JAVID IQBAL, J.----Sarwar aged 60/70 years, Allah Yar aged 30 years, Bala aged 40 years, and Muhammad aged 50 years sons of Mir, Aslam aged 19/20 years and Nausher aged 25 years sons of Sarwar mentioned above, and Bakha son of Kamir aged 25 years first cousin of Sarwar mentioned above, have been convicted and sentenced vide judgment dated the 30th of April 1974, of the Additional Sessions Judge, Lyallpur, as follows : All the seven were convicted under section 302/149, P. P. C. For the murder of Faiz and each of them was sentenced to death as well as fine of Rs. 1,000 or in default to undergo two years' R. I. And if the fine was realized out of it Rs. 3.000 was to be paid as compensation to the heirs of the deceased. All the seven were also convicted under section 148, P. P. C. And sentenced to two years R. I. Each. They were likewise convicted under section 307/149, P. P. C. For murderous assault of Mst. Phaphi (P. W. 16) and each of them was sentenced to four years R. I. Plus fine of Rs. 500 or in default to undergo one year's R. I. And if the fine were realized out of it Rs. 1,000 was to be paid to Mst. Phaphi P. W. As compensation. The sentences of imprisonment were to come into operation in case death sentence was not confirmed. The appeal of the convicts as well as reference for the con--firmation of death sentence awarded to them are being taken up and disposed of together by this judgment.
2. The occurrence took place after Zohar prayers (about 2 p.m.) on the 12th of April 1972 in the courtyard of mosque situated in Chak No. 375/0. B., at a distance of 14 miles from Police Station Satiana, District Lyallpur. Statement (Exh. P. K.) was made by Ghulam (P. W. 13) father of the deceased at a tubewell, seven squares away from the place of occurrence while Ghulam P. W. Was proceeding to lodge the report at Chowki Rodala and it was recorded by A.I Muhammad (P. W. 17) who met him there as he was investigating another case. The said statement was recorded at 5 p.m. On the same day. On the basis of the aforesaid state--ment formal F. I. R. (Exh. P. K./1) was registered at the police station on the same day at 6-45 p.m. By Muhammad Abdullah H. C. (P. W.
2).
3. The motive for crime as set up by the prosecution is that Khan Muhammad (P. W. 12) father-in- law of the deceased bad lodged a report with the police about the theft of his cattle about 10 days prior to the occurrence against some people including Bala and Aslam appellants and the deceased was mentioned in the F. I. R. As an eye-witness who had seen Bala, Aslam appellants and others taking away the cattle. It is stated that two days prior to the occurrence Bala and Aslam appellants had asked Ghulam P. W. To persuade the deceased for not appearing as a witness against them in thetheft case. It is further stated that since the deceased had refused to oblige the accused party, they attacked him and murdered him.
It may be pointed out at this stage that the parties are inimical to each other and criminal litigation against both sides is pending. Their enmity is not old but nevertheless they are hostile to each other. It may further be pointed out at this stage that not only the accused party is closely inter-- related but even the eye-witnesses as well as the recovery witnesses who were related to the deceased on one side are related to the members also of the accused party. But it appears that there were feuds in the same family.
4. The prosecution has produced three eye-witnesses of the occurrence namely, Sobna (P. W. 14), he is brother of Mst. Phaphi P. W. And maternal uncle of the deceased, Tahira (P. W. 15), he is cousin of the deceased from the maternal side and also a cousin of Mst. Phaphi P. W. And Mst. Phaphi (P W. 16) injured, she is wife of Bala appellant and sister of Sohna P. W. Whereas her mother is sister of the mother of the deceased. Ghulam (P. W. 13) father of the deceased is not an eye-witness of the occurrence but he claims to be a wajtakkar witness who saw the accused party running away from the scene of crime. Another eye-witness Pehlwan was mentioned in the F. I. R. But was given up as having been, won over in the Sessions Court.
5. Aslam, Sarwar, Nausher and Allah Yar appellants were arrested on the 14th of April 1972, by A.I Muhammad S. I. (P. W. 17). Bakha appellant was arrested by him on the 15th of June 1973. Bala and Muhammad appellants were arrested on the 6th of May 1973, by the same police officer. Bala and Muhammad appellants were committed separately. However, the trial of all the seven appellants was held together. There are recoveries of gun P. 6 from Aslam appellant vide memo Exh. P. R.
Dated the 18th of April 1972, and of gun P. 7 from Sarwar appellant vide memo Exh. P. S., dated the 21st of April 1972. But since no crime empties were picked up from the spot, these guns were not sent to the Fire Arms Expert. Consequently, these recoveries have not been relied upon by the trial Court as discussed in para 33 of the judgment at page 103 of the paper book. From the other appellants no recoveries could be effected. The case of the prosecution, therefore is entirely based on the ocular testimony.
6. Dr. Ahmad Saeed Sheikh (P. W. 1) conducted post-mortem examination on the dead body of the deceased at 7-30 a.m. On the 13th of April 1972, and found the following injuries on his person :-
(1) A fire-arm wound of entry --'' x --'' x chest cavity over front of left chest half inch outer to midline, one inch above xiphi-sternum.
(2) A fire-arm wound of entry --'' x --'' x chest cavity over left side of chest half Inch left from nipple at 8'o clock.
(3) Two fire-arm wounds of entry each --'' x --'' x abdomen upper part.
(4) A fire-arm wound of entry --'' x --'' opening into abdomen over front of upper part of left side of abdomen.
(5) A fire-arm wound of entry --'' x --'' opening into chest over left side of front lateral part of chest in middle.
(6) Four fire-arm wounds of exit of pellets each measuring --'' x --'' and chest cavity deep over outer side of left side of chest over an area of 4'' x 2--''.
A. Two fire-arm wounds of entry each measuring --'' x --'' x con--nected with wound exit over back outer side of left upper arm in middle. These were 1--'' apart.
B. Two fire-arm wounds of exit each --'' x --'' x connected with wound of entry and 1f apart over inner side left upper arm, the humerous was fractured.
(7) Two fire-arms wounds of entry each --'' x --'' x bone deep and one inch apart on front of left upper arm lower part two pellets were pelphable under skin of back of upper arm.
(8) A fire arm wound of entry --'' x --'' x bone fracture on front of right upper arm just above elbow joint.
(9) Fire-arm wound of entry --'' x --'' x bone deep over left side of public region.
All the injuries were caused by fire-arm. Injury No. (1) was fatal. Injuries Nos. (8) and (19) were simple. The others were grievous. Death in his opinion was due to shock and haemorrhage caused by injury No. (1) which was individually sufficient to cause death in the ordinary course of nature. In the cross-examination he stated that probably the deceased was fired at from a distance of more than four feet.
Lady Doctor Kishwar Sultana Naqvi - (P. W. 7) medically examined Mst. Phaphi P. W. At 1 a.m. On the 13th of April 19 72, and found on her person the following injuries :-
(1) A lacerated wound T x 3J' bone deep on back and lower half of the right upper arm. The bone underneath marked, the tendons and muscles were separated. There was fresh bleeding from the wound. The margins of the wounds were charred.
(2) A contusion wound 2'' x 1'' into muscle deep on the back of the elbow joint.
Advised X-ray for injuries Nos. (1) and (2).
The patient was advised X-ray but she was not willing. The injuries were kept under observation.
Apparently they looked simple. They had been caused by fire-arm.
On the same day at about 12 noon she medically examined Mst. Fateh (sister of Sarwar appellant) and found on her person a gunshot entrance wound on the back of the right chest. The margins of the wound were charred. On X-ray injury proved to be simple. The injury had been caused by fire- arm.
On the same day at 12-15 p.m. She medically examined Mst. Noor Bibi (belonging to the accused party) and found on her person a gun shot entrance wound muscle deep with contusion on the right thigh. The injury was simple. It was caused by fire-arm. In the opinion of the medical officer these injuries appeared to have been caused by stray pellets. It may be noted here that since these two women belonged to the accused party they were not cited or produced as witnesses.
7. The appellants in their statements before the trial Court totally denied having participated in the occurrence. They disowned recoveries of guns. Sarwar appellant gave the following version of the occurrence :- ---Before this occurrence, there was criminal litigation between we accused and the complainant- party. There was enmity between us. On the day of occurrence Faiz deceased alongwith seven others, armed with guns, came in front of the house of Bakha accused. Only two ladies, Fateh Bibi and Noor Bibi were in the house. When these ladies came out, the deceased and his companions attacked them with guns. On the hue and cry of these ladies, some of our relations came there as they were present in the adjoining houses. They retaliated by fire-arms. The deceased sustained injuries and stray pellets also hit Mst. Phaphi P. W. But in collusion with the police, this case was falsely made against us.--- He further stated that a cross case regarding the present occurrence was pending before the Committing Magistrate, Jaranwala. (F. I. R. In the cross case is Exh. D. F. At page 46 of the paper- book).
8. In the F. I. R. The occurrence is reported to have taken piece in the following manner : Ghulam (P.
W. 13) was present at his dera and his son the deceased as well as Sohna (P. W. l4) and Tahira (P.
W. 15) were sitting with him. These three got up and went to the mosque in order to take bath.
Shortly, thereafter Ghulam P. W. Heard fire reports from the court--yard of the mosque. He was about to go towards the mosque when Mst. Phaphi P. W. Came to him and told him that he should not go there because the appellants armed with guns were attacking the deceased, Sohna and Tahira P. Ws. And had opened fire. For this reason out of fear he stopped and did not go to the Mosque. Some time later, when the firing had stopped, he went to the courtyard of the Mosque. He found that his son was lying dead and near him were standing Sohna, Tahira and Mst. Phaphi P. Ws.
As well as Pehlwan (not produced) who had also seen the occurrence. They told him that the appellants had fired at the deceased and murdered him and that in the course of firing Mst. Phaphi P. W. Was also hit. While the firing was on, Mst. Fateh and Mst. Noor Bibi who were related to the accused party, came to the courtyard of the mosque on the alarm of Mst. Phaphi P. W. And they were also hit by pellets due to the firing of the appellants. Ghulam P. W. Further stated that he saw the appellants armed with guns passing through the street and entering into the ihata of Mir Rajoka. He left some persons to guard the dead body of his son and proceeded to the chowki to lodge the report, but made his state--ment before the Investigating Officer who met him on the way.
The comments of learned counsel on the F. I. R. Are : First, that according to this statement Mst.
Phaphi P. W. Came to Ghulam P. W. And stopped him from going to the Mosque as firing was going on. At that time, there is no indication that she had sustained any injury. According to Ghulam P. W.
He did not go to the mosque out of fear and went there only when the firing had stopped. There is no mention in the F. I. R. As to how Mst. Phaphi P. W. Left him and received the injury. According to learned counsel, therefore, she must have received the fire-arm injury on her person in some subsequent round of firing. Secondly it is submitted that in the F. I. R.s It. It is not stated that the deceased had in fact refused to oblige the accused party by promising not to appear as a P. W.
Against them. Thirdly in the F. I. R. It is not indicated that injury which led to the death of the deceased was ascribed to any specific appellant. According to the F. I. R. All the appellants had fired at the deceased simultaneously.
9. We have heard learned counsel for both the sides and carefully perused the record. It may be pointed out at the outset that to this case no reliance can be placed on recovery evidence. As for the motive the record indicates that the parties are highly inimical to each other. They have implicated one another in many criminal cases which are pending against both the sides. Thus the case of the prosecution rests entirely on ocular testimony of the three eye-witnesses produced in this case and one wajtakkar witness. We have carefully gone through the statements of the eye- witnesses and in particular that of Mst. Phaphi P. W. Who was making a statement against her own husband being one of the assailants and yeti stating that she was his wife and was living with him.
There are some material discrepancies in the statements of Ghulam P. W. Made before the police and subsequently before the trial Court. Although the complainant side and the accused side are closely related, we have no doubt in our mind that the eye-witnesses in this case are partisan and interested including Mst. Phaphi P. W. Who was herself injured in the course of occurrence. Anyway, the statement of Mst. Phaphi P. W. Does not ring a note of truth and it appears from her statement that the occurrence may not have taken place in the way she had described it. It may further be seen that two women relatives of the accused side were also inured in the occurrence and we fail to understand as to how they happened to be present at the scene of crime. The cross case has been registered in respect of their injuries at the instance of the accused party against the complainant party in this case. However, even if we were to arrive at the conclusion that Mat.
Phaphi P, W. Who sustained firearm injuries was present at the scene of crime and, therefore, her statement should be accepted in toto. We cannot ignore the fact that all the eye-witnesses in this case are partisan and interested and even if one of them has sustained injuries, their testimony should not be accepted without corroboration. It may be pointed out that no corroborative evidence from any independent source is forthcoming in the present case for only one eye- witness, namely, Pehlwan who was inde--pendent in this case has not been produced. However, all the eye-witnesses including Mst. Phaphi P. W. Had stated that the appellants had at one and the same time fired at the deceased and their shots had hit him. If this testimony were to be true it should be supported at least by the circum--stantial evidence which is on the record in the form of medical evidence. A perusal of the medical evidence in this case indicates that the fire-arm injuries sustained by the deceased could have not resulted from the firing of seven shots.
According to the eye-witnesses the deceased was fired at from a distance which was more than 12 feet. There are no tattoo mark on the injuries sustained by the deceased. According to Modi's Medical Jurisprudence Edition 1975 page 220, if a shot was fired from a distance of more than twelve feet it would ordinarily spread within a radius of five to eight inches. The same is the view of Sheikh Abdul Halim recorded in his book, titled "The Law of Identification & Discovery" at pages 396 and 397. If we were to examine the injuries sustained by the deceased in accordance with this principle, pellet shots sustained by the deceased within a radius say B 2J feet may have resulted from 3, 4 or at the most 5 shots but not 7 shots. If seven persons had simultaneously fired at him, there should have been indication to that effect through the injuries sustained by the deceased.
Again if so many persons had fired at the deceased at the same time there should have been pellet marks on the wall or on the tree which was in the near vicinity but no such pellets were recovered from the scene of crime. The site plan does not indicate the place from where the shots were fired at the deceased. 1n the light of the evidence placed on record it is possible that some of the appellants, say two or three or four or even five of them had done this act. But the difficulty is as to which of them in fact com--mitted the crime and which of them were innocent. The eye- witnesses' account is such in this case that either it should be accepted in toto or it should be rejected in toto. For its acceptance in toto it should at least be supported by circumstances. But in our considered opinion the ocular testimony is not completely supported by the medical evidence.
Since the eye-witnesses are partisan and interested and at the same time since the accused and the complainant parties are hostile to each other, the intention to rope in as many persons from the other side as possible could not be ruled out. In the circumstances, therefore, the inference can be drawn that the complainant side would enlarge its not to rope in not only the real culprits but also the innocent persons from the side of the accused party. At any rate, we have no method of separating the guilty from the innocent ones and it would not be in accordance with the safe administration of justice to sentence innocent persons alongwith the guilty ones. We are, therefore, of the considered opinion that since it was not safe to rely on the uncorroborated ocular testimony in this case, the learned trial Court should have given the benefit of doubt to all the appellants which we hereby give to them. Their convictions as well as sentences are set aside and they are acquitted. Their appeal is accepted. They shall be released from jail forthwith if not wanted in any other case.
10. The death sentence is not confirmed.