' SAJJAD AHMED SIPRA, J.---The present criminal appeal calls into question the legality and propriety of the judgment dated 19-6-1988, whereby the learned Judge, Punjab Special Court for Speedy Trials, Faisalabad, while acquitting the co-accused, Nasir Ali, had convicted the appellants under section 302/34, P.P.C. And sentenced each of them to death with a fine of Rs,25,000 or in default thereof to undergo R.I. For 5 years. Out of the fine, if recovered, Rs,50,000 was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. The brief facts leading to the present criminal appeal are that the complainant, Sheikhu Khan, alongwith Safdar All deceased and his sister Taj Bibi and one Jahangir, boarded a bus from the bus stop of Chak No,103 JB. On reaching Khichian Morr, they got down from the bus in order to board another bus for Faisalabad. Bus No,DN-1751 was parked and Safdar Ali deceased went inside the same for keeping the seats, whereas the complainant alongwith Taj Bibi and Jahangir P.Ws., remained standing near the bus. In the meanwhile, Muhammad Afzal, Ahmad All and Khan Muhammad, appellants, alongwith their acquitted co-accused, Nasir Ali, came there on two motorcycles. The acquitted co-accused, Nasir All was armed with rifle, whereas the appellants were armed with .12 bore guns. After parking the motor-cycles on the road side, Afzal and Ahmad All appellants went inside the bus, while Khan Muhammad appellant and Nasir All acquitted co- accused remained outside the same. Muhammad Afzal and Ahmad All appellants fired at Safdar Ali, hitting on his shin and right thigh under the buttock, respectively. Thereafter Khan Muhammad appellant also entered the bus from the rear door and fired twice, one after the other, hitting on the fingers of left hand and left thigh of Safdar Ali deceased. The complainant alongwith Taj Bibi and Jahangir raised hue and cry and the appellants along with their acquitted co-accused decamped on their respective motor-cycles. Thereafter, the complainant went inside the bus and found Safdar Ali dead.
' After leaving Taj Bibi and Jahangir P.Ws. With the dead body of Safdar Ali, the complainant left for the police station in order to lodge the F.I.R. And on reaching there, recorded his statement before Masood Ahmad Inspector/S.H.O., which was signed by him in token of its correctness.
' The motive for the occurrence, as stated by the complainant, was that one day prior to Eid-ul- Azha of 1986, a mare of Safdar Ali deceased had damaged the crop of Ahmad Ali appellant, on which abuses were exchanged between them, in the presence of the complainant, and later on the said matter was patched up through the intervention of the respectables.
3. After lodging the F.I.R. The complainant returned to the place of occurrence alongwith the Investigating Officer, who took the blood from inside the bus, which was made into a sealed parcel and taken into possession vide memo Exh.PF blood-stained seat of the bus was also taken into possession after making the same into a sealed parcel, vide memo Exh.PG; and Bus No,DN-1751 was also taken into possession vide memo Exh.PH. All the memos, stated above, were signed by the complainant and Muhammad Saeed P.W. After due investigation, all the accused in the instant case, were challaned to the Court.
4. At the trial, the prosecution had examined as many as 10 witnesses in order to prove its case.
Aurangzeb Draftsman P.W.1 had prepared the site plan Exh.PA on the pointing out of the P.Ws. In his cross-examination, he had deposed that the bus in question was not at the place of occurrence on 6-12-1986, when he visited the spot. Muhammad Riaz Constable P.W.2 had escorted the dead body of Safdar Ali deceased to the mortuary and after the post-mortem examination, he had received the last-worn clothes of the deceased P.1 to P.4 alongwith a sealed bottle containing pellets P.5 from the doctor and had delivered the same to the Investigating Officer, vide memo Exh.PB, signed by him. On 30-11-1986, he took the Sealed parcels containing blood-stained earth and delivered the same to the office of the Chemical Examiner, Lahore on the same day intact. On 9-12-1986 he had transmitted another sealed parcel containing seat of the bus to the office of the Chemical Examiner, Lahore. Mumtaz Hussain P.W.3, being the Moharrir Head Constable of the police concerned had kept two sealed parcels containing blood-stained earth and seat of the bus intact in the Malkhana and had delivered the same to Muhammad Riaz Constable on 30-11-1986 and 9- 12-1993 respectively for onward transmission to the office of Chemical Examiner, Lahore. Ghulam Ali P.W. 4 had identified the dead body of the deceased before the doctor at the time of post-mortem examination on 15-11-1986.
5. Dr. Iqbal Ahmad Javed P.W.5 had conducted the post-mortem examination on the dead body of Safdar Ali on 15-11-1986 at 8-00 a.m. And had found the following injuries on the same:-
(1) An oblique, lacerated, wound of fire-arm of entrance on the outer aspect of left leg just below the left knee joint, 1 inch x 3/4 inch x fracture of both tibia and fibula bones. The edges of the wound were inverted and ecchymosed. The skin around the wound was blackened, scorched and tattooed. A corresponding perforation was seen in Shalwar which was blood-stained and blackened at that area.
(2) A fire-arm wound of exit on the medial side of the left leg, just below the left knee joint, 4 inches x 3 inches. The edges of the wound were everted.
(3) 7 wounds of fire-arms of entrance on the medial side of the right knee in a diameter of 2-1/2 inches x 2 inches, each 1/4 inch x 1/4 inch into skin deep only. The edges of the wounds were inverted and ecchymosed. Corresponding perforations were seen on the Shalwar, which was blood-stained.
(4) A circular, lacerated wound of fire-arm of entrance on the back surface of the right thigh, just below the right hip, 1-1/4 inches x 1-1/4 inches x probe passed towards the medial side of the right thigh. The big blood vessel i,e, right femoral artery was found perforated. The edges of the wounds were inverted and ecchymosed. The skin surroundings the wound was blackened, scorched and tattooed. A corresponding perforation was seen in the Shalwar which was blood stained and blackened at that site.
(5) 6 wounds of fire-arms of exit on the medial side of the right thigh in upper portion, in a diameter of 3 inches x 2 inches and each wound was 1/2 inch x 1/4 inch. The edges of wounds were everted.
Corresponding perforations were seen in the Shalwar, which was blood-stained.
(6) 4 wounds of fire-arm of entrance on the medial side of the left thigh in upper most part in a diameter of 3-1/2 inches x 2-1/2 inches and skin deep only. The edges were inverted and ecchymosed. Corresponding perforations were seen in the Shalwar, which was blood-stained.
(7) 3 wounds of fire-arms of entrance on the lower part of the testes, 2 on the right teste and one on the left teste, each 1/4 inch x 1/4 inch x skin deep only with inverted edges.
(8) A wound of fire-arm of entrance on the front of the palmer surface of proximal phalanx of left index finger, 1/4 inch x 1/4 inch x fracture of proximal phalanx. The edges were inverted. One pellet was removed from the site.
(9) A wound of fire-arm of entrance on the palmer surface of proximal phalanx of left middle finger 1/4 inch x 1/4 inch x bone deep with inverted edges. One pellet was removed from that site.
(10) A wound of fire-arm entrance with inverted edges on the palmer surface of proximal phalanx of left ring finger, 1/4 inch x 1/4 inch x probe passed upto the wound of exit, situated on the lateral aspect of the proximal phalanx with everted edges 1/4 inch x 1/4 inch.
(11) A wound of fire arm of entrance with inverted and ecchymosed edges on the front of the middle of left thigh, 3/4 inch x 1/2 inch x muscle deep. A pellet was removed from that site. A corresponding perforation was seen in the Shalwar, which was blood-stained.
' In his opinion, injuries Nos. 1 to 3 were the result of one shot and Injuries Nos.4 to 7 were also the result of one shot. Likewise Injuries Nos. 8 to 10 were the result of one shot, whereas Injury No,11 was the result of one shot. According to him, the cause of death was sudden shock and haemorrhage due to Injuries Nos. 1 to 11, which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arms and ante-mortem.
' The probable duration between the injuries and death was within half an hour, while the time between the death and post-mortem examination was about 20 hours. Exh.PD was the correct carbon copy of the post-mortem report, whereas Exh.PD/1 was the pictorial diagram showing the seats of injuries.
' In his cross-examination, this witness had deposed that injuries other than Injuries Nos.1 and 4 were not fatal individually and that Injuries Nos.1 and 4 were caused almost from the same distance, whereas Injuries Nos.8 and 11 were caused from a far distance than that of Injuries Nos.1 and 4. He had denied the suggestion that Injuries Nos. 1 and 4 were caused by one fire-shot while Injuries Nos. 8 and 11 were caused by another fire-shot.
6. Sheikhu Khan P.W.6, being the complainant, had reiterated the contents of the F.I.R. In his cross- examination, he had denied the suggestion that Jahangir P.W. Was the first cousin of his wife; or that the Nikah of his daughter was performed with the said P.W. He, however, admitted that Khan Muhammad accused/appellant was the real brother of Ashiq Hussain, who was accused in the connected case and that they were only two brothers. Similarly he had admitted that Muhammad Afzal and Nasir Ali accused are the real brothers of Muhammad Ashraf, who was also accused in the connected case; and that they have no fourth brother. He had further admitted that Ahmad Ali accused/appellant is the real brother of Muhammad Ali, Muhammad Azam and Qasim Ali, who were the accused in the connected case and that they have also no other brother. He had further deposed that they were going to Faisalabad on the day of occurrence, and that there were about 15/20 passengers in the bus, but they were asked to get down by the accused and they had run away in order to save their lives. However, he had denied the suggestion that neither he nor Mst. Taj Bibi and Jahangir P.Ws. Had witnessed the occurrence.
7. Muhammad Ramzan P.W.7, being driver of the bus in question, had deposed that on 14-11-1986 when he reached Khichian Morr at about 10-45 a.m. And parked his bus, Safdar All deceased came in the bus and occupied a seat at No,3 on his rear side. In the meanwhile four persons came on two motor-cycles, armed with fire-arms. One of them entered the bus from door of the driver while two of them entered the bus from front door of left side, and gave Lalkara to the passengers and asked them to leave the bus and the passengers got down from the bus. Safdar All deceased remained in the bus and all the three accused fired at him, as a result of which he died in the bus. The fourth accused remained outside the bus. Thereafter all the four accused decamped from the spot on their motor-cycles. In his cross-examination, he had denied the suggestion that he did not come to know the names of the accused through the passengers. He, however, could not identify the accused, as the persons, who had committed the murder of Safdar All deceased.
8. Jahangir P.W.8, being another eye-witness of the occurrence, had corroborated the statement of the complainant. In his cross-examination, he had denied his relationship with the complainant. He had also denied the suggestion that accused did not own any motor-cycle. He had also denied the suggestion that the accused Khan Muhammad was constructing a room in his house, while Nasir Ali accused was busy in peeling the sugarcane at the alleged time and date of occurrence and that they had been falsely involved in the instant case. He had also denied that he had not seen the occurrence, as he was not present at that time at the place of occurrence.
9. Ch. Masud Ahmad P.W.9, being the S.H.O. Of the police concerned, had recorded F.I.R. Exh. PE on the statement of Sheikhu Khan P.W. He had visited the spot, sent the dead body of Safdar Ali for post-mortem examination, secured the blood as well as blood-stained seat of the bus and had prepared the rough site plan Exh.PI. He had also got prepared the site plan Exh.PA and Exh.PA/1 from Aurangzeb Draftsman P.W. On 6-12-1986 he had arrested all the four accused. In his cross- examination, he had deposed that he had recorded the statements of P.Ws. On the day of occurrence. He had also recorded the statements of Mokha and Pathana on 26-12-1986 under section 161, Cr.P.C. According to his investigation, the actual culprits were Muhammad Ali, Muhammad Ashraf alias Chaudhry and one Muhammad Amin, as according to him, it was evident from the statements of Mokha and Pathana under section 161, Cr.P.C. Alongwith the statements of Baboo, Muhammad Siddique and Muhammad Bashir, shopkeepers. He had further stated that he had accepted the plea of alibi of the accused, as it was supported by the witnesses produced by them.
10. Halim Sabir Malik D.S.P., while appearing as P.W.10, had deposed that on 21-6-1987, the investigation of the case was entrusted to him under the orders of the Inspector-General of Police, Punjab, Lahore. He went to the place of occurrence on 30-6-1987, inspected the spot and recorded the statements of P.Ws. Muhammad Ramzan Driver and Muhammad Shabbir Conductor, alongwith the statements of Mokha and Pathana, whose statements were earlier recorded by Masud Ahmad S.H.O. On 26-12-1986. He had further deposed that according to his investigation, all the four accused were guilty; and that his investigation was approved by the Inspector-General of Police, Punjab on 29-11-1987. In his cross-examination, he had deposed that he had not joined the accused in the investigation and that witnesses had appeared on their behalf to support their plea of alibi. He had interrogated the shopkeepers, but he did not enquire whether any of the accused owned a motor-cycle or had a driving licence or that they were licence-holders of guns. He had denied the suggestion that he had wrongly challaned the accused in order to help the complainant.
11. After tendering in evidence the reports of Chemical Examiner Exh.PJ, Serologist Exh.PJ/1 and Chemical Examiner Exh.PK, and giving up Mst. Taj Bibi, Muhammad Saeed, Mirza, and Muhammad Shabbir P.Ws., the prosecution had closed its case.
12. In their statements recorded under the provisions of section 342, Cr.P.C. All the appellants, alongwith their acquitted co-accused, had claimed to be innocent. They had admitted their relationship inter se as well as with the complainant. They had further stated that the complainant had given his daughter Mst. Kausar Batool, in the Nikah of Muhammad Ashraf alias Chaudhry, who had refused to take her in `Rukhsti' at the instance of his brother, Muhammad Afzal appellant, for the reasons that the complainant did not like them, as he was defeated by the said appellant, Muhammad Afzal in the local councils elections in 1979; and that, for the said reasons they had been involved in the instant case, and the P.Ws. Had deposed against them. Ahmad Ali accused/appellant had also taken the plea that Safdar Ali deceased was, in fact, murdered by his brother Muhammad Ali, his cousin Muhammad Ashraf alias Chaudhry, alongwith one Muhammad Amin. All the appellants alongwith their acquitted co-accused had recorded their statements under the provisions of section 340(2), Cr.P.C. But did not produce any evidence in their defence.
' In their statements under section 340(2), Cr.P.C. All the accused had deposed that Safdar Ali deceased was, in fact, murdered by Muhammad Ali, Muhammad Amin and Muhammad Ashraf alias Chaudhry, who had also murdered one Nasrullah Khan and were accused in the said case, as alleged by Ahmad Ali appellant and recorded above. They had denied the suggestion that they had deposed falsely in order to save their lives.
13. The learned trial Court, after taking into consideration all the facts and circumstances of the case and having gone through the evidence on the record, while acquitting the co-accused, had convicted and sentenced the appellants, as stated above.
14. The learned counsel for the appellants and the State were heard at length and the record of the case perused with their assistance.
15. The learned counsel for the appellants argued that the motive is farfetched and thus effects many aspects of the case including the sentences awarded to the appellants. Further submitted that P.W.6 Sheikhu Khan and P.W.8 Jahangir were chance witnesses and as such their testimony calls for very careful scrutiny; and that, in any case, as the deceased was the nephew of P.W.6, therefore, his testimony cannot be relied upon without independent corroboration, which is not forthcoming in the instant case. Further submitted that presence of P.W.6 Sheikhu Khan becomes doubtful because of the admitted enmity of the parties and if he was present on the spot he would not have been spared by the assailants. Further submitted that the only independent witness, i,e, P.W.7 Muhammad Ramzan Driver of the bus, in which the occurrence had taken place, had not identified the accused/appellants, which was flattened to the case of the prosecution. Further argued that the case of the prosecution is further damaged by the non-recovery of any crime empty and the guns alleged to have been used in the alleged occurrence.
16. On the other hand, the learned counsel for the State and the complainant supported the conviction and the sentences awarded to the appellants and in this respect emphasized that the murder of the deceased Safdar Ali had taken place during the day time in a public place inside the bus and that the charge against the appellants was duly established by the testimony of the eye- witnesses and the corroboration thereof by the recoveries and medical evidence.
17. After giving our anxious consideration to the submissions made by the learned counsel for the parties, we are constrained to observe that P.W.6 Sheikhu Khan and P.W.8 Jahangir are natural witnesses of the occurrence in question, as they were accompanying the deceased Safdar Ali at the relevant time and that, therefore, their testimony duly establishing the participation of the appellants in the murder of the said deceased, has duly established the charge against them. In this respect, it may be pointed out, that although P.W.7 Muhammad Ramzan, the Driver of the bus in which the murder of the deceased Safdar Ali had taken place had failed to identify the accused/appellants, but had otherwise fully corroborated the time, manner and the place of the murder of the deceased by the same number of assailants, as stated by the eye-witnesses P.W.6 and P.W.8 respectively. Furthermore; the testimony of the said eye-witnesses is natural and fully confidence inspiring; and does not suffer from any material contradiction, discrepancies or dishonest improvements that may render the same of doubtful veracity. In this respect, further notice is taken of the fact that the F.I.R. Was lodged promptly i,e, within 45 minutes of the occurrence and that the appellants' names and their respective roles were duly stated therein and in respect of which the testimony of the said eye-witnesses was consistent, plausible and confidence inspiring, as stated above, duly corroborated by the medical evidence on the record through the testimony of P.W.5, Dr. Iqbal Ahmad Javed, post-mortem report, injury statement and the inquest report Exh.PC and Exh.PC/1 respectively. Therefore, it is hereby held that the prosecution had been able to prove its case against the appellants as charged. Resultantly, the present criminal appeal merits dismissal.
18. However, the motive has not been relied upon by the learned trial Court and accepting the contentions advanced on behalf of the appellants to the effect that the motive set forth by the prosecution is weak and not completely established for the failure of the prosecution to produce cogent evidence in respect thereof, specially by its failure to produce evidence that the earlier clash between the parties was patched up as alleged, we hereby convert the sentences of death awarded to the appellants to imprisonment for life to each one of them while maintaining the fine imposed on them by the learned trial Court or the sentences in default thereof with the compensation directed to be paid to the legal heirs of the deceased. The appellants shall be entitled to the benefit of the provisions of section 382-B, Cr.P.C.
19. In accordance with the terms stated above, the present criminal appeal is hereby dismissed.
Sentence reduced.