' The learned Additional Sessions Judge, Rawalpindi vide judgment, dated 4-5-1994 has convicted and sentenced the appellants for the murder of Muhammad Nawaz and launched murderous assault on Mst. Razia Sultana P.W.4 as follows:-- ' It is pertinent to mention here that both the sentences shall run concurrently and the convicts were also granted benefit of section 382-B, Cr.P.C.
2. The convicts have filed Criminal Appeal No,65 of 1994 against their conviction and sentence while the complainant has also filed Criminal Revision No,72 of 1994 for enhancement of sentence and compensation. This judgment shall dispose of both the appeal and revision.
3. The occurrence took place on 21-10-1990 at 8 a.m. In the house of Muhammad Maroof situated in village Dhoke Khena Dakhli Maira Tehsil Kahuta, District Rawalpindi at a distance of 10 miles from Police Station Kahuta. Muhammad Taj/P.W.3, brother of the deceased reported to Muhammad.
Razzaq S.-I./P.W.10, who recorded the statement of P.W.3, Exh.P.C. On the same day at 10-55 a.m. At Hospital Road opposite Police Station Kahota and sent the report to the police station for formal registration of the F.I.R. Which was recorded by Muhammad Zamir, A.S.-I./P.W.8, Exh.P.C./1. In the F.I.R.
The occurrence to have been taken place allegedly as follows:-- ' Prosecution story according to the statement Exh.P.C. Made to the Investigating Officer by Muhammad Taj, the complainant (P.W.3) is that on 21-10-1990 his brother Muhammad Nawaz (deceased) alongwith his brother's wife (Bhabhi) Mst. Razia Sultana wife of Muhammad Riaz went to the house of Muhammad Maroof resident of Dhoke Kehna Dakhli Maira to inquire about the health of his ailing son. On seeing them there Akhtar son of Jilal (accused) shouted a Lalkara that Muhammad Nawaz has come and he be done to death. In the meantime, Khalid, Riaz and Muhammad Sharif (accused) came there armed with .12 bore guns. Soon after coming there Muhammad Sharif accused fired a shot hitting Muhammad Nawaz in front of the abdomen. Then Muhammad Riaz fired with his gun and the pellets hit Muhammad Nawaz on the left arm and the left thigh. Mst. Razia Sultana stepped forward for weaning Muhammad Nawaz while making entreaties, when Khalid accused fired at her hitting on her left hand and the left thigh. The hue and cry attracted Ghazanfar Khan (P.W.5) and Muhammad Riaz son of Bagh Ali (given up P.W.), who witnessed the occurrence.
4. Dr. Ehtasham-ul-Qamar P.W.11 examined Muhammad Nawaz, injured aged 55 years on 21-10- 1990 and found the following injuries:--
(1) Lacerated wound over left index finger, 1/2 x 1 inch.
(2) Lacerated wound over left fore-arm anteriorly near elbow, 0.2 x 0.5 inches.
(3) Lacerated round wound 1 inch below umbilicus 0.3 x 0.5 inches.
(4) Lacerated round wound, 3 inches below umbilicus, left laterally, 0.3 x 0.4 inches.
(5) Lacerated round wound left laterally on the head of penus 0.2 x 0.5 inches.
(6) Lacerated round wound on the left scrotum.
(7) Lacerated wound 0.2 x 0.4 inches over right thigh near scrotum.
(8) Lacerated wound over left thigh interiorly, 2 inches above the knee joint, 0.2 x 0.5 inches.
(9) Clotted blood around the left ear.
' The injured Muhammad Nawaz subsequently died on 7-11-1990 at 1 p.m., P.W.7 conducted the post-mortem examination of the dead body of deceased and found the following injuries:--
(1) A fire-arm lacerated wound half and one inch on left index finger.
(2) A lacerated wound 2 x 5 inch on left fore-arm anteriorly close to the left elbow joint.
(3) A lacerated wound 5 x 4 inches, about one inch below the umbilicus about two in chest from mid line, plane on right side.
(4) A lacerated fire-arm wound about 4 x 5 inches, about three inches below the umbilicus on left side of abdomen.
(5) A kid line incision operation from epigastarum upto hypogastrium, about six inches long. The wound of lapratomy is gaping with dehiscence.
(6) There are two oval opening in right and left elliace fossa.
(7) A fire-arm wound 2 x 5 inches on head of penis on left side.
(8) A fire-arm lacerated wound 2 x 1 inches on left scrotum.
(9) A fire-arm wound 3 x 5 inches on right thigh.
(10) A lacerated fire-arm wound about 3 x 5 inches on left thigh about two inches above the knee joint.
Opinion ' In his opinion the cause of death is injuries Nos.3 and 4. By these injuries there were multiple perforations in the jejunum and ileum and sighmoid colon with perforations causing perit on itis and cardiorespiratory arrest and death. Time between injuries and death first M.L.R. On 21st of October, 1990 and post-mortem on 7th of November, 1990. Time between death and postmortem is 3 to.4 hours. Injuries Nos.3 and 4 are fire-arm injuries.
' Dr. Ehtesham-ul-Qamar P.W.11 also medically examined Mst. Razia Sultana aged 30 years on 21- 10-1990 at 10 a.m. And found the following injuries:
(1) Lacerated round wound on the middle of left hand both anteriorly and posteriorly.
(2) Lacerated round wound over left thigh laterally and 4 inches from anterior-superior eliac spine.
(3) Lacerated round wound over left thigh anteriorly two inches from anterior superior eliac spine.
5. The prosecution's alleged motive of occurrence behind the incident is that on the same morning the complainant and Muhammad Arif etc. Had a quarrel over the grazing of cattle in the crop but the people intervened and set them apart. The complainant was returning home from the fields and was near Dhoke Kehna and was attracted to the place of occurrence by the noise and witnessed the occurrence. That the accused persons has launched a murderous assault on his brother Muhammad Nawaz and brother's wife (Bhabi-Bharjai) for the said grievance.
6. The blood-stained earth was taken into possession from the spot Exh.P.D. Which was attested by Ghazanfar Khan/P.W.5, Muhammad Razzaq, S.-I./P.W.10 and Muhammad Raza was given up. It is pertinent to mention here that the report of the Chemical Examiner and Serologist were found positive. All the four appellants/convicts were arrested by Raja Muhammad Banaris, Inspector/P.W.15. Gun P.1 was taken into possession on the pointation of Muhammad Sharif/convict from his residential house on 14-11-1990 which was attested by Muhammad Iftikhar/P.W.1, Raja Muhammad Banaris, Inspector/P.W.15 and Muhammad Ayub was given up as unnecessary.
7. The prosecution produced four witnesses Muhammad Taj/P.W.3, brother of the deceased, Razia Sultana/P.W.4 (Bhabhi) brother's wife, Ghazanfar Khan/P.W.5 brother-in-law and 1st cousin and Muhammad Riaz brother of the deceased was given up. While the appellants under section 342, Cr.P.C. Controverted the allegations and pleaded themselves absolutely innocent in the matter and also produced two witnesses, Ghufran Ahmed/D.W.1 and Ikram Ullah Niazi/D.W.2 to prove that Khalid Mahmood-convict was admitted in the hospital w,e,f, 1-1-1988 upto 28-6-1993.
8. The senior learned counsel appearing on behalf of appellants argued as follows:--
(i) The prosecution only produced four eye-witnesses who were interested and inimical witnesses and their statement need independent corroboration. There is no independent corroboration in the present case, therefore, sentence awarded to the appellants is not sustainable in the eyes of law.
(ii) The presence of the eye-witnesses at the spot is not natural as all the eye-witnesses belong to Dhoke Khanna whereas the incident took place in Dhoke Iya.
(iii) The F.I.R. Was recorded after preliminary investigation and this fact is fully established vide memo. Exh.P.C., statement of P.W.3, which was recorded on Hospital Road opposite to the Police Station Kehuta.
(iv) Medical evidence qua the eye-witnesses contradicts each other, therefore, sentence awarded to the appellants is not sustainable in the eyes of law.
(v) Believing the story of prosecution in totality for sake of arguments then incident took place on account of grave and sudden provocation.
(vi) The motive as alleged by the prosecution was not proved on the record.
(vii) Khalid Mahmood convict/appellant had taken the plea of alibi that on the day and at the time of occurrence, he was admitted in Civil Hospital, Taxila, and it was duly proved by the findings of Sub-Inspector Muhammad Razzaq P.W.10 and Raja Muhammad Banaras, Inspector P.W.15 who declared him as innocent. As no injury sustained by the deceased during the occurrence had been attributed to Khalid Mahmood appellant.
(viii)Dr. Sajid Hassan Raja P.W.7 admitted in his cross-examination that the injuries on the person of the deceased was possible by a single .12 bore shot containing several pellets.
(ix) The place of Muhammad Akhtar appellant was not shown in the site plan which created a doubt on the story of the prosecution.
(x) The motive allegedly against 'Muhammad Taj P.W. Who insulted the wife of Muhammad Sharif convict/appellant and admittedly there was no enmity existed between the deceased Muhammad Nawaz and the convicts/appellants. Therefore, they could have inflicted injuries or murdered Muhammad Taj. This fact alone is sufficient to create a doubt in the story of the prosecution.
(xi) The convicts/appellants were granted bail by the learned Sessions Judge, but the learned trial Court considered their absconsion as a corroborative piece of evidence which could not be considered as absconsion as there was no proceedings initiated against them under sections 87 and 88, Cr.P.C.
(xii) The deceased as well as Mst. Razia Sultana P.W.4 were examined first in the hospital and after obtaining the medico-legal reports, Muhammad Taj P.W.3 gave his statement to Muhammad Razzaq S.-I. P.W.10, therefore, the medical evidence could not provide corroboration in these circumstances.
(xiii) That the dying declaration of the deceased was not recorded in accordance with law laid down by the superior Courts and it was not properly proved on the record and the photostat copy was provided to the convicts/appellants at the time of recording the evidence of Muhammad Razzaq S.-I. P.W.10, therefore, no reliance can be placed on dying declaration.
(xiv) The dying declaration was recorded without obtaining a certificate from the doctor, as to whether the deceased was fit to make a statement or not and even otherwise the dying declaration was recorded in presence of other interested witnesses.
(xv) The recovery of guns from the convicts/appellants have no relevancy as the empty cartridges were not recovered from the spot. The convicts/appellants set up a defence version which was plausible keeping in view all the circumstances in juxtaposition i,e, the prosecution version and the defence version then it is crystal clear that the defence version is valid and based on common sense.
9. Kh. Muhammad Fayyaz Ahmad, learned counsel for the complainant supported the judgment of the learned trial Court on each and every point and argued as follows:--
(i) The presence of eye-witnesses at the spot is natural and their statements are consistent and corroborated with each other.
(ii) The F.I.R. Was promptly lodged with specific roles of the convicts/appellants.
(iii) The defence version is not believable as Mst. Razia Sultana P.W.4 and the deceased have no enmity against the appellants.
(iv) The presence of Mst. Razia Sultana P.W.4 and the deceased being injured in the occurrence provided sufficient cause regarding their presence at the spot.
(v) The dying declaration was recorded in accordance with law which is corroborated on each and every material point with the first information report and the statement of Mst. Razia Sultana P.W.4.
(vi) Four eye-witnesses were produced. Mst. Shakira was the nearest relation of the deceased, therefore, it was not necessary for the prosecution to produce all the witnesses, as such no adverse presumption could be taken against the prosecution.
(vii) The occurrence took place in a broad daylight, therefore, the prosecution sufficiently established the guilt of the appellants, as such, capital punishment should be awarded to them.
10. Learned counsel for the State also adopted the arguments of the learned counsel for the complainant and supported the impugned judgment of the learned trial Court.
11. I have given my anxious consideration to the contentions risen by the learned counsel for the parties and perused the record with their assistance. It is an admitted fact that Mst. Razia Sultana P.W.4 was injured during the occurrence; therefore, her presence at the spot was natural and satisfactorily accounted for. She was cross-examined by the learned defence counsel at length, but he failed to bring out any contradictions in her statement. She also narrated the motive. No doubt, that Muhammad Nawaz deceased was her maternal-uncle and also the real brother of her husband. But she categorically stated in her cross-examination that it is correct that none of the accused had any enmity with her. Therefore, mere relationship with the deceased is not sufficient to disbelieve the statement of Mst. Razia Sultana P.W.4. She narrated the incident in a very straightforward manner and inspires full confidence, therefore, it is sufficient to believe her statement and to connect or prove the guilt of the present appellants. The principle of corroboration qua such type of witness is not required because she has no enmity against the convicts/appellants. The statement of P.W.4 was duly corroborated by other two witnesses namely Muhammad Taj P.W.3 and Ghazanfar Khan P.W.5 on each and every point in spite of lengthy cross- examination by the learned defence counsel, but their statements are consistent. There were no contradictions qua their statements. Muhammad Taj P.W.3 admitted in his cross-examination that he had enmity with the accused even prior to the day of occurrence; therefore, his statement needs independent corroboration. Even if for the sake of argument, his statement is not considered even then the statements of P.W.4 and P.W.5 are sufficient to establish the case of the prosecution beyond any shadow of doubt.
' Learned defence counsel emphasized much that the dying declaration was not recorded properly and in fact it is verbatim copy of the statement of Muhammad Taj P.W.3 before Muhammad Razzaq P.W.10. It was not properly brought on record during the re-examination of P.W.10, therefore, it could not be considered as corroborative piece of evidence. On the basis of law, Quetta High Court laid down the principle regarding recording of dying declaration in a case reported as Kashif-ur-Rehman and others v. The State 1996 PCr.LJ 1689. The relevant observation from the judgment is reproduced hereunder:- "The abovementioned ingredients were discussed by various higher Courts in different cases which resulted into formulation of acknowledged and time tested principles which are mentioned hereinbelow:--
(i) There is no specified forum before whom such declaration is required to be made.
(ii) There is no bar that it cannot be made before a private person.
(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.
(iv) It should be influenced free.
(v) In order to prove such declaration the person by whom it was recorded should be examined.
(vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased.
(vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence.
(viii)Such declaration when proved by cogent evidence can be made a base for conviction."
12. Keeping in view the above principle, it is established on the record that the dying declaration was recorded and even if it was not considered as dying declaration then it is a statement under section 161, Cr.P.C. Which corroborates the statement of P.W.4. As mentioned above, the statement of P.W.4 independently sufficient to establish the guilt against the appellants. Learned defence counsel has laboured much that the motive set up by the prosecution was not established on the record and in fact introduced an additional motive to involve the present appellants. There is consistent and pe sistent evidence available on record that it was the appellants who launched an attack and inflicted successive injuries to the deceased. The evidence qua their part in the occurrence is flawless and believable, as such, it was not essential in this case that a direct motive should have been available to them also. It is true that there is clear evidence as to what was the immediate cause for the appellants for firing upon the deceased, but the law is that if ocular evidence of such quality existed which was sufficient by itself to establish the guilt of the offender, the liability to punishment for the offence committed by him is not effected by uncertainty with regard to the motive. I am fortified by the principle laid down by the Honourable Supreme Court in a case reported as Safdar Abbas and 2 others v. The State PLD 1987 SC 467. The eye-witnesses have given a clear and fair account of the occurrence. The mere fact that all of them had not suffered injuries does not show that they were not present at the spot. The objection has no force and is hereby rejected.
13. According to Dr. Sajid Hussain Raja P.W.7, the death was caused due to injuries Nos.3 and 4 which were caused by fire-arm. It, therefore, follows that the medical evidence was consistent with the statements of the eye-witnesses that the deceased was done to death by the fire-arm injuries.
The appellants had used the fire-arms to cause those injuries, therefore, their intention to kill the deceased was very clear. Though the death had occurred after some days, but it was the direct result of those injuries. It was a broad daylight occurrence and committed in a manner with the clear-cut intention to kill the deceased. The appellants had achieved the object of killing the deceased by firing at him at the vital parts of his body with fire-arms. Learned counsel for the appellants in the first instance argued that the eye-witnesses in this case cannot be relied upon as they are not only chance witnesses but were also interested ones. It was also contended that since Mst. Razia Sultana P.W.4 was related to the deceased, therefore, her testimony should not be relied upon. After careful consideration of the facts available on the record and having perused her statement, I am of the opinion that the contentions raised by the learned counsel for the appellants have no force, hence the same are repelled. No doubt, Muhammad Nawaz was her maternal-uncle and also the real brother of her husband, but mere relationship is no ground to discard the prosecution evidence. The F.I.R. In this case was lodged with promptitude and the lengthy cross- examination clearly shows that she withstood the test and her credibility could not be shaken by the defence. In view of these circumstances, I am of the view that her statement cannot easily be brushed aside and I have further noticed that she has no enmity against the appellants. According to the principle laid down by the Honourable Supreme Court in Niaz's case reported in PLD 1960 SC 387 is the one who has a motive to falsely implicate the accused. In this case, nothing has been brought on record to suggest that Mst. Razia Sultana had been motivated so as to falsely involve the appellants in the present case. I have further noted that even an interested witness can also be relied upon provided the same gets corroboration from an independent evidence. As far as the testimony of Ghazanfar Khan P.W.5 and other eye-witnesses is concerned, I may state here that he has also no direct enmity with the appellants, therefore, he has also withstood the test of cross- examination and furthermore like P.W.4, he has no enmity with the appellants. Assuming for the sake of argument and without conceding that the eye-witnesses are interested and chance witnesses, but still their testimony stands corroborated through the medical evidence. These two witnesses have successfully explained their presence at the relevant time at the place of occurrence. It was not uncommon that when some nearest relation was admitted in the hospital, the near relatives must have to come early in the morning to find out the health of the ailing member of the family. Therefore, I am of the view that the contention raised by the learned counsel for the appellants has no force in it. I am fortified by the observations made by the Honourable Supreme Court in Riasat Ali's case reported in PLD 1991 SC 397. Their Lordships observed as follows:- - "It would suffice to say that even if a chance witness, his explanation regarding what he wanted to do at Railway Office being acceptable the so-called stigma of being a chance witness loses significance. The argument of the learned counsel that the Railway Office was closed, therefore, the witness should have been declared as having perjured himself is also without much force. The witness had gone to the Railway Station to get the seat reserved for Karachi. There is nothing to show that this was impossible to achieve."
14 The evidence of eye-witnesses in such circumstances could not be brushed aside merely for the reasons that they were closely related to the deceased particularly when Mst. Razia Sultana P.W.4 had no personal enmity against the appellants. The Honourable Supreme Court has laid down a principle in Abdul Rashid's case PLD 1975 SC 227. It observed that "the next important point which really forms the crux of the matter is the question regarding character of three eye-witnesses namely Abdul Rashid (P.W.8), Aura.Ngzeb (P.W.9) and Muhammad Nazir (P.W.10). P.W.8 and P.W.10 were the brothers of Babu Faqir Muhammad while P.W.9 was the Kamdar of doctor Tahir Hussain Siddiqi and as such they certainly had close interest in the deceased. In view of the established rivalry between the parties and clash of interest over land, the witnesses were not wholly disinterested. It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inflexible rule to be rigidly and unexceptionally applied". Learned counsel for the appellants was at pain to point out that the possibility that the injuries on the deceased could be the result of one shot could not be ruled out. In this regard, suggestion owned by Dr. Sajid Hussain Raja P.W.7 in his cross-examination to the effect that the injuries on the person of the deceased were possible by a single .12 bore shot containing several pellets was pointedly referred to. The concession of Dr. Sajid Hussain P.W.7 qua the possibility of one shot is not much consequence because possibility cannot take place the firm opinion. Assuming for the sake of argument that it was possible as per medical evidence, it is in clear contradiction to the eye-witness account which has been found truthful. In such an eventuality, medical opinion resting on the brink of possibility shall give away to the eye-witness account. It is pertinent to mention here that after perusing the record, there is no reason at all for bringing a false charge by the prosecution against the appellants as P.W.4 Mst. Razia Sultana has no enmity against them. It is further substantiated by the fact that in a broad daylight occurrence, the one brought about was a single charge with no possible attempt at substitution. It is against the common sense that the prosecution failed to bring the real culprits and falsely involve the appellants. This fact sufficiently established that the appellants were the real culprits and the question regarding substitution does not arise at all in the present case.
15. The appellants as well as the eye-witnesses belong to the same vicinity, therefore, they were well-known to each other, hence obviously there is no possibility of any kind of doubt about the identity of the appellants by the prosecution witnesses during the occurrence. Learned counsel for the appellants argued that the learned trial Court wrongly rejected the plea of alibi taken by Khalid Mahmood appellant especially in the circumstances when he took the same at the initial stages of the proceedings and the Investigating Officer gave findings in his favour duly supported by the statements of D.W.1 and D.W.2. It is admitted on the record that the distance between Kahuta and Taxila is not far off. Khalid Mahmood appellant was admitted in the hospital on 20-10-1990 whereas the occurrence took place on 21-10-1990. This makes the plea of alibi highly doubtful and appears to be arranged affair with Dr. Ikram Ullah Khan Niazi D.W.2. It is of no avail to the appellants nor it is likely to affect the evidentiary value of any of the eye-witnesses because they would not tell lie to scree the original offenders qua the present appellants particularly when the eyewitnesses are the close relatives of the deceased. Conversely, it becomes evident that the prosecution version was supported by the eye-witnesses in a natural manner. Similarly, it was hardly realized that the site plan itself is not a substantive piece of evidence which could be used to contradict or discredit the unchallenged evidence of the eye-witnesses.
' It is well-known principle of criminal jurisprudence that the trial Court had the opportunity to watch the demeanour of witnesses and form first hand impression about their deposition and due important should be attached to its conclusion drawn from their evidence.
16. Defence version is as follows:-- {{URDU TEXT}}
17. Let me see, whether the defence version fits in the circumstances and negates the prosecution version. Muhammad Nawaz deceased armed with, a hatchet and many others armed with Sotis came at the spot, but strangely enough that none of the persons received any injury from their hands. The appellants stated that it was a natural occurrence and someone inflicted injuries through the window and killed the deceased. Since they were already inimical towards Muhammad Taj P.W.3, so the complainant falsely roped them in this case. The occurrence as alleged and proved by the prosecution had taken place during the sunlight, therefore, there was no question of mistaken identity. This defence plea appears to be merely hallo. The prosecution has proved its case beyond any reasonable doubt.
17. According to the prosecution, the roles attributed to the appellants are as follows:- Muhammad Akhtar son of Jalal Khan shouted a Lalkara that Muhammad Nawaz had come and he be done to death. In the meantime, Khalid Mahmood, Muhammad Riaz and Muhammad Sharif accused came there armed with .12 bore gun each. Soon after coming there, Muhammad Sharif fired a shot hitting Muhammad Nawaz in front of his abdomen, then Riaz fired with his gun and the pellets hit Muhammad Nawaz on the left arm and the left thigh. Khalid appellant fired at P.W.4 Mst.
Razia Sultana which hit on his left hand and the left thigh.
17-A. It is pertinent to mention here that Muhammad Riaz appellant has already been died as stated at the Bar by the learned defence counsel. Therefore, the appeal stands abated to his extent.
18. It is an admitted fact that some incident had taken place on the same very day coupled with the enmity of the appellants and Muhammad Taj P.W.3. Khalid Mahmood and Muhammad Sharif appellants were attributed specific rule who fired from their respective weapons which hit the deceased, therefore, they are responsible for causing the death of the deceased. They have rightly been convicted by the learned trial Court and the sentence awarded to them is also appropriate.
As such, the sentence awarded to them by the learned trial Court is maintained. I, therefore, dismiss the appeal filed by Khalid Mahmood and Muhammad Sharif appellants. They were released on bail. They may be taken into custody and sent to jail to serve their remaining term of sentence.
19. So far as Muhammad Akhtar appellant is concerned, he was attributed only Lalkara. Therefore, keeping in view the circumstances and the rule attributed to him, the appeal to his extent is accepted and acquit him from the charge. He was released on bail. He shall stand discharge of his bail bonds.
20. The criminal revision has no merit and I dismiss the same.