1. JAVID IQaAL, J.-Khawaja Azhar Hussain son of Khawaja Mazhar Hussain, aged 24 years, Manzoor Ashraf, son of Fazal Elahi, aged 42 years the course of same incident) came in a Taxi to the house of Mst. Razia P. W. While standing in the street Khawaja Azhar Hussain appellant called Ilfst. Nargis deceased and asked her to come down and to go back with him. But on her refusal to go with him, he started hurling abuses at her. Shortly thereafter Khawaja Azhar Hussain appellant and his two companions drove away. Later on, on the same evening at about 6-1.5 p.m. Khawaja Azhar Hussain appellant arrived at the house of the complaisant party along with the other appellants and the acquitted co-accused as well as his uncle Mahmud deceased. They all came upstairs where the members of the complainant party including Mst. Nargis deceased were sitting, and they resorted to shooting at them. Thus, the motive for the commission of crime was that the appellant and his companions came to punish Mst. Nargis deceased for having left him and also her relatives for siding with her.
2. In the course of shooting, on the complainant side for persons were injured and three were killed, whereas on the accused side one person was killed and three had sustained injuries. On the complainant side the injured and the deceased had all sustained mostly fire-arm injuries. On the accused side two persons bad received fire-arm injuries and the other two had sustained blunt weapon injuries. On the accused side, as it has been pointed out earlier. Mahmud was killed whereas Muhammad Aslam appellant and Allah Bakhsh and Babar acquitted co-accused were injured.
4. The prosecution has produced six eye-witnesses of the occurrence, namely, Muhammad Hafeez (P. W. 12), injured brother of Mst. Razia P. W. And maternal uncle of Mst. Nargis deceased, Mst.
3. Yasmin (P. W. 13), injured daughter of Mst. Razia P. W. And step-sister of Mst. Nargis deceased, Mst.
4. Saeeda (P. W. 14), injured daughter of Mst. Razia P. W. And real sister of Mst. Nargis deceased, Moazzam (P. W. 15), injured son of Mst. Razia P. W. And step-brother of Mst. Nargis deceased, Azam (P. W. 16), son of Mst. Razia P. W. And step-brother of Mst. Nargis deceased, and Mst. Razia (P. W. 17), mother of Mst. Nargis deceased as well as the first informant in this case.
5. The other witnesses who saw the culminating part of the occurrence, were Allah Ditta (P. W. 11), Mahmud and Fayyaz (both not produced). The Police Officials who came to the spot and witnessed the end of the shooting were Muhammad Aslam F. C. (P. W. 4), Mian Khan F. C. (P. W. 6), Muhammad Sharif A. S. I. (P. W. 7), Muhammad Siddiq A. S. I. (P, W. 20) and Muhammad Yaqub S. 1.
6. (P. W. 21).
5. Muhammad Aslam appellant as well as Allah Bakhsh and Babar acquitted co-accused were arrested on the spot by Muhammad Yaqub S. 1. (P. W. 21). The three of them were injured. Khawaja Azhar Hussain appellant was arrested on 13th of January 1972, by Mubammad Aslam Jaura, Inspector, C. I. A. (P. W. 1). Muhammad Amin acquitted co-accused was arrested on the 22nd of January 1972, by Qamar Zaman S. I. (P. W. 18). Manzoor Ashraf appellant was arrested by Kafayat Hussain Shah, Inspector Police (P. W. 19) on the 6th of January 1972.
7. Most of the recoveries in this case were made from the spot and no relevant recovery had been effected from any of the appellants or acquitted co--accused. Manzoor Ashraf appellant as well as Allah Bakbsh and Babar acquit--ted co-accused were stated to be empty-handed whereas all others came armed with pistols/revolvers and Sten-gun Revolver P. 20 was picked up from near the dead body of Mahmud (of the accused side) with for crime empties in its chambers and two live bullets. It was said to have been used by Mahmud deceased and was taken into possession vide memo. Exh. P. O. Revolver P. 23 was recovered from the water tank in the house where the occurrence took place along with six crime empties in its chambers at the instance of Muhammad Aslam appellant and it was taken into possession vide memo. Exh. P. Q. Sten-gun P. 28 stated to have been used by Khawaja Azhar Hussain appellant was picked up from the heap of fodder inside the house where the occurrence took place and was taken into possession vide memo. Exh. P. T.
8. Pistol P. 29 was produced by Mahmud (given up P. W.) along with two crime empties in its chambers and it was taken into posseesion vide memo. Exh. P. V. Service revolver P. 32 was produced by Muhammad Siddiq A. S. I. (P. W. 20) with two crime empties in its chambers and it was taken into possession vide memo. Exh. P. X. Thirty crime empties P. 26/1-30 were picked up from different places in the house of complainant party along with sixteen lead bullets P. 27/1-16 and taken into possession vide memo. Exh. P. S. All these recoveries were effected on the 5th of January 1972, and the recovery memos. Were attested by Allah Ditta (P. W. I1), Mahmud (not produced) and Muhammad Yaqub S. I. (P. W. 21). One 410 bore crime empty was picked up from the spot and produced by Razzaq F. C. This was taken into possession vide memo. Exh. P. YY., dated the 5th of January 1972. The attesting witnesses are Razzaq F. C., Isbaq (both not produced) and Kaffiayat Hussain Shah, Inspector, Police (P. W. 19). Muhammad Amin acquitted co-accused was stated to be armed with a pistol but nothing was recovered so as to connect him with the commission of crime. There were no other relevant recoveries besides the ones detailed above.
9. Anwar-ul-Haq Bajwa, (P. W. 15), Fire-arms Expert who examined the recovered fire-arms as well as crime empties has submitted his reports which are Exh. P. W. 5/C and Exh. P. W. 5/H. In his opinion revolver P. 23 recovered at the instance of Muhammad Aslam appellant matched with crime empties C. 1, C. 2, C. 3, C. 5, C. 6, C. 11 to C.
15. Revolver P. 20 stated to be used by Mahmud deceased matched with 9 crime empties picked up from the spot, Sten-gun P. 28 stated to have been used by Khawaja Azbar Hussain appellant matched with crime empties of 9 m.m. C. 21 to C. 40.
6. In their statements before the trial Court the appellants and the acquitted co-accused denied having participated in the occurrence. They disowned recoveries and stated that they had been falsely implicated due to enmity.
10. Khawaja Azhar Hussain appellant stated that he was married to Mst. Nargis deceased and he produces Nikahnama Exh. D. L. He further stated that Mst. Razia P. W. Had sent for Mst. Nargis deceased to her house on the pretext that she was seriously ill. Mst. Nargis deceased was one of the good dancers of film industry and was the only source of income to her family. Her family, therefore, was aggrieved on account of her marriage to Khawaja Azhar Hussain appellant and the consequential financial loss to them. There was a person by the name of Fareed Gul who had already paid Mst. Razia P. W. a large amount of money for taking away Mst. Nargis deceased. On account of the sudden disappearance of Mst. Nargis deceased from the house of Khawaja Azhar Hussain appellant, his uncle Mahmud deceased went to the house of Mst. Razia P. W. To enquire about her. On seeing Mahmud deceased, Mst. Nargis deceased was relieved. She picked up her pet bitch in order to leave the place along with Mahmud deceased. On this Fareed Gul who was present there armed with a Sten-gun and some other persons who were also there opened fire at them. Mahmud deceased fired back at them and thus, the occurrence took place as a result of cross--firing between Mahmud deceased on one side and the members of the complainant party as well as Fareed Gul on the other. According to Khawaja Azbar Hussain appellant he was not present at the spot at the time of occurrence.
11. Manzoor Ashraf appellant who was Music Director stated that since he had acted as a go-between in establishing the relationship between Mst. Nargis deceased and Khawaja Azhar Hussain appellant, Mst. Razia P. W. Had falsely implicated him in this case although be too was not present at the time of occurrence.
12. Muhammad Aslam appellant stated that he was a tailor by profession and used to stitch clothes for Mst. Nargis deceased. He stated that on the fateful day he had gone to the house of complainant party for delivering clothes to Mst. Nargis deceased when Mahmud deceased and two other persons arrived there. They had an argument with Maqsood deceased and Muhammad Hefeez (P. W. 12). Maqsood deceased and Muhammad Hafeez P. W. Who were respectively armed with Sten-gun and Pistol fired, and in the exchange of fire, he himself sustained a bullet injury. He further stated that the police wanted to make him a witness of the occurrence, but when he refused, they falsely implicated him in this case. In other words he admitted his presence at the scene of crime but denied having participated in it.
13. Muhammad Amin acquitted co-accused stated that he lived under the premises of Khawaja Azhar Hussain appellant on McLeod Road. Lahore. Mst. Razia P. W. Used to visit him there for conveying her messages to Mst. Nargis deceased. He had refused to oblige her and on that account there was bad blood between them. He further stated that on the day of occurrence he was not in Lahore but had gone to Karachi. He led evidence in proof of his alibi which has been accepted by the trial Court.
14. Allah Baksh acquitted co-accused stated that he had gone to Heera Mandi on the fateful day to enjoy dancing. A crowd had assembled at the Chowk. The police arrived there and started beating the members of the public and in the course of the same he too received a beating at the hands of the police. He threatened to lodge a complaint and had gone to the hospital to get himself medically examined when he was arrested there by the police and falsely implicated in this case.
15. Thus, he disclaimed any connection with the accused party.
16. Babar acquitted co-accused stated that the police rounded up all the friends of Khawaja Azar Hussain appellant in order to implicate them in this case. He was arrested from his house, was beaten up by the police and falsely implicated in this case. He further stated that his marriage was fixed for 9-1-1972 and he produced an Invitation Card to that effect before the police. In other words he denied having been present at the scene of crime and disowned any connection with the occurrence.
17. It may be noted that Allah Bakhsh and Babar acquitted co-accused had sustained blunt weapon injuries in the course of occurrence. The prosecution has not stated as to how these two persons had sustained injuries. But according to their own statements they received injuries as a result of police beating. According to the prosecution Allah Bakhsh and Babar acquitted co-accused were empty-handed. Anyway, they were both arrested on the spot along with Muhammad Aslam appellant.
7. In the F. I. R. The occurrence is reported to have taken place in the following manner: Mst. Razia (P.
18. W. 17) stated that she lived in Shahi Mohallah. Mst. Nargis deceased her daughter worked as a dancer in films. Khawaja Azhar Hussain appellant resident of McLeod Road, Lahore, was a film producer who knew her daughter. Seven/eight months prior to the occurrence he established a relationship with h:r through the assistance of Manzoor Ashraf appellant Music Director. A month prior to the occurrence Ma. Nargis deceased went away to live with him in his house. On the day of occurrence Mst. Nargis deceased sent a message to her and called her to the house of Khawaja Azhar Hussain appellant. When she arrived there Mst. Nargis deceased told her that she was very unhappy and was being confined in the house by Khawaja Azhar Hussain appellant. At that time Khawaja Azhar Hussain appellant was not present in the house. Therefore, at about 2-00 p.m. She brought her daughter to her own house. Thereafter at about 3-00 p.m. Khawaja Azhar Hussain appellant along with Mahmud deceased and Muhammad Amin acquitted co-accused came to her house in a taxi. Khawaja Azhar Hussain appellant from the street asked Mst. Nargis deceased to come down. On her refusal, he started giving abases to them. However, shortly thereafter they left.
19. But at about 6-15 p.m. While Mst. Razia P. W. Was present in her house along with Mst. Nargis deceased, Mst. Saeeda (P. W. 14), Mst. Yasmin (P. W. 13), Muhammad Hafeez (P. W. 12), Maqsood deceased, Gulab Din deceased, Azam (P. W. 16), aged 11 years, Moazzam (P. W. 15), aged 9 years and Nadeem, aged 4 years, Khawaja Azhar Hussain appellant armed with a Sten-gun, Mahmud deceased armed with a pistol, Muhammad Amin acquitted co-accused armed with a pistol, Muhammad Aslam appellant armed with a pistol, Allah Bakhsh, Babar acquitted co-accused and Manzoor Ashraf appellant empty handed climbed upstairs into the room where the members of the complainant party were watching T. V. As soon as he entered, Khawaja Azhar Hussain appellant raised a lalkara to Mst. Nargis deceased to the effect that he would teach her a lesson by taking her life for returning to her mother's house without his permission. Thereafter he. Mahmud deceased and Muhammad Amin acquitted co-accused pointed their Sten-gun and pistols towards them. The members of the complainant party in order to save their lives and out of fear started running here and there. In the meantime. Khawaja Azhar Hussain appellant and his companions opened fire indiscriminately at them through their Sten-gun and pistols, and their empty-handed companions went on raising lalkaras that they all should be finished. jUst. Razir P.
20. W. In order to save her life found refuge in the store room of the house. For some time firing went on along with hue and cry of the victims. Then from the upper storey came the announcement of the police that they should put down their weapons. Thereafter also she heard exchange of firing.
21. However, sometime thereafter the firing stopped and she came out. She saw the Police, Mahmud (not produced), Allah Ditta (P. W. 11) and Fayyaz (not produced) present in the room while Mst.
22. Nargia, Mst. Saeeda P. W., Mst. Yasmin P. W., Muhammad Hafeez P. W., Maqsood, Gulab Din, and Moazzam and Azam P. Ws. Lying injured due to firing at different places in the house. Mahmud deceased was lying near the stairs of the eastern door and Muhammad Aslam appellant as well as Allah Bakhsh and Babar acquitted co-accused were apprehended by the police on the spot who had also sustained injuries. Khawaja Azhar Hussain. Manzoor Ashraf appellants and Muhammad Amin acquitted co-accused had managed to escape before the arrival of the police. As a result of their firing even her pet bitch had died on the spot.
8. Dr. Burhan Ahmad Khan (P. W. 22) conducted post-mortem examination on the dead body of Mst. Nargis at 3-00 p.m. On the 6th of January 1972, and found on her person 8 fire-arm wounds on the left chin, right mammary gland right inguinal region, left and right thighs, left big toe, right shin and right leg. Out of them 6 were wounds of entry, one on the left chin had blackening indicating that the shot was fired from a close range. In his opinion the injuries had been caused by fire-arm except one which consisted of abrasions. Injuries on the left chin and right mammary gland proved fatal as they were individually sufficient to cause death in the ordinary course of nature. The cause of death was haemorrhage and shock, due to damage to the brain and liver.
23. At about 4-00 p.m. On the same day he conducted post-mortem examination on the dead body of Mahmud (of the accused party) and found on bis person 4 fire-arm wounds, out of which one had blackening and charring. These injuries were located on left thigh; penis, left fore-arm, right hand and right knee. In his opinion all the injuries had been caused by fire-arm and the injury on left thigh and penis was sufficient to cause death in the ordinary course of nature. Death resulted from this injury as well as haemorrhage and shock.
24. On the 7th of January 1972, at 11-30 a.m. He conducted post-mortem examination on the dead body of Maqsood and found on his person one fire-arm wound of entry on the back bone, and lacerated wound with burning of margins on left thigh. These injuries had been caused by fire-arm and one had burning of margins indicating that he was fired at from a close range. Injury to back bone led to haemorrhage and shock as well as damage to intestines. In the opinion of the doctor this injury was sufficient to cause death in the ordinary course of nature.
25. On the same day at 12-30 p.m. He conducted post-mortem examination on the dead body of Gulab Din and found on his person 8 fire-arm wounds, out of which 6 were wounds of entry. One of the wounds had burning of margins. These wounds were lo.Ated below the left nipple and umbilicus, abdomen, left thigh, right knee joint, left toe and right chest. The last injury was a common exit wound of three injuries. All the injuries had been inflicted with fire-arm. Injury on the chest proved fatal and it resulted in shock and haemorrhage as well as damage to right lung.
26. Dr. Muhammad Rafiq Choudhary (P. W. 23) medically examined Allah Bakhsh acquitted co- accused on the 5th of January 1972, at 9-12 p.m. And found on his person 6 bruised swellings. The injuries had been caused by blunt weapon and they were subsequently declared as simple.
27. On the same day at 9-20 p.m. He medically examined Muhammad Aslam appellant and found on his person 3 fire-arm lacerated wounds on the chest and right upper arm. These injuries had been caused by fire-arm but were subsequently declared as simple.
28. On the same day at 11-12 p.m. He medically examined Babar acquitted co-accused and found on his person bruised swellings and abrasions 8 in number. These injuries had been caused by blunt weapon. All of them were declared as simple except one i.e. Swelling on the left fact which was declared grievous.
29. Dr. Mukhtar Ahmad (P. W. 24) examined the carcase of bitch on the 6th of January 1972. It had two fire-arm wounds on the shoulder which led to its death.
30. Dr. Nazar Ahmad (P. W. 26) medically examined at 6-50 p.m. On the 5th of January 1972, Moazzam (P. W. 15), aged 8 years and found on his person one fire-arm injury and two blunt weapon injuries, on the left thigh and forehead. Injury on the forehead was declared dangerous.
31. On the same day he medically examined Mst. Yasmin (P. W. 13) at 6-52 p.m. And found on her person one fire-arm wound on the head. The injury was subsequently declared as simple.
32. On the same day he medically examined Mst. Saeeda (P. W. 14) at 7-00 p.m. And found on her persan two fire-arm wounds on the right leg. One of them was later declared as grievous.
33. On the same day he medically examined Muhammad Hafecz (P. W. 12) at 7-10 p.m. And found on his' person two fire-arm wounds and three blunt weapon injuries out of which one was declared grievous. The fire-arm wounds were on the right hand and left chest. The right hand fire-arm injury had blackening.
34. This doctor on the same day had medically examined Maqsood deceased while he was still alive and found on his person two fire-arm injuries on the back bone and left thigh. Both the injuries were caused by fire-arm and the patient was in a state of serious shock. He had also operated on him but the patient died.
35. On the same day he had also medically examined Gulab Din deceased while he was stilt alive and found on his person 8 wounds out of which, with the exception of one, all had bren caused by fire arm whereas in respect of one he did not express any definite opinion. This patient also subsequently died.
9. We have heard learned counsel for the appellants and perused the record with their assistance.
36. Mr. M. Anwar, learned counsel for Khawaja Azhar Hussain appellant argued that the fawily of Mst.
37. Nargis deceased including Mst. Razia P. W. Was highly inimical towards Khawaja Azhar Hussain appellant for the simple reason that he had taken away Mst. Nargis deceased and had married her thereby causing a financial loss to her mother and other members of her family. It was, therefore, submitted that the eye-witnesses in this case who were all interested and hostile had a motive to falsely, implicate Khawaja Azhar Hussain appellant. In this background it was argued that the testimony of the eye-witnesses in this case including those who were injured in the course of occurrence should be considered with abundant caution particularly in respect of Khawaja Azhar Hussain appellant and that it must not be accepted unless and until it was corroborated by independent evidence or some strong circumstance connecting him with the commission ' of crime. It was argued that in the present case the eye-witnesses had stated that Khawaja Azhar Hussain appellant came to the scene of crime armed with a Sten-gun along with others and opened fire at the complainant party. It was submitted that the Sten-gun in question had not been recovered from Khawaja Azhar Hussain appellant. On the contrary, it was picked up from the house where the occurrence had taken place as the assailant/assailants had abandoned the same and had left it behind. It was further argued that according to the Fire-arms Expert some of the crime empties picked up from the spot were found to have been fired from that Sten gun. The reasoning of learned counsel is that although the opinion of the Fire-arms Expert in this case was not free from doubt as it was disclosed in his cross-examination that he had in some earlier cases given false opinions, in the instant case the ,recovery of the Sten-gun from the spot or its matching with some crime empties would not amount to sufficient corroboration of the tainted ocular testimony for it only established that in the occurrence the Sten-gun recovered from the spot had been used for the commission of crime and that there was nothing else on the record except the tainted ocular testimony, to connect Khawaja Azhar Hussain appellant with the said Sten-gun and its use in the course of the occurrence. The theory of learned counsel is that Khawaja Azhar Hussain appellant was not present at the time of occurrence. It was submitted that he had married Mst.
38. Nargis deceased and was happily living with her. Mst. Nargis deceased was called by Mst. Razia P.
39. W. To her house on the pretext that she was seriously ill. Thereupon, Mst. Nargis deceased went to the house of her mother and was detained there by Mst. Razia P. W. Who wanted her to discontinue her relationship with Khawaja Azar Hussain appellant. It was argued that the prosecution version to the effect that Mst. Nargis deceased sent a message to Mst. Razia P. W. And had called her to the house of Khawaja Azhar Hussain appellant and that thereafter Mst. Nargis deceased had gone with her to the house of Mst. Razia P. VV., was not supported by any independent corroborative evidence. Similarly, it was submitted that the version to the effect that at about 3-00 p:m. On that day Khawaja Azhar Hussain appellant in the company of Muhammad Amin acquitted co-accused and Mahmud deceased went to the house of Mst. Razia P. W. In a taxi and from the street ordered Mst. Nargis deceased to come down and to return with him and that on her refusal he hurled abuses at her and drove away, was also not supported by any independent corroborative evidence. According to learned counsel this incident did not take place at all. It was argued that on learning that Mst. Nargis deceased had gone to the house of Mst. Razia P. W., Mahmud deceased uncle of Khawaja Azhar Hussain appellant went to the spot in order to bring back Mst. Nargis deceased, and that since he was going to Heera Mandi and suspected that he might be offered resistence, he went there armed poss,,bly with a pistol/revolver . Or even a Sten-gun. According to learned counsel when Mahmud deceased arrived there and wanted to bring back Mst. Nargis deceased who was the wife of Khawaja Azhar Hussain appellant, resistence was offered possibly by the complainant side which led to the exchange of fire resulting in the present occurrence. The argument of learned counsel is that since the complainant side had motive to falsely implicate Khawaja Azhar Hussain appellant who was mainly responsible for depriving the complainant party of the financial advantage of Mst. Nargis deceased, they roped him in this case although he had not gone along with Mahmud deceased to get his wife back. It was further argued that Mst. Razia P.
40. W. Who regarded Khawaja Azhar Hussain appellant as her arch enemy could have not been an eye-witness in this case. The reasoning of learned counsel is based on the proposition that bad she been in fact present at the scene of crime, she would have not been spared by the accused party.
41. It was submitted that only two persons were not injured in the present occurrence who claimed that they were present in the house at the time of occurrence. They were Mst. Razia and her son Azam P. Ws. It was argued that both these eye-witnesses had possibly gone to see pictures with Muhammad Mohsin (P. W. 9), husband of Mo. Razia P. W. Who had stated that at the time of occurrence he had gone to see a film and on his return saw in the street that the injured were being taken to the hospital and that he accompanied them to the hospital. Thus, it was argued that Mst. Razia and Azam P. Ws. Who did not sustain any injury in the course of occurrence were not present in the house. It was further argued that the statement made by Mst. Razia P. W. (Exh. P. N.) on the basis of which the formal F.
1. R. Was registered, was not a genuine document. The reasons why it should not be considered as a genuine document, according to learned counsel, were, firstly that Mst. Razia P. W. Bad been stated to be a literate person whereas on Exh. P. N. Her thumb -- impression was taken and not her signatures. When she was asked the question as to whether she had signed her statement. She had replied in the affirmative and when she was confronted with her thumb-impression on Exh. P. N., she stated that the police might have taken her signatures on some other statement of hers; secondly she had stated in Exh. P. N. That when she came out from the store-room, she saw the injured lying there writhing including Mst. Nargis. According to learned counsel, had she been present at the spot and had she the occurrence, she could have not so stated about Mst. Nargis whose brain bad been blown of due to the fire-arm injury and, therefore, she must have laid there dead rather than writhing ; thirdly the note of the police under Exh. P. N.
42. Was to the effect that a case was made out against the accused party under section 307/452 148/149, P. P. C. Etc. Which also indicated that the said statement was recorded by the police long after the injured/deceased had been removed to the hospital; and lastly it was stated by Muhammad Yaqub S. I. P. W. Who recorded Exh. P. N. That the statement of Mst. Razia P. W. Was not recorded in his hand but it was dictated by him tQ a head constable who had not been produced.
43. For these reasons, according to learned counsel, the F.1. R. In this case was not a genuine document. In the opinion of learned counsel the police arrived in this case much after the occurrence, they neither participated in the firing nor saw the removal of the injured to the hospital.
44. The police witnesses had made conflicting statements as to where they were at the time when they heard fire reports. It was argued that it was dinner time for the police and that, therefore, the version of the police officers to the effect that they arrived at the scene of crime while the shooting was going on, that they found the entrance door of the house in the street bolted from outside, that some police officers were deputed in the street to watch the house and the others climbed over the roof of the house through an adjoining house etc. Was absolutely incorrect. According to learned counsel the police went to the house in question not at the culminating part of the occurrence but much later. It was also argued that the version of the police officers was in any case not free from doubt. They had stated that they descended from the roof to the middle storey of the house while the shooting was going on. One police officer fired two shots and two shots were fired under the instructions of this police officer by Mahmud (given up P. W.) through his licensed pistol. But both stated that these shots were fired from the stairs and did not hit anyone. The police version was further to the effect that the entrance door of the house had been bolted by someone from outside. It was argued by learned counsel that had it been so, no one could have escaped from that house. Furthermore, it was submitted that the prosecution had not explained as to how Mahmud deceased had died on the spot from fire-arm injuries, Muhammad Aslam appellant had sustained fire-arm injuries and Allah Bakbsh as well as Babar acquitted co-accused had received blunt weapon injuries. The reasoning of learned counsel is that as the entrance door was bolted from outside, no one could escape and that in the circumstances the ocular testimony to the effect that Kbawaja Azhar Hussain appellant along with Manzoor Ashraf appellant and Muhammad Amin acquitted co-accused had managed to escape on the arrival of the police, was not worthy of any credence. It was finally argued that the ocular testimony in this case was highly interested and inimical as there was a motive for the complainant side to falsely implicate Khawaja Azhar Hussain appellant in particular, and that waatever was produced in the form of recoveries from the spot in this case did not amount to sufficient independent corroboration of the tainted ocular testimony qua each accused person. It was also submitted that the ocular testimony had b ---en disbelieved by the trial Court in respect of Muhammad Amin acquitted co-accused who had been falsely implicated in this case although his alibi evidence to the effect that on the day of occurrence he was at Karachi was accepted by the trial Court. Similarly the ocular testimony respecting the participation of Allah Bakhsh and Babar acquitted co-accused was not relied upon by the trial Judge. According to learned counsel the nature of the present case was such that it was not safe to rely on the ocular testimony unless and until it was corroborated by independent evidence from some unimpeachable source or some strong circumstance qua each accused person and the specific part played by him in the commission of crime. Reliance was placed on Muhammad and Sher and another v. The Crown (1), Rehmat and others v. The State (2), Saeed Ahmad and another v. The State (3), Thoba and another v. The State (4) and Bagh Ali and 4 others v. The State (5).
(1) PLD 1954 FC 84 (2) PLD 1959 SC (Pak.) 109
(3) PLD 1972 Lab. 360 (4) PLD 19153 SC 40 (5)PLD1973SC321 Ch. Abdul Salim, learned counsel for Muhammad Aslam appellant submitted that Muhammad Aslam appellant was a tailor by profession and that he had no connection with the accused party in this case. He had gone to the spot in order to deliver clothes of Mst. Nargis deceased. While he was there Mahmud deceased uncle of Khawaja Azhar Hussain appellant arrived along with two others persons. They had an altercation with Muhammad Hafeez P. W. Ancj Maqsood deceased who were respectively armed. With a revolver and Sten-gun. Thereafter, there was an exchange of fire and as a result Muhammad Aslam appellant also sustained fire-arm injuries besides others.
45. Then - the police arrived on the spot and asked Muhammad Aslam appellant to become a witness in this case as he was unconnected and independent witness. On his refusal, he was falsely implicated in this case. It was submitted by learned counsel that Muhammad Aslam appellant had sustained fire-arm injuries and he was not in a position to move about. It was argued that revolver P. 23 stated to have been recovered from a water tank at the instance of Muhammad Aslam appellant was planted on him for this recovery was made by a police officer himself and not Muhammad Aslam appellant from the water tank which was located on the ground floor near the stairs according to the site plan. The reasoning of learned counsel is that Muhammad Aslam appellant who was injured could have not gone to the ground floor by descending the stairs and he could have not thrown the said revolver in the water tank. It was argued that he was falsely implicated in this case by the P. Ws. With the connivance of the police as he did not agree to become an eye-witness of the occurrence in the sense that he was not willing to come forward in support of the prosecution version. According to learned counsel Muhammad Aslam appellant had no connection with the motive and that he was falsely involved in this case only because he refused to name those persons as assailants whom the P. Ws. Wanted to be named as such. It was further submitted that the ocular testimony was highly interes,ed and inimical and that it remained uncorroborated qua Muhammad Aslam appellant. Con--sequently it was not safe to base conviction and sentence of Muhammad Aslam appellant on the uncorroborated testimony of interested and hostile eye-witnebses.
46. Mr. Aftab Farrukh, learned counsel for Manzoor Ashraf appellant argued that according to the pro,ecution version Manzoor Ashraf appellant was empty-handed like Allah Bakhsh and Babar acquitted co-accused when he came along with the others to the house . Of Mst. Razia P. W. It was submitted that he was not apprehended on the spot, arid that he had no motive to join the assailants, but on the contrary the complainant side had a strong motive to falsely implicate him in this case because he had been pnstrumental in the establishment of relationship between Khawaja Azhar tliussain appellant and Ust. Nargis deceased. It was further argued that the case of Manzoor Ashraf appellant was not distinguishable from that of Allah Bakbsh and Babar who had been acquitted for the reason that they had gone to the place of occurrence empty-handed. It was argued that in the F. I. R. Recorded by Ust. Razia P. W. As well as the statements made before the police by Mst. Yasmin, Moazzam and Azam P. Ws., no lalkara or instigation had been attributed to him and that Moazzam P. W. In his statement before the Committing Magistrate did not even mention that he was present at the scene of crime. However, according to learned counsel definite attempts were subsequently made by the P. Ws. In this case at the trial stage in order to exaggerate\his role by attributing to him the act of instigation. It was submitted that the instigation part had not been attributed to Manzoor Ashraf appellant in the F. I. R. Or in the police statements of the P. Ws., nevertheless material improvements were made in this respect by the P.
47. Ws. In their statements before the trial Court. Finally, learned counsel argued that even if it be assumed that Minzoor Ashraf appellant had accompanied any member of the accused party such as Mahmud deceased to the spot, he had admittedly gone there empty-handed and since there was no reliable evidence that he had instigated the others to shoot at the members of the complainant party and thereafter to escape when the police arrived there, his case was identical to that of Allah Bakbsh and Babar acquitted co-accused for his mere presence at the scene of crime in a passive way could not implicate him in the commission of crime.
48. We have carefully considered the arguments of learned counsel respecting each of the three appellants. It is case of both the sides that Mst. Nargis deceased had developed a relationship with Khawaja Azhar Hussain appellant and had started living with him some time before the present occurrence. It is of little importance as to whether she bad married Khawaja Azhar Hussain appellant or was illicitly living with him. It is likewise not important as to whether Mst. Nargis deceased had sent a message to Mst. Razia P. W. And had gone in her company to the house of Mst. Razia P. W. On the day of occurrence or even a day before the day of occurrence or had been summoned by Mst. Razia P. W. On the pretext that she was seriously ill. The fact remains that on the day of occurrence Mst. Nargis deceased was in the house of her mother. Mr. M. Anwar, learned counsel for Khawaja Azbar Hussain appellant would have us believe that the prosecution version to the effect that at about 3-00 p.m. Con the day of occurrence Khawaja Azhar Hussain appellant had gone in a taxi along with Muhammad Amin acquitted co-accused and Mahmud deceased to the house of Mst. Razia P. W. And bad ordered Mst. Nargis deceased from the street to come down or return with him and that on her refusal to do so he hurled abuses at her and then drove away, was unreliable as this version was not supported by any independent corroborative evidence. We do not agree with learned counsel for his proposition does not appeal to our reason. In our view, if Khawaja Azhar Hussain appellant had claimed that Mst. Nargis deceased was his wife and had learnt that she had gone back to Heera Mandi to the-- house of her mother, it was but natural on his part to go there along with some others in order to persuade her to return to him. But her refusal bad infuriated him and after hurling abuses at her from the street he drove away. We may point out at this stage that in her statement respecting this incident, at the trial stage, Mst. Razia P. W.
49. Had stated that she thought that Khawaja Azhar Hussain appellant was accompanied by Muhammad Amin acquitted co-accused besides Mahmud deceased. But she could not say that with certainty as Muhammad Amin acquitted co-accused remained seated in the taxi and had not come out. The main occurrence, in our view, took place because of the initial failure of Khawaja Azhar Hussain appellant to get Mst. Nargis deceased back from the house of Mst. Razia P. W. The argument of learned counsel that the complainant side had a motive to falsely implicate Khawaja Azhar Hussain appellant because he had caused financial loss to them by taking away Mst. Nargis deceased, also has no substance. In our view, the desertion on the part of Mst Nargis deceased and her refusal to return with him had provided a motive to Khawaja Azhar Hussain appellant to go to the house of Mst. Razia P. W. Along with his companions armed with lethal weapons in order to teach her and her family a lesson. Originally the defence version of Khawaja Azhar Hussain appellant was that Mst. Razia P. W. Bad taken a large sum of money from one Fareed Gul and that she had called Mst. Nargis deceased to her house on a false pretext so that she could be persuaded to go away with Fareed Gul, and that when Mahmud deceased had gone to fetch her, this Fareed Gul who was present at the house of Mst. Razia P. W. Armed with a Sten-gun along with some others, had fired and murdered Mst. Nargis deceased as well as Mahmud deceased. But since Mst. Razia P. W. Was hostile towards Khawaja Azhar Hussain appellant, she substituted him by covering up the real culprit. However, before us learned counsel for Khawaja Azhar Hussain appellant did not press this defence theory for obvious reasons. Substitution is a rare phenomenon and it is highly improbable that in the circumstances Mst. Razia P. W. Could have covered up the real culprit in order to falsely implicate Khawaja Azhar Hussain appellant. We have carefully gone through the record and our considered opinion is that the ocular testimony in this case is not of interested witnesses but of natural witnesses and there is no reason why the consistent ocular testimony of natural witnesses respecting the part played by Khawaja Azhar Hussain appellant should be disbelieved, particularly when, in our view. Khawaja Azhar Hussain appellant had a strong motive to commit the crime. According to the ocular testimony the inmates of the house of Mst. Razia P. W. Including Mst. Nargis deceased were present in the house watching T. V. When Khawaja Azhar Huksain appellant armed with a Sten--gun along with his companions, some of whom were armed with pistols or revolvers and others empty-banded, gate-crashed into the house. The inmates of the house did not expect their arrival and were obviously taken un4wares or by surprise.. Khawaja Azar Hussain appellant as well as his other armed companions started firing at the members of the complainant party indiscriminately. This portion of the ocular testimony is supported by the recovery of numerous crime empties and lead bullets which were picked up from the spot indicating that the job was accomplshied not by one or two accused persons but possibly more. According to the ocular testimony Khawaja Azbar Hussain appellant opened fire through his Sten-gun at Mst. Nargis deceased as well as the other members of the complainant party.
50. Simultaneously Mahmud deceased, Muhammad Adam appellant and Muhammad Amin acquitted co-accused opened fire at them through their pistols. The members of the complainant party started running here and there in order to save their lives. Mst. Razia P. W. Might have been the target of the accused party but she was fortunate enough to run and seek refuge in the store-room of the house. The other two members of the complainant party mentioned in the F.
1. R. Who escaped injuries, were for years old Nadeem and eleven years old Azam (P. W. 16). The argument of learned counsel that Mst. Razia P. W. Was not present on the spot and similarly Azam P. W. Was absent, and that they might have gone to pictures with Muhammad Mohsin P. W., was not supported by anything on the record. Likewise, the reasoning of learned counsel to the effect that the F.
1. R. In this case was a fabricated document, was not convincing. The prosecution version is that the police had arrived on the spot while the shooting was going on. Some of the police officers climbed over the roof of the house through the adjoining house. They announced that the weapon should be put down but to no effect. There is evidence on the record that one police officer fired two shots through his revolver and Mahmud given up P. W. Fired two shots under the instructions of this police officer. It is reasonably probable that Mahmud deceased died as a result of these shots and Muhammad Aslam appellant sustained fire-arm injuries. We hold this view because we are convinced in our mind that when the accused party had entered the house of the complainant party and opened fire at them, the members of the complainant party were unarmed and were taken by surprise. It is further reasonably probable that when the police announced from the roof that the arms should be put down, Khawaja Azhar Hussain and Manzoor Ashraf appellants throwing the Sten-gun away in the house went down stairs and managed Page 743 missinig (Exh. P. N.) of Mst. Razia P. W. Was recorded by the police respecting the occurrence. The statements of the injured P. Ws. Could only be recorded when the medical officer had opined that they were in a ht condition to make the same. We, therefore, find no substance in the argument of learned counsel that Exh. P. N. Was a fabricated document. He has not been able to show us anything from the record trom which it could be inferred that the police had any motive to make false statements in this case in order to falsely implicate the appellants. We have already pointed out that the prosecution case as against Khawaja Azhar Hussain appeal lant is based on the ocular testimony of natural witnesses whose versioa is not only supp, rted by a strong motive, but recoveries made from the spot. 7 he ocular version is to the effect that Khawaja Azhar Hussain appellant was arm-.d with a Sten-gun and used the same Sten gun P. 28 was picked up from the spot and according to the opinion of the Fire-arms Expert, it matched with some of the crime empties which had also been picked up from the spot. Thus, in our view, these recoveries are a strong piece of circumstantial evidence which supports the ocular testimony of natural witnesses as against Khawaja Azbar Hussain appellant who was the main person connected as well as concerned with the motive. The specific part played by Khawaja Azbar Hussain appellant in the commission of crime was that he opened fire through the Sten-gun which he carried and as a result three members of the complainant party were killed whereas for sustained injuries. In the circumstances of the present case one could not expect from the eye-witnesses to provide details as to at which specific person, Khawaja Azhar HVssain appellant, had aimed or fired particularly when he was using a weapon which could be moved in any direction while shooting and also when the inmates of the house were running here and there in order to save their lives. We also do not agree with learned counsel that Kbawaja Azhar Hussain appellant had not gone to commit the crime but it was his uncle Mahmud deceased who could have possibly taken the Sten-gun or that there was possibility of his false implication. If the eye-witnesses had a motive to falsely implicate, they could have also given pistols to the three empty-handed companions of Khawaja Azhar Hussain appellant or such pistols could have been planted on them. Thus, if there is ocular testimony of natural witnesses, stated to be interested by the defence, which is consistent and rings a note of truth, and further it is supported by strong circumstances, in our view, it is safe to base conviction thereon. The case of Muhammad Amin acquitted co-accused is different. The ocular testimony about his participation in the occurrence is not consistent. Even Mst. Razia P. W.
51. Was uncertain as to whether or not he had accompanied Khawaja Azhar Hussain appellant in the earlier incident. It was reasonably probable that there was some person who was other than Muhammad Amin acquitted co-accused who had participated in the occurrence and bad managed to escape with Khawaja Azhar Hussain appellant before the arrival orthe police. But since his identity could not D be ascertained, Muhammad Amin acquitted co-accused was mentioned as a member of the accused party by Mst. Razia P. W. Anyway, he would b excluded due to the application of the principle of sifting of evidence. The ocular testimony respecting his participation is not even supported by any strong circumstance as nothing was recovered from him and no weapon of offence was picked up from the spot which could be connected with him.
52. The reasons why Muhammad Amin was acquitted by the trial Court were the lack of consistency in the ocular account respecting his participation, non-recovery of any weapon of offence connecting him with the commission of crime and the alibi evidence which he had successfully produced in defence. So far as Allah Bakhsh and Babar are concerned, they were acquitted by the trial Court simply for the reason that according to the prosecution version they were empty- handed and no part had been ascribed to them in the commission of crime. But it could not be said that the ocular testimony respecting their presence at the scene of crime had been disbelieved. There is no doubt in our mind that they were present at the scene of crime along with Khawaja Azhar Hussain appellant as they were' apprehended on the spot. But since according to the prosecution version, they were empty-handed and no part had been ascribed to them, they were acquitted. But so far as Khawaja Azhar Hussain appellant is concerned he had, in our view, the strongest motive to commit the crime, the ocular testimony re3pecting his participation was consistent and was supported by strong circumstantial evidenze as well as the medical evidence.
53. It is stated by Muhammad Yaqub S. I. P. W. In the cross-examination that according to his conclusion, Mahmud deceased received the injuries from the same weapon from which Mst. Nargis deceased had received injuries. In the absence on the record of any Expert opinion on this point, the conclusion of the police officer in this respect, was no more than a mere impression and that therefore no importance need be attached to it. In any case such an impression cannot be used as positive supporting evidence to the defence theory put up by learned counsel in this case. If the defence advances a theory as to how the crime might have been committed, it must be founded on some positive material on record and not on mere assumptions or surmises. Reliance can be placed on Abdus Sattar v. Muhammad Anwar and 6 others (PLD1974SC266In the light of the above discussion, therefore, in our considered opinion, the prosecution has succeeded in establishing its case as against Khawaja Azhar Hussain appellant. The convictions as well as sentences awarded to Khawaja Azhar Hussain appellant were quite proper and well deserved in the circumstances of the case and are accordingly maintained. The result is that his appeal is dismissed and the death sentence awarded to him is hereby confirmed.
54. Muhammad Aslam appellant was apprehended on the spot. Revolver P. 23 was recovered from a water tank in the house at his pointing out. The ocular testimony respecting his participation is that he was one of the members of the accused party and had used this weapon for the commission of crime. The evidence of the Fire arms Expert was to the effect that some of the crime empties picked up from the spot had been fired from revolver P.
23. The defence version to the effect that he was falsely implicated in this case by the police because he would not agree to become an eye- witness, was highly improbable. The learned trial Judge awarded to him lesser penalty only on the ground that he was not directly concerned with the motive. Anyway, the prosecution case as against him is based on the ocular testimony of natural witnesses corroborated by recoveries, opinion of the Fire-arms Expert, medical evidence as well as his apprehension on the spot in an injured condition. We do not find any substance in the defence version which is improbable and appears to be an afterthought. He may have not been directly connected with the motive but there was no reason why the eye-witnesses in this case should connive with the police to falsely implicate him merely for the reason that he was not willing to come forward in support of the prosecution version. In our considered opinion his convictions as well as sentences were also quite proper and well deserved (1) and are accordingly maintained. The result is that his appeal is also dismissed.
55. As for Manzoor Ashraf appellant, according to the ocular testimony of natural witnesses he had entered the house as one of the members of the accused party but was-empty handed. It is also in evidence that he managed to escape from the scene of crime on the arrival of police along with Khawaja Azhar Hussain appellant. He was, therefore, not apprehended on the spot like Allah Bakhsh and Babar acquitted co-accused who had also entered the house empty-handed like him. We are aware that Manzoor Ashraf appellant was not directly concerned with the motive although he might have acted as a go-between in the establishment of relationship between Mst. Nargia deceased and Khawaja Azhar Hussain appellant. In any case, it cannot be said that he had no motive to join the accused party. In the light of the ocular testimony, we are convinced in our mind, that he went to the house of Mst. Razia P. W. Along with the other members of the accused party. If the complainant side had any motive to falsely implicate him, they could have stated that he was also armed with a pistol and participated in the shooting. But it is in evidence that he was empty- handed like Allah Bakhsh and Babar acquitted co-accused. The only reason why he had been convicted and sentenced was that the part of instigation had been attributed to him by the eye- witnesses at the trial stage. It is only on this ground that his case was distinguished from that of Allah Bakhsh and Babar acquitted co-accused. However, the record reveals that no such instigation had been attributed to him in the F. I. R. Got recorded by Mst. Razia P. W. Similarly in their police statements, Mst. Yasmin, Moazzam as well as Azam P. Ws. Did not attribute that role to him Moazzam P. W. Had not mentioned his presence at the scene of crime in his statement before the committing Magistrate. It, therefore, appears that some padding or improvement was made in the statements of the eye-witnesses at the trial stage in order to exaggerate his role. In our considered opinion he had gone along with others to the place of occurrence but was empty-handed and, therefore, his case was not distinguishable from Allah Bakhsh and Babar acquitted co-accused.
56. He~ did not participate in the shooting and it is doubtful if he played the role of an instigator. His mere presence at the scene of crime would not implicate him in the actual commission of the crime. We are, therefore, of the considered view that if benefit of doubt was given by the trial Court to Allah Bakhsh and Babar acquitted co-accused, the case of Manzoor Ashraf appellant being identical to that of theirs, he should have also been given the same benefit. The result is that we give him the benefit of doubt. His convictions and sentences were not proper and therefore, are set aside. He is acquitted. His appeal is accepted. He shall be released from jail forthwith if not wanted in any other case.
57. Thus, Criminal Appeal No. 501 of 1975, filed by Khawaja Azhar Hussain appellant is dismissed and death sentence awarded to him is confirmed. Similarly, Criminal Appeal No. 502 of 1975, filed by Muhammad Aslam appellant is dismissed and his convictions as well as sentences are maintained. However, Criminal Appeal No. 387 of 1975, filed by Manaoor Asbraf appellant is accepted as he has been given the benefit of doubt and acquitted. He shall be released from jail forthwith if not wanted in any other case.