' MUNAWAR AHMAD MIRZA, J.---These appeals, by leave of the Court, are directed against judgment, dated 13th February, 1994 in Criminal Appeal No,175 of 1991 and Murder Reference No,307 of 1991.
2. Relevant facts, set out by prosecution are that on 15th June, 1989 at Zoharwella complainant Bahawal alongwith some members of family namely Mst. Fateh Bibi, mother, Mst. Rajan Mai, grand mother, Muhammad Ramzan alias Moujdin, Muhammad Ayub, Abdul Hamid, Thiraj, Allah Yar and Falak Sher were gossiping near Cattle Shed located in Square No,101. Suddenly Arshad son of Shafi, Muhammad Iqbal, Ehsanul Haq, Muhammad Ali, Arshad son of Muhammad Ali, Muhammad Sharif, Ghulam Rasool, Anwar, and Shafi carrying fire-arms and Lathis forming unlawful assembly arrived there and by challenging, attacked them in furtherance of their common intention. Arshad Arain fired with his gun, hitting Abdul Hamid, who fell down on receiving injury, Muhammad Ali fired at Muhammad Ayub, which struck him and was fatal. It is the case of prosecution that noticing violent firing the complainant and other family members started running away. Still, lqbal Jat fired at Muhammad Ramzan and Arshad Jat fired at Theraj, who receiving such injuries fell down on the spot. Besides the assailants had caused Lathi injuries to Mst. Rajan Mai and Mst. Fateh Bibi. The accused thereafter fled away. Injured (i) Abdul Hamid, (ii) Muhammad Ayub, (iii) Muhammad Ramzan and (iv) Theraj expired at the spot on account of fire-arm injuries.
3. Motive suggested was, that accused Muhammad Ali Arain somehow managed allotment of half square of land which actually belonged to complainant part from area covering square No,100.
Father of complainant obtained stay order, but accused side were aggrieved and provoked, therefore, they unjustifiably attacked resulting in unfortunate incident.
4. On completion of investigation, appellants alongwith four companions (since acquitted) were sent up for trial before Additional Sessions Judge, Khanewal, who recorded the evidence. Eventually trial Court by means of judgment dated 19-6-1991 convicted the appellants under section 302, P.P.C. The operative portion is reproduced below:- "Now it brings me to the quantum of sentence of each accused. Since the accused brutally killed four deceased without showing any mercy on the helpless family and their children, I, therefore, feel inclined to the view that they do not deserve any sort of leniency in awarding the sentence even the motive is not helpful at this stage since they have been assigned specific roles of causing murder of each accused. I, therefore, proceed to convict and sentence Muhammad Arshad son of Muhammad Ali accused for causing murder of Abdul Hamid deceased to death penalty under section 302, P.P.C. With a fine of Rs,10,000 and in default to suffer an imprisonment of one year S.I. He is also ordered to pay Rs,10,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased Abdul Hamid, else to further suffer one year's S.I. I convict and sentence Muhammad Iqbal accused to death penalty under section 302, P.P.C. For causing murder of Muhammad Ramzan deceased with fine of Rs,10,000, else to further suffer one years' S.I. He is also ordered to pay Rs,10,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Muhammad Ramzan, deceased, else to further suffer one year's S.I. I also proceed to convict and sentence Arshad son of Muhammad Shafi accused to death penalty under section 302, P.P.C. For causing murder of Thiraj deceased with fine of Rs,10,000, else to further suffer one year's S.I. He is also ordered to pay Rs,10,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Thiraj deceased else to further suffer one year's S.I. They be hanged by neck till dead. I proceed to convict and sentence Muhammad Ali son of Rehmat Ullah accused to imprisonment for life for causing the murder of Muhammad Ayub deceased, the extreme penalty of death is not awarded to him as he is an old and infirm man more than 60 years of age and his son namely Arshad has already been sentenced to death, I also impose fine of Rs,10,000, else to suffer one year's S.L He is also ordered to pay Rs,10,000 as compensation to the legal heirs of deceased Muhammad Ayub.
' I proceed to convict Muhammad Sharif accused to suffer imprisonment for life for causing injuries on the person of Mst. Fateh Bibi under section 307/149, P.P.C, with fine of Rs,5,000 in default to further suffer imprisonment for six months with benefit of section 382, Cr.P.C.
' The death sentences shall be subject to the confirmation of the Hon'ble High Court in which a separate reference under section 374, Cr.P.C. Shall be made. A copy of this judgment also be sent to the District Magistrate under section 373, Cr.P.C. The convicts have also been apprised that they can prefer appeal against this judgment within seven days and copy of this judgment shall be supplied to them free of costs. The case property gun P17 and Sota P18 be confiscated to the State."
5. Appellants challenged their conviction and sentence before Lahore High Court, Multan Bench, through Criminal Appeal No,175 of 1991. Whereas learned Additional Sessions Judge had made murder reference No,307 of 1991 for confirmation of death penalty. Both these matters were ultimately decided by common judgment, dated 13th February, 1994. Operative portions reads:-- "The nutshell of the above discussion is that the complainant party in order to retain the physical possession resisted the demand of appellant to vacate the land and each party raised controversy for the possession of the land. The desire of the appellant party of exclusive possession with no out side interference and the struggle of the complainant party to retain the possession and establish their claim before the Court instigated the appellant to deal with the complainant side and as a result thereof the accused side to achieve this purpose committing open aggression took lives of the four persons of the complainant party. We, therefore, are of the considered opinion that if being a premeditated occurrence, the findings of the guilt of the appellants arrived at by the trial Court being unexceptionable do not call for interference.
' Coming to the question of vicarious liability and quantum of sentence, we notice that the trial Court convicted each appellant for his individual liability without application of section 149, P.P.C.
The conviction was also not recorded under section 148, P.P.C. The learned trial Court probably having some impression in its mind, that it was a free fight convicted each appellant as per his role played in the occurrence whereas by application of section 149, P.P.C., each appellant was responsible for the three murders. Muhammad Sharif having not been convicted and sentenced under section 302, P.P.C., further clarifies that the trial Court travelled on the basis of individual liability. The State has not preferred any appeal in the case, therefore, at this stage, we do not consider it proper to open this matter suo motu. There is no mitigating circumstances available on record or brought and pleaded by the defence for the lesser punishment. We have also not been able to trace out any circumstance from record in favour of the appellants for lesser penalty. We accordingly dismiss this appeal maintaining the conviction and sentence awarded to the appellants by the trial Court. The death sentence awarded to the three appellants is confirmed and the murder reference is answered in the affirmative."
6. Appellants feeling aggrieved from the above judgment preferred Criminal Petitions 96-L of 1994 and 110-L of 1994 before this Court. However, leave was granted vide order, dated 13th March, 1995, in the following terms:-- "(3) Malik Saeed Hassan, the learned A.S.C. Contended that the case regarding possession was wrongly considered as on record it was with the accused/petitioners but the benefit was given to the complainant. The learned counsel further contended that the petitioners in Petition No,96-L of 1994 namely Muhammad Arshad and Muhammad Iqbal did not have any motive and that the eye-witnesses namely P.W.6 and P.W.7 are related to the deceased and are interested witnesses.
The learned counsel vehemently argued that the case of these petitioners has not been considered at all by the learned Judges of the High Court.
(4) Mr. Khyzir Hayat, the learned A.S.C. For the petitioners in Petition No,110-L of 1994 contended that the petitioners had exercised the right of self-defence and, therefore, the conviction cannot be justified. He further contended that the evidence of eye-witnesses should not have been believed as they are interested witnesses and there was no corroborative evidence to support it. The evidence of these witnesses against the petitioners is consistent and cogent. It is supported by the medical evidence and, therefore, such plea cannot be entertained.
(5) We grant leave in Cr.P.No,96-L of 1994 to consider the contentions raised by the learned counsel for the petitioners mentioned hereinabove.
(6) In Cr.P.No,110-L of 1994 leave is granted to consider wether the petitioners were entitled to exercise right of self-defence and if so, was it exercised according to law."
' Malik Saeed Hassan, Sr. A.S.C., appearing for appellants Muhammad Arshad and Muhammad Iqbal sons of Muhammad Shafi, in Criminal Appeal No,87 of 1995 contended that:--
(i) No recovery has been effected from appellants. They are strangers to the parties and have no motive to attack complainant or deceased.
(ii) The entire case against appellants Muhammad Arshad and Muhammad Iqbal hinges upon testimony of P.W.8 complainant Bahawal and P.W.7 Mst. Fateh Bibi, who are undisputedly related to deceased, as such deeply interested witnesses.
(iii) Both the Courts below unjustifiably discarded defence version and totally ignored category stand taken by co-accused Muhammad Arshad son of Muhammad Ali, who had admitted firing in the peculiar circumstances, which were duly explained.
(iv) The conclusions of Courts below suffer from various defects, therefore, could not be sustained.
(v) Keeping in view conclusions of Courts below whereby appellants were held individually responsible for their respective acts and application of section 149, P.P.C. Was excluded, awarding of death penalty was unwarranted.
8. Mr. Khyzir Hayat, A.S.C., appearing for appellants (i) Muhammad Arshad (ii) Muhammad Ali and
(iii) Muhammad Sharif, appellants in Criminal Appeal No,89 of 1995 canvassed that:-
(i) There are patent defects and glaring improbabilities in the prosecution evidence, whereby ocular version becomes tainted and does not inspire confidence. Thus, independent corroboration was necessary, which is lacking in the present case.
(ii) Medical evidence as regards injured Mst. Fateh Bibi and Mst. Rajan Mai, is contradictory to ocular version whereby their presence at the spot is also doubtful.
(iii) Prosecution evidence coupled with defence version and circumstantial evidence brought on record, suggests that complainant side was aggressor, thus, sufficient grounds existed whereby extreme penalty awarded to appellants Muhammad Arshad son of Muhammad Ali was not warranted.
(iv) Appellant Muhammad Sharif son of Rehman Ali has been assigned role of inflicting Sota injuries to Mst. Fateh Bibi and Mst. Rajan Mai and, therefore, both the Courts below acted illegally by imposing imprisonment for life specially when each accused was held to be responsible for their respective acts.
9. Mr. Muhammad Zaman Bhatti, A.S.C., appearing for the State, vehemently opposed the appeal and argued that:--
(i) Ocular evidence produced by prosecution is natural, consistent and confidence inspiring.
Besides, their testimony is supported by medical evidence and other circumstantial factors.
(ii) Muhammad Arshad, Muhammad Ali and Muhammad Sharif Jats have undisputedly strong motive for attacking complainant/party. Whereas defence version introduced on their behalf is highly imaginary, containing distinct improbabilities, therefore, same is apparently unbelievable,
(iii) The evidence and background of circumstances clearly discloses that appellants were aggressor, therefore, they cannot claim. Protection of self-defence. Reliance is placed on observations in case 1992 SCM R 2037 (Manzoor v. State).
(iv) Appellants Muhammad Arshad and Muhammad Iqbal, Arain, have professed absence of enmity with complainant party. Therefore, considering particular factors normally testimony of eye-witness having no enmity with abovementioned appellants is outrightly reliable. Objection about doubting ocular version has, therefore, no significance.
(v) Mere absence of motive by itself does not afford sufficient ground to absolve appellants in Criminal Appeal No,87 of 1995 from the offence alleged against them.
(iv) Preponderant evidence on record, as rightly appreciated by the two Courts below, is sufficient for holding the appellants guilty. There is hardly any substantial ground for lawfully challenging the impugned judgments.
10. We have carefully perused the record and considered arguments advanced by learned counsel for the parties.
' P.W.1 Dr. Muhammad Saleem Arshad had conducted autopsy upon dead bodies of deceased (i)
Abdul Hamid, (ii) Muhammad Ramzan, (iii) Thiraj and (iv) Muhammad Ayub on 16th June, 1989. He also examined injured Mst. Fateh Bibi and Mst. Raw Mai on 15th June, 1989. ' Details of injuries and opinion recorded by him in respect of each of abovementioned persons are given below:-
(i) Deceased Abdul Hamid:
(1) Two wounds of entries lying close to each other 1/4 c.m. x 1/4 c.m. Going deep and upward on the centre of the upper lip just below the nose.
(2) Wound of entry 1/2 c.m. x 1/2 c.m. Going deep on the right side of the case, mendible area 5 c.m.
Below the pinna.
(3) Wound of entry i/2 c.m..x 1/2 c.m. Going deep 6 c.m. Away from injury No,2 on the medial area.
(4) Wound of entry 1/2 c.m. x 1/2 c.m. 8 c.m. Below and medial to injury No,3.
(5) Four wounds of entries 1/2 x 1/2 c.m. Each on the right side of the forehead.
(6) Wound of entry 1/2 x 1/2 c.m. Going deep on the right side of neck, one c.m. Away from pinna.
(7) Wound of entry 1/2 x 1/2 c.m. Going deep on the middle of right side of the neck, 6 c.m. Below injury No,5.
(8) A multiple wound of entry 8 in number, 8 c.m. x 2 c.m. In an area on the upper part of the right upper arm, lying close to each other.
(9) Multiple wound of entry in an area of 10 c.m. x 4 c.m. On the back of right shoulder.
(10) 3 Wounds of entry close to each other 1/2 x 1/2 c.m. Each on the front and right upper chest lateral side.
(11) Wound of entry 1/2 x 1/2 c.m. Going deep on the lateral side of the right chest, mid auxiliary line.
(12) Wound of entry 1/2 x 1/2 c.m. On the right lateral chest below 4 c.m. Injury No,11.
' In the opinion of doctor the cause of death was due to shock and haemorrhage, fracture of skull bone and injury to the brain matter. Injury No,1 was sufficient to cause death in the ordinary course of nature."
(ii) Deceased Muhammad Ramzan:
(1) A wound of entry 2 x 1 c.m. Going deep on the middle and front of the right upper arm, margine inverted, lacerated and black.
(2) Wound of entry 4 x 1 c.m. On the front of right below, margines inverted and back.
(3) Wound of entry 4 x 4-1/2 c.m. Going deep on back of the left side of the chest in its middle margines of the wound inverted.
(4) Wound of entry 1-1/2 x 1 c.m. On the central front of the chest.
(5) Wound of exist 1 x 1 c.m. On the front of chest 5 c.m. Below injury No .4 .
(6) Wound of exit 1 x 1 c.m. Going deep on the right side of chest 7 c.m. Medial to right nipple.
(7) Wound of exit 1 x 1 c.m. On the front of chest near the right nipple.
(8) Wound of exit 1 x 1 c.m. Just below injury No,7.
' In the opinion of doctor the cause of death was due to shock and haemorrhage and the injury to the vital organs of the chest, lungs and heart. Injury No,3 was sufficient to cause death in the ordinary course of nature.
(iii) Deceased Thiraj:
(1) Wound of entry 6 x 5 c.m. Oval in shape on the front and upper part of chest at the level of left 4th rib which is found fractured.
(2) Wound of exit 1 c.m. x 1 c.m. On the front of chest on the right border of the sterroum margines everted and black.
(3) Three wounds of exit lying close to each other on the front part of the right side, of chest just near the nipple.
(4) Wound of entry 1 c.m. x 1 c.m. On the medial part of right upper arm, margine inverted and black.
(5) Wound of exit 1 c.m. x 1-1/2 c.m. On the outer side of right arm. Wound is continuous with injury No,4.
' All the injuries were ante-mortem and caused with fire-arm. In the opinion of doctor death was caused due to shock and haemorrhage and injury to the vital organ of chest. Injury No,1 was sufficient to cause death in the ordinary course of nature."
(iv) Deceased Muhammad Ayub:
(1) Lacerated wound 2-1/2 c.m. x 1 c.m. Scalp deep on the top and right side of the head 10 c.m.
Above the right ear.
(2) Wound of entry 1-1/2 c.m. x 1 c.m. Oval in shape on the front and lower part of the neck, margine black and inverted.
(3) Three wounds of 5 x 6 c.m. Having the six of 1-1/2 c.m. x 1 c.m. Each going, deep, margines inverted and black.
' In the opinion of the doctor death was caused due to shock and haemorrhage and injury to the vital organs of the chest. Injuries Nos.2 and 3 were sufficient to cause death in the ordinary course of nature."
(v) Injured Mst. Fateh Bibi:
(1) A lacerated wound 2 x 2-1/2 c.m. Scalp deep on the right side of head.
(2) Contusion mark on the back of the left shoulder both simple caused with blunt weapon.
(vi) Injured Mst. Rajan Mai:
(1) Lacerated wound 1 c.m. x 1/2 c.m. Scap deep on the left side of forehead, margines black and lacerated.
(2) Contusion mark 4 c.m. x 1 c.m. On the top of left shoulder."
11. Main prosecution evidence revolves around credibility of ocular testimony given by complainant Bahawal (P.W.6) and injured Mst. Fateh Bibi (P.W.7). Both these witnesses have specifically deposed about appellant Arshad Arain firing at deceased Abdul Hamid, appellant Muhammad Ali causing firearm injury to deceased Muhammad Ayub, appellant Muhammad Iqbal shooting at deceased Muhammad Ramzan, and Muhammad Arshad Jat inflicting fire-arm injury to deceased Thiraj, which according to them proved fatal, resulting in their instantaneous deaths. They have also mentioned about causing sota blows to Mst. Fateh Bibi and Mst. Rajan Mai by appellant Muhammad Sharif. Speaking about motive they have expressed that accused Muhammad Ali had manipulated allotment of half square from lands factually belonging to and possessed by complainant party whereupon status quo order was obtained much before the occurrence. The eye-witnesses, thus, deposed that convicts of appellants alongwith other companions forming unlawful assembly and being armed arrived on the spot and attacked complainant and members of their family which costed them lives of four innocent persons.
12. The scrutiny of entire record discloses a belated effort to introduce second version of the incident by asserting that complainant party was responsible for launching an assault with main object of dispossessing convict/appellant Muhammad Ali. In this behalf some admission on the part of complainant party and statement of Patwari (Muhammad Ibrahim), were highlighted for establishing that appellant Muhammad Ali (concerned in Criminal Appeal No,89/95) had obtained possession of half portion in square No,100 from complainant party on 13-5-1989. The prosecution witnesses have unambiguously maintained that on coming to know about dishonest manipulation by convict Muhammad Ali as regards allotment of land and further mischief the father of complainant had already obtained status quo order on 17th May, 1989. It was, therefore, suggested that attack was preplanned to avenge grievances on account of refusal from complainant side to surrender the possession. Looking deeper to the attending circumstances and reappraisal of entire record including respective stands taken by the parties manifestly reveal that assailants were necessarily armed with larger number of weapon to meet any possible eventuality. The analyzing the ocular evidence coupled with medical reports and background of motive for ascertaining true and probable facts, version of the complainant and supporting evidence appears to be more logical, convincing and reliable.
13. Malik Saeed Hassan, learned counsel for appellants in Criminal Appeal No,87 of 1995, with great vehemence contended that there existed numerous discrepancies and contradictions exist in the prosecution case which tend to prove exculpation of appellants Muhammad Arshad Arain and Muhammad Iqbal Arain. Relying on the observations of Hakim Ali v. State (1977 SCMR 432) it was emphatically urged that in the peculiar circumstances merely because result of fight had gone in favour of aggressor, it would not exonerate them from responsibility prescribed under the law.
Evidentiary value of eye-wintesses has also been challenged on account of close relationship.
There is no doubt that P.W.6 Bahawal and P.W.7 Mst. Fateh Bibi, are close relations of deceased, but law of prudence requires to assess relevant factors, background of circumstances type of accusations, quality of statement and unimpeachable nature of statement given by eye- witnesses, and thereby to ascertain whether the version brought forth is appealing and confidence inspiring and should be relied upon. Eyewitnesses who are related to deceased, were according to appellant hostile against convict Muhammad Arshad, Muhammad Ali and Muhammad Sharif, Arain by caste, in view of dispute over area of land which had been clandestinely got allotted by appellant Muhammad Ali from Square No,100. Both these witnesses have stood the test of searching cross-examiantion. Their testimony on the salient features of incident is consistent and materially corroborates each other. Their version could not be impeached or dislodged despite lengthy cross-examination. There does not exist any improvement in their statement s recorded before the Court. Mere fact of relationship by itself does not affect credibility of abovementioned eye-witnesses. Their statement are independently supported by medical evidence showing fire- arm injuries on the bodies of deceased. The stand of appellant Muhammad Arshad Arain appears in his answer to question No,8 of his statement under section 342, Cr.P.C. Reproduced below:- "This case is false. The fact of the matter is that my father obtained 62 Kanals and one Marla of agricultural land situated in Chak No,111/15- L, on five years Scheme. This land fell within prohibited line as such despite payment of dues the proprietary rights were denied by the District Collector and on an appeal learned Commissioner remanded the case and District Collector Khanewal, after cancelling the lot falling within the prohibited line ordered the allotment of 91 Kanals and 13 Marlas of land situated in Khasra Nos. 100/2-3, 4-5/1, 5/2-6 to 9-12 to 15 lying previously allotted to Suraj grand-father of Bahawal P.W. But the same was cancelled by the A.C. On 23-6-1979. As the requisite conditions were not fulfilled. The physical possession of the land measuring 91 Kanals and 13 Marlas was delivered to my father by the Revenue Officer concerned with the help of Police at the spot on 13-5-1989, and necessary entries were made in the relevant record.
' The complainant party got annoyed over the occupation of the said lot by my father and obtained a status quo from the Civil Court of Khanewal on 17-5-1989, on the basis of misrepresentation and distortion of fact. The complainant party was all out to regain the possession and occupation of the aforesaid land at all cost under the garb of said status quo while we had decided to get a judicial decision from Civil Court, Khanewal, on merits through legal procedure.
' It was on 15-6-1989, that at about noon time when I was present in a room constructed in the aforesaid land while my paternal uncle Muhammad Sharif and his sister Mst. Aisha were working in Killa No,5 of the said land, that Abdul Hamid, Muhammad Ayub, Muhammad Raman and Thiraj alongwith two ladies variously armed arrived there and raised Lalkara that they have come to obtain the possession of the land at all cost and if anybody resisted he would be killed. My uncle Muhammad Shafi and Mst. Aisha got up to resist and repel the forcible occupation of land whereupon the aforesaid assailants pounced upon them. The ladies grappled with Mst. Aisha and the male persons subjected both Mst. Aisha and Muhammad Shafi to a murder assault and in the process, Mst. Rajan and Fateh Bibi also received minor injuries at the hands of their companions. I came out and twice fired in the air with a carbine so as to save the lives of Mst. Aisha and Muhimmad Shafi and to repel the aggression but all in vain. The assailants shouted that first Arshad (myself) be minced to death and ran towards me. I again fired a shot in front of them so as to scare them away but they accelerated their advance more forcefully shouting that the carbine be snatched and Arshad be done to pieces. I in order to save my life then resorted to firing as a result of which the male assailant fallen and our lives were, thus, saved and they did not succeed in their designs to obtain forcible occupation by killing us all.
' I had thereafter, apprised the police of the incident and also produced carbine but the police in corroboration with the complainant party set up a false case against us by distorting the real facts."
' All other convicts of appellants have denied the accusations claiming to be innocent and alleged falsely implicated in the criminal case. Mst. Aasia sister of convict/appellant Muhammad Shafi appeared as D.W.1. And deposed that persons from complainant side had attacked them while they were working in Killa No,5 of Square No,100 in Chak No,111/15-L. According to the witness two ladies accompanying the complainant party had clasped her whereas other male members gave Dang blows whereupon she fell down and she became unconscious. The witness further stated that she remained in hospital for 20 to 25 days. Appellant Arshad had also tendered a medical certificate (Exh.DA) and certified copy of Suit (Exh.DC) dated 18-3-1990. But no steps were taken to prove, correct and authenticity of medical certificate (Exh.DA), therefore, it looses significance and evidentiary value. Besides, assertions about complainant party having attacked was introduced at belated stage without furnishing any explanation or leading substantial proof to corroborate such stand. Therefore, when ocular testimony of two prosecution witnesses and stance taken by appellant Muhammad Arshad Arain coupled with defence stand, is evaluated in juxta-position, the ocular version cannot be excluded from consideration merely on the bald accusation of being interested or hostile. In this behalf observation in following cases are instructive:-
(i) PLD 1977 SC 413 at 428 (Shahzado v. State)
"There is no doubt that the witnesses were interested in the prosecution of the accused and inimical against them. But that fact alone is not sufficient to altogether discard their evidence. It is to be properly sifted and weighed with the necessary care and caution before rejecting the chaff and accepting the grain in the light of the facts of each case. The trial Court had the opportunity to watch the demeanour of witnesses and form first hand impression about their deposition and due importance should be attached to its conclusions drawn from their evidence. In the circumstances the High Court was not justified in insisting upon corroboration of testimony of the eye-witnesses in each and every detail in this case and, thus, reject their evidence on the point. I have already held above that the High Court was misled into thinking that the assailants had fired from a close range of two paces only. This circumstance had also adversely effected the judgment of the High Court in discounting the presence of the group of the complainant party at the place of occurrence."
(ii)1985 SCM R 1415 - para. 16 (Liaqat Shah v. State)
"16. On an appeal overall examination of the evidence led at the trial it appears certain that Mst.
Battan, and her brothers, the present appellants were annoyed with Mehdi Shah deceased, on account of his taking another wife and separating from Mst. Battan. It is but natural that they must have resented particularly because a former prostitute was made to reside in the same village near their house as the wife of their brother in law. In the background of this strained and hostile attitude, the appellants would naturally be provoked, when the sister of Mst. Battan was insulted not only by the second wife of Mehdi Shah deceased but her maid-servant as well. There is, therefore, nothing to discard the evidence of the witnesses that the appellants came armed and killed.
' The four deceased on the day of occurrence. The prosecution case is fully supported by the four eye-witnesses, namely, Ahmad Shah. Feroze Shah, Mst. Safia Bibi and Mst. Rasulan Bibi. The last two were injured witnesses and as already stated their presence was not being seriously disputed. We have found no reason on the record to hold that these witnesses had motive to falsely implicate the appellants who were their relatives or even to exaggerate their number, which seems to be in consonance with the number of injuries sustained by the deceased and the injured. As we have held that these witnesses were not interested witnesses it is idle for the learned counsel for the appellants to argue that their testimony requires independent corroboration. There is, therefore, no force in the argument of the learned counsel that except Nazar Shah and Zubair Shah appellants against whom there is evidence of recovery, the testimony of the witnesses as to the rest of the appellants be discarded. We are satisfied that the conviction of all the appellants are well- founded."
(iii) PLD 1994 SC 178 at Pages 185 and 186 (Abdul Subhan v. Raheem Bakhsh "It is no doubt open to the First Appellate Court to reach a conclusion different from the one arrived at by the trial Court on re-appraisal of the evidence on record on a point of fact but in doing so the First Appellate Court cannot totally ignore the reasonings given by the trial Court in support of its conclusions. The First Appellate Court while disagreeing with the conclusion of the trial Court, on a point of fact, will have to take into account the reasons advanced by the trial Court and if it disagrees with the reasonings of the trial Court it must give its own reasons for such disagreement which should proceed on some logical basis. If the First Appellant Court merely says that it does not agree with the conclusion of the trial Court without adverting to the reasons given' by the trial Court in support of the conclusion and without disclosing any logical basis for such disagreement, such finding by the First Appellate Court, which is at variance with trial Court's finding, cannot be binding. In case before us the reasons by the trial Court for holding that the two eye-witnesses in the case were present at the time of occurrence at the spot, were not only convincing but the evidence of these two witnesses remained totally unshaken in spite of a lengthy and searching cross-examination by the counsel for respondents. The learned Judges of the High Court, however, totally ignored the reasons given by the trial Court in believing these two witnesses while disagreeing with the trial Court. The trial Court, in our view for good reasons reached the conclusion that the evidence of the two eyewitnesses in the case inspired confidence."
(iv) PLD 1996 SC 138 - at pages 143 and 144 (Irshad Ahmad v. State)
"The examination of the statement of Mst. Bashiran Bibi, widow of the deceased, shows that she made truthful statement. She being an inmate of the house was a natural witness. She had faithfully deposed whatever was witnessed by her. She previously knew the appellants being co- villagers. It was a moonlight night. She was hit from a close distance. It was, therefore, not difficult for her to identify the assailants. Her presence on the spot was established beyond doubt due to the stamp of injury on her person. It is difficult to believe that she made a false statement, to let off the real culprits and to substitute innocent persons in their place. Undoubtedly, the substitution is a phenomenon of rare occurrence, because even the interested witnesses would not normally allows the real murderers of their relation to escape by involving innocent persons. In these circumstances, the evidence of Mst. Bashiran Bibi cannot be merely because she was the widow of the deceased and inimical towards the appellants. Furthermore, she was subjected to lengthy cross-examination with little beneficial result to the appellants. She lodged F.I.R. Without only loss of time and described the role played by the assailants in the commission of the crime.
' Matloob Ahmad (P.W.9), another eye-witness of the occurrence, is son of the deceased: his presence at night in his house cannot be doubted. He was also a natural witness. His testimony re- affirmed the deposition made by his mother on all material points. We are, therefore, unable to find any fault with the appraisal of the evidence as carried out by the learned trial Judge as well as the learned Judges in the High Court. The mere fact that the eye-witnesses were related with the deceased and were inimical towards the appellants would not be sufficient to reject their evidence, particularly when they had no motive to falsely implicate the appellants for the real culprits.
' The acquittal of Mehfooz Ahmed and Kafayatullah sons of Muhammad Aslam does not detract the credibility of the ocular version provided by these witnesses. Mehfooz Ahmad accused was acquitted because only proverbial Lalkara was attributed to him, whereas Kafayatullah accused was acquitted as he was ascribed ineffective firing only. Even otherwise the maxim 'falsus in uno falsus in omnibus' has 'all along been discarded by the superior Courts of this country. In order to reach the truth 'the grain has to be sifted from the chaff' in each case in the light of its own particular facts. The medical evidence, also provided corroboration to the ocular evidence furnished by the natural witnesses. Furthermore, the appellants had strong motive to do away with the deceased as admittedly the appellants and the acquitted accused were charged for the previous murder on the basis of the F.I.R. Lodged by Muhammad Anwar deceased. He was prosecuting the case against them and the appellants committed the crime to eliminate him once for all.
10. In these circumstances, the guilt of Irshad Ahmad and Mehfooz Ahmad appellants is established beyond any doubt. They acted in distardly manner; therefore, they deserved no leniency in the matter of sentence. I would, therefore, maintain their conviction and sentences awarded to them by the learned trial Court and affirmed by the Lahore High Court."
(v) 1997 SCM R 89 (Muhammad Ahmad v. State)
"14. As regards the argument of the learned counsel for the appellant that Muhammad Iqbal P.W.
Being an interested witness, it was not safe to rely upon his evidence without independent corroboration, suffice it to observe that the rule requiring independent corroboration of testimony of interested witnesses is a prudence which is not to be applied rigidly in each case. There can be cases like the present one where implicit, reliance can be placed on the uncorroborated testimony of an interested witness if it otherwise inspires confidence. Refer Abdur Rashid v. Umid Ali etc. (PLD 1975 SC 227) where while dealing with the question of credibility of interested witnesses, this Court had observed, '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. There might be cases in which the witnesses related to the deceased might be otherwise quite natural furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not inspire confidence, even their uncorroborated testimony may be implicitly relied upon of course in the context of other relevant circumstances of each case'. Reference may also usefully be made to the case of Niaz v. The State (PLD 1960 SC 387)."
14. Now examining the objection raised on behalf of appellants Muhammad Arshad and Muhammad Iqbal, by caste Jat. That no motive was even assigned for their attacking complainant party, therefore, their involvement is unjustified, does not have any legal sanctity. Absence of motive by itself does not exonerate guilt or responsibility of the offence when ocular testimony fully implicates the accused persons. Following observations appearing in case 1971 SCM R 368 (Ghuncha Gul v. State) effectively answer main grievance of abovenamed two appellants:-- "We feel that there should have been no reluctance on the part of the learned Judges to accept the testimony of P.Ws. Azad Gul and Khial Jan in spite of their near relationship with the deceased, as their presence at the scene of occurrence could not be doubted, and was supported by circumstantial evidence. On conspicuous merit of their statements is that before the medical examination of the deceased, it was stated in the First Information Report lodged by Azad Gul, in which he had also mentioned the presence of Khial Jan and Rasha Din as eyewitnesses, that the effective shots on the deceased were those which had been fired by the appellant and the absconder with their shot-guns respectively, and that the rifle shots fired by the other two accused had gone a miss. This found support from the gun shot injuries as revealed by the post-mortem examination of the deceased. P.W. Rasha Din is also connected with the deceased, although remotely, but it would be wrong to discard the evidence of relation witness merely on the ground of their relationship, if otherwise it induces confidence and finds support from circumstantial evidence. The presence of the appellant at the scene of occurrence was proved by two independent witnesses, namely, P.Ws. Ayub and Abdur Rahman. He had gone to the shop of the former a little while before the occurrence to pay off his debt to him for the price of the articles that he had been buying from him, and he had gone to the latter to collect his wages from him. Both of them stated that they had seen the accused unarmed at that time, but does not prove that the appellant did not have the shot-gun with him at the time he fired at the deceased, as alleged by the prosecution. It may be that the two witnesses, mentioned above, did not notice the shot-gun with him, which he may have been carrying in the normal routine. Carrying of weapons in this part of the country is a very normal incident, which need not attract notice. It may also be that the appellant had kept his gun aside when he went to these witnesses, and he may have got hold of it later before its actual use. As the evidence of the eye-witnesses, which is free from doubt, fully establishes his guilt, it would be wrong to indulge into conjectures as to whether or not he was carrying his gun at the time when he visited these witnesses.
' The learned counsel for the appellant argued that the motive for the murder of the deceased as alleged by the prosecution, could not be accepted against the appellant, as he was himself one of the accused alongwith the deceased Abdullah Jan in the murder case of Anar Gul. As already stated, the murder of Anar Gul had taken place 22 years ago, and it is not clear how was the present appellant associated with that murder alongwith the deceased. Blood being thicker than water, it is quite possible that the emotions of his brother all the hands of the deceased, even though rightly or wrongly he was also implicated in that murder alongwith the deceased at that time. However, it is irrelevant to discover the real motive of an accused person when, as in this case, his guilt for the offence is proved by direct and acceptable evidence.
' It was lastly argued by the learned counsel that as the injury caused by the appellant to the deceased was not fatal, being on his buttock, he could not be held guilty under section 302, P.P.C.
Particularly as the trial Judge had held him to be individually responsible for his action and not making him liable constructively for the action of his co-accused, Nabi Gul, who had ceased the fatal injury to the deceased. This argument is wholly untenable. There could be no mistake about the intention of the accused, which was to kill the deceased, and he would be responsible for the result achieved both singly and jointly with his co-accused. The result is that this appeal is dismissed."
15. From the perusal of entire evidence and aforesaid discussion we are satisfied that testimony of P.W.6 complainant Bahawal and P.W.7 injured Mst. Fateh Bibi is substantially true and confidence inspiring, therefore, convictions and sentences awarded to (i) Muhammad Arshad son of Muhammad Shafi, (ii) Muhammad Iqbal son of Muhammad Shafi (iii) Muhammad Arshad son of Muhammad Ali and (iv) Muhammad Ali son of Rehmat Ali for causing murder of deceased (1)
Abdul Hamid, (ii) Muhammad Ramzan, (iii) Thiraj and (iv) Muhammad Ayub does not suffer from any legal defect. On the settled principle after finding them guilty, the sentences awarded to them are in consonance with law.
16. Now adverting to the case of appellant Muhammad Sharif, it may be seen that according to ocular version, he has caused injuries to Mst. Fateh Bibi and Mst. Rajan Mai. Undisputedly injuries suffered by Mst. Fateh Bibi and Mst. Rajan Mai are simple in nature. Lahore High Court in the impugned judgment has observed that each appellant was responsible for individual act, therefore, they have been exonerated as regards offence under section 148/149, P.P.C. Resulting in their implied acquittal for the said offence, which obviously has not been challenged by the State.
Thus considering these peculiar circumstances convict Muhammad Sharif in the absence of vicarious liability would be responsible only for inflicting injuries to Mst. Fateh Bibi and Mst. Rajan Mai. Therefore, in our opinion the period of sentence of imprisonment already undergone by appellant Muhammad Sharif is sufficient to meet the ends of justice. Accordingly appeal in respect of convict/appellant Muhammad Sharif son of Rehmat Ali is partly allowed, sentence awarded to him is reduced to the period already suffered by him. Consequently appellant Muhammad Sharif son of Rehmat Ali shall be released forthwith if not required in any other case.
17. However, the conviction and sentence awarding death penalty to (i) Muhammad Arshad son of Muhammad Shafi, (ii) Muhammad Iqbal son of Muhammad Shafi, Jat by caste, (iii) Muhammad Arshad son of Muhammad Ali Arain and sentence of imprisonment for life, besides fine and compensation awarded to Muhammad Ali son of Rehmat Ali Arain, is maintained and appeals in respect of abovenamed four convicts of appellants are dismissed.
18. While parting, it may be observed that ocular evidence which has been believed by the Courts below, clearly suggests that were duly armed and in furtherance of their common intention had attacked complainant party. Apparently each of the accused became vicariously liable for the Acts or commission of others. It is normally not possible, to strictly prove common intention of concerned persons, but same can be conveniently gathered from set of circumstances brought forth in every case. This view finds support from observations in Khadim Hussain v. Javed Sarwar PLD 1996 SC 122 (at 128 paragraphs 11 and 12). In the instant case High Court while passing the impugned judgment has fallen in serious error by ignoring this aspect and relevant principle of law.
Since State has not filed appeal, and on the above reasoning; conclusions are not materially affected, therefore, observations in this behalf are merely to state correct legal position.
19. Resultantly for the foregoing discussions with modification in sentence of Muhammad'Sharif son of Rehmat Ali, the Criminal Appeal No,87 of 1995 and Criminal Appeal No, 89 of 1995 are dismissed.