' RAJA MUHAMMAD KHURSHID, J.--- A report was lodged by Mst. Kaniz Bibi complainant on 10-6-1992 at 7-30 p.m. To Khyzer Hayat, S.-I. Police Station Bhawana, District Jhang on "Same Bridge" within the area of Police Station Bhawana vide her statement Exh.P.K. According to her statement the occurrence took place at about 6-00 p.m. In the area of Chak No,189/JB situated at a distance of 4-1/2 miles towards east of the aforesaid village. Her husband Allah Yar and her father Shahmand lost their lives, during the occurrence.
2. The facts are that the complainant Mst. Kaniz along with her husband Allah Yar were returning to their Dhari alongwith their buffaloes, which started running and reached their old Bahak.. The accused Aman Ullah armed with rifle, Nawaz with .12 bore gun, Sarwar and Anwar with Phahoras, Mst. Mumtaz and Sahib Bibi empty-handed were already present there. The accused Aman Ullah raised Lalkara that Allah Yar should not be allowed to escape today and fired from his rifle hitting Allah Yar on his left chest. The deceased Allah Yar fell on the ground on receiving fire. On the alarm of Mst. Kaniz Bibi complainant her father Shahmand reached the spot. The accused Nawaz fired at Shahmand with his .12 bore gun but missed it. The fire however, hit a buffalo of the complainant.
The accused Sarwar and Anwar assaulted Shahmand.Deceased with their Phahoras, whereas Mst.
Kaniz and Sahib Bibi continued raising Lalkaras that if any body came near he shall also be done to death. Ghulam Shabir and Ghulam Muhammad who were present nearby came to the spot, and saw the entire occurrence. The accused however, fled away on seeing them. Allah Yir died on the spot,- whereas Shahmand was seriously injured and later on succumbed to his injuries. All the accused had committed the occurrence allegedly after conspiring with Ghulam Jafar. The motive was a dispute over the land.
2. The accused namely Aman Ullah, Muhammad Nawaz, Sarwar, Anwar, Ghulam Jafar, Mst. Sahib Bibi and Mst. Mumtaz Bibi were challaned under section 302/324/148/149, P.P.C. By Police Station Bhawana, District Jhang and sent up for trial. Mr. Muhammad Saleem Qureshi, learned Additional Sessions Judge, Chiniot vide his judgment, dated 29-5-1994 convicted Aman Ullah accused under section 302, P.P.C. And sentenced him to death and a fine of Rs,20,000 or in default to undergo further R.I. For one year. The accused namely Sarwar and Anwar were convicted under section 302, P.P.C. And sentenced to imprisonment for life with a fine of Rs,20,000 each and in default to undergo further R.I. For one year. The accused Muhammad Nawaz was however, convicted under section 324, P.P.C. And sentenced to four years' R.I. And fine of Rs,4,000 or in default to undergo further R.I. For 6 months. The remaining accused namely Ghulam Jafar, Mst. Mumtaz and Sahib Bibi were acquitted.
3. The accused namely Aman Ullah, Muhammad Nawaz, Sarwar and Anwar filed this appeal against their conviction. A reference under section 374, Cr.P.C. Was also received from the learned Additional Sessions Judge, Chiniot for confirmation of death sentence passed upon Aman Ullah accused.
4. The prosecution examined eye-witnesses namely Mst. Kaniz P.W.8 and Ghulam Muhammad P.W.9. In addition, evidence consisting of medical and recovery witnesses was also recorded.
Besides formal witnesses the Investigating Officers and Revenue Officials were also examined.
5. The learned counsel for the appellants contended that since the statement of Mst. Kaniz Bibi complainant was not recorded at the police station, therefore, it was the result of preliminary investigation.
6. The learned counsel for the appellants further contended that the motive related to a land dispute but in fact the possession was taken under legal process from the complainant side, therefore, the latter was the aggrieved party and as such they were tempted to commit aggression for getting the possession restored to them. The story about the motive as advanced by the prosecution was alleged to be without substance. According to the learned counsel for the appellants the complainant side did not come up with clean hands and was falsified by the alleged injuries to a buffalo caused due to fire of Muhammad Nawaz accused. The occurrence had taken place on 10-6-1992 whereas according to the statement of Dr. Ali Muhammad Luk (Veterinary Surgeon) P.W.15, the buffalo was examined by him on 27-6-1992 and that the injuries were caused to her twelve hours before the examination. It was, therefore, alleged by the learned counsel for the appellants that in fact the complainant side acted with malice and ulterior motive to invent the story of injuries to the buffalo, perhaps by fabricating them a day before her examination by the doctor. This was allegedly done in order to provide for a corroboration to the eye-witnesses which were not only inimical to the accused, but were also interested being close relatives of the deceased persons. It was urged that such type, of witnesses should never be believed for keeping the administration of justice clear of all doubts.
7. It was also alleged by the learned counsel for the appellants that the complainant side almost implicated all the members of the family of the accused party even by naming the womenfolk. The falsehood of the case was allegedly proved when Ghulam Jafar who was attributed conspiracy and Mst. Mumtaz Bibi and Sahib Bibi charged with Lalkaras were acquitted by the learned trial Court. It was accordingly argued by the learned counsel for the appellants that the evidence which was disbelieved qua the acquitted accused could not be used safely for basing the conviction of appellants/accused. There was allegedly no corroboration to the ocular account of occurrence as the recovery of the weapons of offence was held to be doubtful and disbelieved. The mere fact that the medical evidence showed that Allah Yar deceased had received fire-arm injury on his chest and Shahmand deceased had suffered injury with blunt weapon would not provide corroboration as intended by law. It was submitted that Anwar and Sarwar accused died during the pendency of this appeal and as such the appeal to their extent stood abated.
8. Lastly it was submitted by the learned counsel for the appellants that an abortive attempt was made to link Aman Ullah appellant with the occurrence although in fact the said Aman Ullah never participated in the murder of any of the deceased, but being only son of his parents was falsely implicated in this case due to enmity and In this context, it was alleged that actual name of Aman Ullah was Asghar Ali as would be clear from his birth certificate Exh.D.K. School leaving certificate Exh.D.L. And national identity card Exh D .M .
9. The learned counsel for the State submitted that the F.I.R. In this case was lodged promptly on the same day by the complainant who was present with her deceased husband Allah Yar. She was, therefore, stated to be the natural witness. Her statement was promptly recorded at 7-30 p.m.
Almost 1-1/2 hours after the occurrence whereas the formal F.I.R. Was registered on the same date at 7-45 p.m. There was, therefore, no scope for consultation or deliberation as alleged by the learned counsel for the appellants. The story of aggression was also denied on the ground that the deceased were unarmed and if they would have gone to commit the aggression, then they should have been well equipped, particularly when they had to regain the possession. The nature of the injuries also revealed that these were inflicted with a clear intention of the assailants to finish the deceased persons as those were fatally directed against the victims. Such injuries could not be sustained during a melee as alleged by the appellants. It was, therefore, submitted that the appellants were rightly convicted and sentenced by the learned trial Court.
10. We have considered the arguments addressed by both sides. It is to be seen whether the prosecution has been able to prove its case beyond any reasonable doubt. In this context a reference should be made to the evidence of eye-witnesses namely Mst. Kaniz Bibi and Ghulam Muhammad who were examined as P.W.8 and P.W.9 respectively. Both of them have supported the prosecution version as contained in the F.I.R. It is true that both the witnesses are related to the deceased as Mst. Kaniz Bibi is widow of Allah Yar deceased, whereas Ghulam Muhammad is her brother. Likewise Shahmand deceased was paternal-uncle of Ghulam Muhammad P.W. The P.Ws.
Further stated that there was no enmity between the two sides except dispute of land regarding which they were also locked in civil litigation. A question may crop up whether the witnesses related to the deceased party and involved in litigation between the parties should be believed or disbelieved. Their credibility will be questionable only, if they are inclined to be patently false so as to let off the actual culprits at the cost of their deceased relatives. Conversely their natural instinct would be to name such persons, who were actual killers of their kith and kins. They would not like that the real offenders should go scot free whereas innocent persons be substituted for them.
However, there is possibility that the complainant side would rope some innocent persons alongwith guilty in order to bring maximum harm to the other side. But that would not mean that they should be disbelieved altogether in toto. The rule of prudence will therefore, require that grain should be sifted out of chaff to bring. The actual offenders to the book and to save the innocent persons. This principle has already been applied in this case by the learned trial Judge as he had acquitted Ghulam Jafar, Mst. Mumtaz Bibi and Sahib Bibi on the ground that the evidence against them was not only wanting but also shaky so as to prove them guilty beyond any reasonable doubt. Even the police had come to the same conclusion in respect of Mumtaz Bibi and Sahib Bibi that in fact they had not actually taken part in the occurrence. In such a situation, the safe administration of justice would require that such type of offenders deserved to be given benefit of doubt to keep the fountain of justice free from all doubts. Though the recovery witnesses in this case did not inspire confidence so as to provide corroboration to the eye-witnesses but that by itself would not take away the evidentiary value of the eye-witnesses who were not only natural but interested to see that real justice should be done.
11. Before we proceed further, it may be pointed out that Sarwar and Anwar appellants/accused died before hearing of this appeal. As such appeal to their extent stands abated in respect of sentence of imprisonment for life passed against them, but the sentence of fine of Rs,20,000 awarded to each of them by the trial Court is maintained as enjoined by section 431, Cr.P.C.
12. Now we have to deal with the appeal in respect of Aman Ullah and Muhammad Nawaz appellants out of whom Aman Ullah was sentenced to death subject to confirmation by this Court and Muhammad Nawaz was sentenced to 4 years' R.I. Under section 324, P.P.C. The charge against Muhammad Nawaz was that he fired with his .12 bore gun upon Shahmand deceased but missed the target and the fire hit a buffalo belonging to the complainant side. The learned counsel for the appellants has pointedly brought to our notice, by referring to the statement of Dr. Ali Muhammad Luk P.W.15, that the injured buffalo was examined on 27-6-1992 and that the injuries to her were caused about 12 hours before the examination i,e, on 26-6-1992. So the buffalo having been injured on 26-6-1992, the occurrence having taken place on 10-6-1992 at about 6-00 p.m., a vile and deliberate attempt was made by the prosecution to create this evidence out of sheer malice to provide corroboration to the eye-witnesses to strengthen its case. The argument of the learned counsel for the appellants though very fascinating, did not appear to be convincing because the injuries to the buffalo were mentioned by the complainant in her statement Exh.P.K.., which was recorded on 10-6-1992 immediately after the occurrence at about 7-30 p.m. As it is so, the contention that the evidence was created by injuring the buffalo on 26-6-1992 does not seem to be logical or realistic. It is just possible that the Surgeon may have given some sort of concession of deliberately or under some mistaken impression, but that would not change the true facts, as seen by eyewitnesses. Even otherwise the medical evidence cannot be preferred over the ocular evidence because the eye-witnesses claim to have actually seen the occurrence whereas the Medical Officer can only give his opinion about the events which have already happened. It is wisely said that seeing believes. On this principle the law has given greater value to the direct evidence, which in this case would be the ocular evidence. The statement of Veterinary Surgeon in this case does not create any ambiguity or reasonable doubt, so as to belie the testimony of eye- witnesses.
13. In view of the above discussion, there should be no hesitation to believe the ocular account of occurrence given by the eye-witnesses in this case because that seems to be above board and pragmatic. It, therefore, needs no corroboration from any circumstantial evidence. However, if some sort of corroboration is required then a look at the injury of the deceased Allah Yar would be a factor to be taken into consideration. It will be worthwhile to reproduce the aforesaid injury for its evaluation:-- "An oval wound 1-1/4 c.m. x 3/4 c.m. On the front of left chest, about 6-1/2 c.m. Upward and inward to the left .Nipple: The margins were inverted, lacerated and contused. This is the wound of entry caused by fire-arm weapon. There was another oval wound 3-1/4 c.m. x 1 c.m. On the back of the right shoulder about 13 c.m. Below and inward to the tip of the right shoulder and about 15 c.m.
Outer to the mid line. The margins were everted. This was corresponding wound of exit caused by fire-arm weapon. The underneath right scapula and two adjacent ribs were fractured."
' This is fire-arm injury right on the front left chest of the deceased having oval wound 1-1/4 c.m. x 3/4 c.m. According to the medical evidence it passed through and through. It had also fractured underneath right scapula and two adjacent ribs were found broken. The nature of the injury and the weapon used corroborated the version given by the eye-witnesses namely Mst. Kaniz Bibi and Ghulam Muhammad in respect of the fire made by Aman Ullah upon the deceased Allah Yar. The fire attributed to Muhammad Nawaz accused missed Shahmand deceased and had hit the buffalo only. Admittedly he did not fire at deceased Allah Yar, therefore, the principle of vicarious liability could not be invoked against him. The injuries which ultimately caused death of Shahmand were attributed to Sarwar and Anwar accused, in respect of whom this appeal had abated on account of their death. In that situation the case of Muhammad Nawaz remains highly doubtful and he deserved to be given the benefit of doubt. The appeal to the extent of Muhammad Nawaz is, therefore, accepted and the conviction and sentence under section 324, P.P.C. Passed against him are set aside. He is directed to be set at liberty at once.
14. Before we conclude the judgment, it will be just and proper to examine the defence version. It is contended that since the complainant side was aggressor therefore, they suffered injuries while they wanted to retake the possession of disputed land, possession of which was delivered to Mst.
Mumtaz Bibi and Sahib Bibi acquitted Accused as deposed by Muhammad Yar, Revenue Patwari (P.W.14). It is clear from the statement of the Patwari that there was a change of possession, but that would not mean that the occurrence took place when they were out to take back the possession. Had the complainant decided in their mind to take back the possession, they would have gone heavily armed to deter any resistance which is expected to be confronted on such like occasions. There being nothing on record to show that any of the deceased was armed with any deadly weapon, the mere fact that Mst. Zainab Bibi a cousin (Masair) of Mumtaz Bibi had received some injuries would not make the defense version plausible because the aforesaid Mst. Zainab Bibi was never put in the witness-box as to how she had suffered those injuries, nor any convincing reason was advanced to show as to why she was not medically examined immediately regarding her injuries on the date of occurrence. In such a situation mere fact that some injuries were found on her person would not damage the prosecution version nor would it lend any intrinsic support to the defence story which remains inchoate and unconvincing. On the contrary, it appears that the murder of Allah Yar was committed with a clear intention to cause his death as the fire by Aman Ullah was made on his chest and the bullet went through and through. It is just possible that the buffaloes had strayed into their old Bahak and the complainant side in order to drive them away, went after them which offended accused Amanullah who after taking out his rifle fired at Allah Yar deceased to make total end of land dispute. The plea taken by him that his actual name is Asghar Ali does not appear to be convincing because there is no doubt about his identity nor such a question had ever arisen regarding his physical identity at any stage. The eye-witnesses clearly stated before the police as well as during trial that Aman Ullah was the actual killer of Allah Yar, deceased. The prosecution had thus proved its case beyond any reasonable doubt against Aman Ullah appellant/accused, who was rightly convicted under section 302, P.P.C. And sentenced to death and fine of Rs,20,000 or in default to suffer further R.I. For one year by the learned trial Court.
The appeal to the extent of Aman Ullah is, therefore, dismissed and the death sentence awarded to him (Aman Ullah) is confirmed. The reference made by the learned trial Court under section 374, Cr.P.0 disposed of accordingly.