' SH. ABDUR RAZZAQ, J.--- Master Zafarullah Khan son of Ghulam Qadir, a close relative of Lai' Khan son of Ahmad Khan, complainant, was transferred from Khojianwali on 15-10-1986 and was posted as Headmaster, Government Middle School Jheurianwali. On 16-10-1986 at 12-30 noon, Lal Khan complainant (P.W.11) alongwith Ghulam Nabi (P.W.12) and Muhammad Walayat (not produced) went to the school to escort Master Zafarullah Khan deceased. When they reached school, they found that school had been closed and Master Zafarullah Khan had gone to see the damaged wall of Government Girls School. He alongwith Muhammad Walayat and Ghulam Nabi followed Master Zafarullah Khan. When they reached near the Haveli of Muhammad Akbar son of Shana, they found that Master Zafarullah Khan was standing in front of the house of Bahadur Khan son of Sardar Khan and was looking towards the said school. In the meanwhile, Nazir son of Mian Khan armed with a carbine, Arshad son of Rehmat Khan armed with a .12 bore gun and Nawaz son of Muhammad Hussain empty-handed emerged from the house of Bahadur Khan. Arshad and Nazir fired with their respective weapons hitting Master Zafarullah Khan on the back of his neck and back respectively, who fell down. Nawaz accused raised Lalkara that they had taken the revenge of the murder of Mirza Khan. He then left the spot alongwith his companions and also removed the licensed .7 mm rifle of Master Zafarullah Khan which he used to keep with himself for his protection.
He also heard Bahadur Khan and Mst. Sughran Bibi saying that they had taken the revenge of murder of Mirza Khan. This incident was witnessed by Muhammad Asif son of Nawab Khan and Iftikhar Ahmad son of Fateh Muhammad.
2. The motive behind this occurrence is the enmity which has been going on between the deceased and the accused over the murder of Mirza Khan, an uncle of Nazir accused as well as over the murder of wife of Master Zafarullah Khan. Leaving Nawab Khan to guard over the dead body, Lal Khan complainant made for the police station and met Ahmad Shujaa, Inspector/S.H.O.
(P.W.15) who prepared F.I.R. Exh.P.N., as per statement of complainant.
3. After registration of case, Ahmad Shujaa, Inspector/S.H.O. (P.W.15) made for the place of occurrence. He prepared inquest report Exh.P.K. And injury statement Exh.P.K./1. He handed over the dead body to Faiz Ahmad, Constable for post-mortem examination. He inspected the spot and secured blood-stained earth vide memo. Exh.P.C. He secured three empties Exh.P.6/1-3 vide memo.
Exh.P.D. On 17-10-1986, Faiz Ahmad, Constable produced last-worn clothes Exhs.P.1 to P.4/1-2 of deceased and a sealed phial which he secured vide memo. Exh.P.B. He got the accused Arshad transferred from Qadirabad Police and arrested him on 20-10-1986. On 22-10-1986, he got the site plans Exh.P.A. And Exh.P.A./1 prepared from Akhtar Naqqash. On 31-101986, he arrested the accused Nazir from the Dera of Rehmat Ali and on his personal search, secured a .12 bore carbine P.9 and 2 live cartridges P.10/1-2 and prepared memo. Exh.P.L. And prepared site plan of the place of recovery Exh.P.L./1. On 31-10-1986, he arrested Mst. Sakina Bibi and Mst. Sughran Bibi. On the same day, Anwar Hayat, A.S.-I. Produced before him accused Bahadur Khan. On 1-11-1986, the accused Arshad led to the recovery of a .12 bore gun P.11 from his Dera, which was secured vide memo. Exh.P.M. And prepared site plan of the place of recovery Exh.P.M./1. After completing investigation, he got the accused challaned.
4. A charge under section 302/109/404/120-B, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed to be tried.
5. In order to bring home guilt to the accused, prosecution examined P.W.1 Akhtar Naqqash who deposed that on 18-10-1986, he visited the place of occurrence and prepared site plans Exh.P.A. And Exh.P.A./1 and handed over the same to the Investigating Officer on 20-10-1986. P.W.2 Faiz Ahmad, Constable deposed that on 16-10-1986, he escorted the dead body of Master Zafarullah Khan for autopsy. On 17-10-1986, he produced last-worn clothes Exhs.P.1 to P.4/1-2 of deceased alongwith a sealed phial P.5 before the Investigating Officer who secured it vide memo. Exh.P.D. On 26-10-1986, he was given two sealed parcels containing blood-stained earth and empty cartridges for onwards transmission to the office of Chemical Examiner and Forensic Science Laboratory, Lahore.
On 3-11-1986, he was given two parcels containing carbine and .12 bore gun for delivering in the office of Forensic Science Laboratory which, he delivered there intact. P.W.3 Rashid Ahmad, A.S.-I.
Deposed that on 17-10-1986, he was posted as Moharrir at Police Station Kunjah and was given two sealed parcels containing blood-stained earth and empties for keeping the same in Mallkhana. On 26-10-1986, he delivered the said parcels to Faiz Ahmad, Constable (P.W.2) for onwards transmission to the office of Chemical Examiner, Lahore. On 31-10-1986 and 1-11-1986, he was given two parcels containing carbine and .12 bore gun respectively by Investigating Officer for keeping in Malkhatia. On 3-11-1986, he delivered both the said parcels to Faiz Ahmad (P.W.2) for onwards transmission to Forensic Science Laboratory, Lahore. P.W.4 Ghulam Qadir deposed that police had secured blood-stained earth from the place of occurrence and made it into a sealed parcel vide memo. Exh.P.C. He further, deposed that police had secured empties of .12 bore P.6/1-3, which were made into a sealed parcel vide memo. Exh.P.D. P.W.5 Muhammad Azam deposed that police had arrested Nawaz and Bahadur Khan in his presence and as a result of personal search of accused Nawaz had recovered .7 mm rifle Exh.P.7 and two live cartridges Exh.P.8/1-2 vide memo. Exh.P.E.
P.W.6 Dr. Syed Talat Iqbal deposed that on 17-10-1986 at 9-00 a.m. He conducted the post-mortem examination of Master Zafarullah Khan deceased. He found three fire injuries on his person, out of which injuries Nos.1 and 2 were wounds of entry whereas injury No,3 was a wound of exit. In his opinion both the injuries were ante-mortem and caused by fire-arm and death had occurred due to haemorrhage and shock on account of both these injuries which were individually and collectively sufficient to cause death in the ordinary course of nature. Time between injury and death was immediate whereas between death and post-mortem examination was 24 hours. He issued correct carbon copy of post-mortem examination report Exh.P.G. And sketch of injured Exh.P.G./1. He signed inquest report Exh.P.K. And police papers Exh.P.K./1. P.W.7 Arshad Ali deposed that he identified the dead body of Master Zafarullah Khan at the time of post-mortem examination on 17-10-1986. He further, deposed that Faiz Ahmad, Constable produced last-worn clothes P.1 to P.4/1-2 of deceased and a sealed phial P.5 before the Investigating Officer, who secured it vide memo. Exh.P.B., which bears his signature. He further, deposed that on 31-10-1986 Nazir accused was arrested and as a result of his personal search, carbine P.9 and two live cartridges P.10/1-2 were secured and made into a sealed parcel vide memo. Exh.P.L. P.W.8 Fateh Muhammad deposed that Arshad accused led to the recovery of gun P.11, which. Was secured vide memo. Exh.P.M. P.W.9 Bashir Ahmad has deposed that Mst. Sughran Bibi, Mst. Sakina Bibi and Bahadur Khan had hatched a conspiracy in presence of Gulzar Ahmad P.W., Arshad, Nazir and Nawaz accused for the murder of deceased. P.W.10 Muhammad Siddique, A.S.-I. Deposed that on 31-10-1986, Ahmad Shujaa, Inspector/S.H.O. (P.W.15) arrested accused Nawaz and on his personal search recovered a .7 mm rifle Exh.P.7 and two live cartridges P.8/1-2 vide memo. Exh.P.E. P.W.11 Lal Khan is the complainant and has corroborated his version appearing in F.I.R. Exh.P.N. P.W.12 Ghulam Nabi and P.W.13 Iftikhar Ahmad have corroborated the prosecution version appearing in F.I.R.
Exh.P.N. P.W.14 Zafarullah Khan, Arms Clerk has deposed that Master Zafarullah Khan deceased was issued a licence No,2432 for .7 mm rifle. P.W.15 Ahmad Shujaa, Inspector/S.H.O. Is the Investigating Officer of this case whose evidence has already been discussed above. Lastly Mr. Manzoor Hussain Bhatti, District Attorney gave up the remaining P.Ws. Being unnecessary and after producing certain documents Exhs.P.O. To P.S. Mark "A" to "C" closed the case for prosecution.
6. When examined under section 342, Cr.P.C. Accused Mst. Sakina Bibi, Mst. Sughran Bibi and Bahadur Khan denied the prosecution version and stated that they have been involved in this case falsely due to their relationship with Irshad brother of Arshad accused. They also produced certain documents in their defence. Similarly accused Arshad, Nazir and Nawaz accused repudiated the prosecution version and stated that they have been involved in this case falsely. The accused Arshad and Nazir further, stated that they had been in the custody of Qadirabad Police prior to this occurrence and as such were innocent. All the accused got their statements recorded under section 340(2), Cr.P.C.
7. After going through the evidence produced by the parties, the Trial Court gave weight to the prosecution version to the extent of Arshad and Nazir accused and convicted both of them under section 302/34, P.P.C. And sentenced each of them to death and a fine of Rs,50,000 each or in default thereof to further undergo R.I. For five years each. The fine, if realised, was ordered to be paid to the legal heirs of the deceased. The accused Mst. Sakina Bibi, Mst. Sughran Bibi, Bahadur Khan and Nawaz were acquitted.
8. The appellants Arshad and Nazir aggrieved of aforesaid judgment have filed this appeal to challenge their conviction and sentence.
9. We have heard the learned counsel for the appellants as well as learned State Counsel and have gone through the record before us.
10. The learned counsel for the appellants has contended that the prosecution case was highly doubtful from its very inception because innocent persons were named in the F.I.R., as was found during the trial. In this respect a reference was made to the acquittal of Mst. Sakina Bibi, Mst.
Sughran Bibi, Bahadur Khan and Nawaz. Hence it was contended that the learned Trial Court fell in error to convict the present appellants on the basis of same evidence which was disbelieved qua the acquitted accused. The application of the principle falsus in uno falsus in omnibus was invoked to support this contention. The judgment was further assailed on the ground that no independent witness of the locality was either cited or examined though the occurrence took place in the street, which is the centre of the village, from which inference can easily be drawn that prosecution story is doubtful and natural witnesses were not supporting the case of prosecution, that all the three witnesses were chance-witnesses and their presence on the spot was highly unnatural, that even otherwise said three witnesses were interested witnesses being relatives and partymen of the deceased, that even motive attributed to the appellants was not proved from the evidence brought on record. It was, thus, prayed that the appellants were entitled to acquittal.
11. The learned counsel for the State assisted by learned counsel for the complainant contended that the prosecution had proved its case beyond any shadow of doubt against both the accused- appellants. In this respect it was alleged that the prosecution had examined eye-witnesses to support its case. These witnesses were corroborated by the medical evidence and recovery of weapons of offence. It was further contended by the State Counsel that mere fact that four accused were acquitted would not help the appellants because the principle of falsus in uno falsus in omnibus was not applicable to the facts of the present case.
12. The ocular account of occurrence clearly showed that the deceased had died on account of firing made by Arshad accused followed by another fire of Nazir. The motive of occurrence as given in the F.I.R. Has rightly been believed by the learned Trial Court. Similarly, recovery of weapons of offence has been believed. It is clear from the evidence of eye-witnesses that all of them strongly supported the story that the deceased was done to death by Nazir and Arshad accused. As such there is no doubt about this version, which stands proved beyond any reasonable doubt on account of testimony of eye-witnesses. The mere fact that Lal Khan complainant (P.W.11) is the uncle of wife of deceased would not discredit his testimony because his statement stands supported and corroborated by Ghulam Nabi (P.W.12) and Iftikhar Ahmad (P.W.13) whose presence at the spot cannot be doubted by any stretch of imagination. It is particularly so because they (P.Ws.12 and 13) have no blood relationship with the deceased and as such were independent and trustworthy witnesses and more so when there is nothing on the record to suggest that they had got any motive for deposing falsely against the accused-appellants.
13. The ocular account further gets support from the medical evidence which, has come on record through the statement of Dr. Syed Talat Iqbal (P.W.6) who conducted autopsy of deceased and found three injuries on his body, out of which injuries Nos.1 and 2 were wounds of entry, whereas injury No,3 was wound of exit. According to him both the injuries were ante-mortem and caused by fire-arm. Again ocular account further stands corroborated by evidence of recovery of weapons of offence recovered from the accused-appellants Nazir and Arshad. It has come through the statement of P.W.7 Arshad Ali that Nazir Ahmad accused was arrested on 31-10-1986 and on his personal search carbine Exh.P.9 alongwith two live cartridges Exh.P.10/1-2 were recovered vide memo. Exh.P.L. Similarly accused Muhammad Arshad led to the recovery of gun P.11, which was secured vide memo. Exh.P.M. Attested by Fateh Muhammad (P.W.8). Evidence of recovery of weapons of offence further stands corroborated from the report of Director, Forensic Science Laboratory Exh . P. Q.
14. In view of our above discussion, we hold that prosecution has been successful to prove its case beyond any reasonable doubt. The sentence awarded to Arshad and Nazir appellants does not call for any interference for the reasons already stated above.
15. It is pertinent to mention that it was pointed out at the very outset by the learned counsel for the appellants that due to General Amnesty Order of the President, 1988, the death sentence awarded to the appellants stands commuted to imprisonment for life. Thus, while dismissing the appeal, we extend the benefit of section 382-B, Cr.P.C. To the appellants.