1. ' RASHID AZIZ KHAN, J.--- Fateh Sher son of Allah Dad (22), (2) Ghulam Abbas son of Ghulam Muhammad, (28), (3) Ghulam Muhammad son of Ali Ahmad (27), (4) Ghulam Muhammad son of Zaman (80), (5) Alam Khan son of Zaman (72), (6) Zulfiqar son of Allah Jawaya (51), (7)
2. Muhammad Sher son of Muhammad (45) and (8) Muhammad Azam son of Ghulam Muhammad
(31) were reported against with Police Station Wan Bhachran, District Mianwali for offences under section 302/307/148/149, P.P.C. Additional Sessions Judge, Mianwali vide judgment, dated 2042- 1990 found the above-named accused guilty for the murders of Barkhurdar and his son Muhammad Sher. The trial Court convicted and sentenced Fateh Sher, Ghulam Abbas, Ghulam Muhammad son of Ali Ahmad, Alam Khan, Muhammad Sher son of Muhammad and Muhammad Azam, under section 302/149, P.P.C. To death each on two counts, with a fine of Rs,10,000 each, or in default one year's R.I. Each. Ghulam Muhammad son of Zaman, and Zulfiqar each of them was found guilty under section 302/149, P.P.C. And was sentenced to imprisonment for life on each count with a fine of Rs,10,000, or in default one year's R.I. Each. All of them were further convicted under section 148, P.P.C. And each of them was sentenced to two years' R.I. Ghulam Abbas was further convicted under section 307, P.P.C. And sentenced to five years' R.I. With a fine of Rs,5,000, or six months' R.I. For causing injuries to Muhammad Zaman, P.W. Muhammad Sher, convict, has filed an appeal through jail bearing Criminal Appeal No,23/J of 1991. Rest of the convicts have filed separate appeal, bearing Criminal Appeal No,903 of 1990 challenging their conviction and sentences. Complainant Abdul Rehman has also filed a revision bearing Criminal Revision No,67 of 1991 seeking enhancement of sentence against Ghulam Muhammad and Zulfiqar. Case is also before us for confirmation of death sentences. All these matters will be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in F.I.R. Ex lodged by Abdul Rehman, was to the effect that he was employed in the Army. On 20-4-1989 he was present in his house as he had come on leave.
3. Fifteen/twenty minutes before Aftaari, first informant's cousin Muhammad Sher with his father Barkhurdar, who was armed with a .12 bore gun, were coming back along the path to their village bringing fodder for their cattle. Muhammad Sher was 7/8 Karams ahead of his father Barkhurdar.
4. Fodder was loaded on a camel. When they reached near the wheat crop of one All Ahmad, Ghulam Abbas armed with .12 bore gun, Fateh Sher son of Allah Dad armed with rifle, Alam Khan with .12 bore pistol, emerged from the northern side of wheat crop, whereas on the Southern side were Muhammad Sher armed with .12 bore rifle, Ghulam Muhammad son of All Ahmad with .12 bore pistol, Ghulam Muhammad son of Zaman and Zulfiqar armed with .12 bore guns, and Muhammad Azam armed with .12 bore rifle was hiding in the Dera of one Sarfraz, which was nearby. Abbas raised a Lalkara that Muhammad Sher should not escape and simultaneously Fateh Sher fired, which hit Muhammad Sher on his right ear. Second shot was fired by Abbas, which hit Muhammad Sher on his right thigh. It was followed by Alam Khan, whose fire hit Muhammad Sher in the abdomen, who fell down. Barkhurdar in order to save his son came running towards him and simultaneously fired with his rifle hitting Muhammad Azam on his leg. Muhammad Azam fired at Barkhurdar which hit on the left eye of Barkhurdar. It was followed by Ghulam Muhammad son of Ali Ahmad, whose fire hit on the left forearm of Barkhurdar. Ahmad Sher fired which hit in the abdomen of Barkhurdar, who fell down. Ghulam Muhammad son of Zaman, and Zulfiqar also kept on firing.
5. The occurrence was witnessed by first informant with Muhammad Zaman brother of the first informant, Ali Muhammad and Haibat Khan. On seeing them coming, Fateh Sher fired his rifle shot at Muhammad Zaman, which hit him in his abdomen. Muhammad Sher and Barkhurdar died at the spot. Motive for the occurrence was that the accused persons suspected Muhammad Sher deceased of having illicit relations with Mst. Kausar, daughter of Muhammad Sher accused, who was niece of Zulfiqar and cousin of Ghulam Abbas and Muhammad Azam accused. Earlier, on account of Bradri the matter had been patched up, but the. Accused persons committed the murder for the said reason.
6. ' Occurrence took place on 20-4-1989, 15/20 minutes before Aftaari, in Village Shadia, 5 miles from Police Station Wan Bhachran. F.I.R. Exh.P.M. Was recorded the same day at 7-25 p.m. On the statement of Abdul Rehman, P.W.11, which was recorded by Abdul Razaq, S.I./S.H.O., P.W.15.
7. ' Abdul Razaq, S.I./S.H.O., P.W.15, after recording F.I.R. Exh.P.M., went to the spot and prepared injury statement Exh.P.V. And inquest report Exh.P.V./1 of Muhammad Sher, deceased. Injury statement Exh.P.W. And inquest report Exh.P.W/1 of deceased Barkhurdar was also prepared by him. Thereafter he sent the dead bodies for autopsy. On 21-4-1989 he secured blood-stained earth Exh.P.O. And blood-stained earth Exh.P.N. From the spots where dead bodies of Barkhurdar and Muhammad Sher were lying. He also picked up .12 bore gun P.9 with licence P.9/1 of Barkhurdar deceased vide memo. Exh.P.P. A camel loaded with fodder was also taken into possession vide memo. Exh.P.Q. He got all the memos attested from the witnesses. He went to the hospital and recorded the statement of Zaman, P.W., there. Last-worn clothes of both the deceased Muhammad Sher and Barkhurdar were secured vide memo. Exhs.P.J. And P.K. Respectively. He got site plan Exhs.P.K. And P.K./1 prepared from Patwari and gave his notes in red ink thereunder. He arrested the accused. At the time of arrest, Ghulam Abbas accused produced gun P.10 with three live cartridges P.11/1-3, which were secured vide memo. Exh.P.R. On 30-4-1989 Fateh Sher accused got recovered rifle P.12 and two live cartridges P.13/1-2 from his house, vide memo. Exh.P.F. Accused Ghulam Muhammad son of Ali Ahmad got recovered from his house pistol .12 bore P.14 and two live cartridges P.15/1-2, which was secured vide memo. Exh.P.G. Azam accused on 14-5-1989 got recovered gun P.16 alongwith two cartridges P.17/1-2 from his residential Kotha vide memo. Exh.P.U. On 19-5-1989 Zulfiqar accused got recovered .12 bore gun P.8 from his house vide memo. Exh.P.L. The recoveries were witnessed by Abdul Razaq, S.I./S.H.O., P.W.15, and Abdul Rehman, P.W.11. Exh.P.L. Was also signed by Ghulam Dastgir, H.C., P.W.10.
8. ' Dr. Mehr Khan, Medical Officer, D.H.Q. Hospital, Mianwali, P.W.1, on 20-4-1989 examined Muhammad Zaman, P.W., and found one injury. Subsequently vide his report dated 16-6-1989 Exh.P.C. He kept the injury under observation as grievous.
9. ' On 21-4-1989, he conducted the post-mortem examination on the dead body of Muhammad Sher and found the following injuries:--
(1) A fire-arm grazing wound 9 c.m. x 5 c.m. On the right side of skull which involved the upper half of right ear, brain matter was peeping through and bony cage over it was destroyed. Bony pieces were seen scattered in the brain matter. This was 6 c.m. Behind the outer canthus of right eye and three c.m. Above the external auditory neatus.
(2) 6 entry wounds of fire-arm 1/2 c.m. x 1/2 c.m. Each in size in the area of 13 c.m. x 8 c.m. Over the front of right lower chest 8 c.m. Below the right nipple and 7 c.m. From the midline.
(3) 2 entry wounds of fire-arm 1/2 c.m. x 1/2 c.m. Over the spigestrium 3 c.m. Apart from the midline 7 c.m. Above the umbilicus.
(4) 7 entry wounds 1/2 c.m. x 1/2 c.m. Each in size of fire-arm with charred circular impact wound 1.5 c.m. x 1.5 c.m. In between area of 11 c.m. x 6 c.m. On the outer side of left abdomen, 3 c.m. Above the left interior superior iliac spine and 15 c.m. Below the left axillary pit.
(5) 2 exit wounds of fire-arm 1 c.m. x 1 c.m. Over the front of left costal margin 8 c.m. From the midline and 13 c.m. From the left nipple.
(6) An entry wound of fire-arm 1 c.m. x 1 c.m. On the postrolateral aspect of right upper thigh 22 c.m.
10. Below the right iliac crest and 30 c.m. Above the knee joint.
(7) An exit wound of fire-arm 1 c.m. x 1 c.m. On the outer side of right upper thigh 23 c.m. Below the right anterior superior iliac spine and 28 c.m. Above the right knee joint.
11. ' In his opinion, death had occurred due to shock and haemorrhage on account of injuries Nos,1, 2 and 4, which were ante-mortem and sufficient to cause death in the ordinary course of nature.
12. ' On the same day he also conducted the post-mortem examination on the dead body of Barkhurdar and found the following injuries:--
(1) An entry wound of fire-arm 1/2 c.m. x 1/2 c.m. Over outer canthus of left eye with collapse of left eye-ball.
(2) An entry wound of fire-arm 1/2 c.m. 1/2 c.m. On the outer side of left arm, 13 c.m. Below the tip of left shoulder and 19 c.m. Above elbow joint.
(3) An exit wound of fire-arm on the posterior medial aspect of left arm, 1/2 c.m. x 1/2 c.m. In size. It was 13 c.m. From the tip of left shoulder and 20 c.m. Above the elbow joint.
(4) An entry wound of fire-arm 1/2 c.m. x 1/2 c.m. Over the left lower abdomen, 5 c.m. Below and to the left of the umbilicus, it was 2 c.m. From midline.
(5) An exit wound of fire-arm 1/2 c.m. x 1/2 c.m. In size on the right buttock upper and outer part, it was 5 c.m. Below iliac crest and 6 c.m. Behind right interior superior ilic spine.
13. ' In his opinion, death had occurred due to shock and haemorrhage on account of injury No,1, which was ante-mortem and sufficient to cause death in the ordinary course of nature.
14. ' P.W.2 Dr. Muhammad Khan took X-ray films of the injuries of Muhammad Zaman and of Muhammad Azam, accused.
15. ' P.W.7 Dr. Abu Bakar Siddique gave his opinion regarding the fitness of Muhammad Zaman, P.W. For making a statement.
3. Prosecution in support of its case produced 15 witnesses in all. Muhammad Parvaiz, P.W.3, the constable had escorted the dead bodies to mortuary. Ghulam Muhammad, F.C., P.W.4 had escorted the dead body of Barkhurdar to the mortuary and thereafter produced the last-worn clothes before the Investigating Officer. P.W.5 Muhammad Mumtaz, H.C. Was entrusted with sealed parcels which contained blood-stained earth for onward transmission to the concerned office.
16. P.W.8 Ghulam Shabbir, Patwari had prepared site plan Exh.P.K./1 and P.K.1/A on the directions of the police. Sher Muhammad, P.W.9 had identified the dead bodies. P.W.10 Ghulam Dastagir, H.C., had witnessed the recovery of gun P.8, effected at the instance of Zulfiqar from his house, and he signed the recovery memo. Exh.P.L. Ocular account was furnished by Abdul Rehman and Muhammad Zaman, P.Ws.11 and 12, respectively. P.W.13 Malik Ghulam Muhammad, S.H.O. Had recovered the licensed gun P.8 from Zulfiqar and prepared memo. Exh.P.L. P.W.14 Abdul Qadar, D.S.P.
17. Had partly investigated the case and found the accused guilty. The case was also investigated by Abdul Razaq, S.I./S.H.O., P.W.15, who submitted the challan.
18. ' At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. Muhammad Azam in answer to a question further stated that on the fateful day after Aftaari, he alongwith Muhammad Amir and Said Amir, his relatives, was coming to his Dera from Muhammad Shah Wala. When they came near the place of occurrence, both the deceased fired at them and his companions in self-defence also fired hitting both the deceased. All the accused, however, neither produced any defence evidence nor appeared in defence on oath.
4. It was contended by learned counsel for the appellants that the case against them was not proved at all. Submitted that the prosecution witnesses had made material improvements, whereby their credibility had become extremely doubtful. Argued that the motive as set up by the prosecution was not directed against the appellants. Submitted that the injury on the person of Muhammad Zaman, P.W., was initially attributed to Fateh Sher, but subsequently in order to bring it in line with medical evidence Abbas accused was attributed the same, which renders the ocular account unreliable. Argued that prosecution's own case was that Muhammad Azam was sitting inside the house of one Sarfraz when Barkhurdar fired at him, and in such circumstances, he had fired a solitary shot in his defence. He neither committed any offence nor he exceeded right of private defence. Submitted that there is no evidence whatsoever which could indicate that the appellants knew when and from which side both the deceased would be coming. Submitted that the presence of the first informant at the site was extremely doubtful because he has neither stated any purpose for which he was present at the spot nor a villager is expected to be outside his house 15/20 minutes before Aftaari. Argued that uncorroborated testimony of the highly interested and inimical witnesses cannot be relied upon without corroboration, which is not available because the guns recovered at the instance of the appellants would not be of much use because no empty was secured from the spot. The contentions were opposed by learned counsel for the State as well as for the complainant. According to them, two persons were done to death and all the appellants were named in the F.I.R. And specific role was ascribed to them.
5. We have heard the learned counsel at length and gone through the evidence. Prosecution in order to establish its case has relied upon ocular account furnished by Abdul Rehman and Muhammad Zaman, P.Ws.11 and 12, respectively, and sought corroboration from the evidence of motive, recovery and medical evidence. As far as the motive in the instant case is concerned, it was that the appellants suspect the deceased Muhammad Sher of having illicit connection with Mst. Kausar, daughter of Muhammad Sher, appellant. It is also in evidence that much before the occurrence the matter was taken up in Punchayat, which directed that two sisters of the deceased be given in Nikah with Muhammad Sher and his nephew Zafarullah, and it was accordingly done in the year, 1988. A perusal of the statements of both the witnesses, i,e, P.W.1 and P.W.12 indicates that even if the appellant side had suspected illicit relations of the deceased with Mst. Kausar, it was patched up and the matter stood resolved a year before the present occurrence. It is also in evidence that said Mst. Kausar was married and was living happily with her husband. Even otherwise, the appellant side had got two sisters of the deceased in Nikah, therefore, there was no occasion of any grudge or grouse with them. In these circumstances, we are of the view that the motive for the commission of the offence is not proved.
19. ' As far as the recoveries of fire-arms at the instance of the appellants are concerned, they cannot be used as corroboration because no crime-empty was secured from the spot which could establish that any of the guns, recovered at the instance of the appellants, was used in the occurrence. The recovery of a gun simpliciter cannot establish that it was used in the commission of murders.
20. ' As far as medical evidence is concerned, it contradicts the prosecution story as disclosed in the F.I.R. And in the statements of the witnesses recorded under section 161, Cr.P.C. Prosecution story at the initial stage was that Fateh Sher fired his rifle which hit Muhammad Zaman, P.W.12.
21. Subsequently, Dr. Mehr Khan, M.O. In cross-examination stated that the injury to Muhammad Zaman, P.W., was the result of pellet, which was seen in X-ray as well. The pellet was still present in the body. Since the prosecution assertion was that he was fired at by Fateh Sher with rifle, but the doctor found a pellet in the injury, therefore, the medical evidence instead of corroborating the ocular account, contradicts it.
22. ' As far as the ocular account is concerned, it had been furnished by Abdul Rehman and Muhammad Zaman, P.Ws.11 and 12, respectively. Abdul Rehman, P.W.11, is sister's son of Barkhurdar, deceased. He was also son-in-law of the deceased. His sister was also married to Muhammad Sher, deceased. Muhammad Zaman, P.W.12 was also son-in-law of Barkhurdar, deceased. In these circumstances, both the witnesses are close relations and interested witnesses. As discussed earlier, no reliance on their statements can be placed as far as the motive is concerned, because the motive was directed against the appellants for the commission of murder as they were given two sisters of Muhammad Sher, deceased, in Nikah. Injury on the person of Muhammad Zaman has become doubtful therefore no reliance on both the eye-witnesses can be placed as far as this aspect is concerned, because their version before the investigating agency was that Fateh Sher had fired at Muhammad Zaman, P.W., with rifle, but subsequently the same injury was attributed to Abbas, who was armed with gun, because the doctor had opined that a pellet was found in the body of the injured. Prosecution's consistent story was that the shots fired by Muhammad Sher, Muhammad Azam and Ghulam Muhammad hit Barkhurdar deceased. Each of them was ascribed a specific injury on the deceased. Dr. Mehr Khan, P.W.1, who had conducted post-mortem examination, had stated that the possibility could not be ruled out that the injuries Nos,1, 2 and 4 on the person of Barkhurdar could be the result of one shot. This opinion of the doctor is in conflict with the ocular account and thereby the eye-witness account requires unimpeachable corroboration.
23. The doctor had also opined that injury No,4 on the person of Muhammad Sher, deceased, was the result of a fire from within a distance of 6 feet as the injury was charred. The site plan Exh.P.K./1 prepared on the directions of the witnesses indicates that the injury was fired from more than 6 feet.
24. ' For what has been discussed above, we have noticed that the eyewitnesses have been disbelieved as far as the motive is concerned. Similarly, no reliance on the statement of the eye- witnesses can be placed as far as the death of Barkhurdar is concerned because, as discussed earlier, Azam appellant had fired at him in self-defence. In order to rely upon the statements of these witnesses, who are disbelieved about the motive and contradicted by medical evidence, strong corroboration is required. We have been unable to find any corroboration which could lend support to the ocular account. Recovery of fire-arms, as discussed earlier, will not be of any consequence in the absence of empties, which were not found. Medical evidence does not corroborate the ocular account in toto as discussed earlier. Therefore, we feel it may not be in the interest of administration of criminal justice to rely upon testimony of interested and inimical witnesses who have been held not reliable qua the murder of Barkhurdar, deceased. Therefore, giving the benefit of doubt, we accept the appeals, set aside the convictions and sentences of the appellants, and direct that they be released forthwith if not required in any other case. Ghulam Muhammad son of Zaman, and Zulfiqar son of Allah Jawaya are on bail. Their bail bonds shall stand discharged.
25. ' For the same reasons, revision filed by the complainant fails, which is accordingly dismissed.
26. Death sentences are not confirmed.