' SH. MUHAMMAD ZUBAIR, J.--Allah Ditta and Muhammad Ismail alias Pheeri were tried under section 302/34, P.P.C. By the learned Sessions Judge, Toba Tek Singh, for the murder of Shaukat Ali, alleged to have been committed on 6-2-1987, at about sunset time in the area of Chak No,298/GB. The learned trial Judge convicted them thereunder and sentenced them to imprisonment for life plus fine of Rs,5,000 each or in default six months' R.I. This is vide judgment dated 20-4-1989.
2. The convicts have appealed, while Sardar All (P.W.7) complainant has filed Criminal Revision No,364 of 1989, for enhancement of sentence from imprisonment for life to death. This revision petition was admitted to full hearing by order of a learned Single Judge dated 20-2-1990. We propose to dispose of both the matters by this judgment.
3. The occurrence took place on 6-2-1987 at about sunset time and F.I.R. Exh.PE was lodged on 7-2- 1987 at about 12-30 p.m., by Sardar All P.W.7, which was recorded by Allah Bakhsh S.I. (P.W.10).
' It was stated in the F.I.R. That the complainant was resident of Chak No,346/GB and was doing husbandry work. His maternal cousin Abdul Aziz P.W.8 lived in Chak No,298/GB.
' On 6-2-1987, at about Dopehrwela, the complainant, Shaukat Ali deceased and Abdul Majid P.W.9 went to Chak No,298/GB to the house of Abdul Aziz P.W.8, to make proposal for marriage of Muhammad Ashraf son of the deceased with the daughter of Abdul Aziz P.W. After having conversion with Abdul Aziz P.W., all the abovementioned three persons were on their way home accompanied by Abdul Aziz P.W. At about sunset time when the party reached the State land in the area of Chak No,298/GB, at that time Shaukat Ali deceased was ahead of them by ten Karams, having a double-barrel gun with bandolier with him. All of a sudden from behind the earth mount, the appellants armed with .12 bore guns and one Yaroo armed with a carbine emerged.
Muhammad Ismail raised a Lalkara that "today Shaukat All could not be saved" and that he would be taught a lesson for getting a false case registered against him. Allah Ditta appellant fired a shot which hit Shaukat All on the front side of belly who fell down. In the fallen condition, the appellants and Yaroo fired one after the other, which hit the deceased on his head. Muhammad Ismail appellant declared that if any one came near, he too would be killed. On account of fear, the witnesses did not step forward. Muhammad Ismail appellant removed the wrist-watch of the deceased whereas Allah Ditta appellant removed his double-barrel gun and the bandolier.
Thereafter, the appellants made good their escape towards metalled road while firing in the air.
Shaukat All died at the spot.
' The occurrence is alleged to have been witnessed by Sardar Ali complainant (P.W.7), Abdul Aziz (P.W.8) and Abdul Majid (P.W.9).
' As for the motive, it is alleged that about one year ago, Shaukat All deceased, got registered a case under section 457/380, P.P.C. Against Muhammad Ismail appellant, which was to be decided in the near future. On account of this grudge, the appellants in furtherance of their common intention killed Shaukat Ali.
' While explaining the delay in lodging the F.I.R., the complainant stated that he had to inform his brother Muhammad Ali at Lahore, about the murder, but he could not contact him on telephone. He left Abdul Aziz and ' Abdul Majid to guard the dead body and waited for his brother and as such could not lodge the report. This is in nutshell the prosecution case.
4. Allah Bakhsh, S.I. (P.W.10) of Police Station Chutiana, after recording the F.I.R. Visited the spot. He prepared the inquest report Exh.PF and injury statement Exh.PG of the dead body and sent it to the mortuary for postmortem examination under the escort of Abdul Rashid FC (P.W.1). He secured blood-stained earth from the spot vide memo. Exh.PC. He also collected crime empties P.1 to P.5 vide memo. Exh.PD. On 8-2-1987, Abdul Rashid FC produced the last worn clothes of the deceased before the police officer, who took it into possession vide memo. Exh.PJ alongwith two sealed bottles. Khan Muhammad, Revenue Patwari (P.W.3) prepared site plan, Exh.PA and Exh.PA/1.
' On 28-2-1987, Allah Bakhsh S.I. Arrested Allah Ditta appellant, who got recovered gun P.6 vide memo. Exh.PK. He got recovered yet another gun P.7 with nine live cartridges belonging to the deceased, which were taken into possession vide memo. Exh.PL.
' It may be observed that Muhammad Ismail appellant was found innocent during the investigation and his name was placed in column No,2 of the police report under section 173, Cr.P.C., whereas the third accused, Yaroo, named in the F.I.R. Could not be traced out.
' Vide report Exh.PM of the Chemical Examiner earth was found stained with blood and Serologist vide his report Exh.PO opined that the said earth was stained with human blood. The report of the Forensic Science Laboratory is to the effect that out of the five crime empties, sent for comparison, three were found to have been fired from gun P.6 belonging to Allah Ditta appellant.
' After completing the usual formalities, the police submitted the challan in the Court.
5. Dr. Jamshed Ahmad Raza (P.W.4) conducted post-mortem examination of the dead body of Shaukat Ali on 8-2-1987, at 10-00 a.m. And found the following injuries thereon:--
(1) A crushed injury of skull, 1/4th of the brain matter was present in the cavity. One piece of pellet collected from the skull cavity.
(2) A lacerated wound, 5.5 cm x 2 cm bone deep, on the right cheek, besides the nose extending up to upper lip.
(3) A lacerated wound, 6 cm x 1.5 cm bone deep, on angle of right mandible.
(4) An oval shaped wound of entrance, 3 cm x 3 cm, on the left side of lower part of abdomen, just above and lateral to pubic- hair. On dissection femoral artery and nerve were found damaged.
Multiple pellets were recovered from the wound.
' In the cranium and spinal cord, scalp and skull were crushed. 1/4th of the brain was present in the cavity. A few teeth were broken in the upper and lower jaws.
' Injury Nos. 1 and 4 were opined to be sufficient to cause death in the ordinary course of nature, individually and collectively. These injuries were caused by fire-arms. Injury Nos. 2 and 3 were simple in nature caused by blunt weapon. All the injuries were ante-mortem.
6. The prosecution in order to prove its case examined eleven witnesses. Out of them Sardar Ali P.W.7, Abdul Aziz P.W.8 and Abdul Majid P.W.9, gave the ocular account. Dr. Jamshed Ahmad Raza P.W.4 conducted the postmortem examination. Allah Baldish S.I. (P.W.10) is the investigating officer.
The evidence of the remaining witnesses is of formal nature.
7. Allah Ditta appellant in his statement under section 342, Cr.P.C. Professed innocence and denied the incriminating evidence against him. He took up the stance that it was a blind murder and he had been made a scapegoat. No evidence was produced in defence.
' Muhammad Ismail appellant denied the prosecution allegation, professed innocence and made the following statement from the dock:-- "At the time of this occurrence, I was present in the premises of Police Station Chutiana. At that police station a criminal case for causing injuries to my father Nizam Din was registered against Ehsanul Haq alias Sanna. D.S.P., Jhang was investigating such case and he was present that day in Police Station Chutiana for investigation of such case. Such D.S.P. Is named Zawar Hussain Shah.
After conclusion of that day's investigation in the hurt case, I went to Chak No,315/GB with Zulfiqar Lambardar. Zulfiqar Lambardar had also joined investigation with me that day before the D.S.P., investigating officer. It is a blind murder. Since earlier a case under section 457, P.P.C. Was got registered against me by the wife of Shaukat deceased, therefore, because of this grudge I was falsely nominated in this F.I.R. Of the present murder case."
' He appeared as his own witness under section 340(2), Cr.P.C. As D.W.1, denying his participation in the occurrence and also any connection with his co-accused Allah Ditta. He produced Chiragh Hussain (D.W.2), Zulfiqar (D.W.3), Sh. Khalil Hassan S.P.(D.W.4) and Nasir Khan Durrani A.S.P. (D.W.5) in his defence.
' Chiragh Hussain D.W. Deposed that he made statement on Holy Qur'an in the mosque, in the presence of the eomplainant and the investigating officer to the effect that as per his inqu' ay, Muhammad Ismail was not guilty. Zulfiqar (D.W.3) deposed that Muha mmad Ismail remained with him on 6-24987 at Police Station Chutiana in cor nection with the investigation of a hurt case of Nizam Din, father of Ismail. Sh Khalil Hassan S.P. Deposed that on the basis of special oath of Chiragl Hussain D.W., he found that Muhammad Ismail was not guilty, wher eas Nasir Khan Durrani, A.S.P.
(D.W.5) deposed that as per his investigati on he came to the conclusion that Muhammad Ismail had no motive to commit the murder of Shaukat Ali and formed the opinion that he was not guilty.
8. The learned trial Judge believing the prosecution evidence, convicted and sentenced the appellants, as indicated Above.
9. The learned counsel for the defer ce vehemently contended that it was an unwitnessed crime, which took place in the darkness of night and none of the eye-witnesses saw the occurrence. I. Ater on, after due deliberation and speculation, the names of the appellants alongwith 'fare were mentioned in the F.I.R., which was lodged after considerable delay; that the ocular version is being supported by the close relati s of the deceased. Serdar Ali P.W.7 is the brother of the deceased, whereas Abdul Aziz P.W.8 is the maternal cousin as well as brother-in-law of the deceased and the third witness Abdul Majid P.W.9 is from their brotherhood; that the medical evidence nagates the ocular version, there is no mention of crime empties in the F.I.R. Which was lodged after considerable delay; hence it appears that the crime empties were later on planted in this case. The motive, though alleged, yet not proved. As the motive is remote one, so it could not prompt. Ismail appellant to commit the crime. Even the police during the investigation found him innocent, which leads to this inference that the complainant party has not given the correct version in the F.I.R. And has involved innocent persons falsely.
10. The learned counsel fir the State has supported the impugned judgment.
11. The learned counsel for the complainant, who appeared in Criminal Revision No,364 of 1989, submitted that it is a fit case in which the sentence awarded to the appellants be enhanced to death. He further contended that the prosecution case has been prejudiced due to the non- framing of charge under section 5 of Ordinance VI of 1979, with respect to the theft of double-barrel gun alongwith the bandolier of the deceased. Elaborating his argument, he submitted that had this charge been framed, then after the conviction the matter would have gone to the Federal Shariat Court, so due to the non-framing of charge, the prosecution case has been prejudiced and this legal plea can be agitated at any time, as it is not curable under section 537, Cr.P.C.
' On merit, the learned counsel submitted that the prosecution case is being supported by highly independ ent witnesses which is getting corroboration from the medical evidence and del ay in lodging the F.I.R. Stood explained in the said document itself.
12. The learned Law Officer who appeared on Court's call with respect to the decision of this legal point, whether due to the non-framing of charge under section 5 of Ordinance VI of 1979, the proceedings before the trial Court have become coram non ju dice and nullity in the eye of law and consequently re-trial should be ordered or not. He submitted that no prejudice has been caused to the prosecution for non-framing of charge of theft liable to Hadd, because the complainant from the very beginning was being represented by his own counsel and according to the evidence adduced by the prosecution and the F.I.R., the gun in question was not stolen. The only object of the appellants for taking away the gun of the deceased was to frighten the witnesses and to disarm the decease d so that they should not come to the rescue of the deceased at the time o f attack. He further contended that the case remained pending for more tha n one year before the trial Court and during this period, there was no move either by the public prosecutor or by the complainant for the amendment of the charge and this ground cannot by taken at this belated stage, especially when the procedural and all other ancillary law is drafted for the benefit of the accused. There is no case-law on the point in which the case was remanded for the benefit of the prosecution and placed reliance on Muhammad Anwar and another v. The State (PLD 1956 SC (Pak.) 440).
13. We have critically examined the respective submissions of the learned counsel for the parties and have minutely perused the record of the case with their able assistance.
Admittedly, delay has been properly explained by the complainant in the F.I.R. Even this fact is admitted by Allah Bakhsh S.I. (P.W.10) that Subedar Muhammad All requested the D.C. And S.P., Toba Tek Singh that the dead body of Shaukat All should not be removed till he reaches Toba Tek Singh from Lahore. The other reason given by the complainant is that the accused party created terror and fear after the murder and that is why he could not go to the police, but the fact remains that he left certain persons at the spot to guard the dead body and preserve status quo there. The objection of the learned defence counsel that this time was consumed for deliberation and speculation in order to fabricate a false version as given in the F.I.R. Is devoid of force. If the complainant wanted to fabricate a version, then it could have been easily cooked up within no time. It appears that the complainant waited for his brother and when he did not turn up, he reported the matter. The recovery of crime empties was effected by the investigating officer when he first visited the spot, as is apparent from the site-plan Exh.PA and Exh.PA/1.
' There is no background of enmity between the parties. The motive, as given in the F.I.R., was that a case was got registered at the instance of wife of the deceased against Muhammad Ismail appellant and some other persons, in which Ismail was found involved in thcrime, whereas the other accused were got discharged. We fmd no force in the contention of the learned defence counsel that the witnesses are chance 'Messes as they are not belonging to the locality where the occurrence took place because the complainant has given very plausible and reasonable explanation for his presence as well as the presence of the other eye-witnesses. Abdul Majid P.W.9 accompanied the complainant and the deceased to the 'house of Abdul Aziz P.W.8, for engagement of son of the deceased with the daughter of Abdul Aziz, named Robina. Even the presence of Abdul Aziz P.W.8 is established from this fact that he accompanied the deceased, the complainant and Abdul Majid for the purpose of inquiries about the health of mother of the deceased, which he learnt when the party went to his house for the purpose of proposal of the son of the deceased. The distance between the two Chaks is not more than eight squares, which a person could easily transverse on foot. The learned counsel for the defence failed to point out any special interest or malice on the part of Abdul Majid P.W.9 to support the prosecution case falsely, neither any enmity was suggested nor proved.
' Abdul Majid P.W.9, no doubt, belongs to the brotherhood of the complainant party, but he had given very reasonable and plausible explanation for his presence at the scene of occurrence, because he was associated for the purpose of proposal, as aforesaid, being an elderly person from the brotherhood to grace the occasion of engagement of the son of the deceased with the daughter of Abdul Aziz P.W.8. The contention of the learned defence counsel that the occurrence took place in the night is also devoid of force, as according to the F.I.R. It took place immediately after sunset time, which is being corroborated by the post-mortem report. It is a matter of common knowledge that after sunset for about half an hour or so, there remains sufficient light in wFch a person could easily recognise another person, who is already known to him. In the presence of this evidence, it was not difficult for the eye-witnesses to recognize the assailants of the deceased. The ocular B version gets support from the medical evidence as the shot attributed to Allah Ditta appellant was on the abdomen of the deceased and was fatal.
' The recovery of crime empties at the spot further corroborates the ocular version qua Allah Ditta.
The I.O. In the very first Zimni has recorded the recovery of five crime empties from two different places when he visited the spot. Even this fact is mentioned in the site-plan. Allah Ditta appellant led C to the recovery of gun P.6 on 28-2-1987, whereas he was arrested on 24-2-1987. The gun recovered from him matched with three crime empties found at the spot. It is in evidence that these crime empties were sent to the office of Forensic Science Laboratory on 15-2-1987, whereas the gun P.6 was recovered from Allah Ditta on 28-2-1987. This evidence which is coming from the mouth of an independent witness is being supported by documentary evidence viz. Report Exh.PN, which clearly rules out and eliminates the chance of fabrication of evidence in this case. This material corroboration of the ocular version qua Allah Ditta appellant proves the case against him beyond reasonable doubt; hence there is no force in this appeal qua Allah Ditta appellant, which is accordingly dismissed.
14. The mere presence of the eye-witnesses at the spot, does not ensure that whatever they have stated must be accepted as a gospel truth. The rule of prudence requires that evidence of interested witnesses or other witnesses must be corroborated to that extent which could eliminate the chance of false implication of an accused person. It is a matter of common knowledge that in our country there is a tendency of involving innocent persons with the guilty ones. There is no independent corroboration regarding the participation of Muhammad Ismail in the occurrence, except the alleged motive given in the F.I.R. In the absence of any other independent corroboration coupled with this IE fact that he was found innocent during the investigation as is apparent from the evidence of the defence witnesses. Chiragh Hussain D W.2 gave oath on Holy Qur'an in the mosque about the innocence of Muhammad Ismail. Zuffiqar D.W.3 supported bis plea of alibi by deposing that he remained with him the whole day at Police Station Chuti:sna in connection with the hurt case of his father. Even two senior police officers i,e, Sh. Khalil Hassan S.P.(D.W.4) and Nasir Khan Durrani A.S.P. (D.W.5) found him innocent. There is no independent corroboration qua the part played by Muhammad Ismail, as the injury attributed to him is on the head, which crushed the skull of the deceased. According to the evidence., two other accused also fired, so it is doubtful whose shot caused this injury. In the circumstances, the involvement of Muhammad Ismail appellant in the case is not free from doubt; hence while extending the benefit to him, we accept the appeal to his extent, set aside his conviction and sentences and acquit him. He shall be set at liberty forthwith, if not required to be detained in any other case.
15. We now proceed to examine whether non-framing of charge under Ordinance VI of 1979, for the theft of gun has caused material prejudice to the prosecution or the accused. We find that both the parties were being represented by able legal advisors and there is no mention of theft even in the F.I.R. No body moved any application to the trial Court for the amendment of the charge that the offence falling under section 5 of Ordinance VI of 1979, be added. There is substantial force in the submission of the learned Law Officer that actually the accused removed the gun of the deceased to terrify the witnesses who were present there. Even otherwise no charge under section 5 of . The Ordinance could be framed as the gun was not removed froth any hirz, which is the requirement of section 5 for theft liable to Hadd. Over and above this, this legal objection taken by the learned counsel for the complainant is based upon conjectures and presumptions, as the appeal would have gone to the Federal Shariat Court if the accused had been convicted for an offence liable to Hadd and not as Ta'zir. Learned counsel for the complainant has presumed two situations simultaneously in order to develop his argument. His first argument is that it is a clear case of Hadd in which in all probability the conviction would have been under the Hadood Ordinance and the witnesses were of that quality which was required under the Qanun-e-Shahadat i,e, Tazkiyah-al- Shuhood and they abstain from major sins. Both these requirements are not borne out from the record. The accused persons have a right to claim re-trial or remand of the case if they are prejudiced due to the amendment brought about by Law Reforms Ordinance, 1972 in section 537 Cr.P.C. None of the accused has taken up this plea and neither this plea is available to them in view of PLD 1956 SC (Pak.) 440).
16. We have given our anxious consideration to this aspect of the case whether the sentence of Allah Ditta appellant be enhanced to death in view of the revision petition filed by the complainant having been admitted to full hearing. We fmd that the learned trial Judge has given very cogent and valid reasons for not awarding death sentence to Allah Ditta, as the immediate cause which led to the incident remained shrouded in mystery. In addition to that, Allah Ditta was awarded sentence of imprisonment for life by the trial Court on 20-4-1989 and has acquired the right of expectancy of life. This right cannot by easily dislodged on the view that he could be sentenced to death. On the other hand, we fmd that in the given circumstances, sentence of imprisonment for life to Allah Ditta would meet the ends of justice; hence fmding no substance in the revision petition, we dismiss the same accordingly.