CH. GHULAM SARWAR, J.--- Allah Ditta, Ghulam Rasool alias Gulam Muhammad alias Ghamun and Bashir Ahmad appellants along with Abdul Sattar, Allah Bakhsh, Allah Yar, Hafiz Khuda Bakhsh, Haji Ghulam Qadir end Obaidullah had been tried by the learned Sessions Judge, Vehari-under section 302/148/149, P.P.C. For the murder of Sher Muhammad on 21-5-19F7 at about 2-00 p.m. In the area of Basti Mehran Wali Dakhli, Mauza Fadda, P.S. City Mailsi, District Vehrai.
2. Vide judgment dated 18-11-1990 Bashir Ahmad, Ghulam Rasool alias Ghulam Muhammad and Allah Ditta were convicted under section 302/34, P.P.C. And all the three were sentenced to death with a fine of Rs.5,000 each, in default whereof they were to undergo imprisonment for two years each. Each of the appellants was directed to pay a sum of Rs.5,000 as compensation to the legal heirs of the deceased person as envisaged under section 544-A, Cr.P.C. In default of payment of compensation each appellant was to undergo imprisonment for a period of six months. However, all the remaining above-- named six accused were acquitted of the charge of murder.
2-A. The appeal filed by the convicts and the Reference made by the learned Sessions Judge for confirmation of death sentences are being disposed of together.
3. F.I.R. Exh.P.L. In this case was lodged by Bahadur Khan complainant P.W.7 on the same day at about 3 p.m. At Police Station City Mailsi which was recorded by Mansab Khan, S.I., P.W. 9.
4. Succinctly stated the case of the prosecution according to the F.I.R. As stated by Bahadur Khan, complainant is that his deceased brother Sher Muhammad and his brothers Khawaja and Ghulam Haider used to cultivate one square of land owned by Ghulam Mustafa Deendar for the last 30 years as tenant. About fifteen years before the alleged occurrence, half a square of land owned by one Fazal Jahaaian was purchased by Allah Bakhsh, Abdul Sattar and Bashir Ahmed accused: It is also stated in the F.I.R. That these three accused wanted to eject the complainant and his brothers from the land owned by Ghulam Mustafa Deendar and wanted to buy the same. In this regard a fight took place between the two parties on 8-11-1985. Both the parties were challaned in cross- cases registered against them under section 325/148 read with section 149, P.P.C. These cases were pending adjudication against both the parties at the time of the registration of this case.
Another fact stated in the F.I.R. That Sher Muhammad deceased cultivated wheat in for acres of land owned by Allah Bakhsh, Abdul Sattar and Bashir Ahmed accused as this land was lying vacant. No one objected to the cultivation of wheat by Sher Muhammad at the time of its cultivation but when the wheat crop was cut by Sher Muhammad, these three accused claimed that they would harvest the same. This dispute between the. Parties was to be decided by Khan Dilawar Khan Khitchi, a respectable of the area.
The complainant further stated that he along with his brother Khawaja, his deceased brother Sher Muhammad and his nephew Sohnay Khan went to Khan Dilawar Khan Khitchi aforesaid. The latter was about to leave his village for some other place. He told the complainant and his companions to come to him the following day. When the complainant, his deceased brother Sher Muhammad, his brother Khawaja and his nephew Sohney Khan were coming back from the village of Khan Dilawar Khan Khitchi to their own village and reached a point a little ahead of Basti Mehran Wali at about 2-00 p.m. Sher Muhammad deceased sat down to urinate. The complainant and his other companions, however, continued walking. In the meanwhile, Allah Bakhsh appellant armed with a .12 bore shot gun, Bashir Ahmed appellant armed with a .12 bore pistol, Abdul Sattar accused also armed with a .12 bore pistol, Ghulam Muhammad alias Ghamun appellant armed with a .12 bore shot gun, Ghulam Qadir, Khuda Bakhsh, Allah Yar, Allah Ditta and Obaid Ullah all armed with sticks came there. All the for accused who were armed with fire--arms raised Lalkaras and fired at Sher Muhammad, deceased with their respective weapons. These shots hit Sher Muhammad on the left side of the back of his chest, left elbow, right elbow and left knee. Sher Muhammad fell on the ground after receiving these injuries. All the five accused mentioned above who were armed with sticks then started giving blows with their respective sticks to Sher Muhammad who had already fallen. Sher Muhammad received injuries on his nose and his left and right legs. Both the legs of Sher Muhammad were fractured as a result of these injuries.
Sher Muhammad succumbed to these injuries at the spot. It is also stated in the F.LR. That all the accused had caused the above injuries to Sher Muhammad deceased in the execution of a premeditated plan to kill him. It is also claimed that the occurrence was witnessed by the complainant, Khawaja and Sohney Khan P.Ws. But they could not intervene because of the fear of the accused.
5. Mansab Khan, S.I. P.W.9 after recording the F .R. Visited the spot the same afternoon. He prepared the injury statement Exh.P.C. And Inquest report Exh.PD of the deceased and secured the blood- stained earth from the spot vide recovery memo. Exh.P.G. It was sent to the Chemical Examiner and the report of the Chemical Examiner is Exh.P.M. Which goes to show that earth was stained with blood. The report of the Serologist Exh.P.P. Was obtained to prove the origin of the blood as that of human. An empty P.4 was recovered from the spot vide memo. Exh.P.H. Which was sent to Forensic Science Laboratory which wedded with pistol .12 bore recovered vide memo. Exh.P.1 from Bashir Ahmad appellant and the report of the Forensic Science Laboratory is Exh.P.O. Bashir Ahmad appellant was arrested on 17-6-1987 and pistol P.5 was recovered from his possession which was secured vide memo. EARL One live cartridge P.6 was also taken out from it, secured through the same recovery memo. Ghulam Rasool appellant was also arrested on the same day and he led to the recovery of .12 bore shot gun P.7 which was secured vide memo. Exh.P.J. It was a licensed gun and its licence P.8 was secured vide the same recovery memo. Allah Ditta appellant was arrested on the same day and he led to the recovery of blood-stained Sota P.9 from his residential Kotha which was secured vide memo. Exh.P.K. Sota P.9 was made into a sealed parcel being blood- stained and was sent to the Chemical Examiner. The report of the Chemical examiner P.N. Shows that it was stained with blood and report of the Serologist Exh.P.Q. Supports this. The rest of the accused were arrested on different dates. After the investigation except Obaid Ullah accused all were challaned.
6.Dr. Riaz Hussain Khan, Senior Medical Officer, THQ, Hospital, Mailsi P.W. 2 did the post-mortem examination on the dead body of Sher Muhammad on 21-5-1987 at 5-30 p.m. And found the following injuries on his person:---
(1) A fire-arm wound 7 cm x 4 cm on the back and left side of the chest going deep into the chest cavity, directed upwards and to the right. The edges of the wound were burnt and there was blackening around the wound.
(2) A contused wound 6 cm x 1/3 cm on the lower part of the nose cutting the cartileges of the nose. It was two centimetres deep.
(3) fire-arm wounds 1 cm x 3/4 cm each, oval in the shape on the inner side of the left elbow, the edges were inverted and burnt. Two exit wounds on the back of forearm, near elbow. There was fracture of left ulna bone at the upper part.
(4)A fire-arm wound 1-1/2 cm x 3/4 cm on the inner side of right elbow. The edges were inverted and exit wound was on the outer side.
(5) A contused wound 3 cm x 1-1/2 cm x bone deep on the middle of right calf with a fracture of right tibia and fibula.
(6) A contused wound 3 cm x 1 cm bone deep on the lower and front part of right calf with fracture of the right tibia and fibula.
(7) A contused wound 3 cm x 1 cm on the inner side of lower part of left calf which was bone deep.
There was fracture of left tibia and fibula.
(8) Three fire-arm wounds on the back of left knee, the edges were inverted and burnt. There was fracture of left femur bone. Three fire--arm exit wounds were on the front.
(9) A contused wound 3 cm x 2 cm on the middle of left calf with fracture of left tibia and fibula.
In the opinion of the doctor, the death was caused due to shock and hemorrhage as collective result of injuries Nos.1 to 9. Injury No.1, in his opinion, alone was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 3, 4 and 8 were inflicted by firearm and the rest- of the injuries were caused by blunt weapon. Injuries Nos. 1, 3, 5 to 9 were grievous in nature. The probable time between injuries and death was about five minutes and the time between death and post- mortem examination was about for hours. Exh.P.B. Is the post-mortem report. Exh.P.B/1 and Exh.P.B/2 are the diagrams showing the locale of the injuries.
7. All the accused pleaded not guilty to the charge and claimed the trial.
8. The prosecution in order to substantiate the charge against the accused examined as many as nine P.Ws. Including Dr. Riaz Hussain Khan, P.W.2, the Medical Officer; Bahadur Khan P.W.7 and Khawaja P.W.8 as the eye-witnesses; Mansab Khan P.W.9 as the Investigating Officer when Ghulam Hussain P.W.4 and Noor Muhammad P.W.6 were examined as the recovery witnesses and the remaining being the formal witnesses.
9. When confronted with the prosecution evidence during their examinations under section 342, Cr.P.C. All the accused including the appellant traversed the allegations of the prosecution in their entirety and while professing their innocence they took up the plea that they were involved due to enmity. All stated that many other persons were suspected for the murder of Sher Muhammad deceased and ultimately they having old enmity were falsely implicated. However, they did not opt to appear as their own witnesses as provided under section 340(2), Cr.P.C. And nor they produced any, defence evidence.
10. It was urged before us by the learned counsel for the appellants that the appellants' case being at par with the six acquitted accused so they were also entitled to the same treatment. :It was further contended that the prosecution had failed to prove the charge against the appellants but the learned trial Judge convicted the appellants on the testimony of the witnesses who were inimical and were of partisan character. It was lastly argued that the testimony of the eye- witnesses could not have been believed in view of the dishonest improvements having been made by them before the learned trial Court as compared to their statements before the police. It was added that if Bashir Ahmed appellant is found guilty he has not been saddled with the specific injury in the F.I.R., so capital punishment cannot be given to him.
11. The learned Assistant Advocate-General and the: learned counsel for the complainant supported the judgment of the learned trial Court and submitted that the prosecution had proved its case beyond reasonable doubt against the appellant.
12. We have given our earnest thoughts to the arguments advanced by both sides and have also gone through the prosecution evidence with the able assistance of the learned counsel for the appellants. We find that both P.W.7 Bahadur Khan and P.W.8 Khawaja have fully supported the prosecution case in all its material particulars as stated in the F.I.R. They both were subjected to very lengthy cross-examination but they withstood the test of the same creditably. No discrepancy or inconsistency worth the mention or such as would create a reasonable doubt about their presence was pointed out. In this case the parties had to appear before Dilawar Khan Khitchi for the settlement of their outstanding disputes and this occurrence did take place when they were coming from the said Dera. We also find that Sher Muhammad deceased had occupied for acres of land belonging to the appellants forcibly and had gown the wheat crop. Sher Muhammad had played leading role in occupying the land. It is also admitted by the parties that cross-cases under section 325/148/149, P,.C were registered against both the parties before this occurrence which were still pending trial. It has also come on record that both the parties were convicted subsequently in these cases. It is thus established that the accused had the strong motive to eliminate Sher Muhammad deceased who was mainly responsible for occupying their for acres of land. Due to this action of Sher Muhammad and the criminal litigation between them perpetrated the accused to commit this crime.
13. We find that the learned trial Court acquitted Allah Yar, Hafiz Khuda Bakhsh, Ghulam Qadir and Obaid Ullah accused on the ground that there was no strong evidence of motive available in this case-against them as none of them led to the recovery of any crime weapons allegedly used by them during the commission of the crime. Similarly he acquitted Abdul Sattar and Allah Bakhsh accused on the ground that they had the direct motive to kill Sher Muhammad but no crime weapon was recovered from them. While convicting Bashir Ahmad appellant the learned trial Court gave the reason that he had a strong motive against the deceased and as was seen by the two witnesses of the occurrence while firing at the deceased and causing him fatal injury plus the recovery of pistol P.5 and the empty P.4 having wedded with pistol P.5 so the independent corroboration in his case was amply available. Similar was the ground while convicting Ghulam Rasool alias Ghulam Muhammad that in his case recovery of crime weapon shot gun P.7 was recovered which was considered as corroborative piece of evidence. Regarding Allah Ditta it was argued that he was found in possession of a blood-stained Sota which was recovered and the report of the Chemical Examiner and that of the Serologist supported it.
14. We have thoroughly examined the implications of the three appellants in this case and find that the learned trial Court could not make out any distinction regarding the involvement of Ghulam Rasool alias Ghulam Muhammad and Allah Ditta appellants with the six acquitted accused.
Ghulam Rasool alias Ghamun is said to have fired upon the deceased along with his three other co-accused who were armed with fire-arms. In the F.I.R. No specific injury was attributed to any of the accused namely Allah Bakhsh, Abdul Sattar, Bashir Ahmad and Ghulam Rasool who were armed with fire--arms. However, during the statements before the Court both the eye-witnesses specified the injuries to each of the accused persons while stating, that fire made by Bashir hit on the back of Sher Muhammad and made by Abdul Sattar hit on the left arm of the deceased while the firing of Allah Bakhsh caused injury on the left knee of the deceased. The firing made by Ghulam Rasool caused injury on the right arm of Sher Muhammad deceased. We do not feel inclined to agree with the reasons assigned by the learned trial Court. In our view the case of Ghulam Rasool alias Ghamun and that of Allah Ditta is at par with Abdul Sattar and Allah Bakhsh who have been acquitted. There is no A corroborative evidence, in the form of recovery of any empty from the place of occurrence wedding with their -respective weapons. The learned trial Court while convicting them relied upon the recovery of the weapons as well as the medical evidence.
We may say that the medical evidence can be used as corroboration to show that injuries were caused in a particular manner with particular weapon but it can never be used as corroboration qua accused to show that particular accused has caused these injuries. As observed by their Lordships of the Supreme Court in the case of Machia and others v. State PLD 1976 SC 695 that medical evidence by itself and without more cannot throw any light on the identity of the assailants, but in case of inimical evidence, it is this aspect of the ocular evidence which required corroboration, because danger in relying on ocular evidence in such cases is that the witnesses may falsely implicate their enemies. Similarly it was held in Shamsherwan v. State 1985 SCM R 34 that medical evidence is merely corroborative evidence but conviction cannot be recorded merely on basis of presence of injuries on dead body without there being any evidence on record that the accused had caused the same.
15. Legal position is settled that in a criminal trial, where it is found that a witness has falsely implicated one accused, ordinarily he would not be relied upon with regard to the other were accused in the same transaction unless his testimony is corroborated by very strong and independent circumstances, IC regarding each one of the other accused.
16. In the instant case three appellant: have been convicted that they were armed with weapons and the crime empties but we find that a crime empty recovered from the spot matched with the pistol of Bashir Ahmad appellant alone who had also a strong motive to kill the deceased. Crime empty P. 4 was sent to the Ballistic Science Expert which was fired from pistol P. 5 recovered from this appellant and the report is in the positive so this can be considered an independent corroboration connecting this appellant with the commission of the crime.
We do not find any distinct evidence against Ghulam Rasool and Allah Ditta appellants than that of the acquitted accused. Even otherwise Sota was recovered from Allah Ditta which was sent to the Chemical Examiner for examination after more than one month. In our considered view only Bashir appellant is responsible to kill the deceased. The implication of Ghulam, Rasool alias Ghamun and Allah Ditta is .Also doubtful their case being at par with the acquitted accused. Ghulam Rasool alias Ghamun and Allah Ditta appellants are therefore, acquitted. They shall be released forthwith if not required in any other case.
17. Now the last question to be determined in this case is that what punishment should be awarded to Bashir appellant in view of the fact that Sher Muhammad deceased was the person of the type that he was committing excesses as he forcibly took for acres land of the appellant and started G cultivating the same without his permission or the permission of his other brothers. The question of reduction of sentence depends upon the circumstances of each case. To determine the very delicate balance between whether family honour and duties overtook the human thoughts and actions and whether the private revenge predominantly overtook such thought and action the Judge has to go through the process of rationalization and psychological analysis. It is now a settled proposition of law as laid down in the judgment of the Supreme Court reported as Ghulam Abbas v. Mazhar Abbas and another PLD 1991 SC 1059 that wherever private revenge forms an element in the crime the same by itself should not prevent the Court from doing justice in matter of sentence.
18. In view of the facts and circumstances of this case and taking into view the principles of Qur'an and Sunnah that justice should be administered with mercy so we reduce the sentence of Bashir Ahmad appellant from death to imprisonment for life. However, his other sentences regarding fine and compensation to be paid to the legal heirs are maintained. The death sentences' are however, not confirmed and the murder reference is answered accordingly.