RAJA MUHAMMAD KHURSHID, J.---Appellants namely Noor and Nawaz along with 6 others i.e. Umar Daraz, Aslam, Nausher, Sohrab, Zulfiqar and Ahmad A.I were arraigned for the murder of Altaf Hussain on 20-6-1990 in the area of Thatha Musa Dakhli Mauza Bhowana, District Jhang for which a case under section 302/307/148/149, P.P.C. Was registered vide F.I.R. No.278 of the even date at Police Station, Bhowana on the report of Khyzer Hayat (P.W.1).
2. The brief facts are that on 19-6-1990 a quarrel took place between Zafar and Walayat son of Ahmad A.I. The aforesaid Zafar and Walayat were injured during the fight. An attempt was made for reconciliation through brotherhood but in vain. On the day of occurrence the complainant Khyzer Hayat, Zafar aforesaid, Altaf Hussain deceased and Ahmad Nawaz P.W. Were proceeding to Civil Hospital, Bhowana for the medico-legal examination of the aforesaid Zafar as he had sustained injuries during the fight aforementioned. They reached while riding on mares at the Dhari of Roshan A.I Syed, and after tethering their mares, proceeded on foot to the Hospital. They were confronted by the forenamed assailants after they had emerged from Khola where they had hidden themselves. All the assailants were armed with rifles except Nawaz and Noor, appellants who were armed with 12 bore guns. They raised Lalkara that they would teach a lesson for causing injuries to Walayat whereupon out of them Noor appellant fired from his .12 bore gun hitting the deceased Altaf Hussain on his left knee. Simultaneously Nawaz appellant also fired from his .12 bore gun at the deceased thereby causing fatal injury to him on his neck. The complainant party laid themselves on the ground in order to save their lives and also raised noise which attracted Nasir A.I to the spot apart from other persons, who had seen the occurrence. In the meanwhile the remaining assailants namely Umar Daraz, Aslam, Nausher, Sohrab, Zulfiqar and Ahmad A.I continued firing from their rifles at the complainant party but no body was injured. On seeing the people coming towards the spot all the accused managed to escape in the nearby garden towards east while performing ' Bhangra' . The deceased succumbed to the injuries at the spot.
3. Rao Hamid Mukhtar Khan, learned Additional Sessions Judge, Chiniot conducted the trial and vide his judgment dated 21-9-1992 acquitted Umar Daraz, Aslam, Nausher, Sohrab, Zulfiqar and Ahmad A.I after giving benefit of doubt to them whereas convicted Nawaz and Noor appellants under section 302/34, P.P.C. And sentenced the former to death and the latter to imprisonment for life with a fine of Rs.30,000 to each or in default thereof to undergo R.I. For two years. The amount of fine, if realised was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.'
4. The convict/appellants filed the present appeal to challenge the aforesaid judgment whereas the learned Additional Sessions Judge made a reference under section 374, Cr.P.C. For the confirmation of the death sentence awarded to convict Nawaz appellant.
5. Since the instant appeal and the reference have arisen out of the same judgment, therefore, both the matters are being disposed of through this judgment.
6. The prosecution had relied upon the ocular account of occurrence consisting of the evidence given by Khyzer Hayat complainant i.e. P.W.1, Zafar P.W. 2 and Ahmad Nawaz P.W.
3. The recoveries of weapons of offence i.e. 12 bore guns P.20 and 5 live cartridges P. 21/1-5 recovered from Nawaz through memo Exh. P-J and a .12 bore gun P. 18 alongwith 5 live cartridges P.19/1-5 recovered from Noor appellant vide memo Exh. P-I were relied upon to support the ocular account of occurrence.
The aforesaid weapons were found wedded with the 2 crime empties P. 1 & P. 2 recovered from the spot vide memo Exh. P.C. A report of the expert of the Technical Services, Crime Branch, Punjab, Lahore Exh. P.T. Was produced to show the matching of the crime empties with the guns recovered from the accused/appellants. The blood stained earth collected from the spot also showed that it was stained with the human blood as per report of the Chemical Examiner Exh. P.R. And that of the Serologist Exh. P.S. The Medical evidence consisting of Dr. Muzaffar Ahmad P.W. 7 was relied upon to show that it supported the ocular account of occurrence regarding the seat of injuries on the person of the deceased and also weapons which were used to cause those injuries. In this respect post-mortem report Exh. P.K. And diagram of the injuries Exh. P.K. 1 were relied upon to show that the medical evidence was in accord with evidence given by the eye--witness.
7. The learned counsel for the appellants assailed the judgment on the ground that eye witnesses were set up by the prosecution to support the false implication of the appellants and other members of their families. In this respect it was submitted that all the three eye-witnesses were chance witnesses and had no business to be present at the place of occurrence. They allegedly lived at a distance of 4 to 8 ' Kos' from the place of murder and the explanation given by them about their presence was neither, convincing nor credible. The motive set up by the prosecution was also allegedly without any substance because the occurrence in which Zafar and Walayat were injured took place a day earlier i.e. On 19-6-1990, but Zafar P.W. Was being taken to the Hospital on 20-6-1990 i.e. On the day of occurrence when Walayat had admittedly been hospitalized on the same day i.e. 19-6-1990. It was, therefore, alleged that motive was cooked up in order to show the presence of the eye witnesses at the time of unfortunate occurrence, which took place in the manner different than the prosecution had set up in its case. The impugned judgment was also attacked on the ground that the learned Additional Sessions Judge had disbelieved the eye-witnesses qua the acquitted accused but wrongly relied on their testimony and recorded conviction against the appellants/accused. It was contended that the witnesses involving innocent persons cannot be relied upon to convict the co-accused of the same case. It was alleged that principle of consistency required that benefit of doubt should have been extended to the convict/appellants. The recovery of guns and their belated despatch allegedly made the report of the Expert untrustworthy because the empties were kept at the Police Station for a considerable long time without any explanation and were only sent for examination when the guns had been recovered from the convict/appellants. This belated despatch of empties and the crime weapons created serious doubt about their corroborative evidence to the eye-witnesses. The recovery of the guns from the convict/appellants was also assailed on the ground that the same was effected from a house which was in the joint possession by the appellants with their other members of family, who were living under joint family system.
8. It was further contended by the learned counsel for the appellants that medical evidence in this case contradicted the ocular evidence because two injuries of similar nature could be caused with one shot and as such an un-holy attempt was made to implicate the two persons for injuries, which were the consequence of a single shot.
9. Lastly it was contended that the medical evidence and the facts of this case would clearly support the defence version given by Nawaz accused when he was examined under section 342, Cr.P.C. In answer to question No.9, he had explained in the following words as to why he was involved in this case:------ "The deceased alongwith Misri and his other companions who have not been produced in the Court, sat in ambush while being armed with fire arm weapons, launched murderous assault upon me and relatives of Walayat injured, near R.H.C. Bhowana and started firing. A stray fire of the deceased's companions, hit him and he met his death. I fired in my self defence and defence of my relatives, which were ineffective. The accused named in the F.I.R. Alongwith me are innocent. They have not participated in the occurrence. The complainant party is desperate. They have not only committed murders earlier, but after this occurrence, also murdered Jannat Bibi, Panah Bibi and injured Walayat aforesaid, who are my nieces and son of my brother respectively. The P.Ws have not seen the occurrence. The complainant has concocted a false story. I had committed no offence. Had I not acted in self defence, I and my relatives would have been murdered by the deceased, Misri and his unknown companions. Nothing was recovered at my instance. The police had planted the gun upon me, which has been provided by the complainant party. The whole family has been involved falsely by throwing the not too widened."
10. In the light of the aforesaid defence, the learned counsel for the appellants submitted that there was strong possibility that the occurrence probably would have taken in the manner stated by the aforesaid appellant. In that event appellants were also entitled to the benefit of doubt as was given to their co-accused by the learned trial Court, particularly when all the eye--witnesses were not only interested, but were also inimical as well as related inter se and also to the deceased.
11. The learned counsel for the State contended that mere fact that witnesses were related inter se or that they had any relationship with the deceased would not be sufficient to discard their evidence particularly when their testimony was corroborated by the medical evidence regarding seats of injuries and the weapons used by the appellants to inflict those injuries. The further corroboration to link the appellants with the occurrence is provided by the scientific examination by an expert in Forensic Science to show that the empties recovered from the spot were wedded to the guns recovered from the appellants/accused. It was, therefore, urged that the prosecution had a fool-proof case against the appellants/convicts to have committed the murder of Altaf Hussain and they had rightly been convicted. The mere fact that the co-accused were acquitted on the basis of doubt would not create any extenuating circumstance in favour of the appellants to earn their acquittal because as a matter of abundant caution the principle of sifting the grain out of chaff is recognized by the Courts of this country, in order to see that the guilty is brought to book and the innocent is exonerated. Applying the same principle the learned trial Court had rightly acquitted the co-accused of the appellants, through a well reasoned judgment showing that the case against them was doubtful. It was, therefore, prayed that the appeal was meritless and that the sentences awarded to the appellants ought to be upheld.
12. We have considered the submissions made at the Bar and have also gone through the evidence brought on record with the able assistance of the learned counsel for the appellants. It is true that the eye witnesses are related to each other and have also relationship with the deceased. This fact by itself is not sufficient to dub them as interested witnesses in the case. On the contrary, it appears that one of the eye-witnesses namely Zafar was injured in the preceding fight and he was being taken to the Hospital for treatment of his injuries. In such a situation, the presence of his kith and kin with him at such time would not be improbable, nor it will be un-usual according to the social set up of our country particularly in rural side. The presence of other eye-witnesses with Zafar would, therefore, be not only probable but would be considered as usual phenomenon.
13. The motive though a double edged weapon but in this case it was more on the side of the appellants than to be with the complainant side. In this respect, it may be pointed out that it is in evidence that Walayat was more seriously injured than Zafar in the occurrence, which took place on a day before the murder. It is also in evidence and was brought on record through cross- examination of the eye-witnesses that Walayat was got admitted in the Hospital on the day when he was injured. It was, therefore, not unusual that the accused party felt more aggrieved because their man was more seriously injured and hospitalized whereas Zafar was still at home and was being taken to the Hospital on a mare back, which by implication would show that he was not seriously injured as his rival namely Walayat. Keeping in view the rural tempo of life it becomes convincingly understandable why the accused party including appellants/convicts had laid themselves in ambush to confront the complainant party to settle the account by balancing the event squarely. The motive in this case is, therefore, not out of place nor is the ocular account of occurrence untrustworthy though the witnesses are related to each other, and also to the deceased. Even if some corroboration is required, the same is provided by the recovery of the crime empties from the spot and weapons of offence i.e. .12 bore guns each from the appellants from their respective houses. Those empties were found wedded with the weapons recovered from the appellants on the basis of their scientific examination by an expert in the Forensic Science. The mere fact that recoveries of weapons from the appellants/convicts were effected from a Haveli/house which was in the joint possession of the appellants with their other family members would not be unbelievable because the recovery was effected from the Kotha in the possession of the appellants/convicts. The mere fact that the Haveli having a number of Kothas even though occupied by the other members of the family would not adversely effect the recovery particularly when this is a common phenomenon in the rural side of this country where the joint family system is not only in vogue but also fully recognized by our present society in the villages. The recoveries from the appellants have therefore, been rightly believed because the weapons recovered from them were wedded with the crime empties. The mere fact that the crime empties were kept at the police station for a number of days without any explanation would not damage their evidentiary value as those were kept in safe custody under sealed cover. There is nothing on record to show that there was any tampering either with the crime empties or with the weapons of offence before those were sent to the expert for examination. The delay in despatch of the empties may be attributed to the general slackness and apathy with which our police system suffers. It is high time that the police system should be tuned up to deal with such type of serious case, involving heinous offences. However, the mere slackness on the part of the police in despatch of these empties would not adversely effect the case of the prosecution or lesson their corroborative value without being shown that those were tampered with. As already observed above, there is no such tampering, therefore, it cannot be said that those empties would not carry any corroborative value even if those were wedded with the guns recovered from the appellants.
14. Now we come to the objection of the learned counsel for the appellants that since there co- accused were acquitted, therefore, the evidence of eye--witnesses should be totally disbelieved and that the appellants should also be given benefit of doubt and acquitted. In this respect, we have noticed that it is a matter of common observation that the complainant party generally, particularly in rural side of country, has developed an uncanny and un-couth practice of involving as many number of persons in such like serious cases as they could afford in order to bring maximum harm to the opposite side. This situation is very unfortunate but since this practice has some how taken root in our social set up, therefore, it needs to be tested on the principle that grain should be sifted out of chaff. This touch-stone has been recognised by the Courts of this country in order to eliminate the possibility of punishing innocent people or persons against whom there is any reasonable doubt about their participation in the offence alleged against them. Applying the same principle, the learned trial Judge has given the benefit of doubt to the co-accused of the appellants/convicts and had acquitted them accordingly. We also feel that the aforesaid golden principle should be fully recognised and applied further if possible to eliminate the possibility of doubtful involvement of any accused at any stage of the case. With that object in view, we would like to examine the facts of this case in a more depth in the light of the defence taken by Nawaz accused and medical evidence brought on record.
15. The plea taken by Nawaz appellant/convict in defence has been quoted in verbatim in the earlier portion of this judgment. He has tried to show that the deceased was hit by the firing of complainant side. He also contended that he too fired in self defence, but that remained ineffective. This story by itself is not convincing because if the complainant side had come with a preparation to attack the appellant side then it would not have been possible in the ordinary course of nature that they would act so recklessly that their own man will become a victim. It is particularly so when according to the statement of Nawaz appellant the complainant side was a band of desperate people in habit of killing others. In such situation, it was not expected of them that they will kill one of their own man while trying to take the life of their opponents. It will also not be possible that Nawaz accused will simply make fire in the air when he knew that his opponent being desperate people were well equipped with firearms. The story of defence is, therefore, neither probable nor compatible to the situation that he had acted in self defence to save his own life and that the lives of his companions. It cannot be, therefore, accepted as advanced by Nawaz appellant or by his co---accused. There is, however a crucial point to be considered before finally parting with the judgment. The Medical Officer while performing post mortem examination on the dead body of deceased Altaf Hussain had found the following two injuries:---
(i) A rounded wound of 3/4 c.m. Diameter with inverted contused, lacerated edges on the front of lower part of neck.
(ii) An ovel wound of 1/2 c.m. Diameter on the front of left knee just below the patella. A hard rounded pallet was palpable 3 c.m. Away from the wound.
The ocular evidence showed that the deceased was at a distance of 8 to 10 Karams from the accused at the time, when he was injured due to the firing. It, therefore, follows that the fire made from .12 bore gun from the aforesaid distance would lead to wide disposal of pallets so as to cause two separate injuries on the person of deceased by means of single shot, and not necessarily by two shots by two different persons as alleged by the prosecution. Hence proceeding with abundant caution and following the principle of safer administration of criminal justice, the benefit of doubt is further extended to appellant Noor and he too is acquitted on that account. The conviction and sentence recorded against him by the learned trial Court is accordingly set aside and the appeal to his extent is accepted. He is stated to be in custody. He be released forthwith if not required to be detained in any other case.
16. The case against Nawaz appellant/convict is however, proved beyond any shadow of doubt as according to his own statement, he had been firing at the complainant side in self defence, but no evidence was adduced to prove this special plea nor circumstances of the case spell out an hypothesis compatible with his innocence. Hence the most logical and irresistible conclusion shall follow that the prosecution has been successful to prove its case against Nawaz appellant/accused in toto without any shadow of reason doubt. The appeal to the extent of aforesaid Nawaz is, therefore, dismissed and his conviction under section 302, P.P.C. And sentence of death and a fine of Rs.30,000 is upheld. The death sentence awarded to Nawaz appellant is accordingly confirmed.
17. Reference under section 374, Cr.P.C. Made by the learned trial Court is answered accordingly.