' RAJA MUHAMMAD KHURSHID, J.--A case under section 302/307/ 148/149/323, P.P.C. Was registered against the appellants and others on the report of Nazir Ahmad for an occurrence which took place at 4-45 p.m. On 31-8-1989 in the area of Police Station, Gogera, District Okara in which Muhammad Jafar was murdered. In the same occurrence Mumtaz Ahmad and Alain Sher P.Ws. Sustained injuries. F.I.R. Exh.P/B was registered on the same night at 12-30 a.m. On 1-9-1989.
2. According to the F.I.R. The complainant being brother of the deceased accompanied him to Chak' No,45/GD, District Okara as the latter wanted to see his children who had gone to the house of Gohar Ali to meet him being their relative. The election of Ushr and Zakat Committee of that village was scheduled for that date. The complainant and his deceased brother went to the spot to watch the election proceedings. At about 4-45 p.m. The opposite group of Mumtaz Ahmad P.W.
Started hooliganism. The Election Officer left the place of occurrence apprehending that there might be a fight between the parties. On his departure the appellants namely Murtaza and Nosher while armed with .12 bore guns and their co-accused namely Daulat, Noor Ahmad and Haq Nawaz armed with Sotas each. Balia and Sardar Khan empty-handed came to the spot after forming an unlawful assembly with a common object of committing the murder of the deceased. Balia and Sardar raised a Lalkara that Mumtaz Ahmad P.W. Should be taught a lesson for repeatedly spoiling their position for chairmanship. They shouted that he should not be allowed to escape alive.
Thereupon, the accused opened an attack upon Mumtaz Ahmad. The first blow was wielded by Noor Ahmad with his Sota on the head of Mumtaz Ahmad, which fell on his left arm as he extended the arm in order to save himself. The left elbow of Mumtaz Ahmad was injured with the said blow whereupon he fell down. Haq Nawaz gave a Sota blow on the left ankle of Mumtaz Ahmad. In the meantime Alam Sher P.W. Tried to intervene whereupon Daulat accused gave him a Sota blow on his head. Alam Sher also fell down. In the meanwhile the deceased intervened to save Mumtaz Ahmad P.W. But Nosher accused fired from his .12 bore gun which hit the deceased in his abdomen.
Murtaza appellant/accused fired his .12 bore gun hitting the forehead of the deceased whereupon he fell down. The accused thereupon made their escape good.
3. All the afore named accused were sent up to face the trial from the murder of the deceased and causing injuries to Mumtaz Ahmad and Alam Sher. Upon conclusion of trial, the appellants were convicted and sentenced to death and a fine of Rs,20,000 each or in default to undergo R.I. For one year. They were also directed to pay compensation of Rs,10,000 each to the deceased or in default to undergo six months' R.I. The remaining accused namely Sardar Khan. Muhammad Hussain, Daulat, Noor Ahmad and Haq Nawaz were acquitted vide judgment dated 6-1-1992 recorded by Ch. Muhammad Nawab, learned Additional Sessions Judge I, Okara.
4. A reference under section 374, Cr.P.C. Was made for confirmation of the death sentence awarded to Nosher and Murtaza appellants, who also filed Appeals Nos.58/92 and 112/92 against their conviction respectively.
5. We propose to dispose of the abovementioned Murder Reference and the appeals vide this judgment. It will be appropriate to make an analysis of the evidence brought on record to have a clear picture of the trial. The prosecution examined 12 witnesses to prove its case. It consisted of ocular account of occurrence, medical evidence, witnesses of recovery and the reports of Chemical Examiner and Serologist.
6. The ocular account of occurrence consisted of the complainant namely Nazir Ahmad a brother of the deceased (P.W.3), Mumtaz Ahmad (P.W.4) and Alam Sher (P.W.5) i,e, injured witnesses, who were distantly related to each other in different degrees being having a common ancestor namely Pathana. The eye-witnesses supported the prosecution version that the occurrence had taken place within their view as disclosed in the F.I.R. Exh.P/B, while the election regarding Ushr and Zakat Committee was to be held being scheduled on that date. The other witnesses namely Gohar Ali, Noor Hasan and Nasir Ahmad who had seen the occurrence were given up as unnecessary.
7. The accused Haq Nawaz was arrested on 16-9-1989 by Ghazanfar Ali, S.I. Who led to the recovery of Sota Exh. P/3 vide memo. Exh.P/D on 19-9-1989. The rest of accused namely Murtaza, Nosher, Noor Ahmad and Daulat were arrested by Mahmood Sardar, Inspector. Murtaza accused led to the recovery of gun P/5 vide memo. Exh.P/F on 19-9-1989. Nosher got recovered gun P/4 on the same date which was taken into possession vide memo. Exh.P/E, whereas Noor Ahmad led to the recovery of Sota on 30-9-1989 vide memo. Exh.P/O and Daulat got recovered Sota P/6 vide memo.
Exh.P/G on 19-9-1989. The accused Muhammad Hussain alias Balia and Sardar Khan were arrested by Ghazanfar Ali, S.I. On 18-9-1989 and 1-10-1989 but nothing was recovered from them as they were shown empty-handed during the occurrence. The bloodstained earth from the spot was collected by memo. Exh.P/C. The Sotas recovered from the afore named accused were not stained with blood. Likewise the guns P/4 and P/5 recovered from Nosher and Murtaza were allegedly not sent to the ballistics expert as no empty was recovered from the spot.
8. The medical evidence was brought on record by examining Dr. Syed Muhammad Aslam Naqvi P.W.9 and Dr. Muhammad Sadiq Saleem P.W.8. Dr. Syed Muhammad Aslam Naqvi had conducted the post-mortem examination upon the dead body of Muhammad Jafar deceased on 1-9-1989 at 10-00 a.m. And found the following injuries on his person:--
(1) Lacerated circular wound 1.5 c.m. x 1.5 c.m. Deep going on the left side of forehead 4 c.m. Above the left eyebrow.
(2) Lacerated wound 2 c.m. x 1/2 c.m. x bone deep on the right side of head 6 c.m. Above the right ear.
(3) Swelling 4 c.m. x 4 c.m. Around the left eye.
(4) Swelling 4 c.m. x 4 c.m. Around the right eye.
(5) Lacerated circular wound 1.5 c.m. x 1.5 c.m. Deep going on the right middle of abdomen 5 c.m.
Outer and lower to the umblicus.
' According to the opinion of the doctor death was caused due to shock resulting from injuries Nos.1 and 5, which were considered sufficient to cause death in the ordinary course of nature.. All the injuries were caused by fire-arms and were ante-mortem. Copy of the post-mortem report Exh.P/K and the diagrams of the injuries Exh.PK/1 and Exh.PK/2 were got proved through the aforesaid Medical Officer.
9. Dr. Muhammad Sadiq Saleem P.W.8 had medically examined the deceased when he was brought before him at D.H.Q. Hospital, Sahiwal at 6-45 p.m. On 31-8-1989. He found the following injuries on the person of the deceased:--
(1) Lacerated circular wound 1.5 c.m. x 1.5 c.m. x deep going (depth not probed), on the left side of forehead 4 c.m. Above the left eyebrow.
(2) Lacerated wound 2 c.m. x 1/2 c.m. x bone deep on the right side of head 6 c.m. Above the right ear.
(3) Swelling 4 c.m. x 4 c.m. Around the left eye.
(4) Swelling 4 c.m. x 4 c.m. Around the right eye.
(5) Circular lacerated wound 1.5 c.m. x 1.5 c.m. Deep going (depth not probed), on the right middle of abdomen 5 c.m. Outer and lower to umblicus.
' The condition of the patient was shown as serious as he was unconscious and not responding to stimuli. The injuries were caused by fire-arm within the duration of two hours. Copy of the M.L.R.
Was proved as Exh.P/H and the diagram showing the location of the injuries was brought on record as Exh.P/H/1. On the same day Alam Sher P.W. Was examined at 6-45 p.m. By the same doctor. It was found that the aforesaid Alam Sher suffer an injury showing lacerated wound 4 c.m. x 1/2 c.m. x scalp deep on the right side of head 10 c.m. Above the right ear. Injury was declared as simple caused by blunt weapon within the duration of two hours. Carbon copy of M.L.R. Was brought on record as Exh.P.I.
10. On the same day the doctor had examined Mumtaz Ahmad P.W. And had found the following two injuries on his person:--
(1) A lacerated wound 4 c.m. x 1/2 c.m. x skin deep on the inner side of left ankle-joint, with swelling 4 c.m. x 4 c.m.
(2) A lacerated wound 2 c.m. x 1/2 c.m. x skin deep on the back of left elbow-joint. Both the injuries were found simple and caused by blunt weapon within the duration of two hours. Exh.P/J was the corbon copy of the M.L.R. Signed by the doctor.
11. The report of the Chemical Examiner Exh.PP and that of the Serologist Exh.PQ showed that the blood-stained earth collected from the spot was stained with human blood.
12. The accused were examined under section 342, Cr.P.C. In which they denied to have committed the occurrence.
13. The learned counsel for the appellants contended that according to the evidence brought on record, the accused had allegedly grievance against Mumtaz Ahmad P.W. And not against the deceased who did not figure in picture.
14. It was further contended by the learned counsel for the appellants that the P.Ws. Were inter se related and were also related to the deceased and as such they were interested and could not be believed. The presence of Muhammad Jafar deceased was stated to be unnatural as he had nothing to do with the election nor he had any business to be there. It was urged that the learned trial Court fell in error to convict both the appellants on the basis of the evidence which was disbelieved qua the acquitted accused and as such ignored the principle Falsus in unso falsus in omnibus.
15. Lastly it was submitted that the accused were falsely implicated and that their convictions were not sustainable in the eye of law.
16. The learned counsel for the complainant contended that there was no dispute that the election of Ushr and Zakat Committee was scheduled on the date of occurrence. On this point both the parties have allegedly no controversy. The killing of the deceased would itself show that he was present at the spot, and fell prey to the firing of the appellants. It was not unusual for the deceased to go to the spot because on such type occasions the people go for seeing the election hustle and bustle. Since the deceased was already there in the village, therefore, his presence at the spot would not be either unnatural or somewhat unusual as alleged by the learned counsel for the complainant. There was no enmity between the parties and as such prosecution had laid all the cards at the table fairly and squarely to get the appellants convicted. The mere fact that the co- accused of the appellants were acquitted would not adversely effect the merits of the case as the 'grain is to be sifted out of the chaff .
17. Lastly it was contended that there was no cause to disbelieve the eyewitnesses qua the appellants as they brutally murdered the deceased. The mere fact that they were distantly related to each other or to the deceased would not be sufficient to brand them as false witnesses as they were not the inimical to the accused side.
18. We have considered the arguments addressed at the Bar and the evidence produced at the trial. It is to be seen if the evidence on the basis of which the co-accused of the appellants were acquitted could be used against them. In this respect, it may be pointed out that the principle of 'sifting the grain out of chaff' has been well-recognised in our country. The same has been applied by the learned trial Court to acquit the co-accused as the case against them was found doubtful.
The appellants had fired at the deceased one after the other simultaneously while armed with .12 bore gun each. The fire made by Nosher appellant caused injury in the abdomen of the deceased while fire made by Murtaza appellant from his gun injured the forehead of the deceased. The ocular account rendered by the complainant Nazir Ahmad P.W.3, Mumtaz Ahmad P.W.4 and Alam Sher P.W.5 is consistent on this point. Their evidence is supported by the medical evidence given by the doctors examined at the trial. Injuries Nos. 1 and 5 are quite relevant which have been ascribed to Murtaza and Nosher appellants respectively. The contention of the learned counsel for the appellants that these injuries could be caused by discharge of one weapon does not appeal to the reason nor the opinion of the doctor on this point could be weighty as compared to the evidence given by the eye-witnesses. All the eyewitnesses have pointed out these injuries to each of the appellant, and therefore, there could be nothing to doubt their version. Admittedly the Medical Officer is not a ballistic expert, and therefore, his opinion that both the injuries could be caused with one and the same weapon would neither be relevant nor acceptable. It is true that the witnesses are inter se related but that would not discredit their testimony as there is no enmity between the parties nor there is any motive with them to implicate the appellants falsely in this case. The inter se relationship between the eye-witnesses, and the deceased brought on record shows that they are distantly related having a common ancestor namely Pathana, to whom they are linked somewhere in 5th or 6th Degree. In that event such a remote relationship would not be enough to discredit their testimony particularly when locate of injuries depicted by the Medical Officers in diagrams correspond to the injuries given by them in their statements. Out of them Mumtaz Ahmad and Alam Sher P. Ws. Are residents of the same locality and as such they are the natural witnesses and their presence at the spot cannot be doubted. The arguments of the learned counsel for the appellants would be ideal to look for an independent and reliable witness from the locality. But keeping in view the objective values prevalent in our society, it will be an exercise in futility to find out such witness. In fact the people are shy of becoming witnesses in such like cases for various reasons. Nobody would like to poke his nose into the blood of others. The phobia of insecurity has taken away or at least minimised the civic sense of the people to come forward and volunteer as witnesses of such bloody scenes. This situation is by no means pleasant or appreciable but since it is there, so we have to bear it in our mind while seeking for independent, disinterested or natural witnesses. However, in this case though the eye-witnesses are distantly related through a common ancestor somewhere in 5th or 6th degree, but since out of them two are from the same locality, therefore, their evidence was not only truthful but quite convincing regarding the commission of murder of the deceased by the appellants. The presence of the deceased at the spot cannot be doubted keeping in view the norms of our social structure. Even disinterested person would go but as a spectator to watch and see any public activity such as election etc. Hence under the foregoing impulse, the deceased might have gone to spot, but unfortunately lost his life.
19. It is thus clear from the evidence examined at the trial that the election was to be held on that date for which the election staff was present at the spot. However, apprehending the danger of fight between the parties, the Election Officer and his staff left the place where after the occurrence took place. In such an event the plea of the learned counsel for the appellants that the aforesaid Election Officer and staff should have been examined to find out the real truth does not seem to be convincing because they had already left before the trouble had started leading to the unfortunate murder. Even otherwise it is not necessary because there seems to be no dispute that the election was to be held on that date.
20. In view of our above discussion, we find that the appellants were rightly convicted under section 302, P.P.C. The question of sentence, however, needs consideration. It appears from the evidence that there was some sort of hooliganism and the occurrence followed that situation, probably on the spur of moment due to heat of passions generated by the election activity. The extreme penalty of death will not be warranted under' the given circumstances. The sentence of death awarded to each of the appellants is, therefore, not confirmed and accordingly converted into imprisonment for life to each of the appellants. The sentence of fine of Rs,20,000 each or in default one year's R.I. Each awarded to the appellants by the learned trial Court is maintained with the modification that fine if recovered shall be paid to the heirs of the deceased as compensation, in addition to the amount of compensation already awarded to them by the learned trial Court, which also is maintained. Both the appeals are accordingly dismissed with the above modification in sentences. The benefit of section 382-B, Cr.P.C. Is also given to the appellants.
21. Death sentences not confirmed.