CH. IJAZ AHMAD, J.- The learned Additional Sessions Judge, Rawalpindi ride judgment dated 4.5.1994 has convicted and sentenced the appellant for the murder of Muhammad Nawaz and launched murderous assault on Mst. Razia Sultana-P.W.4 as follows:
1. 2. #tbs
3. Imprisonment for life each;
4. With fine of Rs. 15,000/- each, or in default six months R.I. Each;
5. Compensation if fine realise shall be paid to the legal heirs of the deceased u/S. 324 PPC four years R.I. Each.
6. #to
7. Khalid Mahmood s/o Muhammad Akhtar. Aged 40 years. u/Ss. 302/34'P.P.C: 2 Muhammad Akhtar s/o Jalal Khan. Aged 60 vears; u/Ss. 302/34 P.P.C.; 3 Muhammad Sharif s/o Tikka Khan . Aged 25 years; u/S. 302/34 P.P.C; 4 Muhammad Sharif s/o Banaras Khan, aged 50 years, u/Ss. 302/34 P.P.C.; 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 convits have filed Criminal Appeal No. 65/1994 against their conviction and sentence while the complainant has also filed Criminal Revision No. 72 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 Maroef situated in village Dhoke Khena Dakhli Maira Tehsil Kehuta, District Rawalpindi at a distance of 10 miles from Policy Station Kehuta. Muhammad Taj/PW.
3. Brother of the deceased reported to Muhammad Razzaq S.T/PW.
10. Who recorded the statement of P.W.3. Exh.PC on the same day at Lalian, that Ahmad accused son of Amir was a contractor of sugar-cane, that on 5.7.1991 he had gone to the house of Ahmad accused when he was told that Ahmad had gone to the house of Zahoor Ahmad Lali. Advocate (accused since discharged) whereupon he went to the house of the said Advocate. In the ' Baithak' of Zahoor Ahmad Lali. Advocates were sitting Ahmad Sher accused (since discharged) son of Ahmad Hayat, Manzoor Hussain accused (since acquitted) and Ahmad convict son of Amir. In the meanwhile Muhammad Yar convict also arrived. They started talking.
Muhammad Yar convict asked from Zahoor Ahmad Lali, Advocate about him (Malik Muzaffar Abbas PW) when the said Advocate told him that he had arrived to meet Ahmad convict and that was nokobjectionable matter. Thereafter Zahoor Ahmad Lali asked about the programme for the murder of Sarfraz. Lali deceased and warned them that if Sarfraz.Lali would not be murdered, none of them should feel secure. On that Muhammad Yar, Ahmad Sher and Manzoor Hussain intimated him about different programmes made by them. Thereafter Zahoor Ahmad Lali, Advocate told the other persons that Sarfraz Lali had to go to the Court of Additional Sessions Judge on 6,7.1991 unarmed and they chalked out the programme to murder him on 6.7.1991. The tea was served and thereafter the aforesaid persons left them. He continued that he went to the house of Haji Muhammad Sarfraz Lali in M.Auza Walla to inform him about the programme chalked out against him unfortunately he had gone out-side. On the .Next day he went to Chiniot for the aforesaid purpose but Haji Muhammad Sarfraz Lali had left the Court after attending the same and later on he came to know at 10.25 a.m., about the murder of Haji Muhammad Sarfraz Lali, Musarrat Abbas and three other persons within the area of Police Station Rabwah. According to him the aforesaid five persons were murdered with the abetment of Zahoor Ahmad Lali, Advocate, Ahmad Sher (both discharged accused) as well as Manzoor Hussain (acquitted accused) and Ahmad (convict). The statement of Ahmad Yar PW-11 was recorded by the Investigating Officer on 7.7.1991 when he stated that he carried on. The business of sale and purchase of cattle alongwith Abdul Chant. He was on business terms with Ahmad Sher Bhatti (acquitted accused) son of Sikandar Khan. On 5.7.1991 he went to Ahmad Sher Bhatti (acquitted accused) alongwith Abdul Ghani in the evening and due to the advent of night stayed with him. At 8.00 p.m. Muhammad Yar convict, Barkliurdar alias Barklia proclaimed offender-convict. Muhammad Nawaz Bhatti convict alongwith to other persons arrived in one car. Muhammad Hayat acquitted accused,. Ahmad convict son of Muhammad, Muhammad Hayat alias Fauji (proclaimed offender-convict), Khizar Hayat (acquitted accused) son of Rahma arrived there in an other car, Ahmad Sher Bhatti was present in his house who was called by Muhammad Nawaz convict. At that time Muhammad Yar convict addressed Ahmad Sher Bhatti (acquitted accused) that the time had arrived to murder Haji Muhammad Sarfraz and others who had given shelter to the persons who had murdered his brother and nephew and that Haji Muhafitnwi'Sarfraz and others would be murdered on the next day. They demanded for weapon? As promised earlier. Thereafter Ahmad Sher Bhatti went to his house and brought one mouser, one pupish gun, one kalshinkove and one bag wherein perhaps were the cartridges from his house and handed over to Muhammad Yar and others. Thereafter Muhammad Nawaz and Ahmad Yar addressed Muhammad Yar and others that after murdering their enemies that they would do about their enemies? Whereupon they were intimated that thereafter was the tum of their enemies.
The persons left in both the cars. Muhammad Nawaz Bhatti convict and Ahmad Sher went to their house. Much of the night had passed. Earlier in the morning they went to Haji Muhammad Sarfraz in Mauza Walla to inform about the conspiracy hatched against him but they had gone to Chiniot.
Thereafter they came to know in Lalian that Haji Muhammad Sarfraz, Musarrat Abbas and their three companions had been murdered in Rabwah. Shamma PW-12 was examined on 9.7.1991 by the Investigating Officer under section 161 of the Code of Criminal Procedure who deposed bclore him that on the night falling between 5/6.7.1991 he was watering his land in Mauza Khai at 3,00 a.m. When he saw the light of a car. He was having a lantern with him. He went near the car and saw that Muhammad Yar son of Wali and Barkha son of Muhammad each armed with kalashinkove' alighted from the car. Three persons remained sitting whom he could not identify due to darkness. Muhammad Yar and Barkha went to the house of Manzoor after meeting him. He started his work of watering land. After half an hour Muhammad Yar. Barkha and Manzoor arrived back. Muhammad Yar told Manzoor that on the next day was date of hearing when he must arrive as the work would be done. Thereafter they went away.
10. Dr. Muhammad Sharif Medical Officer Rural Health Centre, Lalian, District Jhang PW-1 conducted the post-mortem examination on the respective deadbodies of Haji Muhammad Sarfraz, Musarrat Abbas, Zahoor Ahmad, Khizar Hayat and Ahmad Ali Machhi on 6.7.1991. He found seventeen injuries on the person of Musarrat Abbas deceased,' twenty to injuries on the person of Khizar Hayat deceased, nineteen injuries on the persori of. Zahoor Ahmad deceased eight injuries on the person of Ahmad Ali Machhi deceased and seventeen injuries on the person of Haji Muhammad Sarfraz deceased. According to him the cause of death was internal haemorrhage and other injuries on each deadbody. He issued respective post-mortem report Exh. PA, Exh. PE, Exh. PF, Exh. PG and Exh.
PH in respect of the aforesaid deceased persons. Mumtaz Hussain PW-5 identified the deadbody of his father Khizar Hayat at the time of post-mortem examination. Sher Muhammad PW-4 identified the deadbodies of Haji Muhammad Sarfraz, Musarrat Abbas. Zahoor Ahmad and Ahmad Ali Machhi.
11. Tahir Ahmad alias Tahiri (convict-proclaimed offender) was arrested on 2.9.1991 while he was sleeping on a Charpai. The kalashinkove P-17 and 15 live t'ullets P-18/1-15 were taken into possession by Younas Ali SI vide memo Exh. PN attested b> Muhammad Inayat Ullah PW-9. P-17 and P-18/1-15 were sealed into a parcel and handed over to Muhammad Sharif Moharrir/Head Constable PW14. Ahmad Sher (acquitted accused) son of Sikandar was also arrested while sleeping when pupish gun P-19 alongwith rounds P 20/1-18 were taken into possession vide memo Exh. PO attested by Muhammad Inayat Ullah PW-9. Physical remand of Tahir Ahmad alias Tahiri (convict-proclaimed offender) was obtained who while under police arrest led to the recovery of rifle P-15 with live cartridges P-16/1-3 from the roof of a mosque situated in grave-yard within the area of Mauza Dawar which was taken into possession vide memo Exh.PM attested by Falaksher PW-8.
12. The sealed parcels were handed over to Khan Muhammad PW-6 who delivered the same in the office of the Chemical Examiner and the Fire Arm Expert.
13. On 17.6.1992 Muhammad Rasheed SI PW-15 arrested Muhammad Nawaz convict. Abid Hussain Shah Sherazi Draftsman PW-2 prepared site plan Exh. PJ and Exh. PJ/1 on the Pointedness of the PWs on which the notes and drawings with blank ink are in his had which have been signed by him and the notes with red ink are in the had of Younas Ali SI PW-17 signed by him.
14. Muhammad Yar accused was employed in Allied Bank Circle Office, Faisalabad who took up the plea of alibi and defence that he was present in his office on 6.7.1991 at 9.00 a.m. While the occurrence took place at a considerable distance of 40 kilometers at Rabwah at 9.30 a.m. In this regard Younas Ali SI PW- 17 visited the Circle Office, Allied Bank, Faisalabad on 14.10.1991 and inspected the Attendance Register. He did not give weight to the said plea of alibi. After completing the investigation he submitted the challan.
15. Tahir Ahmad alias Tahiri accused was arrested on 2.9.1991 who, however, absconded afterwards' from a hospital.
16. Tahir Ahmad alias Tahiri, Barkhurdar alias Barkha and Muhammad Hayat alias Fauji became the fugitive of law who did not appear inspite of the proclamations. The triai was started by the trial Court. Syed Iftikhar Ali, Advocate was appointed to defend Tahir Ahmad alias Tahiri, Miss Tahira Kaleem, Advocate was appointed to defend Barkhurdar alias Barkha. Mr. Muhanjmad Basharat Ullah Khan, Advocate was appointed to defend Muhammad Hayat alias Fauji proclaimed offenders.
17. The trial Court charged the accused persons under sections -302/34 Pakistan Penal Code on five counts 302/109 Pakistan Penal Code and 120-B Pakistan Penal Code.
18. At the trial the aforesaid PWs stood in the witness box and supported the prosecution case, in his cross-examination Dr. "Muhammad Sharif Medical Officer PW-1 stated that all injuries except 4 on the person of Haji Muhammad Sarfraz deceased had been caused from the front side. He also deposed about the location of the injuries on the persons of the otrffr deceased. Abid Hussain Sherazi Draftsman PW-2 stated that the car of the PWs was not mentioned in the site-plans prepared by him. He stated that he did not mention the mares of all the accused persons except.
Tahiri accused, l.Iaquat Ali complainant stated that one Khan was murdered and false case of his murder was registered against his father Haji Muhammad Sarfraz, Musarrat Abbas and others which were under trial. Hp also mentioned the clqse relations of the accused persons. He denied the suggestion about his absence from the spot.- Sher Muhammad PW-4 admitted about the registration of some cases against him from 1954 to 1968 but claimed to be a councillor afterwards and stated that he contested the election of Chairmanship of Union Council against Liaquat Ali complainant. Younas Ali Sh Investigating Officer deposed in detail the facts of the investigation. The Assistant District Attorney tendered in evidence report Exh. PA/1 of the Chemical Examiner and report Exh. PB/1 of the Serologist, according to which the rubber mat and rubber dust were respectively stained with blood and human blood. He also produced report Exh. PC/1 of the Technical Services, Crime Branch Punjab, Lahore making out the positive observation about the use of the crime empties from the kalashinkove.
19. When examined under section 342 of the Code of Criminal Procedure all the accused persons tried by the trial Court stated about their non-participation in the occurrence and claimed to be innocent. All the accused tried by the triai Court did not appear on oath in their respective defence.
Muhammad Yar convict- appellant produced the defence evidence.
20. Mr. Atta Ullah Niazi retired DSP DW-1 stated about the investigation of one murder case during the year 1985 against Haji Muhammad Sarfraz deceased of this case. Aslam Raza Officer Grade-I, Allied Bank DW-2 stated that on 6.7.1991 Muhammad Yar accused remained in. The Bank Circle Office, Faisalabad from 9.00 a.m. To !
00 p.m as he-was employed there. He referred to page 60 of the Attendance Registu and produced a photostat of the same as Exh. DP. He stated that the Attendance Register was signed by the Assistant Vice President, in rebuttal he denied the suggestion that the Register was not properly being kept. He added that after page 60 there was no entry in the Register was a new Register was maintained. Muhammad Sharif ASI Police Station Lalian DW-3 produced photostat Exh. DQ pertaining to the entries in the Register and Exh. Dr pertaining to the cases registered against Shera alias Sher Muhammad son of Lala. In his cross- examination he admitted that the cases aeainst Shera alias Sher Muhammad were registered from 23.4.1954 to 23.6,1968.
Muhammad Ismail Constable DW4' proved Exh. DS, copy of wireless message sent immediately after the occurrence containing the facts of arrival of to cars, the occurrence and the departure of one car to Sargodha.
21. After hearing the parties learned trial Court convicted the aforesaid appellants and the three aforesaid proclaimed offenders as narrated above while Manzoor Ahmad son of Ghulam Hussain, Ahmad Sher son of Sikandar Khan. Muhammad Hayat son of Rahma and Khizar Hayat son of Rahma were acquitted.
22. Feeling aggrieved the aforesaid six appellants who" appeared during the trial and were convicted have preferred this appeal which has been resisted by the State as well as by the complainant. We have heard the learned counsel for the parties as well as the learned State Counsel and gone through the record before us.
23. Simplify and make easy this lengthy matter it would be proper to express that the prosecution has projected and led the evidence thereof to establish the following factual and legal aspects to connect the appellants and the proclaimed offenders-convicts with the occurrence:-
(a) Evidence with regard to the actual occurrence wherein Muhammad Yar son of Wali Muhammad, Zafar son of Rahma, Yara son of Shahu, Tahir Ahmad alias Tahiri (proclaimed offender) son of Muhammad Yar and Barkhurdar alias Barkha (proclaimed offender) son of Muhammad Yar participated as the assailants.
(b) Evidence of abetment of the murders under sections 302/109 Pakistan Penal Code deposed by Malik Muzaffar Abbas PW-13 against discharged accused namely Zahoor Ahmad Lali, Advocate and Ahmad Sher son of Muhammad Hayat as well as against acquitted accused Manzoor Hussain son of Ghulam Hussain and appellants Mian Ahmad son of Mian Amir and Muhammad Yar son $f Wali Muhammad.
(c) Evidence of criminal conspiracy falling under section 120-B Pakistan Penal Code through-the statements of Ahnrd Yar PW-11 and Shamma PW-12 against Muhammad Yar, Muhammad Nawaz.
Ahmad son of Muhammad appellants, Muhammad Hayat alias Fauji (convict- proclaimed offender) as well as Khizar Hayat and Ahmad Sher (acquitted accused) and the statement of Shamma PW-12, against Muhammad Yar appellant, Barkhuriar alias Barkha (Proclaimed offender- convict) and Manzoor Ahmad acquitted accused.
24. First of all the actual occurrence is analysed and dissected at this appellate stage. The prosecution evidence in this regard rests on the following ingredients:-
(1) Ocular evidence.
(2) Medical evidence.
(3) Motive.
(4) Recovery of crime empties P-21/1-98 of Kalashinkove and crime empties P-22/1-22 of mouser taken into possession vide memo Exh. PP, kalashinkove P-17 and bullets P-18/1-15 recovered from Tahir Ahmad alias Tahiri proclaimed offender at the time of his arrest and rifle P-15 alongwith crime empties P-16/1-3 said to have been recovered at the instance of Tahir Ahmad alias Tahiri proclaimed offender while under police arrest vide memo Exh. PM read with report Exh. PC/1 of the Technical Services Crime Branch, Punjab,. Lahore.
(5) Taking into possession of blood-stained mats vide memo Exh. PW, Exh.PR, Exh. PS, Exh.PT and Exh.PU as well as damaged car No. SLC 4141 vide memo Exh. PV wherein the deceased persons were travelling and were murdered.
(6) Photographs.P-23/1-13 taken into possession vide memo Exh.PY.
25. First of all we take up the Ocular evidence alongwith the medical evidence. Since the trial Court has placed the reliance upon the same, legally it is for the learned Advocates for the appellants to make doubtful the prosecution case or to establish that the same is false. Learned counsel for the appellants argued that the following facts are enough to make out that both Liaquat Ali complainant PW-3 and Sher Muhammad PW-4 were not present at the spot and that their testimonies do not merit to be relied upon:-
(i) Only the inmates of one car bearing No. SLC 4141 wherein the deceased persons were sitting was hit while neither car No. LEO 897 was damaged nor its inmates namely Liaquat Ali complainant PW- 3, Sher Muhammad PW-4, Khizar Hayat and Muhammad Khalid PW (both given up) were injured and that eyen hia car was also not taken into possession.
(ii) Both Liaquat Ali PW-3 and Sher Muhammad had no business to go to Chiniot and to return back so as to reach at the spot as they were not accused of the murder case.
(iii) The copy Exh. DS of the log book of wireless Post Saddar Chiniot, District Jhang. Two cars arrived from Chiniot to Rabwah when on one car the firing was effected through Kalashinkove from Toyota Corolla white coloured car whereby five persons were murdered and that the car was going towards Sargodha which may be checked. He maintained that only to cars were there and thus the presence of car No. LEO 897 alongwith its inmates i.e. The eyewitnesses stood eclipsed.
(iv) No independent person from the public has been produced to establish the prosecution case.
(v) None of the eye-witness namely Liaquat Ali PW-3 and Sher Muhammad PW-4 as well as both the given up PWs attested any memo of recovery after the occurrence.
(vi) In the rough site-plan Ex. PZ prepared by the Investigating Officer just after the occurrence at the time of the spot inspection and in the site-plan Exh. PJ prepared on 14.7.1991 by the Draftsman neither the names of the PWs, the assailants/convicts nor the names of the deceased persons are incorporated and, indicated. Further the presence of both the cars, of the complainant party and The car of the assailants have not been shown therein.
(vii) The criminal murder case against Haji Muhammad Sarfraz deceased, his son Musarrat Abbas deceased and others was transferred from Chiniot to Jhang by the Lahore High Court, Lahore before0 6.7.1991 and in this regard he referred to copy Ex. DO of order dated 27.6.1991 passed by the. Additional Sessions Judge, Chiniot and copy Exh.DO/1 of the order passed by the Sessions Judge, Jhang on 6.7:1991. According to him in order dated 27.6.J991 (Exh. DO) learned counsel for the accused persons of that case which included Haji Muhammad Sarfraz deceased and Musarrat Abbas deceased undertook to intimate them and some of the accused, persons appeared on 6.7.1991 (on the date of occurrence) before the Sessions Judge, Jhang. He added that there was no occasion for the deceased persons to go to the Court of the Additional Sessions Judge, Chiniot.
26. The aforesaid points i-iii raised in defence by the learned counsel for the appellants need not be given the weight as it has rightly been canvassed by the learned State Counsel ?s well as by the learned counsel for the complainant that it is a case of long standing enmity. After firing upon five persons who died at the spot within the car and were not even allowed to emerge from the same, it was the natural conduct of the assailants to leave the place immediately. The car of the assailants had crossed the car wherein the eye-witnesses were sitting and after the occurrence of the instant heinous nature particularly when Haji Muhammad Sarfraz and Musarrat Abbas accused of the murder case had lost their lives there was no occasion for the assailants to fire at the eye- witnesses travelling in car No. LEO 897. It is a matter of common observation and knowledge in our Province that in murder cases wherein the parties have long standing enmity the relatives and other persons accompany both the parties for protection and safeguard. Thus it matters nothing if PWs 3 and 4 were not facing the trial. No effect has been made to get requisitioned the record from the office of the Registration Officer, Chiniot situated in front of the Court of the Additional Sessions Judge,. Chiniot. It would have been better for the defence to have requisitioned the record in the matter and in case of non-availability of the record in the matter Sher Muhammad PW-4 could easily be disbelieved. The issuance of wireless message contained in copy Exh. DS is also of no help to the appellants to make us hold that both the eye-witnesses were not present. This is a message to check the car which had left the place of occurrence toward^ Sargodha. It was not issued to project that there were Only to cars at the spot, one damaged by the assailants who committed the murder of the five inmates and the other wherein the assailants were sitting and had gone to Sargodha. There was no need to mention the third car. With the material on record in the matter the presence of Liaquat Ali and Sher Muhammad eye-witnesses (PWs 3 and 4) stands established and the aforesaid objections raised in the matter have failed to muster the desired effect.
27. So far as the argument of the learned counsel for the appellants that the people from the vicinity have not figured in the witness-box to support the prosecution case, we have to express that during these days such an argument is devoid of legal force. The witnesses in these days generally refrain to join the investigation and to appear as witnesses to give evidence against the offenders by running the risk of their lives at the hands of the accused persons, it is a general reluc;:;nce that the people do not want to appear as witnesses. It is a frequent experience of criminal Courts that many a gruesome tragedy is enacted with many on-lookers around while the assassins are allowed to operate without any hinderance who succeed in making good the escape from the scene without impunity. It is one aspect of the matter. We are in full agreement with the learned counsel for the complainant who laid the emphasis that the occurrence is not of that type that in any Mohallah or in any village the same took place. It was on the road going from Chiniot to Sargodha that the car of the deceased persons was stopped on the ' Kacha' side of the road and within few minutes the occurrence finished. The presence of any .Person at the spot at the time of occurrence cannot be expected. Due to the gruesome murder even the persons near the spot must have ran away which should be the natural conduct and thus only Liaquat Ali and Sher Muhammad PWs-3 and 4 have rightly been held to be the natural witnesses who saw the occurrence .5 The non-appearance of any person from the vicinity in the special circumstances of this gruesome occurrence is not at all fatal to the prosecution case.
28. The fact that none of the eye-witnesses has attested any memo of recovery at the initial time of investigation is of no legal help to the appellants and has not damaged the prosecution case. It was a gruesome and sensational occurrence wherein five persons lost their lives. The condition of Liaquat Ali complainant PW- 3 who is closely related to to deceased persons can well be imagined.
Sher Muhammad accompanied the dead-bodies to the mortuary who identified the deadbodies and after getting recorded his statement before the Police he left to the Rural Health Centre, Lalian.
This aspect of the matter has failed to shatter the prosecution case.
29. Now we take up rough site-plan Ex.PZ and other site-plan Exh. PJ prepared by At)id Hussain Shah.Sherazi Draftsman PW-2. Relying on Mehar Ali and others v. %ke State (1968 SCM R 161) it was argued by the learned counsel for the appellants that the omission to indicate in site-plan the position of the eyewitnesses ht the time of occurrence would reflect on the possibility of the witnesses not being present at all at the spotvat the time of occurrence. We have all the respect of the observations and the aforesaid findings. However, we have to express that afterwards different view has been expressed in the ruling published as Mst. Shamim Akhtar v. Fayyaz Akhtar etc. (NLR 1992 Criminal 238). It has been held by the Supreme Court that the site-plan of occurrence is not a substantive piece of evidence. It has been commanded in Ali. Sher v. The State and three others (PLD 1980 Supreme Court 317) that the omission to indicate the position of the eyewitnesses in the site-plan would not lead to the inference of such witnesses being not present particularly when the presence of such witnesses at the spot at the time of occurrence is natural in circumstances of case. This ruling was relied upon in the ruling published as Nauroz v. The State (1986 P.Cr.L.J. 3019 Quetta) wherein it was held that the mere fact that the presence of the witnesses is not mentioned in the site-plan and the places where they were alleged to be present were not shown in the site- plan would not invalidate their testimony and that this can be at the most any omission at the part of the Investigating Officer At this stage I am tempted to express that with the passage of time enormous laxity stands inculcated in the disciplined force of police by its members and it is a clear instance of that nature. It is a pity that it is not being realized by the Police Officers that they have to perform an important duty. In view of the wealth of the aforesaid case law the fate of a case cannot be handed over to an Investigating Officer or to a Draftsman who through intentional negligence and laxity may proceed in a recalcitrant manner and the prosecution case is shattered thereof. Such a working can obviously be deprecated being violative of law and against legal ethics as well as Islamic Injunctions. The FIR was promptly lodged and in case the witnesses, the accused and the cars have not been indicated in the site-plans that is of no adverse effect to the prosecution case. We, therefore, discard this assertion adopted by the learned counsel for the appellants.
30. Last objection is about the transfer of the case from the Court of the Additional Sessions Judge, Chiniot to the Court of the Sessions Judge, Jhang by the High Court. It has been argued by the learned counsel for the appellants that due to the undertaking given by the learned counsel for the deceased persons in the order dated 27.6.1991 (copy Exh. DO) both Haji Muhammad Sarfraz and Musarrat Abbas accused could not be expected to go to Chiniot on 6.7.1991 as they had to go to the Court of the Sessions Judge, Jhang where their co-accused namely Mumtaz Hussain son of Mahmand Khan, Nawaz and Mumtaz sons of Ghaus Muhammad appeared in the relevant case. It would be a palpable error to agree with him in view of the argument of the learned State. Counsel that there is no material on the record to make out that both Haji Muhammad Sarfraz deceased and his son Musarrat Abbas were served for 6.7.1991 for appearance before the Sessions Judge, Jhang. The undertaking given by their learnecfAdvocate in order dated 27.6.1991 (Exh. DO) is not enough in the matter to make bid that they had to go to Jhang and not to Chiniot. Without their service in the matter the objection and argument adopted by the learned counsel for the appellants need not be given the weight especially when during these days the accused persqns coin different ways to effect delay in the conclusion of the trial of murder cases. In view of our long experience in the judicial field it can safely be expressed that in matters in which no work has to be done as in the instant relevant matter due to transfer of the case from Chiniot to Jhang, the matter is taken up early in the morning. Further the Sessions cases are taken up after 11.00 a.m. This is the reason that Haji Muhammad Sarfraz and Musarrat Abbas got the information early in the morning at Chiniot and started for their home. It was the month of July, 1991. The occurrence took place at 9.30 a.m. At a short distance from Chiniot. The matter was taken up on 6.7.1991 by the Sessions Judge in routine and due to the occurrence the co-accused irad come to know about the murder of Haji Muhammad Sarfraz and his son Musarrat Abbas. As such the transfer of the other relevant case from Chiniot to Jhang in the aforesaid circumstances and with the aforesaid reasoning shall not make the prosecution case weak or non-existent qua the assailants appellants.
31. Learned counsel for the appellants argued that Liaquat Ali PW-3 is an interested witness being the son and brother of deceased persons namely Haji Muhammad Sarfraz and Musarrat Abbas respectively who as well as Sher Muhammad were the chance witnesses and it is not safe to rely upon their statements. They added that both PW-3 and PW-4 are admittedly inimical towards the appellants and it is not safe to rely upon their statements especially when many criminal cases were registered against PW 4. On the contrary learned State Counsel and learned counsel for the complainant laid the emphasis that in the circumstances of the matter both the eye-witnesses are the natural witnesses and the only fact that the cases were registered and pending earlier between the accused persons on the one side and the eye-witnesses on the other side would not diminish the value of their statements. We do not agree with the learned counsel for the appellants.
Legally the testimony of an interested witness can sustain conviction if found free from doubt.
Independent corroboration cannot at all always be insisted upon as it may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witnesses have spoken the truth. As held supra the presence of both the PWs at the spot was natural. Mere enmity due to the registration and pendency of the earlier criminal cases is not fatal. If such an argument is given the weight then in cases of the instant nature if the assailant party has to face the same fate as the deceased persons have met and the witnesses are none else than their relatives such a game can continue and every time the advise party shall be getting the order of acquittal. We discard this argument and hold that the statements of both the eye- witnesses inspire the confidence. We would be glossing over an important aspect of the matter by expressing that the occurrence took place at 9.30 a.m. During summer season on 6.7.1991. There is no doubt about the initial criminality and identity of the assailants-appellants. The occurrence took place on the highway. The assailants made good their escape. The registration of criminal cases (Exh.DR) against Sher Muhammad PW-4 from 1954 to 1968 would not make him discreditable witness due to lapse of more than to decades when at present he is leading a different life. Hence we believe the prosecution version.
32. The medical evidence has rightly been believed by the trial Court and there is no justification to discard the same as desired by the appellants on the score that the eye-witnesses need not be believed being false. We have already believed the eye-witnesses. The assailants were in the white Toyota Corolla which crossed car No. LEO 897 wherein the PWs were sitting and from the said white Toyota Corolla burst was fired which hit the right eye of Zahoor Ahmad deceased who was driving car No. SLC 4141 wherein the deceased persons were sitting/travelling.
The car of the assailants was on the right of car No. SLC 4141 and there is the injury No. 1 on the right eye of Zahoor Ahmad driver as shown by the Medical Officer (PW-1) in the post-mortem report Exh.PG. The number of injuries on the person of each of the five deceased has established that the weapons narrated in the FIR and seen by the eye-witnesses were used during the occurrence. The defence has not been able to ,make doubtful the statement of the Medical Officer (PW-1) who conducted the post-mortem examination of the five deadbodies. The cumulative effect of the aforesaid state of affairs, analysis of evidence and discussion would be that the trial Court has r- ghtly believed the Ocular evidence and the medical evidence against the assailants.
33. At this stage learned counsel for Muhammad Yar appellant canvassed about his plea of alibi on the strength of Attendance Register showing the presence of Muhammad yar in Circle Office, Allied Bank, Faisalabad on 6.7.1991 from 9.00 a.m., to 1.00 p.m., who produced in evidence Exh. DP, photostat of relevant page No. 60. According to him the Register was relevant and admissible under Article 49 of the Qanoon-e-Shahadat Order, 1984 pertaining to relevancy of entry in public record made in the performance of duty. He argued that before Younas Ali Sl/Investigating Officer the plea of alibi was taken up $nd the same was not an after-thought affair during the trial. He added that it was Saturday on 6.7.1991 and being half-working day Muhammad Yar appellant remained present from 9.00 a.m. To 1.00 p.m. We hold a different view on the basis of the reasoning adopted by the learned trial Court as well as by the learned adverse counsel and that also through the support of the statement of Aslam Rana Officer Grade-I, Allied Bank DW-2 in the cross- examination. There is nothing on record to make out that as to why there was no entry on page;60 after the date of 9.7.1991 and why the new Register was maintained. It is" pertinent to mention that the Register was checked by Younas Ali SI on 4.10.1991 who "made the endorsement against the relevant entry pertaining to Muhammad Yar appellant. This page could be used during the remaining days of the month of July, 1991 i.e., frqm 10.7.1991 onwards. The aforesaid aspect is enough to make out that the Attendance Register is of no help to Muhammad Yar accused with respect to the plea of alibi agitated by him. It would not be out of place to express that it is a matter of common knowledge observation that such type of Registers are maintained in routine and even the Officers show soft comer towards the subordinates coming late on a day. Further, the Assistant Vice President of the Allied Bank, Circle Office, Faisalabad did not figure in the witness box who being the competent authority was in a better position to help Muhammad Yar convict. Thus the non-appearance of the Assistant Vice President has made us to draw an adverse presumption against Muhammad Yar convict. The plea of alibi, as such, has not been established and has rightly been discarded by the trial Court.
MOTIVE.
34. The motive has rightly been given the weight by the trial Court. The canvassing made by the learned counsel for the appellants that the motive is a double edged weapon and the chance of false accusation cannot be? Ruled out has failed to touch our sense of appreciation. There is long standing enmity between the parties and it can safely be held that the aforesaid admitted position will prove to be corroborative piece of evidence againet the appellants.
35. The recovery of the crime empties and the kalashinkove with bullets coupled with report Exh.
PC/1 of the Technical Services as well as the recovery of the mats suj^orted by the reports of the Chemical Examiner and Serologist have connected the assailants with the occurrence. In this regard learned counsel for the appellants have not been able to point out any material factor to make us discard this ingredient of the prosecution case.
36. As such against the assailants namely Muhammad Yar son of Wali Muhammad, Zafar alias Zafar Abbas son of Rahma and Yara son of Shahu (appellants) as well as against Barkhurdar alias Barkha and Tahir Ahmad alias Tahiri both proclaimed offenders-convicts the prosecution has established its case who have rightly been held to be criminally liable in the matter of this gruesome occurrence wherein five persons were murdered.
Conviction under section 302/109 PPC.
37. In this respect we are in full agreement with learned counsel for the concerned appellants that the solitary statement of Malik Muzaffar Abbas PW-13 is not enough to make out the alleged abetment, against the convicts-appellants especially when the star person about the abetment, was Zahoor Ahmad Lali, Advpcate who-hlongwith Ahmad Sher son of Ahmad Hayat was discharged during the investigation. If the statement of Malik Muzaffar Abbas PW-13 has not been given the weight at that initial time there is no justification to hold the attraction of section 302/109 PPC against the aforesaid concerned convicts-appellants. Further, on the same evidence only Mian Ahmad appellant son of Mian Amir has been convicted while Manzoor Ahmad son of Ghulam Hussain was acquitted after fulfledged trial. As expressed above Zahoor Ahmad Lali, Advocate and Ahmad Sher son of Ahmad Hayat who were ascribed the same role were discharged. In view of the aforesaid aspect of the matter we do not agree with the learned State Counsel who argued that Ahmad appellant son of Amir has rightly been convicted under section 302/109 Pakistan Penal Code. In view of the aforesaid reasoning we hold that the conviction recorded under section 302/109 PPC cannot be sustained and we set-aside the same.
Conviction under section 120-B Pakistan Penal Code.
38. About the conviction recorded under section 120-B Pakistan Penal Code that a conspiracy was hatched there are the statements of Ahmad Yar PW-11 and Shamma PW-12. Learned counsel for the concerned convicts has rightly pointed out that Ahmad Yar PW-11 claimed to be present at the relevant time at the relevant place alongwith Abdul Ghani PW who was examined by the police and was given up. Thus Ahmad Yar PW-13 has not been corroborated on the aforesaid fact by any person including Abdul Ghani. His solitary statement in the matter has failed to muster the desired effect. The statement of Ahmad Yar was also recorded on 7:7.1991 and not on 6.7.1991 and keeping in view the nature of the aforesaid fact it can safely be expressed that he was introduced afterwards and it was also the reason that Abdul Ghani did not support him as he was not produced. The statement of Shamma PW-12 in the matter is also of the same nature as the same has not been corroborated by any other prosecution witness. As to what type of conspiracy was hatched by Muhammad Yar. Barkhurdar alias Barkha and Manzoor has not been narrated by him.
He has not named any of the deceased persons in his statement recorded by the police and by the Court. The only fact that Shamma PW stated that the accused persons talked to each other about the date of hearing on the next day is not enough to implicate them towards the charge under section 120-B Pakistan Penal Code. Further on the same evidence some accused have been acquitted of the charge under section 120-B Pakistan Penal Code which aspect of the matter has also made us to disbelieve this part of the prosecution case. We, therefore, hold that the prosecution has failed to establish the charge under section 120-B Pakistan Penal Code and set- aside the conviction to that extent.
39. At this stage we would express that Shamma PW did not hear anything about the deceased persons and that is enough to discard his statement as expressed above. However, even though Allah Yar heard about the fact that the conspiracy was hatched in his presence and Malik Muzaffar Abbas PW-13 heard about the abetment, both of them did not inform Haji Muhammad Sarfraz deceased during his life time. They have given the respective explanation that they could not inform as Haji Muhammad Sarfraz had gone to Chiniot and thereafter they had started from Chiniot. An important aspect to be considered is that Allah Yar PW-11, Shaman PW-12 and Muzaffar Abbas PW-13 did not inform Liaquat Ali complainant even B after the occurrence and before the recording of their statements. They did not inform the Investigating Officer in this regard before recording of their respective statement. We have made a perusal of the police file which is silent in this regard. This missing link in the aforesaid alleged factums of alleged attraction of section 302/109 and section 120-B Pakistan Penal Code had made us to hold that the same were coined and cooked afterwards and is an overdoing on the part of the "police officer. The mention of abetment in FIR Exh. PK need not be given the weight as Zahoor Ahmad Lah, Advocate was got discharged during the investigation. In view of the aforesaid reasoning as well, the conviction of the appellants to that extent is liable to be set- aside and we pass an .
40. For what has been said above, we dismiss this appeal to the extent of appellants namely Muhammad Yar son of Wali Muhammad, Yara alias Allah Yar son of Shahu and Zafar alias Zafar Abbas son of Rahma. Keeping in view the number of assailants, who were five, we hold that the assailant appellants are liable under section 302/149 Pakistan Penal Code has not been framed by the trial Court. In view of gruesome occurrence where in five persons were intentionally murdered by the assailants, we hold that the quantum of punishment against them is justified.
41. However, to the extent of Ahmad son of Muhammad, Mian Ahmad son of Mian Amir and Muhammad Nawaz son of Muhammad Bakhsh we accept this appeal, set-aside the impugned judgment and acquit them. Muhammad Nawaz appellant is present today on bail whose bail bond is cancelled and surety, discharged. The appellants namely Ahmad son of Muhammad and Mian Ahmad son of Mian Amir shall be set at liberty forthwith, if not required in any other case.