' SAJJAD ALI SHAH, C J.--Appellant Ghulam Mustafa and his four other co-accused were put on trial for offence of murder in the Court of learned Additional Sessions Judge Gujranwala and at the conclusion of the proceedings the appellant was convicted under section 302, P.P.C. And was sentenced to death with a fine of Rs,10,000 or in default to suffer further R.I. For two years. He was ordered to pay Rs,10,000 as compensation to the heirs of the deceased or in default to undergo further R.I. For six months. Four co-accused of the appellant were acquitted by the trial Court as they were given benefit of doubt. High Court heard the appeal of the appellant, reference for confirmation of the death sentence, and revision filed by the complainant against the acquittal and in the final analysis of the evidence and hearing arguments, dismissed the appeal of the appellant by confirming his death sentence and also dismissed the criminal revision filed by the complainant as being without substance.
2. Briefly stated the facts in the background are that appellant Ghulam Mustafa and his acquitted co-accused Muhammad Khan are brothers while the other three acquitted co-accused, namely, Nasarullah, Ghulam Nabi and. Ijaz Ahmad are their cousins. Some time before the incident, Muhammad Siddique Teli father of appellant Ghulam Mustafa was murdered and in that case Munir Ahmad and Muhammad Amin sons of Nazir Ahmad Kashmiri were accused and Bashir Ahmad deceased was also named as accused but after investigation his name was put in Column No,2 by the police in challan, hence he was released on bail by the Court. For that reason, Ghulam Mustafa and others bore grudge against Bashir Ahmed and took revenge from him. Incident took place on 5-3-1987 at 3-30 p.m. Deceased Bashir Ahmad, who was brother of wife of complainant Muhammad Sharif, driving a Tonga came from the side of the village near the residence of Muhammad Ashraf son of Muhammad Ali Jat Goraya. In Tonga were sitting Muhammad Nawaz and Nazir Ahmad alongwith some unknown ladies. Acquitted co-accused Muhammad Khan alias Mandu came on a bicycle which he threw in front of Tonga and raised Lalkara that Bashir Ahmad would not be spared. Tonga ran over the wheel of bicycle and Bashir Ahmad jumped from Tonga to run towards the house of Muhammad Ashraf. Appellant Ghulam Mustafa and other co-accused came out from a Suzuki pick-up which was parked on the side of metal road. Ghulam Mustafa and Nasar Ullah were armed with carbines while Ghulam Nabi had double barrel gun and Ijaz Ahmad had revolver. Muhammad Khan was empty-handed. Ghulam Mustafa fired from his carbine at Bashir Ahmad which hit him on the abdomen. Other co-accused fired in the air and warned with loud voice that nobody should come near. Bashir Ahmad in the injured condition reached the house of Muhammad Ashraf, fell down, and died. Incident was seen by complainant Muhammad Sharif ,and his wife Mst. Bashiran, who happened to be present at the spot as they were going to bring milk from the dera of Shahab Din Gujjar and by Muhammad Nawaz and Nazir Ahmad.
Muhammad Sharif lodged F.I.R. At Police Station Saddar Gujranwala on the same day at 4-00 p.m.
Distance between the police station and the place of occurrence was 6-1/2 miles.
3. S.I. Abdul Haq, after registering the F.I.R., came to the place of occurrence, took blood-stained earth from the spot, recorded statements of P.Ws. Under section 161, Cr.P.C., prepared inquest report and sent the dead body to the hospital for post-mortem examination. He took into possession Tonga and bicycle and prepared site plan and inspection memo of the place of the occurrence. On 21-3-1987, he arrested Ghulam Mustafa, Muhammad Khan, Nasar Ullah and Ghulam Nabi accused.
He took into possession the Suzuki Pick-up also. On 27-3-1987 Ghulam Mustafa, while in custody, led to the recovery of the carbine from near the Overhead Bridge Kangniwala area from inside a drain.
The said weapon was put into a sealed parcel. He also arrested Ijaz Ahmad and after completion of investigation, presented the challan in the court.
4. In the trial Court prosecution examined ten witnesses in support of its case. P.W.1 is Arif Hussain, Draftsman, who prepared the site plan as Exhs.PA and PA/1. P.W.2 is Dr. Atta-ul-Mustafa who conducted post-mortem examination on the dead body of Bashir Ahmad and found as many as twelve lacerated wounds in the area of abdomen. Doctor opined that the death resulted from haemorrhage and shock as a result of injuries Nos.1, 2, 3, 4, 5, 6 and 7 which were individually and collectively sufficient to cause the death. P.W3 is Ijaz Hussain P.C. Who was corpse-bearer. P.W.4 Muhammad Sharif complainant and P.W.5 Nazir Hussain have been examined as eye-witnesses of the incident. Mst.Bashiran and Muhammad Nawaz were not examined and given up as unnecessary. P.W.6 Muhammad Ashraf was Muharar/Head Constable at Police Station, Saddar, Gujranwala who kept the sealed parcel containing blood-stained earth which was transmitted to the laboratory of the Chemical Examiner, Lahore. P.W.7 is Muhammad Anwar in whose presence the blood-stained earth was secured and put into the sealed parcel. P.W.8 is S.I. Abdul Haq who investigated the cases stated above. P.W.9 is Nazar Hussain P.C. In whose presence Suzuki pick-up was taken into possession by the police. P.W.10 is Waris Ali who identified the dead body of the deceased at the time of post-mortem examination.
5. In the trial Court Ghulam Mustafa in his statement under section 342, Cr.P.C. Denied the prosecution allegations and claimed false implication due to enmity with the P.Ws. He further stated that nine years ago his brother Riasat Ali was murdered and in that case his father Muhammad Siddique was complainant. His father was murdered, for he was pursuing that murder case. He further stated that since he is the elder in his family and eye-witness of his father's murder, he was being repeatedly involved in false cases by party men and supporters of the complainant in this case. Such pressure tactics are being adopted to prevent him from pursuing the murder case of his father. Other co-accused in their statements under section 342, Cr.P.C., denied prosecution allegations and adopted the stand that they were not present at the spot at the time of the incident and have been falsely implicated due to enmity. Appellant Ghulam Mustafa had his statement recorded on oath and reiterated the facts as stated in his 342, Cr.P.C.
Statement.
6. D.W.1 is Mst. Irshad Bibi who deposed that she was travelling in the Tonga on the fateful day and at the time of incident got down in front of haveli of Muhammad Ashraf. Man and woman, who were sifting in Tonga, entered the haveli of Muhammad Ashraf and after some time report of fire arm was heard. They went and saw in haveli of Muhammad Ashraf where woman was not present.
D.W.2 is Muhammad Rafique who testified that he was foreman in Capital Steel Mills, Badami Bagh Lahore. Muhammad Ali and Ghulam Rasul were employed in the factory. Every Thursday he disbursed salaries and remained busy up to 7/8 p.m. D.W.3 is Farooq Ahmad councillor of ward No,9 of the Muncipal Corporation Gujranwala who deposed that on 5-3-1987 Nasar Ullah had come to him alongwith a friend for attestation of passport form.
7. After dismissal of appeal by the High Court, leave is granted by this Court to examine the contention that prosecution relied upon ocular evidence of two eye-witnesses, namely, P.W.4 Muhammad Sharif complainant and P.W.5 Nazir Hussain which was not believed by the trial Court in respect of the four accused who were acquitted, hence the same could not be used to support the conviction of the present appellant on a capital charge without there being independent corroboration which is not available in the present case.
8. Before entering into the merits of the contention mentioned in the leave granting order, it would be pertinent to go back to the judgment of the trial Court to see how the evidence was appraised to distinguish the case of the appellant before us, who is convicted, from the case of the four co- accused, who were acquitted, and the reasons assigned by the trial Court for such acquittal. It is an admitted position that the fatal injuries of the deceased are not imputed by the prosecution to the acquitted co-accused, from neither weapons were recovered nor empties were collected from the spot. Relevant paragraph from the judgment of the trial Court giving reasons in support of acquittal of the co-accused is as under:- "It is strange to note that first shot fired by one of the accused proved effective but so many other shots fired by all the four accused, who were armed with weapons, proved ineffective, when the objects were also within their range. The motive or enmity cuts both ways. The possibility of false implication of some of the accused, therefore, cannot be ruled out. Farooq Ahmad Butt D.W.3 Ex- Councillor of Municipal Corporation Gujranwala stated that Nasar Ullah accused alongwith his father and others was present with him at the time of occurrence there. I have no reason to disbelieve this D.W. Who has not been attributed any motive or against the deceased or his party.
D.W.2 Muhammad Rafique a Foreman of Capital Steel Mills, Badami Bagh, Lahore, brought the register of attendance and stated that Muhammad Ali and Ghulam Rasul were employees in the factory. The register was not got exhibited nor specific entries at the relevant date with respect to the relevant accused have been brought on the record, therefore, the statement of this D.W. Is worthless to any side. No weapon of offence has been recovered from Nasar Ullah, Ghulam Nabi and Ijaz Ahmad accused while Muhammad Khan accused in no way had been connected with the cycle P.2. However, the impression of the evidence led by the prosecution as well as the defence is that false implication of four of the accused namely Muhammad Khan, Nasar Ullah, Ghulam Nabi and Ijaz Ahmad cannot be ruled out."
9. It is apparent from the record that against the acquittal of the co-accused by the trial Court, complainant filed a criminal revision in the High Court which was heard alongwith the appeal of the convict and reference for confirmation of death sentence and the said revision has been dismissed, which has attained finality as complainant has not filed any petition for leave to appeal against the dismissal of the revision. After evaluation of the evidence, High Court has come to the conclusion that complainant P.W.4 Muhammad Sharif has truthfully narrated the facts of the incident which find corroboration from the evidence of P.W.5 Nazir Hussain who is not related to the deceased and has no malice towards the appellant and such evidence is further fortified by motive and medical evidence, which can be believed ignoring minor discrepancies pointed out in the evidence of the witnesses. It will, therefore, be necessary now to take up for analysis the evidence of these two eye-witnesses, P.W.4 Muhammad Sharif and P.W.5 Nazir Hussain, to find out whether they are independent and trustworthy and whether to supplement their evidence, corroboration is required, if yes, of what kind and to what extent.
10. P.W.4, Muhammad Sharif (complainant), has narrated the same facts of the incident as were stated by him in the F.I.R. He has named his wife Mst. Bashiran Bibi, Nazir and Nawaz to be the eye- witnesses. His wife Mst. Bashiran Bibi was with him as they both were going to fetch milk while Nazir and Nawaz were passengers in Tonga which was being driven by deceased Bashir Ahmad. Details of the incident as stated by him in F.I.R. And his deposition are same on almost all material particulars. There is no dispute about the fact that the F.I.R. Is the first document in which relevant facts of the incident are stated briefly and when complainant gives evident in the Court, he narrates details of the same points briefly stated in the F.I.R. In such circumstances, if the deposition of the complainant in the court is compared with F.I.R., there could be found omissions in the F.I.R., which can be termed trivial if they related to the same points already stated in FIR but significant if raised new points not touched in F.I.R. In the instant case omissions are trivial as rightly held by the trial Court and the High Court and with that finding we also agree.
11. Another important feature is that the F.I.R. Was lodged without loss of time. Incident took place on 5-3-1987 at 03-30 p.m. And F.I.R. Was lodged on the same day at 4-00 p.m. When there was distance of 6-1/2 miles between the spot and the police station. In the cross-examination of the complainant in the trial Court, no challenge was made that the complainant did not see the incident but he was cross-examined on the lines that he had exaggerated the version of the incident. Complainant stated in his evidence that he went to the police station alone and reached there at 4-00 or 4-15 p.m. And no further challenge was made in the cross-examination on that point. No questions were put to the complainant as to how did he reach the police station?
Whether on foot or in a transport. Assertion of the complainant that at the time of the incident he was going alongwith his wife to fetch milk as he ran a milk shop was also not challenged seriously in the cross-examination. Only one suggestive question was put in the cross-examination that he personally never went to fetch milk was denied by him. Time of the incident and death as stated in F.I.R. Is further confirmed in evidence of P.W.2, Dr. Atta-ul-Mustafa, who conducted the post-mortem examination on the dead body. Now there is no dispute about the fact that the deceased was brother of wife of the complainant, hence they were relatives inter se and for that reason complainant was interested witness particularly when he claims to have seen the incident while he was just on his way with his wife to fetch milk for the shop. Now if this assertion is not acceptable or believable, then the complainant should have been cross-examined in detail on that point and his cross-examination should have manifested doubt with regard to his veracity. So far the details of material particulars of the incident are concerned, examination-in-chief and cross-examination of the complainant, when read together, do not show incorrectness of the claim that he had seen the incident.
12. Second eye-witness examined by the prosecution is P.W.5, Nazir Hussain, who is not related to the deceased or the complainant. In cross-examination, at the very out set this witness very frankly admitted that deceased Bashir Ahmad and he were accused in the murder case of Barkat Nai in which both were released on bail. On the day of incident he was by chance passenger in the Tonga of the deceased in which Nawaz was already sitting. There were lady passengers as well in Tonga.
This witness narrated the facts of the incident in the same manner as the complainant had narrated in his evidence. This witness stated in his deposition that after incident accused persons took away empties from the spot but some empties were still lying there. One other contradiction pointed out is that this witness testified that Bashir Ahmad, after being hit, put his hand on the wound bent slightly and rushed to the house of Ashraf and blood did not trail from the place of occurrence to the place where he fell down in the verandah of the house while the complainant did say so. Investigating Officer in his evidence has not mentioned trail of blood but recovered blood- stained earth from the place where the dead body was lying. Inspection memo of site (Exh.PA) shows that at point 'B' Bashir Ahmad was fired at, after which he put his hand on his abdomen where he was shot and bent and went inside the house at point 'A' where he fell down and died.
Both the eye-witnesses have stated that Bashir Ahmad was hit in the lower part of the abdomen and put his hand on the wound and went into the house. One eye-witness has stated that there was trail of blood and the other did not say so. On this point further questions were not put to the Investigating Officer who did not mention about the trail of blood. On this point the doctor was also not cross-examined when he gave finding that it was due to internal haemorrhage caused by injuries as a result of shot fired in the region of abdomen. In these circumstances, it appears that the deceased, from the point where he was shot at to the point where he fell down, had covered his wound with his hand and walked up distance of Sixty-feet only and could have succeeded in suppressing oozing out of blood from making the trail. If at all blood had oozed and left a trail, then it might have been insignificant and not noticeable. In any case, this fact alone is not sufficient to justify saying that the eye-witnesses had not seen the incident.
13. So far appraisement of evidence is concerned, it is the duty of the Court to appraise the evidence in such a way that falsehood is separated from truth which is called "sifting of grain from chaff'. In this case five persons were put on trial on charge of murder and four of them were acquitted by the trial court while the appellant before us was convicted and sentenced to death and his appeal was dismissed by the High Court. Trial Court has given reasons for acquittal as it was not alleged that they caused fatal injuries to the deceased and further case was not proved against them beyond doubt. So far the appellant is concerned, he is named in the F.I.R. As the assailant who fired the fatal shot at the deceased. Prosecution has examined two eye-witnesses one of whom is complainant and is related to the deceased. Both the eye-witnesses have stood the test of the cross-examination which shows that they have seen the incident. Corroboration is available in this case in the form of circumstances which speaks for them. Firstly, appellant is named in F.I.R. With allegation that he fired fatal shot at the deceased and that F.I.R. Was lodged without any ostensible delay. Secondly, medical evidence of the doctor also shows that the incident took place in the manner as alleged by the prosecution which cannot be corroboration qua accused. Thirdly, the appellant has admitted in his 342, Cr.P.C. Statement story with regard to the motive that his father was murdered in which appellant was accused and was released on bail and carried the story forward in his statement on oath that because he was elder in the family and wanted to pursue the case of murder of his father as an eye-witness, he had been falsely involved in this case so that he should not pursue that case. Fourthly, other co-accused in this case took up the plea of alibi and produced some material in support of that assertion and the present appellant took up the plea that he had been involved falsely in this case due to enmity and produced D.W.1, Mst. Irshad Bibi, who deposed that on the day of incident she was in the Tonga and a man and woman from Tonga went to the house of Ashraf, after which she heard firing and found the man dead and the woman absent. Evidence of this woman was not believed by the trial Court as she had not joined the investigation. Evidence on the record shows that the present appellant had strong motive to take revenge of the murder of his father particularly when the deceased in this case, who was named as an accused in the case of murder of his father, was released on bail.
For reasons stated above, it can be said that there is sufficient evidence of incriminating nature to connect the appellant with the crime.
14. Learned counsel for the appellant requested for reduction of sentence on the ground that if this Court considers that prosecution has proved its case, then it calls for lesser sentence on the ground that the murder was committed for avenging family honour and in support reliance is placed on the cases of Ajun Shah v. The State (PLD 1967 SC 185) and Muhammad Aslam v. The State (PLD 1958 SC 257). In the first mentioned case, Ajun Shah's sentence was reduced from death to one of transportation for life on mitigating circumstances to the effect that murder was committed in North-West Frontier Province and at the time of murder the appellant was twenty- eight years old and took revenge of the murder of his father and brother which took place in 1945 when he was a child of eight years. In the case of Muhammad Aslam (supra), sentence was reduced from death to imprisonment for life on the ground that the appellant took revenge of murder of his father which took place 12/13 years ago in the Province of Punjab and at the time of incident in the case under consideration appellant was hardly fifteen years old. In this case reliance was placed on the case of Ajun Shah. The question for reduction of sentence from death to life imprisonment on the ground of family honour came up for detailed consideration of this Court in the case of Ghulam Abbas v. Mazhar Abbas (PLD 1991 SC 1059) wherein it was held that notwithstanding the fact that an element of private revenge was involved, this would depend upon circumstances of each case to determine the very delicate balance between whether family honour and duties overtook the human thought and action and whether the private revenge predominantly overtook such thought and action. For that purpose the Court has to see other attending circumstances as to at what stage reduction is asked for and in which forum and for what reasons. The case of Ajun Shah (supra) was distinguished. The trial Court had sentenced the respondent to .Death which was reduced to life imprisonment by the High Court and complainant as petitioner in this Court sought enhancement of sentence by way of restoration of death sentence. Motive stated in F.I.R. Was that the deceased was tried and acquitted in the case of murder of the uncle of the respondent which fact was not disputed and after considering the attending circumstances, it was held that it was a fit case in which leave for enhancement of sentence from life imprisonment to death should be refused.
15. Keeping in view the case-law cited above, it appears that in the instant case it was purely question of private revenge which was taken in spite of the fact that the case was pending disposal and the deceased was released on bail. It also appears that it is not a case of sudden provocation as the appellant and his other co-accused were armed with deadly weapons and were lying in wait for deceased to reach the spot driving Tonga which shows the pre-concert. Since the trial Court and the High Court have not considered it a fit case for reduction of sentence, we are satisfied that both the forums are right in not reducing the sentence for valid reasons and we also decline interference on that ground for the reason that if we do so it would amount to putting premium on taking private revenge by encouraging people to take law in their own hands bypassing the Courts of justice which are available to decide the question of guilt of the accused.
16. For the reasons stated above, we are of the view that this appeal has no merits and is dismissed as such.