasmuch as in his statement under section 161, Cr.P.C. he deposed that he had inspected the site on 13-8-1987 for preparing the site plan, but in Court he stated to have reached the scene of occurrence on 9th of August, 1987 for carrying out the demarcation. The prosecution also objected that his statement was recorded on 18-9-1987, therefore, his statement was nothing, but an afterthought, and was designed to help the appellants.
13. Learned trial Judge after hearing both sides and after having gone through his earlier statement opined that P.W.1 Ghulam Rasool had become hostile, and thus, he was declared as such, and was cross-examined by both sides.
14. When examined by the learned PP, P.W.1 stated that he prepared the site plan after inspecting the spot on 13-8-1987, and delivered it to the police on 18-8-1987. Again he corrected himself, by stating that he delivered it on 16-8-1987. He further stated that he made the statement before the Investigating Officer on 18-8-1987 that he visited the spot for preparing the site plan. P.W.1 Ghulam Rasool also went to the extent of stating that he had recorded a report about the demarcation proceedings in Roznamcha Waqiati, and had made an entry therein on 9-8-1987. He admitted that he was not legally competent to demarcate the land. Again in cross-examination he stated that he had gone to the spot under the orders of Additional Commissioner in the company of the Consolidation Officer, Mianwali on 22-7-1987 and admitted that on 9-8-1987 he was not present at the spot, and had not made any demarcation on that land. Appraisal of his statement clearly reveals that P.W.1 Ghulam Rasool was telling a lie, and was hands in glove with the appellants' side and was trying to prove their case. Furthermore, it is pertinent to mention that his statement also runs counter to the statement made by appellant Tairi Khan under section 342, Cr.P.C. According to appellant Tairi Khan, his sons and hephews were not present at the scene of occurrence, but according to P.W.1 they were present there. In this view of the matter, we are not inclined to attach any importance to the statement of P.W.1 Ghulam Rasool, therefore, his statement is discarded. It may be stated here that the Roznamcha Waqiati was examined, and a careful inspection of the Register proved that interpolation had taken place, and the page containing the entry had been inserted. Thus, as already observed this evidence has no bearing on the prosecution case and therefore, the same cannot be considered.
15. Recoveries in this case are of no avail to the prosecution and therefore we have to appraise and assess the ocular testimony in'this case which has been furnished by complainant Nasar Ullah son of Habib Ullah deceased while Aziz Ullah is also a cousin of Habib Ullah the deceased father of the complainant and the other two deceased were also closely related to him.
16. Learned counsel for the appellants vehemently argued that since both the eye-witnesses are closely related therefore, their testimony should be discarded as being interested witnesses. As far as this contention is concerned, it is fallacious, inasmuch as, a related witness and interested witness cannot be considered at par with each other. An interested person is who has a motive to falsely implicate a person and he can also be a relative while a relative may not be an interested witness at all. After careful analysis of the prosecution evidence, we are of the view that although both the witnesses are related to the deceased, but mere relationship has never been considered a ground to discredit the testimony of a witness. We must observe here also without any reservation that both the eye-witnesses are not at all interested witnesses in this case. No iota of evidence worth 'consideration was brought on the record to brand the witnesses as enemies of the appellants. Far-fetched incidents of enmity were tried to be elicited, but in our view it has no bearing upon the determination, of innocence of the appellants in this case. Nasar Ullah complainant would not try to substitute the actual culprits responsible for the murder of his own father who had been murdered before his own. eyes. Similarly, his cousins Abdul Razzaque and Asmat Ullah were also done away with in his presence, therefore, we are not prepared to believe that he would allow the real offenders to go scot free by substituting the appellants. Presence of these witnesses even otherwise cannot be doubted because it is their own land situated near their Dera, and thus, their presence is natural at the scene of occurrence. We have further noticed that they were cross-examined at length running into many pages, but desipte that defence failed to shake their credit or to elicit anything in favour of the appellants or to substantiate the defence plea.
17. Learned counsel for the appellants argued that it was a free fight between both sides, and both sides had tested their strength, therefore, it was a case of individual liability. The contention is totally devoid of any force and does not appeal to reason in the context and the circumstances of this case. If there had been any exchange of firing and throwing of pellets, as it was deposed by one of the appellants, at least some person from the appellants' side must have received the injury, but we find that none from the appellants had sustained any injury. Furthermore, no arms used by the deceased side were taken into possession from the scene of occurrence by the police. In fact, we are of the view that the motive in this case is true and it was a sudden attack by an unlawful assembly in the prosecution of the common object of which three persons were done to death, thus, we arc constrained to hold that it was a cold blooded-murder. Hence we repel the contention that it was a free fight.
18. After anxious consideration, we are of the view that the prosecution has brought guilt home to the appellants, but the safe dispensation of justice has compelled us to see the role of appellant Tairi Khan in this case. He is a very old person of 70 years of age and at the time of the occurrence, he was not carrying any weapon. Although a Lalkara has been attributed to him in the F.I.R., but the details thereof have not been given or mentioned in the Court by the eye-witnesses. Thus, we are of the view that his involvement is not free from doubt. Hence by extending benefit of doubt to him, we acquit him of the charges, and the appeal to his extent is allowed. Accordingly, he shall be released forthwith if not required to he detained in any other case.
19. Adverting to the case of other appellants namely Aman Ullah, Mashal Khan, Muhammad Ali and Shah Alam we have no manner to doubt about their involvement and participation in this case.
Specific roles , have been attributed to them, and all the four appellants in furtherance of their common intention had killed the three deceased. Since, we hold that the four appellants participated in the occurrence, their conviction under section 148, P.P.C. cannot be maintained, because it was not an unlawful assembly, thus, their conviction and sentences on this charge are set aside, and they are now held guilty under section 302/34, P.P.C. There are no mitigating circumstances in this case as it was a cold-blooded murder therefore, we uphold their conviction and sentences. Death sentences awarded to the appellants named above are hereby confirmed on three counts. Sentences of fine are also maintained. We further direct that in the event of the recovery of fine, the same shall be equally distributed among the heirs of the deceased.
Resultantly, this appeal fails and is dismissed accordingly. Reference is disposed of in the terms noted above.
19. The revision petition calling in question the acquittal of Gulzar Khan and Shahbaz Khan has no merits because the reasons advanced by the learned trial Judge are in accord with the principles governing the administration of criminal justice. They had no motive of their own. They were not the land owners, and therefore, we are of the view that their acquittal was justified. Hence, this revision stands dismissed.