' ABDUL JABBAR KHAN, J.-Baciar son of Nawab caste Sukhera aged 31 years and Hassan son of Ghulam caste Wattu aged 27 years, both residents of Ghuroandpur, Police Station Minchanabad, District Bahawalnagar, have appealed against the judgment and order dated 2nd June, 1973, passed by Ch. Muhammad Sharif, Sessions Judge, Sahiwal, by which &Kw appellant has been sentenced to death under section 302, P. P. C., with a fine of Rs, 2,000 and in default whereof he was ordered to undergo simple imprisonment for six months, whereas Hassan appellant was acquitted under section 302/34, P. P. C., The learned trial Judge found both the appellants guilty under section 392 read with section 397, P. P. C., and convicted and sentenced them to undergo 10 years' it. I., each with a fine of Rs, 1,000 each and in default of payment of which to suffer further three months'
S. I. It wa further directed that out of the fine if realised, Rs, 4,00u the entire fine, should be given to the heirs of the deceased by way of compensation as contemplated under section 544-A, Cr. P. C.
2. On 31st October, 1969 at 9-15 p. m. Qasim Ali P. W. 16 lodged F. I. R., Exh. P. A. With Police Station Pakpattan that while he was travelling in a tongs alongwith Aziz tonga driver, resident of 13/S. P., Khushi Muhammad son of Karam, resident of 13 S. P. Lal Din son of Noor Din resident of 17/S. P., Bashir son of Allah Mehr caste Rangar resident of 22/S. P., and Gaman son of Sher Muhammad caste Baluch resident of - 96/9-L, aheading towards Chak No, 17/S. P., reached near bridge Rakh Ganga Ram of Pakpattan Canal, the tonga horse suddenly got frightened and ceased to move. In the flash of a torch he saw a dead body, holding a cycle between its thighs. This dead body was lying east to west in the mid of pacca road going from Pakattan to Depalpur. In the light of the torch he identified the dead body as that of Qamar-uz-Zaman Constable who was a D. F. C., of his area. He found the dead body besme ared with blood.
3. Sher Muhammad A. S. I., P. W. 8 who was at the relevant time posted at Police Station, Pakpattan, partly investigated this case. After recording the F. I. R. He went to the spot and prepared the inquest report Exh. P. S. And the injury statement Exh. P. S.
1. He sent the dead body to the mortuary for post-mortem examination under the escort of Muhammad Amir F. C. P. W.
7., he collected some blood-stained earth from underneath the dead body of the deceased and made it into a sealed parcel vide memo. Ex. P. H. He took into possession bicycle of the deceased vide memo. Ekh. P. J. He found two empty cartridges P. 14/1-2, from the spot which were \ taken into possession by him vide memo. Exh. P. K. He also got prepared two moulds which were Exh. P. 27/1-2 and collected the articles P. 18/1-7, P. 19 and P. 20 which were in the bag P. 17 lying at a distance of one Killa from the spot. These articles were taken into possession vide memo. Exh. P. M. He also get prepared site plans Exhs. P. Q., P. A. 1 and P. Q. 2 and entered notes in red ink on these site plans. He handed over the investigation of this case to Mirza Ghulam Ali A. S. I., P. W. 10, Mirza Ghulam Ali P. W.
Who was posted at C. I. A., Staff when the above- mentioned incident took place ; raided the house of the accused on 4th November, 1969 at 3-30 a. m. The accused were duly arrested by this witness. He recovered a single-barrel gun, P. 2/1 from Baqar appellant alongwith a leather bag P. 3 which contained nine live cartridges P. 4/1-9 and an empty cartridge P. 5 vide memo. Exh. P. C. The gun was made into a sealed parcel Exh. P. C./1, was sketch of the gun which was also drawn by this witness. He recovered from Baqar appellant one other bag P. 6 which contained a belt of Police Constable No, 484, P. 6-1, whistle P. 7, police shoulder P. 8, police cap P. 9, a Khaki cap P. 10 and a Khaki pant P.
11. All these articles were taken into possession vide memo. Exh. P. D. Baqar appellant was wearing a wrist-watch e. 2 which was removed from his wrist and was taken into possession vide memo. Exh.
P. E. This document has been exhibited in Murder Reference No, 145 of 1973. He also get removed gurgabi P. 16/1-2, from the feet of Baqar and took the same into possession vide memo. Exh. P. H.
This Exh. P. H. Has been placed on the other file of the connected murder case against the appellants.
4. Hassan appellant got recovered a double-barrel gun P. 12, a leather belt P. 14/3 containing eight live cartridges P.
134.8, and two empty cartridges P. 14/1-2, vide memo. Exh. P. F. The gun was made into a sealed parcel and its sketch Exh. P. F. 1, was also prepared. These exhibits have been placed on the connected tile. Watch P. 15, removed from the wrist of Hassan appellant was taken into possession vide memo. Exh. P. G. A pair of gurgabi shoes P. 17/1-2, was also taken into possession vide memo.
Exh. P. J., which has been placed on the record of the connected murder case. A site plan Exh. P. U.
Relating to the place of recovery was also prepared by this witness.
' It may be pointed out that the house of the appellants was raided on the information furnished by Mst. Khanam, a relation of the appellants whose statement has been recorded in connected Murder Reference No, 145 of 1973. This information was disclosed by the said lady when the tracks of the appellant led to her house.
' Dr. Abdur Rashid P. W.
1., M.
0. Pakpattan, conducted postmortem examination on the dead body of Qamar-uz-Zaman F. C.
' No, 484, on 1st November, 1969 at 4-30 p. m. And found the following injuries on his person :-
(f) Almost circular firearm wound 2- in diameter close to left shoulder joint. Left humerus shattered, wound communicating with chest.
(2) 4 pellet marks on the left side of neck 1/3" diameter each going inside the neck, wound of entry.
(3) One pellet wound half inch diameter on the right side of neck. That was wound of exit of one of the pellets of injury No, 2.
5.In his opinion the death occurred due to shock on account of tremendous bleeding, due to injuction of heart and lungs. In found that injury through and through to heart was sufficient to cause death in the ordinary course of nature. Injuries on the person of the deceased were declared to be caused by fire-arms. Cork pieces and two pellets had been removed from the dead body and were sent to the police under a sealed cover. He found that the firearm was used from a very close distance. The probable time between injuries and death was immediate and that between death and post-mortem was 24 hours.
6. The case of the defence is that of bare denial. Both the appellants claimed that they were shown to the witnesses and their shoes and feet were also made known to the trackers, by the Police, before the identification parade was held. In their statements under section 342, Cr. P. C. Before the trial Court they stated that Mst. Khanam was their relative : that she sent her daughter Aist. Rukia to be purchased by their father for Hassan appellant. Myt. Rukia lived in their house for a pretty long time but as her parents could not get divorce from her previous husband, their father refused to marry her and to pay money to her parents. She was restored to her parents and no money was paid by their father. For this reason Mit. Khanam nursed a grudge against them and they were falsely involved in this case because she and her family felt that they had been defamed. The appellants further claimed that Muhammad Shafi P. W. Alongwith others were inimical towards them and that they have been made a scapegoat in place of Zulifiqar Randloo, who had been discharged by the inquiry Magistrate.
' It may be pointed out that both the appellants are step-brothers having a common mother and different fathers.
7. The motive in this case as set up by the prosecution is nothing but a case of robbery which resulted into ,the death of Police Constable Qamar-uz-Zaman who was duty-bound to maintain law and to fight the crimes.
8. The case of the prosecution rests on the following categories of evidence
(I) Eye-witness account provided by Manzoor Ahmed P. W. 18, a solitary witness of the actual occurrence ;
(II) Circumstantial evidence comprising of Wajtakkar, Recovery and Track, evidence ;
(III) Medical evidence.
9. We have heard the learned counsel for the appellants engaged at the expense of the State as well as the learned counsel for the State and have perused the entire record carefully with their assistance. According to Manzoor Ahmed P. W. 18, he witnessed the cinema show on the fateful day at Pakpattan and after getting his bike from the Grain Market, Pakpattan he proceeded towards his house. When he reached near the bridge of Pakpattan canal he came across two persons standing there. Both of them signaled him to stop, at which he flashed his torch on them and found that they were armed with guns. He further stated that Baqar appellant kept pointed his gun on him while Hassan appellant removed his wrist-watch. It so happened that at that very time Qamar-uz-Zaman P. C. In uniform appeared to whom he mentioned the act of robbery committed by the appellants, on which he threw challenge to both of them and asked them to stand. But Bayer appellant fired at the constable which hit him on his chest. The constable died instantaneously. Manzoor Ahmed P. W. Got perplexed and ran away out of fear from the spot upto the distance of half a mile. His statement was recorded at 10-30 p. m. Manzur Ahmed P. W. Has further deposed that he identified both the accused appellants in District Jail, Bahawalnagar. Khan Muhammad P. W. 3 stated before the learned trial Court that on the fateful day at about der arwela he left his house and was going towards his land situated near Sohag Canal. When he reached near the canal bridge he came across two persons who were armed with guns ; that he did not talk to them but felt suspicious about the presence of the accused in that locality as they were strangers. The same night he found trackers following the tracks and from them he came to know that a murder had taken place. He made a statement before the police about his coming across the appellants armed on the day of occurrence. He was able to identify both the appellants at Bahawalnagar Jail in the identification parade held by a Magistrate. In his cross-examination he denied the suggestion that the appellants were transported to Bahawalnagar in a track and that he alongwith other witnesses also travelled with them. 'afar P. W. 13 told the Court that he saw the appellants while he and Muhammad Ali were catching fish near the bridge of Sohag Canal. This witness has not been believed by the learned trial Court for the reason that it did not seem probable that a person busy in catching fish would remember the appellants whom he had seen just for a moment. We need not discuss this witness. Sadiq P. W. 14, stated before the learned trial Court that on the day of occurrence while he was sitting at his tube-well, the appellants came to him. He found them armed with guns and they enjoyed a Huqqa smoke in his company. He enquired from them their destination but they just laughed and did not answer. He made this disclosure only when foot-prints of the appellants were followed up to his tube-well and thereupon he made his statement. This witness was able to identify' both the appellants in the District Jail, Bahawalnagar. Muhammad Ismail, Sarbrah Lambardar of his village, appeared as P. W. 19 and told the Court that on the eventful day at about 7-00 p. m. He was proceeding from Pakpattan to his village and when he reached the bridge of Rakh Pakpattan he saw two persons armed with guns who enquired from him as to what he was possessing and to which place he was going. He satisfied the appellants by showing his pockets that he had nothing with him and was allowed by them to go away. He identified both the appellants in the lights amounting from a lorry which had come from the side of Boonga Hayat. He was able to identify both the appellants in the District Jail, Bahawalnagar.
' Mirza Ghulam Ali S. I. P. W. 10, has stated that in October 1969 he was posted at C. I. A. Staff, Sahiwal and on 4th November, 1969, he raided the house of the appellants in village Ghumendpur and arrested both the appellants, that he recovered guns as well as articles belonging to the deceased from their possession as mentioned in the earlier part of the judgment. The factum of recovery was witnessed by Muhammad Shafi P. W. 9, the biggest landlord of the locality who has supported this witness on all material points and details of these recoveries, but other attesting witnesses of these recoveries were given up as being unnecessary. The defence, in the cross-examination of Muhammad Shafi P. W. 9, attributed motive of enmity against him by suggesting that he suspected Hassan appellant of having illicit intimacy with his daughter Mst. Kalsoom and thus has falsely implicated the appellants in this case. The learned trial Court has repelled this alignment for the simple reason that it was found in the evidence that Mst. Kalsoom was hardly 5-6 years old at the time of occurrence and thus this insinuation was nothing but preposterous. The prosecution has produced Mufti Mohammad Munir, the Fire-arms Expert, as P. W. 4, who has established by his comparison of the '12 bore crime empties P. 14/1-2 with the test empties fired from the gun P. 12 and found that empty P. 14/12 was fired from the left barrel of '12 bore D. B. B. L. Shot-gun. In his statement ho has given various reasons to reach this conclusion. Kamira P. W., whose statement was transferred to Sessions file under section 33 of the Evidence Act, made a statement before the committing Magistrate and deposed that he was a tracker since his childhood and was well- versed with his trade. He was called upon to check up the foot-prints of the culprits who bad murdered Muhammad Afzal (deceased in the connected case Murder Reference No, 145 of 1973).
According to him one foot-print was fifteen fingers long and the pub was five fingers in breadth and the heel was four fingers in breadth. The gait was straight. The other foot print was fourtesn fingers long, four fingers wide and the heel was three fingers in breadth. The fate of this foot-print was straight. He pointed these foot-prints to the police who lifted the moulds of these foot-prints and prepared certain names in his presence ; that he was assisted by Bahadur Khaji, in checking of these foot-prints. They followed `Agewars' foot-prints of these two suspects which went to the eastern side up to the dead body off a Foot Constable who was lay murdered near bridge of Rakhwali. He was of the confirmed opinion by seeing the foot-prints and their sequence that both the murders were committed by the same culprits. Thereupon they followed with `pachhera' foot prints which took them back to Chak No, 56 S. P. He was called upon to identify the foot prints before the Magistrate in Bahawalnagar Central Jail, where he correctly identified the same, three days after the occurrence. Kazi Manzoor Ahmad M. I. C. P. W. 20 conducted the identification parade on 5th November, 1969 at 4-CO p.m., at Central Jail Bahawalnagar. According to him he took all the precautions which he was required to take under the law, to make sure that the identification parade was held strictly in accordance with the rules and there was no chance for any of the witnesses to communicate with the police earlier than the identification parade or to communicate with each other after they had taken their turn to identify the appellants. He further stated that Faiz Ahmed, Arif, Ramzan, Khushi Muhammad, Muhammad Ali, Sadiq Jafar, Ismail, Khan Muhammad and Manzoor P. Ws., were called inside the Jail turn by turn and each of them identified the appellants correctly. Thus it is established from his deposition that Manzoor Ahmad, Khan Muhammad Sadiq, Jafar and Muhammad Ismail, witnesses in this case, fully identified the appellants as the persons involved in this crime. He further told the learned trial Court that the identification parade of the accused was over, the clay was spread in the Jail premises. The foot- prints were clearly visible on the said clay. Two pair of shoes which were with the police, were worn by the accused and these shoes fitted well in their feet, these shoes were sealed before they were given to the accused for wearing. Nine under trials from that Jail were also associated m the track parade. All of them were made on wear the shoes and were made to walk on that place. Bahadur and Kamira trackers stated that they had seen all these foot prints at the place where Muhammad Afzal (deceased in the connected case) was murdered and at the place where a foot constable was murdered. According to Kamira P. W. He and Bahadur had traced the foot-prints up to Chak No, 56/S. P.
'It is pertinent to note that Qazi Manzoor Ahmad P. W. 20, has clearly stated that the accused did not raise any objection regarding the entire proceeding in this identification parade. In his cross- examination he however, added that the objection was raised after the identification parade was over.
10. The learned trial Court has ably and elaborately discussed the evidence of all the witnesses and has come to a conclusion that the prosecution has produced quite an impressive evidence against the appellants to prove that they were the persons who shot Qamar-uz-Zamao, F. C. In a cold blooded manner while committing the act of robbery on the person of Manzoor Ahmad P. W.
We find that the statement of Manzoor Ahmad P. W. Has been fully corroborated by strong pieces of circumstantial evidence and thus we can safely conclude that the witnesses may tell lie but the circumstances never.
11. The Wajtakkar evidence as provided by Muhammad Ismail, Khan Muhammad, and Sadiq P. Ws.
Is of independent kind and we find that nothing has been brought on the record, despite the lengthy and laborious cross-examination by the defence, to show that these witnesses were either inimical towards the appellants or had any personal axe to grind, to falsely implicate them in a murder case. These witnesses are respectable persons and have no relation with the deceased and thus their evidence is worthy of complete reliance and inspires confidence. We are of the considered opinion that the learned trial Court was fully justified to believe these witnesses as truthful.
12. It has been fully established by the evidence of Mirza Ghulam Ali S. P. (P. W. 10) and Muhammad Shafi P. W. 9 that articles like belt of the Police Constable, whistle, police shoulders, police Cap. Khaki Cap and Khaki pants, belongedito the deceased and were duly identified by his superior officer who was in a position to identify the same. Wrist-watch P.2 recovered from the wrist of Baqar appellant was also identified by Manzoor Ahmed P. W 18, to be his own, his piece of evidence will clearly show that Beeler appellant was in possession of a property which he could not claim to be his own. A vain effort was made by the defence in this respect to show that things like cap, pants or police shoulders, will be purchased from an open market but it cannot be said that a Police belt duly numbered was also available In the market for open sale. Therefore, we are fully convened that Baqar appellant was found in possession of the articles which belonged to the deceased and thus fully connected with the commission of this heinous crime by this recovery evidence. Same will be the case of recovery of wrist watch P. 2 from Hassan appellant which belonged to Khushi Muhammad P. W. And was d Lily identified by him, to be his own. Furthermore the Fire Arms Expert Mufti Mohammad Munir has fully established that Hagar appellant did fire from his single-barrel P.
2-1, 12 bore gun which was recovered from him at the time of his arrest. The F. I. R., in case was lodged immediately after the occurrence and thus we do not find any delay which can be considered inordinate to cause aspersion on the veracity of the prosecution case. The statement of Kamira P. W. 11, is fully convicting as he has given cogent reasons for identifying the foot prints which he found both near the dead body of Muhammad Afzai (deceased in the connected murder case) and of the deceased in the present case. He had in a clear and straightforward manner given the account of his efforts which led the track Agwara to the dead body of the deceased and "Pachhera" to various places where the Wajtakkar witnesses were contacted and ultimately ended near the house of hist. Khanam in Chak No, 56 S. P. It was on the interrogation that Mst. Khanam revealed the identity of the appellants and enable the police to surprise them while they were at their residents at Ghumandpur.
13. We have read with care the grounds of appeal filed by the appellants in this case from the Jail, and have also looked into their statements made before the learned trial Court. The plea taken by them that the case against them was a put up case by Mst. Khanam as well as Muhammad Shafi P. W. 9, is not substantiated either from the record of from the cross-examination conducted on the P. Ws. We do not find anything in common with Mst. Khanam and Muhammad Shafi P. W., which may lead as to believe that they entered into an unholy conspiracy against the appellant to wreck vengeance or to satisfy their venom which they nursed against the appellants. We find that Muhammad Shafi P. W. Is a resident of Bahawalnagar and owning a considerable landed property in that District whereas Mst. Khanam is a woman of common place status living in Pakpattan tehsil in district Sahiwal. There is nothing in the evidence to show that these two persons knew each other or their families were on intimate or close terms so as to collaborate with the police to pin-down the offences of double murder against these appellants. We do not find any force in the above- mentioned plea advanced by the appellants and reject it as worthless and without any substance.
14. In view of the above discussion we find no exception with tilt judgment of the learned trial Court which is unassailable. The result I that we dismiss the appeal and maintain the conviction and sentence A awarded to both the appellants. The sentence of death imposed upon Bum appellant is confirmed.