MUHAMMAD MUNIR KHAN, J.---These two Criminal Appeals Nos.243 of 1993 and 244 of 1993 by leave of the Court arise from the facts that in an occurrence which took place on 2-6-1988 near the house of Ghulam Rasool, situate in village Jheuranwali, District Gujrat at a distance of three miles from Police Station Kunjah, Muhammad Asghar, Muhammad Akram, Allah Dad, Mazhar Hi ssain and Muhammad Yousaf allegedly launched murderous assault on Manzoor Hussain P.W.6 and Akhtar Manzoor P.W.9, and also committed double murder of Muhammad Shafi and Mst. Rasool Bibi, in the presence of Sarwar Manzoor and Ghulam Rasool P.Ws. The first report of the occurrence was lodged by Muhammad Iqbal P.W.10 a son of Muhammad Shafi deceased the same day at 9-30 p.m. At Police Station Kunjah which was recorded by Hasan Akhtar, S.H.O., P.W.13. According to prosecution, on the fateful day at about Ishawela, on hearing alarm, the complainant and Manzoor Hussain P.W.6 came to the Bus Stand and found Sarwar Manzoor and Akhtar Manzoor P.Ws sons of Manzoor Hussain P.W. Quarrelling with Muhammad Asghar, Muhammad Yousaf and Mazhar Hussain accused (appellants in Cr.A.No.244 of 1993). They intervened and separated them.
Muhammad Asghar, Muhammad Yousaf and Mazhar Hussain accused went towards their house threatening Sarwar Manzoor and Akhtar Manzoor with dire consequences. Manzoor Hussain, Muhammad Iqbal, Sarwar Manzoor and Akhtar Manzoor also went towards their house.
When they reached near the house of Muhammad Yousaf accused, he (Muhammad Yousaf), Muhammad Asghar and Mazhar Hussain started hurling brick bats from the roof of said house as a result whereof Manzoor Hussain and Akhtar Manzoor received injuries. Manzoor Hussain P.W. And his companions rushed into the house of Ghulam Rasool P.W. Brother of Muhammad Shafi deceased. After a short while, at about 9-30 p.m. Muhammad Asghar and Muhammad Akram armed with guns, Muhammad Yousaf armed with Carbine, Mazhar Hussain armed with Revolver and Allah Dad carrying Sota in his hand came there shouting that they would teach lesson to Sarwar Manzoor and Alditar Manzoor for abusing them at which Muhammad Shafi, Mst. Rasool Bibi, Manzoor Hussain P.W.6, Akhtar Manzoor P.W.9, Muhammad I.Qbal P. W.10, Sarwar Manzoor (not produced) and Ghulam Rasool came out of the houses. Muhammad Asghar fired shot from his gun hitting Mst. Rasool Bibi on different parts of her body. Muhammad Akram fired shot hitting the abdomen and the leg of Muhammad Shafi. Mst. Rasool Bibi and Muhammad Shafi both fell on the ground. Mazhar Hussain and Muhammad Yousaf fired shots which did not hit any one, whereafter the accused ran away from the spot. Muhammad Shafi and Mst. Rasool Bibi while being removed to the hospital succumbed to the injuries in the way.
2. Dr. Chaudhry Shafique Ahmad P.W.7 examined Akhtar Manzoor P.W. And found two simple injuries, caused by blunt weapon, on his person. Dr. Asif Ali Khan P.W.12 examined Manzoor Hussain P.W. And found seven simple injuries, caused by blunt weapon, on his persona Dr. Muhammad Munir P.W.11 conducted post-mortem examination on the dead body of Mst. Rasool Bibi who found as many as seven fire-arm injuries and one contusion on different' parts of her body. Out of seven fire-arm injuries, five were wounds of entry and two were wounds of exit. In his opinion, death was due to shock and haemorrhage caused by fire-arm injuries. He also conducted post-mortem examination on the dead body of Muhammad Shafi deceased and noted five lacerated wounds caused by fire-arm and one contusion by blunt weapon on his dead body. Out of firearm injuries, one was exit wound and the rest were wounds of entry. The death was due to shock and haemorrhage resulted from fire-arm injury on the abdomen sufficient to cause death in the ordinary course of nature.
3. The accused were arrested on 22-6-1988 by Hassan Akhtar S.H.O., P.W.13. Gun P.1, Carbine P.10, Revolver P.11 and Sota P.9 were recovered from Muhammad Asghar, Muhammad Yousaf, Mazhar Hussain appellants and Allah Dad acquitted accused on 22-6-1988, 30-6-1988, 30-6-1988 and 22- 6-1988 respectively, in the presence of Muhammad Inayat P.W.2, Liaquat Ali P.W.3 and Hassan Akhtar, S.H.O. P.W.13. No fire-arm was recovered from Muhammad Akram acquitted accused. No empty was recovered from the place of occurrence; so the recoveries of fire-arms from Muhammad Asghar, Muhammad Yousaf and Mazhar Hussain accused were of no consequence. Sota recovered from Allah Dad was not stained with blood.
4. To prove its case prosecution produced as many as thirteen witnesses. Manzoor Hussain P.W.6, Akhtar Manzoor P.W.9 and Muhammad Iqbal P.W.10 are eye-witnesses of the occurrence. They claim to have seen Muhammad Asghar firing shot from his gun hitting Mst. Rasool Bibi and Muhammad Akram firing shot from his gun which hit Muhammad Shafi, and also Muhammad Yousaf and Mazhar Hussain firing ineffective shots from Carbine and revolver. They also supported the motive incident. Muhammad Inayat P.W.2, Liaquat Ali P.W.3 and Hassan Akhtar, S.H.O., P.W.13 have supported the recoveries of weapons from the accused. Dr. Chaudhry Shafique Ahmad P.W.7 and Dr. Asif Ali Khan P.W.12 have proved the Medial-Legal Reports of the injuries of Akhtar Manzoor and Manzoor Hussain P.Ws. Dr. Muhammad Munir P.W.11 has proved the post-mortem examination reports of the two deceased. The rest of the evidence is more or less of formal nature.
5. When examined under section 342, Cr.P.C., the accused denied the incriminating circumstances.
They raised plea of false implication and substitution as well. In reply to the question as to why the case against him, Muhammad Asghar stated:-- "Manzoor Hussain P.W. Had illicit relations with the sister and mother of one Rafi son of Inayat caste Jat living in the neighbour of Manzoor Hussain. I and the other co-accused used to ask Manzoor Hussain to desist from these vicious activities and used to admonish Rafi and his family before the day of occurrence. Rafi alongwith Shaukat and Riaz of the village had a fight with the deceased party. There was an exchange of brick bating and later on cross-firing between them in which Muhammad Shafi and Rasoolan Bibi lost their lives. Rafi was a military employee who left for his place of duty. Master Manzoor had a sift corner for him. He instead of implicating the real accused got registered the case against me and my relatives, who used to admonish Manzoor P.W."
The remaining accused made almost similar statements. Neither any witness was produced in defence nor the accused chose to make statements under section 340(2), Cr.P.C. In disproof of the charges against them.
6. Giving benefit of doubt to Allah Dad, the Trial Court acquitted him of the charges. Believing the prosecution version of the occurrence and disbelieving the plea of defence, the Trial Court convicted and sentenced the remaining accused as under:--
(i) U/s. 302/34, P.P.C. #TBS 7. Feeling aggrieved- thereby, Muhammad Asghar, Muhammad Yousaf and Mazhar Hussain filed Petition for Leave to Appeal No.348-L of 1992. Muhammad Iqbal complainant filed Petition for Leave to Appeal No.105 of 1992 against acquittal of Muhammad Akiam and for the enhancement of sentences of Mazhar Hussain and Muhammad Yousaf and for awarding compensation under section 544-A, Cr.P.C. In addition to the amount of fine directed by the Trial Court to be paid to the legal heirs of the deceased, if recovered. Leave to appeal was granted in Criminal Petition for Leave to Appeal No.348-L of 1992 to consider, inter alia, whether in view of conflict in ocular and medical evidence (particularly regarding firing distance shown in the site #TBE
(a) Muhammad Asghar and Muhammad Akram Death and a fine of Rs.10,000 each or in default of payment of fine 2 years' S.I. Each.
(b) Muhammad Yousaf and Mazhar Hussain Imprisonment for life and a fine of Rs.5,000 each, or one year S.I. Each. .(ii) U/s. 307/34, P.P.C. All the four accused Four years' R.I. Each and a fine of Rs.2,000 each, or in default six months' S.I. Each. It was directed that the sentences should run concurrently and fine if recovered shall be paid to the legal heirs of the deceased. The aforesaid four convicts filed appeal against their convictions and sentences in the Lahore High Court, Lahore. The complainant filed revision for the enhancement of sentences of the convicts and for awarding of compensation in addition to the fine imposed under sections 302/34 and 307/34, P.P.C. The High Court, vide impugned judgment dated 28-6-1992 has maintained the convictions and sentences of Muhammad Asghar, Muhammad Yousaf and Mazhar Hussain appellants and has also confirmed the death sentence of Muhammad Asghar. The High Court, however, acquitted Muhammad Akram on the grounds that, according to the Investigating Officer, Muhammad Akram had pleaded alibi before him which was supported by a number of witnesses during investigation; that Muhammad Akram was not present in the motive incident so his sudden appearance at the place of occurrence duly armed and then resorting to firing a shot at Muhammad Shafi was somewhat doubtful. At the same time, the High Court.Lias believed the alleged motive, the incident of hurling brick bats frorii the house of Muhammad Yousaf and the presence of the eye-witneSses on the spot. The High Court was of the. View that the eye-witnesses are independent and trustworthy. The High Court disbelieved the defence plea of substitution of the appellants: in place of Rafi, Shaukat and Riaz. plan as 32 feet) implicit reliance could be placed on the eye-witnesses merely for A the reason that there was no background of previous enmity between the parties. Since leave to appeal was granted to the convicts, leave was also granted to the B complainant in Criminal Petition for Leave to Appeal No.105 of 1992 against I Muhammad Akram respondent alone.
8. Malik Rab Nawaz Noon, Advocate, learned counsel for complainant/appellant in Criminal Appeal No.243 of 1993 has contended that the High Court after believing the eye-witnesses has acquitted Muhammad Akram, the murderer of Muhammad Shafi deceased on the strength of opinion of the Police Officer with regard to his innocence and plea of alibi raised during the investigation and for other reasons which are imaginary and artificial. Learned counsel has further submitted that the acquittal of Muhammad Akram, who is accused of committing the murder of Muhammad Shafi deceased has resulted in gross miscarriage of justice and that the impugned judgment to the extent of acquitting him was perverse. Contrarily, Mr. Muhammad Nasrullah Waraich, Advocate, appearing for Muhammad Akram acquitted accused/respondent in Criminal Appeal No.243 of 1993 and for Muhammad Asghar, Muhammad Yousaf and Mazhar Hussain convicts/appellants in Criminal Appeal No.244 of 1993 contended that the prosecution case as a whole is pregnant with serious doubts and suffers from infirmities such as unexplained delay in lodging the F.I.R., unproved motive, want of independent witnesses and conflict between the eye-witnesses and the medical evidence, particularly regarding firing distance shown in the site-plan and told by Mazhar Hussain P.W.6, and non-production of natural and independent witness namely, Ghulam Rasool, husband of Mst. Rasool Bibi deceased. Assailing the genuineness of the F.I.R., he submitted that it is in evidence that while taking the two deceased to the hospital, the complainant and the eye- witnesses had passed in front of Police Station but they did not lodge the F.I.R. At that time, so there is a reasonable apprehension that the F.I.R. Was lodged after deliberation and consultation.
Learned counsel has also argued that the injuries of different dimensions found on the dead bodies falsify the prosecution case inasmuch as the two deceased received one fire-shot each, therefore, no implicit reliance could be placed on the ocular testimony which had been disbelieved qua Allah Dad and Muhammad Akram accused. Learned counsel further argued that the defence plea that the appellants were substituted in place of Rafi, Shaukat and Riaz is supported by Hassan Akhtar, S.H.O., P.W.13, the Investigating Officer, who in cross-examination admitted that the investigation revealed that Rafi, Shaukat and Riaz also accompanied the accused persons at the time of occurrence and that Rafi had given beating to Akhtar Manzoor P.W., which was real cause of the main occurrence. As regards the acquittal of Muhammad Akram, learned counsel maintained that he Investigating Officer had found him innocent and had accepted the plea of alibi raised before him which was supported by a number of witnesses; that appearance of Muhammad Akram alongwith other accused on the spot, in the circumstances of the case, was not possible; that the reasons given by the High Court for acquittal are both cogent and sound. Learned counsel argued that considerations for interference with judgment of acquittal are different from considerations for interfererfce in judgment of conviction and once an accused is acquitted by a Court of competent jurisdiction, then very strong and exceptional grounds would be required for interfering with the same, which do not exist in the present case. He further submitted that the case of Muhammad Yousaf and Mazhar Hussain is quite distinguishable, in that, they had not caused any injury to any one and as such were not vicariously liable for the murders.
In the alternative, he requested for reduction in the sentence of Muhammad Asghar appellant on the ground that he acted under the influence of his elders and the act of murder was somewhat provoked and the real motive for the murder of the two deceased is shrouded in mystery. Ch. Muhammad Akram, learned counsel for the State was of the view that the prosecution has brought home the guilt not only to the convicts-appellants but also to Muhammad Akram acquitted accused.
9. We have anxiously attended to the arguments addressed before us and have carefully reviewed the entire evidence on record and circumstances of the case. Taking appeal against convictions (Criminal Appeal No.244 of 1993) first, we find that the three eye-witnesses have been believed by the Courts below. The High Court was of the view that the eye-witnesses were quite independent; they had no prior or animosity against the accused and that their presence at the place of occurrence at the relevant time was not open to any exception. Despite these observations, the High Court acquitted Muhammad Akram giving him benefit of doubt. On our independent assessm ent of the evidence and circumstances appearing in the case, we do not see any serious infirmity warranting rejection of statements of the eye-witnesses. Wholly or partially. By the fact of injuries on the persons of Manzoor Hussain P.W.6 and Akhtar Manzoor P.W.9 in the incident which took place near the house of Muhammad Yousaf accused shortwhile before the main incident their presence was very much established. Three eye-witnesses have given plausible cause of their presence in the house of Ghulam Rasool, paternal uncle of Muhammad Iqbal and Manzoor Hussain P.Ws. And brother of Muhammad Shafi deceased, and their subsequent attraction to the spot at the relevant time. The accused and the eyewitnesses are neighbourers and were fully known to each other. So there was no question of wrong identification of the assailants, particularly when electric light was available around the site. We are very much impressed by the straightforward manner in which the eye-witnesses had narrated the occurrence. There were about six fire-arm wounds of entry on the dead bodies. They could easily attribute some of the injuries to Muhammad Yousaf and Mazhar Hussain appellants as well but this was not done, rather they stated that the shots fired by them did not hit any one. The ocular evidence does not suffer from any substantial conflict with medical evidence. The medical evidence shows that blackening and burning was present around the wounds on the dead bodies which will show that the deceased were fired at from a distance within four to five feet. The distance between the deceased and the place wherefrom the shots were fired by the accused was not asked from Akhtar Manzoor P.W.9 and Muhammad Iqbal P.W-10. No doubt, Manzoor Hussain in cross-examination stated that "the accused were at a distance of 20/22 feet away from Shafi deceased towards South western side in a lane", but this does not mean that they were at a distance of 20/22 feet when they actually fired at the deceased. If there is any ambiguity in cross-examination by the Defence Counsel, then the accused and not the prosecution should suffer. No doubt, in the site plan it is mentioned that the distance between the deceased and the place wherefrom they were fired at was 32 feet but this will not help the defence either because site plan is not a substantive piece of evidence and cannot be used to discard the evidence of a witness unless he was confronted with the same. In the instant case the eyewitnesses were not confronted with this portion of the site plan, and it was not asked from them as to whether or not they had told this distance to the official who has prepared the site plan.
10. As regard difference in dimension of fire-arm injuries on the dead bodies, suffice it to say that the dimension of the fire-arm wounds depends upon nature of surface where the injuries landed. In the instant case the pellets hit the abdominal area, upper part of thigh, upper part of the chest of two deceased, so the difference in dimension of the wounds is quite understandable.
11. Ocular evidence has not been disbelieved by the High Court qua Muhammad Akram accused.
He has simply been given benefit 'of doubt which does not mean that the eye-witnesses were found false qua him. The occurrence took place at about 8-00 p.m. And the F.I.R. Was registered at 10-45 p.m. Muhammad Shafi and Mst. Rasool Bibi had not died on the spot. After departure of the accused from the place of occurrence, they were removed to Civil Hospital, Gujrat. On reaching hospital, Muhammad Shafi and Mst. Rasool Bibi were found to have expired. Muhammad Iqbal P.W.10 in cross-examination stated that "we passed near the Police Station but I did not inform the police about the occurrence. Volunteered that we were in hurry to save the life of the injured. (This is why we rushed to hospital first)". Mst. Rasool Bibi and Muhammad Shafi had received fire-arm injuries. Their condition was precarious, so there was nothing unusual in the conduct of the complainant in first removing the injured to the hospital for treatment to save their lives. If some persons had accompanied the injured to the hospital, it would not mean that such persons were bound to approach the Police for recording F.I.R. This circumstance is neither fatal to the prosecution nor harmful to she credibility of eye-witnesses. Prosecution has produced three witnesses whose presence on the spot in the circumstances of the case was quite natural. So, non- production of Ghulam Rasool would not detract the evidentiary value of the eye-witnesses who have been found worthy of credence by the two Courts below and by us as well. Statements made by them are in consonance with probabilities and fit in with other evidence and circumstances of the case. They have consistently stated that Muhammad Akram had fired fatal shot at Muhammad Shafi deceased. We are fully convinced that they were present on the spot, seen the occurrence and had identified the assailants, and as such they are confidence-inspiring witnesses. Ocular evidence may be classified into three categories: Firstly, wholly reliable; secondly, wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category, conviction may safely be sustained cm uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct sources. We are of the view that the testimony of the eye-witnesses in the present case falls within first category. They are absolutely dependable witnesses and for the safe administration of justice in criminal cases, conviction can safely be recorded on their statements without further corroboration.
12. Adverting to the defence plea of substitution, we find that the accused have failed to lay down any foundation for their substitution in place of Rafi, Shaukat and Riaz. Had they been present on the spot or participated in the occurrence, they would have been easily named. Their total exclusion by the complainant in F.I.R. And by the eye-witnesses closely related to the deceased, in their statements before the Court would run counter to the natural probabilities more particularly when some of the fire-arm injuries found on the dead bodies could easily be attributed to them.
Even otherwise, substitution of innocent persons in place of guilty persons is extremely rare.
13. Muhammad Yousaf and Mazhar Hussain had participated in the motive incident. They had come to the place of occurrence carrying fire-arms in their hands and had resorted to ineffective firing. Their companions, the co-accused, had killed the two deceased in the occurrence. So, there remains no doubt that they are vicariously liable for the murders of Muhammad Shafi and Mst.
Rasool Bibi.
14. Now we come to the acquittal of Muhammad Akram. We have considered the entire evidence and all aspects of the case from the point of view that to reverse the acquittal by the High Court and replace it with conviction is possible only if this Court is satisfied independently that the evidence in the case was in quality and quantity adequate to support a conviction. We have also considered it from the aspect of discovering whether the doubts felt by the learned Judges of the High Court were doubts arising out of and inhering in the evidence and circumstances of the case, or whether on the other hand, they were doubts of artificial character which rested more in the mind of the learned Judges than the matter which had been established by evidence in the case. Our conclusion is that the doubts which induced the learned Judges in High Court to set aside the conviction of Muhammad Akram and to acquit him were not genuine doubts arising from evidence or flow of the circumstances. We are clear in our minds that this is not a case in which benefit of doubt could have been extended to Muhammad Akram. There are aspects of case which ought to have been considered but have not been considered by the High Court. The reasons given by the High Court for giving benefit of doubt to the accused are artificial and imaginary. The opinion of the Police about the innocence of Muhammad Akram or with regard to alibi pleaded by him before the Police during the investigation, which according to the Investigating Officer was supported by a number of witnesses, lack evidentiary value. The accused has not produced the witnesses in the Court in proof of his alibi. Needless to say that opinion of the Police about the guilt or innocence based on statement of witnesses not produced before the Court is inadmissible in evidence. Although Muhammad Akram was not present in the motive incident and the incident of hurling stones, near the house of Muhammad Yousaf accused which took place sometime before the main occurrence, yet his appearance on the spot alongwith the co-accused, in the circumstances that the house of Muhammad Akram is only 150 feet from the place of murder and after the incident of hurling stones the co-accused had gone to the house where Muhammad Akram used to live with Muhammad Asghar accused his real brother, was quite possible. There was interval between the two incidents namely, the one wherein brick batting took place near the house of Muhammad Yousaf and the main occurrence in which Muhammad Shafi and Mst. Rasool Bibi lost lives. So, the appearance of Muhammad Akram on the spot duly armed, in the company of co-accused, to take revenge of the motive incident runs parallel to the natural probabilities. The finding of the High Court that "sudden emergence of Muhammad Akram on the place of occurrence and that also armed with. 12 bore gun and then resorting to firing a shot at Shafi deceased, thus admits of doubt" is thus based on surmises and conjectures. In this view of the matter, tlfere can be no two opinions that the conclusion recorded by the High Court with regard to the participation of Muhammad Akram in the occurrence is such that no reasonable person would conceivably reach the same and the judgment of acquittal is perverse for the reasons enumerated above. We, therefore, feel that interference by this Court in this case to avoid grave miscarriage of justice is very much essential. Consequently, while setting aside his acquittal recorded by the High Court, we restore the order of Trial Court holding him guilty under section 302/34, P.P.C.
15. This brings us to the question of sentence. We have considered this question with utmost care on our part. In view of the motive incident which took place shortwhile before the main occurrence and which has rightly been believed by the Courts below, it cannot be said that the real motive for the murders of the deceased remains in mystery. Muhammad Asghar and Muhammad Akratti were aged 23 years and 39 years respectively at the time of occurrence. They were fully aware of the nature of their act and consequences thereof. Muhammad Asghar had fired fatal shot at Mst. Rasool Bibi deceased and Muhammad Akram had fired fatal shot at Muhammad Shafi deceased. The two deceased had not provided any annoyance whatsoever to them, and had been killed in cold blood. For an offence of murder, death is the normal sentence unless mitigating circumstance exists to justify awarding of lesser penalty. We do not see any mitigating/extenuating circumstance in their favour for lesser sentence. The sentence of death of Muhammad Asghar has already been confirmed by the High Court. We would also maintain the same, and restore and confirm the sentence of death awarded to Muhammad Akram by the Trial Court. They both shall be hanged by necks till they are dead. We do not see any valid reason to enhance the sentence of imprisonment for life of Muhammd Yousaf and Mazhar Hussain as they had not injured any one.
We also do not see any reason to award any additional compensation under section 544-A, Cr.P.C.
The fine imposed by the Trial Court on the appellants and Muhammad Akram accused/respondent, and the directions given by it for the payment of fine as and when recovered, to the legal heirs of the deceased, will remain intact. Bailable warrants were issued against Muhammad Akram when leave to appeal was granted. He is not present in Court today. The Trial Court shall issue warrants of his arrest and on his arrest he would be sent to jail for execution of sentence. Resultantly, Criminal Appeal No.243 of 1993 of the complainant is accepted to the extent stated above and Criminal Appeal No.244 of 1993 of the convicts is dismissed in toto.
16. Before parting with the judgment, we would like to observe that we know it by experience that the dead bodies of female human beings like those of male human beings are post-mortemed by male doctors and their male paramedical staff. For post-mortem purposes, dead body is laid on a table in a naked condition where male members of medical staff have free ingress. So much so, the sweepers are made to break the skulls of dead bodies with hammer and vaginal swabs are also taken by male members of paramedical staff which is a shameful process and insulting not only to the dead body but also injurious to the feelings of close relatives of the dead body and also against Injunctions of Islam. In Islam, the dead persons and dead bodies deserve to be respected.
To avoid all this, it is directed that in future, female dead bodies should be postmortemed by lady doctors nowadays posted at every District and Tehsil Headquarters Hospitals. No male member should be present during the process. The skull, if required to be opened, should be got opened by Muslim male/female members of paramedical staff. In no case vaginal swabs be taken by a male member of the Paramedical staff. The Secretary Health, Government of Pakistan, will ensure that directions given by this Court are strictly complied with throughout Pakistan. .