' SH. RIAZ AHMAD, J.--- Appellant Umar Draz alongwith four others namely Muhammad Hanif, Sikandar Hayat, Muhammad Afzal and Muhammad Akram was tried by the learned Additional Sessions Judge at Khushab on the charge under section 302/307/148/149, P.P.C. For having caused the murder of Rchmat Ullah deceased, and for having launched murderous assault upon Umar Draz P.W. Vide judgment dated 17th of February, 1990, the learned trial Judge held the appellant guilty under section 302/307, P.P.C., while acquitted the four co-accused of the charges. The appellant was thus convicted and was sentenced to death, and to pay fine of Rs, Fifty thousand (50,000), or in default thereof, to further undergo R.I. For two years under section 302, P.P.C. On the charge under section 307, P.P.C. The appellant was sentenced to undergo five years' R.I., and pay fine of Rs, Five thousand, or in default thereof, to further undergo R.I. For six months. The amount of fine was ordered to be paid in toto to the legal heirs of the deceased in the event of its recovery.
2. Agrieved by the conviction and sentences, the appellant has preferred this appeal, and the case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the appeal and the Reference.
3. The unfortunate occurrence resulting into the death of deceased Rehmat Ullah took place on 4th of March, 1989 at about 10-1/2 a.m. In village Hadali situated at a distance of 8 miles from police station Jauhar Abad. Occurrence was reported at the Police Station, vide F.I.R. Exh.P.K. By Saif Ullah and was recorded by Muhammad Ibrahim Khan Inspector S.H.O. The prosecution case in brief as narrated in the F.I.R. Was that the complainant was a matriculate, and lived in village Hadali.
Rehmat Ullah and Feroz Khan sons of Ghulam Jaffar were the close relatives of the complainant, and they owned land in village Hadali, and for the last two months, Rehmat Ullah, Feroz and Abdul Khaliq had come to village to look after their crops. On the fateful day, the complainant and the deceased Rehmat Ullah while riding on a mare proceeded to have a round of the crops of Rehmat Ullah in village Choor Wali. Rehmat Ullah deceased armed with gun was sitting ahead of complainant on the mare, while Feroz Khan had already reached there. Ahead of them, Abdul Khaliq was going on she-ass. When they reached near the land of Muhammad Afzal where the wheat crop had grown, suddenly, from the eastern side of the Rajbah, where the appellant and others while variously armed with deadly weapons had ambushed themselves came out therefrom. Muhammad Hanif and his son appellant Umar Draz raised a Lalkara that the deceased Rehmat Ullah was pursuing the case of murder of Malak Dad, and was a witness in that case as well, therefore, they will not spare him today. Both Umar Draz appellant and Sikandar aimed their rifles towards the deceased. Umar Draz son of Abdul Khaliq came forward, and beseeched them to spare the deceased, but in the meanwhile, Sikandar fired a shot hitting the right shoulder of Umar Draz, who fell down. Thereafter, appellant Umar Draz fired a shot which hit the deceased, as a result thereof, both the complainant and the deceased fell down from the mare. Deceased Rehmat Ullah while injured ran backward, but at a distance of few paces fell down in the wheat crop of Muhammad Afzal. In the meanwhile, Muhammad Hanif, Muhammad Afzal and Muhammad Akram simultaneously o?Ened fire, but they were missed. Thus, appellant Umar Draz son of Muhammad Hanif rushed to the deceased' who was falling down, and fired successive shots, and finished the deceased. Complainant kept on beseeching them with folding hands, but the appellant and the co-accused did not pay any heed, and continued raising Lalkaras, and went towards the Dera of Muhammad Afzal. Meanwhile, Muhammad Feroz also returned from his land, and reached the scene of occurrence and witnessed the crime. After the departure of the assailants from the scene of occurrence, Muhammad Bashir, Mazhar Iqbal and other villagers also arrived there, and took Umar Draz son of Abdul Khaliq to Jauhar Abad for his medical treatment.
4. Motive for the commission of offence as mentioned in the F.I.R. Was that 1-1/2 years ago, appellant Umar Draz had committed the murder of Malik Dad, and the deceased happened to be the witness in that case, and was also pursuing the case. Appellant Umar Draz was declared as absconder. To prevent the deceased from appearing against the appellant in the Court, the appellant alongwith others had committed the murder of the deceased, and also injured Umar Draz, maternal-uncle of the complainant.
5. On 5th of March, 1989 P.W.1 Dr. Rab Nawaz, Medical Officer D.H.Q. Hospital, Khushab at Jauhar Abad conducted the post-mortem examination on the dead body of the deceased, and noticed the following injuries on it:-- (1-A) A lacerated wound of entry of the fire-arm projectile on the middle of forehead 6 c.m. x 5 c.m.
The portion of the frontal bone under injury was fractured, the brain matter was visible through injury No,1.
(1-B) A lacerated wound of exit of injury No,1-A on occipital region of the skull about 1-1/2 x 1-1/2 c.m.
(2) A lacerated wound 3 c.m. x 1-1/2 on the left corner of mouth the lips the first moler and canin of the left side and the both inciser of the upper jaw fractured.
(3-A) A circular wound of entry 1 c.m. x 1 c.m. On the left zygomatic arch cavity deep.
(3-B) A lacerated wound of exit stelit shape 3 c.m. x 2 c.m. On the back of right ear.
(4-A) A lacerated wound of entry circular in shape on palmer surface of right hand on the 4th and 3rd metacarpal.
(4-B) Lacerated wound of exit of injury No,4-A 6 c.m. x 5 c.m. On the back of right hand, 5th 3rd and 5th metacarpal fractured.
(5) A graze 1 c.m. x 1/2 c.m. On the left hand middle fingers on the distle fillings.
(6) A graze 1 c.m. x 1/2 c.m. On the left hand middle finger on the distle phalanx.
(7) A graze 3 c.m. x 2 c.m. On the left hand of the scortom the testis comes out through the injuries.
(8) A graze 1/2 c.m. x 1/2 c.m. Medial side of the left upper thigh.
(9) An oval wound of entry 1 c.m. x 1 c.m. On the enterior part of middle of right arm.
(10-A) An oval wound of entry 3 c.m. x 3 c.m. On the back of right half of chest 12 c.m. Below the shoulder joint (right).
(10-B) An oval shape wound of exit 1-1/2 c.m. x 1-1/2 c.m. On the back of left scapula 14 c.m. Below the left shoulder.
(11) The left eye-ball profused from the left eye-ball socket.
' The frontal bone turned into pieces. In the opinion of the doctor, cause of death was brain damage between injuries Nos.1 and 2 which were sufficient to cause death in the ordinary course of nature. All injuries were simple except injury No,
4. Which was grievous.
6.. Dr. Muhammad Saleem Akhtar P.W.3 medically examined Umar Draz son of Abdul Khaliq on 4-3- 1989, and noticed the following injuries on his person:-
(1) An entry wound of firearm projectile 1/2 c.m. x 1/2 on the left shoulder, lateral aspect distance from right shoulder tip was 7 c.m.
(2) An exit wound of firearm projectile 2 c.m. x 1.5 c.m. On the back of chest 1 c.m. Left to middle line 8 cm medial and slightly go to lower angle of left scapula ear bubble were coming out through the wound.
' According to the doctor, the injuries were caused by firearm. Firstly, they were kept under obsevation, but subsequently, they were declared as grievous.
7. During the spot inspection 11 empties Exh.P.5/1-11 were recovered from the spot, which were taken into possession by the Investigating Officer through Memo. Exh.P.J. Attested by Sarwar Baig and Muhammad Nazar P.Ws. Besides the Investigating Officer.
8. When examined .Under section 342, Cr.P.C., the appellant denied the charge, and stated that he had been involved in this case due to enmity.
9. On 18-41989 the appellant who was declared an absconder was arrested in an other case by Police Station Mitha Tiwana was formally arrested in this case as well, but nothing was recovered from him.
10. To substantiate its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Saif Ullah and Umar Draz P.Ws. Both the eye-witnesses are the cousins of the deceased, Umar Draz P.W. Was injured during the occurrence.
11. With the assistance of the learned counsel for the appellant and the learned AA.-G. We have carefully perused the entire record of this case, and we have also heard the learned counsel at length. The learned counsel for the appellant forcefully contended that it was not possible for the complainant Saif Ullah to have seen the occurrence, if at all he was riding the mare alongwith the deceased, inasmuch as, according to the F.I.R., the deceased was fired from an automatic rifle, therefore, it was natural that complainant Saif Ullah must have received the injuries. Since, he did not receive even a scratch, therefore, it cannot be believed that he was present at the scene of occurrence alongwith the deceased and had seen the occurrence.
12. The learned counsel further contended that the injured P.W. Umar Draz could not also be believed; although he was injured but he attributed the injuries to Sikandar co-accused, who has been acquitted. Learned counsel thus contended that his evidence was nothing but a pack of lies because he implicated an innocent person and attributed injuries to him, therefore, it was unsafe to rely upon his testimony to sustain the conviction of the appellant on a capital charge.
13. We have heard the various aguments advanced by the learned counsel, and we have carefully gone through the entire evidence. Although, both the eye witnesses have been cross-examined at length, but the defence failed to elicit anything favouring the appellants. On the other hand we have noticed that both the witnesses had no direct enmity with the appellant, and thus, there was hardly any reason for them to falsely implicate the appellant in this case. It is noteworthy to mention that this case was investigated by as many as three Police Officers, and after a thorough investigation of the case, the appellant was sent for facing his trial. Unfortunately, there is nothing on record, nor any suggestion has been made, nor any material has been brought on record to show some animus of the appellant with the eye-witnesses so as to necessitate to seek for corroborative evidence. No doubt, the tainted testimony can be believed without corroboration, but by way of abundant precaution, the Courts insist upon looking for corroboration. This was such a case which hardly required corroboration, because we do not find any direct animus between the appellant and the eye-witnesses. In this view of the matter, we hold that the prosecution has brought guilt home to the appellant. Hence, this appeal fails, and is dismissed accordingly.
Conviction and sentences of the appellant are maintained. Death sentence is confirmed. The Reference stands disposed of in the terms noted above.