MUHAMMAD NAWAZ ABBASI, J.- This judgment will dispose of Murder Reference No. 315 of 1992 sent by Sessions Court. Chiniot under Section 374 Cr.P.C, and Criminal Appeal No. 758 of 1992 filed by Haq Nawaz. Iqbal and Nazim Hussain appellants against their conviction and sentence under Section 302/34 PPC. They having faced trial before the learned Additional Sessions Judge. Chiniot.
For the charge of committing murder of Nasir Abbas, Muhammad Iqbal and Mst. Fatima were found guilty of the charge and sentenced to death with a fine of Rs.30,000 - each and in default thereof to further undergo R1 for three years each vide Judgment dated 15-7-1992. Haq Nawaz appellant was also convicted under Section 411 PPC and sentenced to three years' R.I. The entire amount of tine, if realized, has been ordered to be paid to the legal heirs of the deceased.
2. Briefly, the facts of the prosecution case in the back-ground as disclosed in the FIR (Ex.PA) recorded by Muhammad Masood. Inspector SHO- PVV-8 on the report lodged by Muhammad Ashraf PW-1 are that Mst. Fatima, mother of Muhammad Ashraf complainant, having divorced by his father, contracted second marriage with Ali Ahmad Baloch. Resident of Chak No. 130/JB. She gave birth to Muhammad Iqbal. Nasir Abbas and Ghulam Abbas. On 15-7- 1.989. The complainant alongwith his mother Mst. Fatima, brothers namely Nasir Abbas and Muhammad Iqbal, step father Ahmad Ali and Riaz son of Bahadar Baluch. After purchasing the house-hold articles from Rajoa Sadaat proceeded on foot towards their village. The complainant and Muhammad Iqbal had a licenced rifle and 12 bore gun with them respectively. The complainant alongwith them, when reached near Chak Tauerwala. Haq Nawaz Iqbal. Nazim Hussain (appellants) alongwith 12 others named in the FIR armed with deadly weapons raising Lalkara emerged from the grain crops. Haq Nawaz tired a shot, which hit Muhammad Iqbal on his right arm. Who ran to escape himself, whereas Azhar Abbas and Iqbal, tired one shot each on Nasir Abbas, which hit on left and right side of his chest and he fell down on the ground. Haq Nawaz again fired a shot, which hit Mst. Fatima on her right armpit. Haq Nawaz and Nazim Hussain tired one shot each At Muhammad Iqbal causing injuries on his left eye and ear. Nazim Hussain appellant and Said Ahmad tired one shot each hitting Mst. Fatima on her left had and thigh. Nazar Hussain. Muhammad Hussain sons of Atta and Muhammad Hussain son of Bhai Khan, tired one shot each or Nasir Abbas hitting on his left arm.
Elbow and right side of the chest. Zaffar Abbas tired a shot which hit Nasir Abbas on his right shoulder. Riaz son of Muhammad Hussain. Anwar and Muhammad Hussain sons of Noora.
Shahadat son of Massu and Nazra son of Dosa accused then tired one shot each with their guns at Muhammad Iqbal, who sustained injuries on different parts of his body. The shot fired by Haq Nawaz on the complainant missed. The complainant and Muhammad Iqbal having licenced rifle and 12 bore gun with them respectively fired in their defence. The gun of Muhammad Iqbal alongwith a bag containing cartridges and licence was taken away by Haq Nawaz with him. Nasir Abbas. Muhammad Iqbal and Mst. Fatima succumbed to the injuries at the spot.
The motive behind the occurrence as stated was the revenge of murder of Muhammad Nawaz real brother of Haq Nawaz, allegedly committed by Muhammad Iqbal deceased about nine years ago.
3. Malik Muhammad Masood. Inspector SHO PW-8 after recording the statement of Muhammad Ashraf. Complainant immediately reaching at the spot took into possession blood-stained earth from three places in presence of Muhammad Ashraf and Riaz PWs. He after preparing the injury statements and inquest, reports of the three deceased despatched their dead-bodies to the mortuary for post-mortem examination. He arrested the appellants on 25-7-1989 and their co- accused (since acquitted) on different dates. The appellants, namely Haq Nawaz. Iqbal and Nazim Hussain led fo the recovery of their guns Es. PI. P2 & P3) from their residential Quothas on 31-7-1989.
Which were taken into possession vide memos . Ex .PF . PC & PH respectively. The recoveries were witnessed by Gulzar (Given up) and Riaz Ahmad PW-3. The gun Ex.P-4 of Muhammad Iqbal deceased allegedly taken aw ay by the accused with him after the occurrence w as produced by Haq Naw az appellant on 3-8-1989. Which was taken into possession vide memo. Expenthesis Investigating Officer, upon conclusion of the investigation challaned the appellants, to face the trial, whereas the twelve acquitted accused, having found innocent were placed in Column No. 2 of the challan.
4. Dr. Saif Ullah Haral PW-10 conducted the post-mortem on the dead bodies of Mst. Fatima, Nasir Abbas and Muhammad Iqbal, on 16-7-1989 at Tehsil Headquarter Hospital, Chiniot. He found the following injuries on the person of Mst. Fatima: -
(1) A lacerated wound of entry , oval. 3 cm x 2 cm inverted margins on outer, upper parts of right chest in armpit. By dissection, it was found that right lung had been pearced front its outer side, on upper and middle parts. The to tears were in continuation with each other, corresponding pleurae also pearced. Thorax cavity was full of deoxyginated blood.
(2) A lacerated wound of entry tox al I 2 cm x 2 cm on back of terminal part of middle meta carpal bone of left had, with a lacerated wound of exit 3 cm x 3 cm on inner side of terminal part of 5th metacarpal bone of left had with corresponding wound of entry 4 cm x 3 cm x muscle deep on middle part of left thigh on its outer side. The pallet was removed from the trochanteric part of left humerous.
In the opinion of doctor, cause of death was shock and haemorrhage resulting from injury No. 1.
Which being grievous was sufficient to cause death in the ordinary course of nature.
5. The post-mortem examination of Nasir Abbas deceased revealed the follow ing injuries:-
(1) A lacerated wound of entry, inverted margins, blackening present on outer side of right upper chest. Wound was 4 cm x 2-1/2; cm wound was situated 3 cm below the armpit. On dissection, it was found that third rip on the right side had been fractured, on its middle part. Middle lobe of right lung pearced through and through with corresponding plurae. Plural cavity was full of deoxyginated blood. Right ventrical of heart pearced through and through. Left side of diaphram pearced. Left lobe of lever pearced. Abdominal cavity was lull of deoxyginated blood. Mesantiy pearced from its based. Sipleen pearced. Small intestine pearced. Bullet removed from the region of left kidney.
(2) A lacerated wound of entry 4 cm x 3 cm inverted marking on front of right middle part of upper chest. 4 cm above the memory gland.
(3) A lacerated wound of entry 4 cm x 4 cm on front of right middle chest x 1 cm from mid line with corresponding exit 2 cm x 2 cm on front of left chest on its middle pan.
(4) A lacerated wound of entry 4 cm x 4 cm on left side of upper chest, 1 cm from mid line, corresponding exit 3 cm x 3 cm on other side of middle pan of left chest, 4 cm below the memory gland, 5 cm oblique to exit of wound of exit of injury' No. 3.
(5) A lacerated wound of entry 6 cm x 3 cm on middle part of right chest, with corresponding exit 3 cm x 2 cm on the same side.
(6) A lacerated wound of entry 4 cm x 3 cm on frontal pan of inner side of left lower arm. 4 cm above elbow join with corresponding exit 2 cm x 2 cm on back of corresponding side, 2 cm above elbow joint.
(7) A lacerated wound of entry' 4 cm x 4 cm on front of upper left thigh 8 cm below the lilac crust.
Bullets were removed from the top of lilac crust.
(8) A lacerated wound of entry 4 cm x 4 cm front of left upper thigh 3 cm below injury No. 7 with corresponding exit 2 cm x 2 cm three cm apart on the outer side of left upper thigh.
Injury No. 1 being grievous was opined as sufficient to cause-death in the ordinary course of nature.
6. During post-mortem examination of Muhammad Iqbal deceased, the following injuries were found on his person:-
(1) A lacerated wound of entry 8 cm x 6 cm x skull cavity deep on left eye. Left eye missing from its socket with corresponding exit 10 cm x 8 cm on back of left side of skull. Frontal bone fractured as well as accipital bone. The fractured bones were viberating. The fracture was of inverted in 'Y' shape.
(2) A lacerated wound of entry 4 cm x 2 cm x bone deep on upper border of right eye. Underlying bone was fractured. Pallet removed fr6m cranial cavity.
(3) A lacerated wound of entry 5 cm x 3 cm inverted margins on the inner side of left ear with corresponding exit on right side. Minigeses and brain were destroyed. Blood clotted present in cranial cavity:.--
(4) A lacerated wound of entry' 3 cm x 2 cm x musle deep inverted margins blackened margins on outer part of middle right thigh, pallet was removed from the depth of muscles of right thigh.
(5) A lacerated wound of entry 4 cm x 3 cm x musle deep on outer side of right upper thigh, pellet removed on back of middle part of right thigh.
(6) A blackened wound of entry 4 cm x 3 cm on lower part of right pattella, pellet was removed close to the wound.
(7) A lacerated wound of entry 1 cm x 1 cm x muscle deep on inner side of right heal with corresponding exit 2 cm x 2 cm on the same side, 4 cm above and inner side of wound of entry.
(8) A lacerated wound of entry' 3 cm x 2 cm x muscle deep on inner side of right medial malleolous and pellet removed S cm below the right knee joint on inner side of right leg.
(9) A lacerated wound of entry 3 cm x 2 cm on outer part of left middle thigh with exit wound 6 cm x 4 cm on front of left upper thigh.
(10) A lacerated wound of entry 4 cm x 4 cm x abdominal cavity deep on the left inner side of abdomin with exit wound 2 cm x 2 cm on the right side of grion.
(11) A lacerated wound of entry 4 cm x 4 cm x muscle deep on the top of left scapulae on its front, pellet removed on upper tip of left clavical.
(12) A lacerated wound of entry 2 cm x 2 cm x muscle deep on middle pan of left neck just below the right end of left clavical, pellet removed from the inner side of back of right upper chest.
(13) A lacerated wound of entry 4 cm x 4 cm on middle part of left lower abdomen, pellet removed from outer side of right chest.
(14) A lacerated wound of entry 4 cm x 4 cm on the right side of chest on its front and upper pan just below the clavical, pellet removed on back of right upper chest.
The doctor has opined that the cause of death was shock as well as destruction of momedullary centre resulting from injuries Nos. 1. 2 & 3. He declared the injuries Nos. 1.2.3. 10. 13 and 14 as grievous and sufficient to cause death in the ordinary course of nature.
The injuries on the person of three deceased were caused with fire-arms. The time between injuries and death w as one to to hours and between death and post- mortem was within 12 to 13 hours.
Semi digested food was found in the stomach of Mst. Fatima deceased.
7. Muhammad Ashraf complainant PW-1 and Riaz Ahmad PW-3 both sons of Mala, ex-husband of Mst. Fatima deceased were examined as eye-witnesses of the occurrence. As per story of the FIR, the deceased were caused fire-arm injuries by the accused in the following manner:-
(a) Haq Nawaz appellant is attributed the role of causing fire-arm injuries to Mst. Fatima and Muhammad Iqbal:
(b) Iqbal appellant allegedly caused fire-arm injuries to Nasir Abbas deceased:
(c) Nazim Hussain appellant is attributed fire-arm injuries to Muhammad Iqbal deceased:
(d) Azhar Abbas acquitted accused was assigned the role of causing firearm injury to Nasir Abbas deceased:
(e) Kazim Hussain and Said Ahmad, acquitted accused, allegedly caused one fire-arm injury each to Mst. Fatima deceased:
(f) Noor Hussain and Muhammad Hussain sons of Bhai Khan, acquitted accused have been attributed one fire-arm injury each to Nasir Abbas deceased:
(g) Zafar Abbas, acquitted accused allegedly caused one injury to Nasir Abbas deceased:
(h) Riaz son of Muhammad Hussain. Anwar Hussain and Muhammad Hussain sons of Noora.
Shahadat son of Massu and Noora son of Dosa are attributed one fire-arm injury each to Muhammad Iqbal deceased.
Muhammad Iqbal deceased sustained 14 injuries on his person, whereas-eight injuries were found on the person of Nasir Abbas including one bullet injury and to injuries were traced on the person of Mst. Fatima deceased.
8. The prosecution case mainly rests on the ocular account of to eyewitnesses. The medical evidence and the evidence of motive. The appellants in their statements under Section 342 Cr.P.C, denying their participation in the occurrence took the plea of false implication due to enmity.
9. Learned counsel for the appellants questioning the conviction and sentence of the appellant raised the following contentions:-
(i) That admittedly the parties being inimical to each other, the eyewitness account without independent corroboration is not confidence inspiring, to be relied upon.
(ii) That the time of occurrence noted by the police in the relevant column in the FIR being not a part of the statement of the complainant, the occurrence having taken place at unknown time, the presence and participation of the appellants in the occurrence probably taken place in. The dark, is not proved.
(iii) That the acquittal of the co-accused of the appellants playing similar role of causing injuries to the deceased would essentially effect the credibility of the evidence qua the appellants and consequently, without independent corroboration the conviction is not sustainable.
(iv) That the acquitted accused and the appellants, hating no common grievance against the complainant and also not related inter se have been made accused together as a revenge for their independent enmities with the complainant pane. He vehemently contended that the accused being inimical inter se could not possibly join hands in the murder of the deceased for the cause of Haq Nawaz appellant.
(v) That the alleged. Motive of causing murder of Muhammad Nawaz, real brother of Haq Nawaz appellant by the deceased about nine years ago has been used as weapon against the appellants.
(vi) That Haq Nawaz and Nazim Hussain appellants were inimical to each other due to their involvement in the criminal cases, whereas Kazim Hussain and Said sons of Muhammad Yar were accused in' a case' registered against them at the instance of complainant pane, who were subsequently acquitted.
(vii) Thai Nazim Hussain appellant having no motive was only involved as he was also accused in an earlier case registered against him at the instance of the complainant party.
(viii) That the sole evidence of inimical interested and partisan witnesses is not reliable unless corroborated by other source.
(ix) That falling the principle of sifting the grain from chef, this case necessarily requires independent corroborative evidence qua each appellant but the same being not available, the conviction and sentence is not sustainable.
He placing reliance on Muhammad Yousaf v. The Stale (1994 SGMR 1148) and Bashir Ahmad and others v. Ah Muhammad and others (1994 SGMR 1157) argued that evidence not relied upon against an accused: cannot be used to convict the other and deprived him of the same benefit unless the case of to, is distinguishable from each other.
10. Learned State Counsel argued that Haq Nawaz appellant being revengeful for the murder of his brother having direct motive nursed grudge against the deceased. The ocular account receiving full support from undeniable motive and medical evidence, the guilt of Haq Nawaz appellant is proved beyond doubt. The case of the appellant being distinguishable, he has no convincing arguments in support of their conviction.
11. We have heard the learned counsel for the parties at length and perused the record with their assistance. Without proceeding further, the preliminary question regarding the time of occurrence going to the roots of the matter needs attention and determination. The report of the occurrence was lodged at 7:30 p.m. With the Police Station Saddar. Chiniot at a distance of six miles from the place of occurrence, when it was still not dark. The first information supplied the detailed facts of the occurrence in the FIR. The doctor has opined the duration of injuries from 10 to 12 hours at the time of post-mortem examination at 8.00 a.m. On the next day which would approximately fix the time of occurrent before sun set in the evening of 15-7-1989. The semi digested food in the stomach of Mst, Fatima deceased' and empty bladder also confirmed the time as mentioned in the relevant column. There being no ambiguity or confusion about the time of occurrence, the contention in this behalf has no substance. The presence of the eye-witnesses, namely Muhammad Ashraf and Riaz Ahmad (PW-1 & PW-3) is not challengeable. Haq Nawaz appellant also fired at Muhammad Iqbal, which missed and Muhammad Iqbal having licenced rifle fired in his defence. Muhammad Ashraf complainant alongwith Mst. Fatima his deceased mother and to deceased brothers namely Nasir Abbas and Muhammad Iqbal in company of Riaz Ahmad was going on foot w hen the fateful occurrence took place. Thus, the presence of the complainant and Riaz Ahmad alongwith the three deceased was natural. However, the parties being inimical, the mere presence of the: witnesses at the spot is not| enough to believe them truthful witnesses.
Therefore, following the sule of independent corroboration their evidence requires close scrutiny to be relied upon.
12. It is in the statement of Muhammad Ashraf PW-1 that Anwar and Muhammad Hussain (acquitted accused) being Virbhu by caster are not related to the remaining ..Accused named in; the FIR and similarly Shahadat and Noora (acquitted accused) have no relationship with any other accused. Kazim Hussain and Said .Ahmad (Acquitted accused) and;Muhammad Iqbal appellant are real brothers inter se. He has admitted that Azhar Abbas and Zafar Abbas (acquitted accused) are sons of Haq Nawaz appellant, whereas Nazar Hussain and Muhammad Hussain (accused) sons of Atta Muhammad are real brothers of Mst. Bakhat Bhari widow of Muhammad Nawaz brother of Haq Nawaz appellant, who was murdered by Muhammad Iqbal deceased. Nazar Hussain and Muhammad Hussain (acquitted accused) also brothers of Mst. Sakina Bibi. They have also close relation with the family of Haq Nawaz appellant through their wives. The old enmity of Kazim Hussain (acquitted accused) with Gulzar and Noor PWs and criminal cases with complaint is admitted. A criminal case at the instance of complainant side registered against Haq Nawaz, Said Ahmad, Nazim,' Zafar, Azhar and Shahadat accused, was still pending. A case under Section 301/34 PPG got registered by Zafar and Nazar accused against Iqbal deceased, Muhammad Ashraf complainant and Sabir etc. Was also pending, at the time of occurrence. He admitted that Dosa father of Nazar Sambhal and uncle of Shahadat accused was an eye-witness in a case under Section 326/307 PPC registered against the complainant party and that Anwar Birbhu accused was complainant in a case under Section 307/148/149 PPC registered against Kazim and Haq Nawaz accused. The witness stated that he alongwith Gulzar PW and other relatives having involved in the case of murder of Mst. Jamtat Bibi sister of Muhammad Hussain accused were challaned but were subsequently acquittal. Nazim Hussain accused is son of said Muhammad Hussain.
13. The other eye-witness, namely, Riaz Ahmad PW-3 making similar statement deposed in support of the prosecution.
14. In the background of enmity between the parties and the criminal cases, of complainant party with different set of accused for the independent enmities without the element of common cause of all the accused, made the story cloudy and suspicion with the result that twelve accused during the investigation were declared innocent. The trial Court without discussing the evidence in detail and giving the reasons or the basis of opinion of the Investigating Officer PW-3, who categorically stated that the twelve accused named therein being involved in the case were declared innocent, acquitted them. The perusal, oi the evidence of the to eyewitnesses shows that the view formed by the trial Court on the basis of evidence of the Investigating Officer was correct. There can be no departure to the rule that the evidence not reliable qua co-accused, the same evidence against other accused without corroboration from independent source cannot be made basis tor conviction: The evidence of related and inimical witnesses, if confidence inspiring to the satisfaction of a prudent person, their evidence can independently be made basis of conviction but in the facts of the present case it would necessarily require corroboration from independent source qua individual appellant, Muhammad Iqbal deceased, real brother of Nasir Abbas and son of Mst. Fatima Bibi deceased, was tried for the-charge of murder of Muhammad Nawaz real brother of Haq Nawaz but ultimately: was acquitted thus Haq Nawaz had a strong motive for taking revenge of the murder of his brother from Muhammad Iqbal deceased, The fire-arm injuries received bv the deceased as disclosed, in the FIR and having traced by the doctor, the role assigned to him stands corroborated by medical evidence. The eyewitnesses despite being inimical and interested having narrated the story in detail without any material discrepancy and contradiction in their evidence fully prosed the charge, against Haq Nawaz-appellant. The critical scrutiny of their evidence reveals that the case of the acquitted accused being distinguishable to that of Haq Nawaz appellant, their acquittal does not materially affect the prosecution case against the appellant. The acquitted accused had no personal motive or grievance against the- deceased/and also had no reason to join Haq Nawaz in the transaction. The PWs being inimical towards them, their involvement was not free from doubt, therefore, the case against Haq Nawaz appellant is not at par with the acquitted accused. We following the principle of sifting the grain from chef, find that the evidence of ocular account regarding the allegation of causing injuries to the deceased and committing the murder by Haq Nawaz appellant stands corroborated with the medical evidence and strong motive behind the occurrence. The charge of murder against him is proved beyond doubt. The causing number of injuries on the person of deceased independently is an evidence of causing heavy tiring and non recovery of empties from the place of occurrence is not by itself a circumstance to disbelieve the eye-witness. The three casualties and large number of injuries on their persons is also not an evidence of participation of more than one person in the occurrence.. This may be noticed that with the use of fire-arm. One person can kill a number of person at one time, probably the real target of Haq Nawaz appellant was Muhammad Iqbal only but his brother and mother being in the range of firing were also hit. We are not inclined to accept that in the circumstances. The, three deceased could .Not be done to death by a single accused.
The circumstances sufficiently indicate that Haq Nawaz appellant having serious enmity and strong motive against Muhammad Iqbal deceased attacked on him and in the occurrence real brother and mother of Muhammad Iqbal deceased were also murdered.
15. The case of remaining to appellants, namely. Iqbal and Nazim Hussain is distinguishable to that o' Haq Nawaz appellant as no corroborative evidence is available on record against them. They have no close relationship with Haq Nawaz appellant and witnesses admittedly are inimical towards them. The ''possibility of fire-arm injuries on the persons of three deceased as a result of firing of one person being not ruled out. The role of firing assigned to them as such is not proof of their participation in the occurrence. As we observed, the three deceased being in renge of Haq Nawaz appellant, could receive injuries with his firing, the allegation against Iqbal and Nazim Hussain appellant being not free from doubt, the inference of doubt in their favour result in the acquittal.
16. In the light of above discussion, appeal to the extent of Nazim Hussain and Iqbal appellants is allowed. Their conviction and sentence is set aside and they are directed to be released from jail forthwith, if not required in any other case. The appeal of Haq Nawaz appellant is dismissed. His conviction under Section 302 PPC with sentence of death for causing three murders on three counts is maintained. Murder Reference is answered in the above terms.