MIAN ALLAH NAWAZ, J.---Vide F.I.R. No.66 of 1990 recorded by Abdul Latif Kanjoo, S.I., Police Station, Ahmadpur Lamma, District Rahimyar Khan, at about 6.15 p.m. On 13-6-1990, Ghulam Rasul/P.W.6, reported that on the same date he alongwith his brother Haji Chiragh Din and Abdul Razaq had gone to Sadiqabad to attend Civil Court in a case; that after attending the Court, they went to Muhammad Akbar, Trolly-Maker, who told them that he had to go to Chak No.36/NP, to purchase onions; that in the evening all the afore stated four persons proceeded towards their houses by travelling in a bus destined to go to a place known as Tutti Pulli Bus Stand; that at 5.30 p.m. They got down at the aforementioned bus stop and started to go towards their village; that Haji Chiragh Din at that time was ahead of them; that at that time the appellant Wali Muhammad armed with .12 bore pistol and appellant Abdul Majid empty handed appeared at the scene of occurrence and shouted that they would teach a lesson to Haji Chiragh Din for assassinating their brother Qabil; that Wali Muhammad fired with his pistol at Chiragh Din on his right flank and the deceased so fell down; that Wali Muhammad immediately thereafter reloaded his pistol but he was overpowered by P.W.6 and P.W.7 and Muhammad Akbar (a given up P.W.); that Abdul Majid, at that time, snatched the pistol from Wali Muhammad and fired on the right side of the head of fallen Chiragh Din; that thereafter he started to run but was overpowered by the P.Ws. Noted above; that a number of other persons of surrounding villages came to the scene of occurrence; that Chiragh Din succumbed to injuries at the spot; that Ghulam Rasool left the appellants and the dead body of Chiragh Din in the custody of the witnesses, named above, and proceeded to police station to lodge the first information report.
2. After recording the first information report, Abdul Latif Kanjoo S.I./P.W.8, went to the place of occurrence where Wali Muhammad, Abdul Majid were found by him in the custody of the P.Ws. He arrested them and recovered the pistol with a cartridge in its Chamber from Abdul Majid vide recovery memo. Ex.P.F. He also took into possession the empty cartridge P.3 from the place of occurrence vide recovery memo. Exh. PH and sealed it into a parcel. He thereafter inspected the dead body of Chiragh Din, prepared his injury statements (Exh.PB) and inquest report (Exh. PC). He handed over the dead body to Abdul Karim constable for escorting it to mortuary for autopsy. On the next day, he took into possession the last worn clothes of the deceased consisting of a cap P4, Chadar P.5, Shirt P.6, another Chadar P.7 and Saluka P.8, with phial containing pallets. These were taken into possession vide recovery memo. Exh. PJ. He got a site plan prepared by Muhammad Fazal Patwari Exh. PD and Exh. P 1 / 1, recorded marks and notes therein with red ink and signed them. He handed over the sealed parcel of this case to Wazir Ahmad Moharrir/Head Constable for being kept in Malkhana of the Police Station. After completing the investigation, challan was submitted to the Court of learned Sessions Judge, Rahimyar Khan. The appellants pleaded not guilty.
3. The prosecution led its evidence. The appellants were examined under section 342, Cr.P.C., wherein they pleaded innocence and stated that it was an unseen blind murder and the appellants have been falsely roped in. On the consideration of the material on record, the learned Sessions Judge, Rahimyar Khan came to the conclusion that the prosecution had proved its case against the appellants beyond any reasonable doubt and so convicted them in following terms:-- "I hold accused Wali Muhammad and Abdul Majid guilty of the offence under section 302/34, P.P.C.
And convict them accordingly. Each of the accused Wali Muhammad and Abdul Majid are sentenced to death subject to confirmation by the honourable Lahore iIigh Court, Lahore. They shall be hanged by neck till they be dead. Each of the accused is also awarded sentence of fine of Rs.10,000 in default of payment of which each of the accused shall undergo R.I. For a period of two years, in case the sentence of death is not confirmed by the honourable Lahore High Court, Lahore and the punishment is converted to imprisonment for life. If the amount of fine be realized the same shall be given to the legal heirs of deceased Chiragh Din as compensation."
4. Khan Bashir Ahmad Khan, Senior Advocate Supreme Court, assisted by Malik M. Farrukh Mahmood, Advocate, raised the following points to assail the propriety of impugned decision:-- Firstly, that Ghulam Rasool and Abdul Razaq, P.Ws. Were interested witnesses inasmuch as they were inter se related to the deceased and carried indelible stamp of enmity towards the appellants; that they were facing the trial in connection with assassination of Qabil in which Baba Chiragh Din deceased was the principal accused. On the strength of the above circumstances, it was argued that the learned trial Court was in error in relying upon the testimony of aforementioned witness in convicting the appellants; Secondly, that the motive, as set out in the first information report, was disproved from the material on record. According to the learned counsel it was clear there that the appellants as well as Haji Chiragh and prosecution witnesses were resident of the same village; that the murder of Qabil took place about 9 months ago; that up to date of occurrence they had been living in harmony and maintained cordial relations. Had the appellants been burning with the fire of revenge, they would have done away with Chiragh Din as quickly as possible; Thirdly, that the investigation, from commencement to finish, was motivated, partisan and malicious. Elaborating it further, the learned counsel contended that the date and time of registration of the F.I.R. Was not mentioned in the F.I.R. Exh.PE; that it was clear from the statement of P.W.7 and P.W.8 that the investigating officer had recorded their statements on the following day of occurrence i.e. 14-6-1990 and not 13-6-1990. According to the learned counsel, this circumstance led to an irresistible conclusion that the F.I.R. Had beenrecorded by the Investigator after conducting preliminary investigation and after obtaining the medico legal reports. This aspect of the case, so according to him, rendered prosecution version doubtful. Reliance was placed on Bagh A.I v. State PLD 1973 SC 321; Rahim Bakhsh v. State 1986 PCr.LJ 915; Soomar v. State 1990 M LD 1077; and Ghulam Farid v. State 1992 SCM R 1258; Fourthly that the conduct of P.W.6 before the trial Court while answering the question of Defence counsel was evasive and so the said witness must have been disbelieved. Reliance was placed on Mujahid Hussain v. State 1985 SCM R 1573; Fifthly and lastly that the recovery evidence was also tainted with doubts and it could not be believed so as to serve as corroborative evidence of ocular evidence. Strength was sought from Piran Ditta v. Qadir Bakhsh 1988 SCM R 385.
5. Sardar Ahmad Khan, the learned counsel for the complainant, vigorously ,supported impugned decision. He maintained that the omission in F.I.R. Regarding time of its registration was mere an inadvertent error; that the time of registration of the F.I.R. Was found incorporated in Police diary which was summoned by the Court at the asking of the learned defence counsel that the names of appellants were mentioned in the inquest report and the postmortem report. On these circumstances, it was argued that omission in the F.I.R. Was wholly an inadvertent mistake and could not be given much weight. It was next contended that the motive contained in the F.I.R. Was fully proved by the evidence of P.W.6 and P.W.7 who were related inter se and were the most natural witnesses of the occurrence. According to the learned counsel, these witnesses were in the ordinary course of nature, required to accompany Chiragh Din. Continuing, he further submitted that the hue and cry of the appellants with respect to plaint brought on record, was master piece of manipulative thinking. This suit appears to have been instituted on 9-12-1990 while the P.W.6 has clearly stated that they had filed the suit three years prior to the occurrence. No record was summoned from the Court to verify the above circumstance. It was next submitted that D.W.1, D.W.2 stated that Haji Chiragh Din/deceased had come to scene of occurrence through bus which started from Sadiqabad at 5 p.m. And reached Tutti Pulli stop; that two other passengers got down from the bus at that time and killed him. According to the learned counsel, the evidence of D.W.1 did establish version that Baba Chiragh Din had started from Sadiqabad at 5 p.m. And reached Tutti-Pulli stop; that two other passengers got down from the bus at that time and killed him.
Accordingly to the learned counsel, the evidence of D.W.2 did establish version that Baba Chiragh Din had started from Sadiqabad in a bus and had alighted at Tutti Pulli Bus-stop and was murdered. Reliance was placed on Bilmoria v. The State PLD 1958 SC 313; Muhammad Aslam v.
Muhammad Zafar PLD 1992 SC 1 and Dost Muhammad v. The State 1988 PCr.LJ 1101.
6. The learned counsel appearing for the State adopted the arguments of the learned counsel for the complainant.
7. We have heard the learned counsel for the appellants, the learned counsel for the complainant and the learned counsel for the State. We have also gone through the record of the case with their capable assistance. The prosecution evidence comprises of ocular evidence, the motive, the recovery evidence, evidence of medico-legal expert Dr. Zahoor-ul-Hussain, and the affirmative opinions of the experts with respect to empty cartridges recovered from the scene of occurrence.
We will first have a look at the motive. It is not disputed that Qabil was assassinated about 9 months before the instant occurrence. It is also not in contest that the appellant Abdul Majid and Qabil were brothers of Wali Muhammad appellant. It is admitted that Chiragh Din was the principal accused in the murder of Qabil. From the above undisputed chain of events, we have no reason to disagree with the learned Sessions Judge, 'that the prosecution had proved the motive as set out in the first information report by over-whelming, cogent and irrefutable evidence. The contention, that after the assassination of Qabil, the parties had been living in peace, in harmony and cordial atmosphere, overlooks the normal operation of instinct of vendetta embedded in the minds of human being. These feelings cannot vanish with the efflux of only nine months. The harmony and peace, if any, between the parties before the occurrence was mere a lull before a storm. It is also on record that the murder case of Qabil had not been decided before the happening of the instant occurrence and so the appellants were not expected to forget the murder of their near and dear i.e., Qabil.
8. Having examined the contentions of the parties, pertaining to motive, we now turn to ocular evidence. It comprises of P.W.6 and P.W.7. The third witness Muhammad Akbar was given up and was not called by the defence for cross-examination. So his giving up is of no help to the appellants. P.W.6 and P.W.7 went into witness box, supported the prosecution case and were subjected to test of cross-examination. Their presence on the scene of occurrence is highly natural in the context of circumstances noted above. Chiragh Din was a person who was the victim of enmity for more than from one side. He was the principal accused in the Sessions trial of Qabil. He was elder of P.W.6 and P.W.7 so it was normal that P.W.6 and P.W.7 must have accompanied Chiragh Din in order to ward of any evil to him. D. W.1 and D. W.2 stated that the deceased had come to Tutti-Pulli bus-stop from Sadiqabad by bus at 5 p.m. And was killed by some unknown persons. These great witnesses did not dare to report the circumstance of assassination of Chiragh Din to the Police. They waited for a sufficient time and obliged the appellants to enter witness box in their defence. From the above, it becomes crystal clear to us that even the defence did not dispute that Haji Chiragh Din deceased did come from Sadiqabad by bus on 13-6-1990 and alighted at the fateful bus-stop. The only question is whether P.W.6 and P.W.7 and Muhammad Akbar did accompany this old man. No circumstance has come on record by which we can either doubt their presence or discredit their testimony with regard to their claim. The authorities cited by the learned counsel for the appellants proceed on dissimilar facts and are hardly of any help to the case of the appellants. We are further strengthened by the circumstances that P.W.6 proceeded to police station, lodged the report with promptitude and that S.I. Abdul Latif Kanjoo (P.W.8) reached the venue of occurrence. He found the dead body of the deceased and the appellants in the custody of P.W.7 and Muhammad Akbar and other persons who had come at the scene of occurrence on hearing the noise of pistol firing. The defence version that the F.I.R. Was recorded on the other day i.e. 14-6-1990 and the appellants were apprehended on the next day of occurrence, is hardly tenable. The investigator (P.W.8) did appear in the witness-box. He was subjected to cross- examination, but nothing was extracted to show his partisanship towards the prosecution. The police daily diary was summoned by the learned counsel for the defence and it fully demonstrated that the time of the F.I.R. Was given therein. So is the case of recoveries. The appellants were found on the scene of occurrence and recoveries were immediately effected by the investigating officer.
The allegation regarding the malice on the part of the investigator is seemed to be unfounded. On the above analysis we find that P.W.6 and P.W.7 were the natural witnesses of the occurrence and that they have seen their occurrence, that P.W.6 had lodged the F.I.R. With promptitude and without any prior consultation.
9. The next question is whether case of the prosecution stands fully established beyond any doubt against Wali Muhammad as well as Abdul Majid. As regards Wali Muhammad, we are fully satisfied that it was he who fired the shot on the deceased; that as regards the part of Abdul Majid, we find that the prosecution case is not free from doubt. The case of the prosecution, as stated above, is that Wali Muhammad fired at Chiragh Din, reloaded his pistol immediately; that P.Ws. Caught hold of Wali Muhammad; that Abdul Majid snatched the pistol from Wali Muhammad and fired at fallen deceased. This version, to us, does not stand to test of reason. Firstly, Abdul Majid had accompanied Wali Muhammad empty handed and this does not indicate that he was also partner in the intention of Wali Muhammad. Had he been a party to some common intention, he would have also equipped himself with some weapon. Furthermore, we find that when Wali Muhammad was caught hold of by pursuing P.Ws., had Abdul Majid snatched the pistol from Wali Muhammad, he would have made the pursuing P.Ws. His target in order to make good his escape from the scene of occurrence. There was no occasion for him to fire at a fallen deceased. It is quite possible that while P.W.6 and P.W.7 and Muhammad Akbar were engaged in overpowering Wali Muhammad, they might not have seen Abdul Majid firing at fallen deceased. The principle of uni falsis uno falsis is not applicable in our country. Guided by the principle of sifting the grain form the chaff we have come to hold that the prosecution case against Abdul Majid appellant is not free from element of doubt. He is accordingly found entitled to that benefit. We accordingly accept the appeal to his extent and acquit him giving the benefit of doubt.
10. As a result of foregoing discussion, this criminal appeal succeeds to the extent of Abdul Majid and fails as regards Wali Muhammad appellant. The Murder Reference sent by the learned Sessions Judge, Rahimyar Khan also fails to the extent of Abdul Majid appellant and the sentence of death is confirmed of Wali 'Muhammad. Abdul Majid shall be released forthwith, if not required in any other case.