' MUHAMMAD NAWAZ ABBASI, J.---This judgment will dispose of Murder Reference No,473 of 1992 referred to this Court under section 374, Cr.P.C. By the learned Additional Sessions Judge, Chakwal, Criminal Appeal No,206 of 1992 filed by Muhammad Saleem appellant against his conviction and sentence and Criminal Revision No,80 of 1993 preferred by Nawab Khan complainant against the acquittal of Muhammad Afzal and for the enhancement of compensation under section 544-A, Cr.P.C.
2. The learned Additional Sessions Judge, Chakwal vide judgment dated 30-11-1992 convicted Muhammad Saleem appellant under section 302, P.P.C. And sentenced him to death with a fine of Rs,40,000 or in default thereof to undergo R.I. For four years. The fine, if realized, was ordered to be paid as compensation to the legal heirs of the two deceased, namely, Baz Khan and Qadir Hussain.
He was separately convicted under section 452, P.P.C. And sentenced to five years' R.I. With a fine of Rs,5,000 and in default thereof to further undergo R.I. For one year. Muhammad Afzal, co-accused of the appellant, was acquitted by giving the benefit of doubt.
3. The necessary facts introduced by Nawaz Khan (P.W.7) through complaint (Exh.P.G.), on the basis of which, case under section 302/34, P.P.C. Was registered vide F.I.R. (Exh.P.G./1), are as follows:-- ' That the complainant had a dispute of land with the accused party and a few days earlier Muhammad Saleem and his brother Muhammad Afzal made an attempt for forcible occupation of the disputed land, but they having faced resistance patched up the matter. On 20-1-1991 at about 9-00 a.m. Qadir Hussain son of Nawab Khan was present at the house of Sharaf Khan, his uncle, and Nawaz Khan complainant alongwith Muhammad Riaz and Muhammad Amir was sitting in the adjoining Haveli of Muhammad Razzaq, when Muhammad Saleem alias Muhammad Amin and Muhammad Afzal armed with .12 bore guns raising Lalkara that today he would be taught lesson for restraining them from occupying the land, forcibly opening the outer gate of house of Sharaf Khan, entered in the house and Muhammad Afzal fired at Qadir Hussain, whereupon Baz Khan went on the top roof of the house of Sharaf Khan, who was fired at by Muhammad Saleem alias Muhammad Amin appellant. Baz Khan and Qadir Hussain succumbed to the injuries at the spot.
' The motive behind the occurrence as stated was that widow of Karam Khan was living with her daughter, namely, Mst, Satt Bharai wife of the complainant. Karam Khan left no male to inherit his property and the land of share of the two ladies was in cultivating possession of the complainant.
The accused in addition to their share also wanted to get possession of the land of the share of widow of Karam Khan and with a view to remove the resistance to that object intentionally committed murder of Qadir Hussain and Baz Khan.
4. Ghulam Murtaza, Inspector (P.W.11) after registration of the case reaching at the spot prepared the injury statements and inquest reports of the two deceased. He took into possession the blood- stained earth from two places and made the same into separate sealed parcels. He took into possession two empties (Exhs.P.17 and P.18) from the spot through memo. Exh.P.G.G., and despatched the dead bodies of the deceased to Tehsil Headquarters Hospital, Tallagang for post- mortem examination. The sealed parcels of blood-stained earth and empties were sent to the Chemical Examiner and Forensic Science Laboratory for expert opinion. Muhammad Afzal after his arrest on 26-1-1991 led to the recovery of .12 bore gun (Exh.P.20) from his house and Muhammad Saleem got recovered .12 bore gun (Exh.P.19) from the Baithak of his house which were taken into possession through separate memos.
5. The post-mortem of Qadir Hussain deceased conducted by Dr. Muhammad Yaqoob Awan (P.W.1) revealed the following injuries on his person:--
(1) Seven fire-arm entry wounds, in area about 4-1/2" x 3" on the front of middle of chest 4" below the supra sternal fossa, each measuring about 1-1/2" x 1-1/2" going backwards and downwards, edges were inverted.
(2) Three fire-arm exit wounds on back of right lower chest 2" from mid-line 13" from the top of right shoulder in area about 2" x 1-1/2" each measuring 1/3" x 1/3". Edges were everted.
(3) Fire-arm entry wound 1-1/2" x 1-1/2" on the middle and lateral aspect of left arm, edges were inverted. Communicating with this was exit wound of the fire-arm which 'was 3/4" x 3/4" having evened edges.
' The Stomach was found contained 1-1/4 ounce digested food. Small and large intestines had fecal matter and Bladder was full of urine. Ante-mortem injury No,1 was declared dangerous to life and sufficient to cause death in the ordinary course of nature.
6. The same doctor conducted post-mortem examination upon the dead body of Baz Khan and found the following injuries on his person:--
(1) Fire-arm entry wound 1-1/2" x 1-1/2" on the outer side of right eye 1-1/2" from the outer canthus of right eye, going inwards the skull cavity. Edges were inverted.
(2) Fire-arm entry wound 1-1/2" x 1-1/2" on the right lateral side of the abdomen, parallel to umbilicus, going inwards and backwards, edges were inverted.
(3) Fire-arm exit wound 1-1/4" x 1-1/4" on the back in mid-line of lumber region. Edges were everted.
(4) Fire-arm entry wound 1-1/2" x 1-1/2" on the outer side of right buttock going towards back, edges were inverted.
(5) Fire-arm exit wound 1-1/3" x 1-1/3" on upper portion of right buttock 2" from the mid-line and 4" from the injury No,4. Edges were everted. Injury No,5 was communicating with injury No,4 via sub cutaneous track.
' The stomach was found contained 1/4 ounce of digested food, whereas large intestines had fecal matter and bladder was empty. The ante-mortem injuries Nos.1 and 2 were found dangerous to life and sufficient collectively and individually to cause death in the ordinary course of nature.
7. The appellant and his co-accused having charged under section 302/34/ 452, P.P.C., the prosecution in addition to the eye-witness accouni also sought help from the evidence of motive, medical and recoveries in proof of the charge. The accused having denied the allegations in their statements under section 342, Cr.P.C. Produced Muhammad Shafique Niazi from Record Office, General Hospital, Rawalpindi as D.W.1. However, they did not appear in the witness-box in their defence as envisaged under section 340(2), Cr.P.C.
8. Nawab Khan (P.W.7) deposed that Muhammad Saleem alias Muhammad Amin appellant and his co-accused Muhammad Afzal sons of Pehlwan Khan attempted to forcibly occupy the land belonging to Karam Khan and they were forbidden by him and his deceased son, 3/4 days before the occurrence, whereupon the accused picked up a quarrel with them but the matter was settled through the intervention of respectables of the area. He repeating the version of the F.I.R. Stated that the appellant and his co-accused armed with .12 bore guns forcibly pushing the door of the house of Sharaf Khan fired at the deceased. On shot each fired by Muhammad Afzal and Muhammad Saleem appellant hitting Qadir Hussain and Baz Khan respectively caused their death.
9. Haji Muhammad Amir (P.W.8) and Mansab Khan (P.W.9) the other two eye-witnesses of the occurrence making similar statement corroborated the story of F.I.R. And statement of Nawab Khan (P.W.7).
10 It is contended by the learned counsel for the appellant that ordinarily the delay of three hours in lodging the report may not have much significance, but the peculiar circumstances of the manifestly suggest that time was consumed in fabricating the story. He argued that improvement in the motive at trial with the addition that the appellant wanted possession of total land of Karam Khan has demolished the very foundation of the case of prosecution. He contended that according to the prosecution the dispute of land was with Nawab Khan, but it was strange that he was not touched and instead his son Qadir Hussain was killed and further killing of Baz Khan, who was not involved in the dispute, was not understandable. He challenging the presence of the eye-witnesses contended that in absence of the inmates of the house, there was no fun of presence of Sharaf Khan, going of Qadir Hussain deceased there and similarly claim of presence of P.Ws. In the Haveli of Razzaq in absence of Razzaq is not appealable. He doubted the taking placing of the occurrence in the manner as stated disputing the place of occurrence giving the reason that the blood- stained earth was taken from inside the room, whereas the dead body of Qadir Hussain was found lying in the kitchen. He strenuously argued that the place, where Baz Khan was injured being in opposite direction, injury in the manner as stated by the prosecution with blackening could not possibly be received by him. He with reference to minor contradiction and discrepancies in the statements of the P.Ws. Argued that the story of the prosecution was not plausible to be accepted.
11. Raja Muhammad Anwar, Senior Advocate, appearing on behalf of the complainant conversely argued that undisputedly the land belonging to widow of Karam Khan and Mst. Satt Bharai wife of the complainant was in cultivating possession of the complainant and the appellant having serious apprehension of losing the land permanently had strong motive to commit the crime. He taking forceful exception to the delay of three hours in lodging the report with the explanation that consumption of this time in the circumstances, under which two innocent persons were done to death, was less than normal time required to inform the police. He contended that acquittal of Muhammad Afzal, co-accused of the appellant, giving him the benefit of doubt on the ground that two empties recovered from the spot matched with the gun recovered from the appellant does not affect the case against the appellant and the rule that the conviction on the basis of evidence disbelieved qua one or more accused is not reliable cannot be made applicable in the present case. It is argued that the eye-witnesses are independent and disinterested and there being no possibility of false implication, the charge stood fully proved against the appellant.
12. Learned counsel appearing on behalf of the State adopting the arguments advanced by the learned counsel for the complainant supported the conviction and sentence.
13. We with the help of learned counsel for the parties have gone through the evidence and also heard lengthy arguments addressed by them.
14. The motive being an important question in the background requires serious attention to visualize the circumstances under which the occurrence took place. Karam Khan, father-in-law of the complainant had no son. Mst. Satt Bharai, his daughter, is wife of the complainant. Two other daughters of Karam Khan, namely, Mst. Ghulam Zohra and Mst, Saidan Bibi, died during his life time.
Mst. Saidan Bibi was issueless, whereas Mst. Ghulam Zohra was first wife of Nawab Khan, who gave birth to Qadir Hussain deceased. After the death of said Mst. Ghulam Zohra, Nawab Khan married with Mst. Satt Bharai, her real sister and after the death of Karam Khan, his property devolved upon his legal heirs including father of appellant, who was real brother of Karam Khan. The accused being collateral of Mst. Satt Bharai, wife of the complainant, and male members in the line of descendants of Karam Khan, were interested in the land left by Karam Khan. Nawab Khan was in possession of the land of Karam Khan through his wife and mother-in-law. The accused considering themselves entitled to occupy the land were not prepared to tolerate the possession of Nawab Khan over the land of Karam Khan and they being jealously offended for the resistance put by the complainant and his young son projected themselves violently. Qadir Hussain deceased through his mother and maternal grandmother being equally interested in land was target of the accused. In view of the nature of dispute and relation of parties inter se, no other supposition of occurrence is inferable from the evidence and in the circumstances, no exception can be taken to the finding of the trial Court on the question of motive.
15. Nawab Khan and Haji Muhammad Ameer, the eye-witnesses claimed their presence in the Haveli of Razzaq adjacent to the house of Sharaf Khan, where the occurrence took place. The learned counsel without questioning their testimony as not reliable, argues that they were not present at the spot. The two eye-witnesses being the natural witnesses, their presence near the place of occurrence was beyond reason and the stress that presence of P. Ws. In absence of inmates of the house of Razzaq was not possible is not logical as the statement of Nawab Khan that wife and children of Razzaq were present in Haveli is unchallenged. However, the absence of Sharaf Khan in the house is admitted by both the eye-witnesses. The absence of Sharaf Khan and Abdul Razzaq from their houses cannot be a circumstance to exclude the presence of witnesses.
The deceased and the P.Ws. Being closely related to Sharaf Khan and Abdul Razzaq, their availability in the houses was not unnatural and the presence of two deceased and the P.Ws. In the Haveli of Razzaq and Sharaf Khan is not changeable.
16. The detailed scrutiny of the evidence of eye-witnesses reveals that except the land of Karam Khan, there being no dispute between the parties, there could be no other reason of taking place of the occurrence. It is noticeable that instead of changing the place of occurrence and the P.Ws. As suggested by the defence, it was easy for the complainant and the P.Ws. To claim their presence with Qadir Hussain in the house of Sharaf Khan and the presence of Baz Khan deceased could have also been shown with Qadir Hussain, deceased. The places of two deceased and the P.Ws. Were shown as per their actual position and any change in the same could not be beneficial to ihe prosecution. The perusal of the site-plan and the statements of the eye-witnesses led us to believe that the place of occurrence could not be more visible to the P.Ws. From the Haveli of Razzaq to feel the necessity of changing their places. The Investigating Officer took the IC blood-stained earth from courtyard and roof of house of Sharaf Khan, therefore, the place of occurrence was not disputable. The possibility that the deceased on noticing the accused took shelter in the house of Sharaf Khan could not be ruled out, but to say that the occurrence did not take place there, is not acceptable. The place where the deceased were done to death and where the appellant took position was opened to P.Ws. And they with no difficulty could see the occurrence and ihe intervening walls did not affect their visibility. The eyewitnesses even if could not see the occurrence minutely, the appellant being in their direct sight, the act of firing could clearly be seen by them. It being a day time occurrence in the house of Sharaf Khan in the Abadi near to the houses of the P.Ws. Could not be unnoticed. The crime empties recovered from the place of occurrence found matched with the licensed gun of appellant recovered subsequently provided strong corroboration in proof of guilt of appellant. The contention that the two deceased having met death at different places at a reasonable distance in opposite direction from each other, the witnesses could not possibly see the two deceased and the appellant at the same time from the Haveli of Abdul Razzaq, has no force. Baz Khan deceased was fired, when he was at ihe roof of Haveli at point No, 2 in the site plan, which place was in the direct sight of the witnesses. Similarly the receiving of injuries by Qadir Hussain deceased in the courtyard of the house of Sharaf Khan could with no difficulty be observed at the same time. The minor discrepancies and the contradiction regarding the height of the wall, place of occurrence, position of the P.Ws. And the deceased even if has some conflict with the site plan prepared by the Draftsman cannot be given much importance. The site plan is not a substantive piece of evidence to contradict the ocular account or to disbelieve the eyewitnesses. The site plan definitely is prepared on the pointation of the eyewitnesses but the possibility of mistake in its preparation cannot, be ruled out therefore, on the basis of site plan, testimony of the eye-witnesses cannot be challenged. This could be argued that Nawab Khan having clash of interest with the accused, deposed against them, but the remaining two eye-witnesses having no personal interest either in the land or with the complainant party and also having no grudge or ill will against the appellant, being entirely independent and disinterested witnesses, have fully supported the prosecution case, consistent with the statement made by Nawab Khan in the F.I.R. And the deposition in the Court. Consequently, we do not see any reason to disbelieve the eye-witnesses and exclude their evidence from consideration. The two empties recovered from the spot by the Investigating Officer on the day of occurrence having sent to the Ballistic Expert before recovery of weapon of offence, were found matched with the licensed gun subsequently recovered from Muhammad Saleem appellant, which was strong confirmatory evidence against the appellant. Medical evidence is another supporting piece of evidence; according to which, five injuries on the person of the deceased are suggestive of the result of two fires.
18. The report of the occurrence, taken place in the village at 9-00 a.m. In the morning, was lodged within three hours with Police Station at a distance of 18 Kilometers disclosing all the material facts in natural sequence, and nothing being withheld, any possibility of fabrication of evidence is ruled out.
19. In the light of the above discussion, we having no reason to take a different view of the evidence, to that of trial Court dismissing this appeal. The facts of the case do not suggest any mitigating circumstance in favour of the appellant for lesser penalty, we, therefore, confirming the death penalty awarded to the appellant answer the murder reference in the affirmative. Criminal Revision No,80 of 1993 filed by the complainant against the acquittal of Muhammad Afzal and for enhancement of compensation under section 544-A, Cr.P.C. Is also dismissed.