' RAJA MUHAMMAD SABIR, J.--- Appellants Muhammad Riaz, his father Mahabat and uncle Salabat were tried by learned Judge, Special Court (Suppression of Terrorist Activities), Multan for having committed offences under section 3 of the Explosive Substance Act, 1908 and under section 302/34, P.P.C. Learned trial Judge, convicted all the three accused for having murdered Mst. Surraya Bibi under section 302/34, P.P.C. And sentenced to death while Salabat and Riaz were sentenced to imprisonment for life. All the three accused were also ordered to pay fine of Rs.20,000 each or in default of payment of same to suffer further R.I. For three years. It was directed that half of the fine If recovered shall be paid to heirs of the deceased as compensation under section 544-A, Cr.P.C. Riaz accused was further convicted under section 3 of the Explosive Substance Act, 1908 for having caused explosion with hand-grenade causing injuries to the said deceased and sentenced to death vide judgment, dated 14-2-1991. The convicts challenged their conviction and sentence by filing instant appeal. Case is also before us for confirmation of death sentence. Both these matters shall be disposed of by this judgment.
2. The prosecution case as per F.I.R. Exh.P.F. Is that complainant Allah Yar is resident of Chak No.10/GH. He is cultivator by profession and has put his residence alongwith his family members in a house constructed in his land. On the night between 30/31-8-1989 complainant (P.W.7)
Muhammad Riaz, Ghulam Abbas, his sons, Mst. Surraya Bibi (28) his daughter and Mst. Panan his wife were sleeping in the courtyard of their house. At about midnight on barking of dogs the complainant and his sons got up and in the light of lantern saw Mahabat, Riaz and Salabat standing outside their house in the north-east corner. They were identified by the complainant and his sons in the light of the lantern. Riaz raised a Lalkara that they had come to take revenge of their insult, threw a hand-grenade which landed near the cost of the witnesses but it did not explode and where after Mahabat fired from his gun which hit Mst. Surraya Bibi on chest while lying on the cot. Riaz threw another hand-grenade which exploded and injured Mst. Surraya Bibi. However, meanwhile complainant, his sons and wife had taken refuge in the room. Salabat continued firing for some time towards the witnesses while standing near the wall of the house. As a result of injuries Mst. Surraya died at the spot. Thereafter, complainant's brother Mehram and other people from the neighboring Dera reached the spot. The accused left with their respective weapons. The motive as alleged in the F.I.R. Is that Riaz accused had suspicion that Muhammad Riaz son of the complainant had illicit liaison with his sister Mst. Naseem Akhtar who had died one year before the occurrence. It was further alleged that the accused in furtherance of their common intentioic to kill Riaz attacked but he luckily escaped.
3. Exh.P.F., F.I.R. Was recorded by (P.W.10), Shaukat Ali, Inspector/ S.H.O., Police Station Abdul Hakeem, at 7-35 a.m. On 31-8-1989 on the statement of Allah Yar complainant. Thereafter, he reached the spot, inspected the dead body of Mst. Surraya and prepared the injury statement Exh.P.B. And inquest report Exh.P.C. He sent the dead body for autopsy in the escort of Haq Nawaz F.C. (P.W.6).
He took into possession blood-stained earth vide Annexure "P.G." Pieces of hand-grenade Exh.P.7 were taken into possession by the witness vide memo. Exh.P.J. He also took into possession blood- stained cot of the deceased and blood-stained pillow vide memo. Exh.P.H. He recovered 17 crimes empties of .12 bore gun from the spot and secured them in a sealed parcel vide memo. Exh.P.I. He seized a live hand-grenade from the spot and got prepared its photographs Exhs.P.9 and P. 10 and destroyed the hand-grenade. Haq Nawaz F.C. Produced the last-worn clothes of deceased, shirt Exh.P.1, Shalwar Exh.P.2, Dopatta Exh.P.3 all blood-stained and sealed phial pallet Exh.P.4 before the Investigating Officer which were taken into possession vide memo. Exh.P.E. He recorded the statements of Haq Nawaz and other witnesses. He arrested accused Mahabat and Salabat on 26- 9-1989 and Riaz accused on 6-81990 after having been declared as absconder. He challenged all the three accused and submitted the challan for their trial.
4. P.W.4 Dr. Muhammad Tariq Gilani, Medical Officer, D.H.Q. Hospital Khanewal conducted the post- mortem examination on the dead body of Mst. Surayya on 31-8-1989 and found the following injuries:-
(1) A lacerated wound 3 x 3 c.m. With fire-arms with fracture of bone (radious) wound is 2 c.m.
Deep.
(2) A fire-arm wound about 1/2 c.m. Circumference on left breast, wound is deep.
(3) A fire-arm wound about 1/2 c.m. Circumference on left chest, 3 c.m. above the second wound. The wound is deep into viscera (lungs).
(4) A fire-arm wound about 3/4 c.m. On right chest (just below) inner side of the breast deep upto viscera.
(5) Multiple small abrasions (blackish) on front of chest and abdomen.
(6) A lacerated wound 1/2 c.m. On right ankle outside.
' In the opinion of the doctor injury No.4 caused rapture of live, lungs resulting in hemorrhage and shock which was sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire-arm and were ante-mortem. Duration between injuries and death was between half and one hour and between death and post-mortem was 12 hours. In cross-examination the witness stated that all the injuries could not be caused by one fire-arm.
5. Eye-witness account was furnished by Allah Yar complainant (P.W.7) and Muhammad Riaz (P.W.9). They have supported the prosecution case as narrated in the F.I.R. Mentioned above.
6. Reports of the Chemical Examiner and the Serologist on the earth and origin of blood are positive inasmuch as they found that the earth was stained with human blood vide Exhs.P.L. And P.M.
Respectively.
7. The accused while making their statements under section 342, Cr.P.C. Pleaded innocence and denied the prosecution allegations ascribing enmity and previous litigation. They, however, neither produced any witness in their defence nor appeared in their defence on oath.
8. Learned trial Court believed the prosecution evidence, convicted and sentenced the appellants as stated earlier.
9. At the very outset learned counsel for the appellants informed us that appellant No.3, Mahabat Khan who was found guilty of murdering Mst. Surraya with his fire-arm shot has died in the jail on 25-9-1992. On our direction, this statement has been endorsed by Mr. Naveed Rasool Mirza, Additional Advocate-General, on instructions received from Superintendent New Central Jail, Multan. Thus, the appeal qua Mahabat Khan has abated under section 431, Cr.P.C. And is disposed of as such qua him.
10. Regarding remaining appellants,' Muhammad Riaz and Salabat, Sardar Muhammad Latif Khan Khosa, learned counsel contends that they are innocent; prosecution has failed to prove the guilt against them. It was a blind murder, the prosecution witnesses are related to the deceased and interested ones and as such cannot be believed without independent corroboration which is not forthcoming in the instant case. He further submits that the lantern allegedly burning at the time of occurrence was not taken into possession by the Investigator which belies the version of the prosecution and even otherwise it was not possible for the witnesses to identify the accused who, as per F.I.R. Were standing at considerable distance from them on the other side of the wall. In support of his pleas, learned counsel has relied upon Atta Muhammad and another v. The State 1995 SCM R 599, Muhammad Arshad v. The State PLD 1995 SC 475 and Ghulam Rasool and another v. The State PLD 1983 Lah.
195.
11. Learned counsel for the State has supported the impugned judgment by adopting the reasons mentioned therein.
12. We have heard the learned counsel for the parties at considerable length, gone through the judgments referred above and the evidence with their assistance. There is no force in the contention of the learned counsel that it was a blind murder. According to first informant P.W.7, he along with Muhammad Riaz P.W.9, Ghulam Abbas, his sons, Mst. Surraya Bibi deceased and Mst his daughter and wife respectively were sleeping in the courtyard of their house. At about midnight between 30/31-3-1989 on barking of dogs he, his sons and wife got up. They saw in the light of lantern Mahabat, Riaz and Salabat accused standing outside their house in the north-east corner.
Riaz raised a Lalkara that be prepared. They have come to take revenge of their insult. Whereupon, Riaz threw a hand-grenade which landed near the cots of said persons but it did not explode.
Mahabat accused then fired from his gun which hit on the chest of Mst. Surraya Bibi. Riaz accused then threw another hand-grenade which exploded and injured Surraya Bibi. In the meanwhile, P.W.7, his wife, and sons rushed towards the room and took refuge therein. Salabat also indulged in indiscriminate firing at the complainant party. On receipt of injuries, Mst. Surraya Bibi died at the spot. P.W.9 Muhammad Riaz has supported P.W.7 on all the material points. The occurrence took place at midnight between the night of 30/31-8-1989. It was promptly reported to the S.H.O. Police Station Abdul Hakeem which is at a distance of about 12 miles from the place of occurrence, at 7- 35 on 31-8-1989 and accordingly F.I.R. Exh.P.F. Was registered.
13. The Medical evidence furnished by P.W.1 Dr. Muhammad Tariq Gilani is in line with the ocular account furnished by P.W.7 and P.W.9. He found six injuries on the person of the deceased. Under injury No.5 he observed "multiple small abrasions (blackish) on front of chest and abdomen". Fatal fire-arm shot is assigned to Mahabat accused who as mentioned above has since died and his appeal has abated. In cross-examination the witness stated that all the injuries could not be caused by one fire-arm. Thus, injury No.5 appears to be on account of explosion of hand-grenade thrown by Riaz accused.
14. P.W.10 Shaukat Ali, Inspector investigated the case. He collected from the spot pieces of hand- grenade Exh.P.7 vide memo. Exh.P.J. According to him, he also seized a live hand-grenade from the spot and destroyed the same after taking photographs Exhs.P.9 and P.10. In cross-examination he stated that he did not investigate about illicit liaison between Riaz P.W.9 and Nasim Akhtar.
15. From the analysis of the evidence, we are of the opinion that prosecution version except motive has been proved by P.W.7 and P.W.9 qua Mahabat, deceased (now) and Riaz appellant which is corroborated by the medical evidence and recoveries. According to the F.I.R. The occurrence took place at about midnight between 30/31-8-1989, and was witnessed by the said P.Ws. The police station is about 12 miles away from the place of occurrence. F.I.R. Was promptly lodged at 7-35 a.m.
On 31-8-1989 mentioning names of the accused with specific roles therein. The question of false implication of the said appellants in such promptly lodged F.I.R. Does not arise. Even otherwise there appears to be no reason that the complainant would substitute the said appellants instead of real murderers of his daughter. There is no serious enmity between the complainant and the accused. The testimony of eye- witnesses is free from major discrepancies or contradictions. They were subjected to lengthy cross-examination by the defence but their evidence remained unrebutted. They are consistent on all the material points and their evidence inspires confidence.
16. The objection of the learned counsel for the appellants that P.W.7 and P.W.9 being related to deceased are interested witnesses, is without any significance. The evidence of interested witnesses can be relied upon if the same is found to be natural and inspires confidence. The Court is required to weigh evidence of such witnesses with great care and caution. The occurrence took place during the odd hours at midnight when all the people were sleeping. Admittedly the witnesses were residing in the same house wherein the incident took place. They were present at the time of occurrence. We have considered their evidence in the light of the above principle and are convinced that they have seen the occurrence and thus they are natural witnesses and their evidence is trustworthy and reliable. Merely because of their relationship with the deceased, their evidence cannot be brushed aside. The authorities relied upon by the learned counsel are of no much avail to him as each criminal case has to be considered in the context of its own facts.
17. Now coming to the next contention of the learned counsel for the appellants that the lantern allegedly burning at the spot was not recovered by P.W.10, Investigator, therefore, inference may be" drawn against the prosecution that it was not burning at the time of occurrence and as such it was not possible for the P.Ws. To identify the accused. This contention is without any substance. The first informant P.W.7 stated in the F.I.R. And in his statement at the trial that lantern was burning at the time of occurrence. P.W.9 also stated in his statement before trial Court that in the light of lantern he saw Riaz and Mahabat standing in north-west corner of the courtyard. In cross- examination this witness stated that the lantern was hanging on the wall. It was shown to the police. Likewise Investigator P.W.10 in cross-examination stated that:-- "The lantern was burning on the wall of the room. I did not seize the same. I did not show it in the site plan. It is incorrect that there was no lantern at the spot."
Non-recovery of the lantern from the spot appears to be just lapse - omission on the part of Police Officer cannot be counted against the prosecution case. Normally in villages people keep burning electric bulb or lantern in the Dera or courtyard of their houses at night for safety and security measures to avoid commission of theft etc. Moreover, it is in the prosecution evidence that Riaz appellant while reaching at the spot along with his co-accused raised a Lalkara that:--{{URDU TEXT}} ' Thus, the evidence of P.W.7 and P.W.9 can safely be relied upon on the question of identification of appellant Muhammad Riaz inasmu ch as they recognized him in the light of the lantern plus hearing his Lalkara. The complainant and accused are related to the each other. It is established law that persons related inter se can be recognized even during dark night by hearing their whispering and dialogues. This view is fortified by the dictum laid down in Muhammad Arshad v.
State PLD 1995 SC 475 referred to in para. 10 above.
18. Keeping in view the entire prosecution evidence we are convinced that prosecution has succeeded in bringing home the guilt to appellant Muhammad Riaz beyond any shadow of doubt and he was rightly convicted under section 302/34, P.P.C. And sentenced to life imprisonment plus fine of Rs.20,000 for committing the murder of Mst. Surraya alongwith his co-accused Mahabat by the learned trial Judge. His conviction and sentence under this head is maintained.
' Likewise he was correctly convicted under section 3 of the Explosive G Substance Act, 1908.
However, on the question of quantum of sentence, since fatal shot is attributed to Mahabat now deceased and no serious damage was caused to the deceased or property of the complainant on account of explosion of the hand-grenade, we are not inclined to confirm the death sentence awarded to him and commute it into life imprisonment. Both the sentences shall run concurrently.
Benefit of section 382-B, Cr.P.C. Shall also be extended to him.
19. So far as third appellant Salabat is concerned, he is paternal-uncle of Riaz appellant. He is alleged to have indulged in ineffective firing with his gun but the same was not recovered from him by the Investigating Officer. He was admittedly aged 83 years at the time of occurrence. It is common phenomenon in our society that in such like cases all the male members of the accused family are roped in so that nobody is left behind to defend the case on their behalf. The participation of such an aged person in such an exigency is highly improbable because in case of counter-attack from the opposite side, he would become a liability of his own companions. In these circumstances, his false implication in the case cannot be ruled out. Prosecution has not been able to prove its case against him beyond reasonable doubt. Accordingly we give him the benefit of doubt and acquit him of the charge.
' These are the reasons in support of our short order, dated 14-4-1997 which was passed in the above terms inter alia directing the release of Salabat appellant forthwith if not required in any other criminal case.