' SH. RIAZ AHMAD, J.---This judgment shall dispose of Criminal Appeal No,290 of 1994 filed by three convicts, namely, Pervaiz, Saghir and Mehrban and Criminal Appeal 289 of 1994 filed by the complainant Muhammad Ashraf against the aforesaid three convicts praying that the sentence of convicts Saghir and Mehrban be enhanced from imprisonment for life to death and also for the enhancement of fine imposed on each of the appellants from Rs,20,000 to Rs,80,000 with the further prayer that the enhanced amount of fine if recovered, may be ordered to be paid to the heirs of deceased in its entirety. These appeals arise through leave of this Court which was granted to the appellants in both the appeals for reappraisal of evidence.
2. The facts in brief necessary for the determination of the guilt or otherwise of the convict appellants and for the quantum of sentence are narrated hereunder. The convict appellants, named above, alongwith one Muhammad Javed son of Banaras and brother of Pervaiz appellants were tried by an Additional Sessions Judge at Attock on a charge under section 302/34, P.P.C. For having caused the murder of Rustam Ali deceased. The tragic occurrence took place on 5-2-1988 at 3.00 p.m. In the area of village Dhoke Mian Achha situated at a distance of about 19 Kilometers from Police Station Fateh Jang. The occurrence was reported at the Police Station Fateh Jang by complainant Muhammad Ashraf, father of deceased Rustam Ali vide F.I.R. Exh. P.J. Recorded on the same day at 5.00 p.m. By Javed Ali Mirza, Inspector, of S.H.O., P.W.13.
' In brief the prosecution case as narrated by the first information in the F.I.R. Was that on the fateful day at about 3.00 p.m. Deceased Rustam Ali son of the first informant was proceeding towards village Dhoke Mian Achha from his own Bahek (cattleshed). The first information alongwith Muhammad Yaqoob and Mansab P.Ws was also proceeding towards the village from the said Bahek. Deceased Rustam Ali was ahead of the first informant and the P.Ws. At the distance of 200 yards. According to the first informant when the deceased reached near Dhoke Fazal Dad, appellant Pervaiz armed with 12 bore gun, Javed armed with 7 mm rifle, and Saghir and Mehrban appellants armed with 12 bore guns emerged from the village side. Javed acquitted co-accused raised Lalkara that Rustam Ali deceased will not go alive and fired a shot hitting the deceased on the left arm. The deceased ran towards Dhoke Fazal Dad to save his life, but was chased by the assailants and when all of them reached near Dhoke Fazal Dad, appellants Pervaiz and Saghir fired with their weapons hitting on the chest of the deceased Rustam Ali. The shot fired by Mehrban appellant hit the abdomen of the deceased Javed acquitted co-accused also fired and resultantly Rustam Ali fell down. Hue and cry was raised by the complainant and the P.Ws. On reaching Dhoke Fazal Dad, but in the meanwhile all the assailants decamped from the scene of occurrence while the deceased succumbed to his injuries at the spot. The motive for the commission of the crime as narrated in the F.I.R. Was that on the same day at about 11/12.00 noon. Muhammad Aslam, maternal uncle of the deceased Rustam Ali was injured by the appellants Pervaiz and Mehrban alongwith other accused persons. According to the first informant 11/12 years before this ocqurrence, maternal uncle of Rustam Ali had murdered the father of Saghir Appellant and grandfather of Pervaiz and Javed. The deceased Rustam being the maternal nephew of Muhammad Aslam had been brought up by him in his house and was also son-in-law of Muhammad Aslam, therefore, the assailant on account of nursing the aforesaid grudge had killed him.
3. The dead body of Rustam Ali was despatched by the S.H.O. To the Tehsil Headquarters Hospital, Fateh Jang and on 6-2-1988 at about 9.00 a.m. Dr. Qaisar Ali, Medical Officer conducted autopsy on the dead body of the deceased. According to the said doctor, the deceased had received 5 inlet firearm wounds on various parts of the body while there were three exit wounds. Three of the injuries were fire-arm graze wounds. In all the deceased had received 12 fire-arm wounds.
According to the opinion of the doctor, injuries 1 to 5 and 10 and 11 were grievous and fatal and all the injuries had been caused by fire-arms. The death in the opinion of the doctor took place due to the shock and haemorrhage as a result of injuries Nos.1 to 12 while injury No,1 was by itself sufficient to cause death in the ordinary course of nature.
4. The convict/appellants Pervaiz, Saghir and Farman were arrested by Pervaiz Ali Mirza, Inspector/S.H.O., P.W.13 on 29-2-1988. On 3-3-1988, while in custody appellant Mehrban led the police and got recovered a 12 bore gun from his house, which was secured vide memo. Exh PE. On the same day appellant Pervaiz while in custody led the police and got recovered 12 bore gun Exh.P5 from his house, which was secured vide memo Exh. PF. These recoveries were witnessed by P.Ws., Fazal Din and Gul Dad besides the Investigating Officer.
5. To prove its case at the trial the prosecution had placed reliance upon the ocular testimony furnished by Muhammad Ashraf, first informant, P. W.10 and Mansab Khan P.W.12.
6. When examined under section 342, Cr.P.C., the convict appellants denied the charge against them and pleaded innocence. It was stated by them that the case against them had been registered on account of mala fides on the part of the complainant side. The appellants also volunteered to make statement under section 340 (2), Cr.P.C. In the witness-box, the appellants denied the charge and stated that they have been involved on account of rivalry with the complainant party in the village. Appellant Mehrban stated that he was a Mueen of the complainant party and before this occurrence he had left them and he had no motive to participate in the occurrence.
7. On the conclusion of the trial the learned Additional Sessions Judge acquitted Javed but found all the three appellants guilty of the said charge. The learned trial Judge while awarding sentences opined that since fatal shot had been attributed to appellant Pervaiz, therefore, he was sentenced to death while the other two appellants Saghir and Mehrban were convicted and sentenced to undergo imprisonment for life. The learned trial Judge also sentenced each of the appellants to pay a fine or Rs,20,000 or in default thereof to suffer R I. For another term of two years. The learned trial Judge also directed that in the event of recovery of fine half of the same shall be paid to the legal heirs of the deceased.
8. With the assistance of the learned counsel for the appellants in both the appeals and the State we have minutely examined the evidence on record and we have also heard the various contentions raised by both the sides. It was contended on behalf of the appellants that the prosecution had failed to prove its case against them beyond any shadow of doubt and the motive as sought to be set up by the prosecution was also unworthy of belief and it was the complainant side who had the motive to involve the appellants in this case. It was also urged that the testimony of the eye-witnesses was discrepant and had also contradicted each other and, therefore, it was not safe to rely upon their statements. Scathing criticism was offered as against the ocular testimony and it was alleged that both the eye-witnesses were chance witnesses and their presence at the spot was highly doubtful because the place of occurrence was not the place of residence or the place of business of the witnesses. The explanation rendered by the eye- witnesses for their presence at the spot was unworthy of credit and was least convincing and, therefore, their testimony should be rejected in its totality. It was also urged that in view of such testimony the prosecution was under an obligation to have brought on the record strong corroborative evidence to connect the appellants with the commission of the crime. We have considered these contentions. As far as the statement of Muhammad Ashraf complainant P.W.10 is concerned, he has given a detailed account of the occurrence. According to him on the fateful day, his deceased son Rustam Ali was going towards village Mian Achha from his Dhoke while he and Mansab P.W. 12 were following him at a distance of 200 yards from the place of occurrence.
Muhammad Ashraf P.W.10 was subjected to lengthy cross-examination. He stated that he was present at the Dhoke of Fazal Dad when Rustam Ali approached him to demand money. In response to the demand of money by the deceased, the witness asked him to proceed towards the village and, thus, he followed the deceased towards the path leading to the village. The learned counsel for the appellants vehemently argued that the occurrence according to the prosecution case had taken place near the Dhoka Fazal Dad, which does not fall on the way to Dhoke Mian Achha. We have considered this aspect of the case and we have also examined the site plan produced by the prosecution as well as the defence. Having considered its aspect very minutely, we have come to the conclusion that the contention is devoid of any force, Muhammad Ashraf P.W.10 clearly stated that the deceased, after the attack with a view to save his life, ran towards the Dhoke Fazal Dad and then he was chased by the assailants and was fired at and, thus, he was done to death. As far as presence of P.W.10 is concerned, we are convinced that he had seen the occurrence inasmuch as the occurrence had taken place at about 3.00 p.m. On the fateful day and the F.I.R. Was lodged at the police station which was at a distance of 19 kilometres, at 5-00 p.m. By the said P.W., i.e, two hours after the occurrence. Such a prompt F.I.R., clearly proves that the complainant P.W., had seen the occurrence and furthermore we are not prepared to believe that the father of a murdered son would involve the culprits falsely and would allow the real culprits go scot free. The lengthy dross-examination by the defence failed to shake credit of the testimony of the complainant P.W., therefore, we are convinced that he was present and had seen the occurrence.
9. As far as Mansab P.W.12 is concerned, admittedly he is resident of Pind Ranjha situated at a distance of 3 miles from the place of occurrence. It was, thus, strenuously argued that he was not present at the spot and his explanation that he had come to purchase milk is false. We have noticed that the witness has no axe of his own to grind and had no enmity with the accused in this case. The explanation. Offered by the witness for his presence is not an unusual one on account of which it should be disbelieved. The witness stated that on the fateful day he had gone to purchase milk from Muhammad Muhammad Ashraf complainant and they were present when Rustam Ali reached there and demanded money whereupon the complainant asked him to proceed towards the village and thus both followed him when on their way they saw the launching of attack by the assailants upon the deceased. This witness was too subjected to lengthy cross-examination, but strangely enough not a single question was put to him or suggestion was given to him that explanation offered by him to the effect that he had gone to purchase milk from Muhammad Sharif complainant was false. Such explanation or assertion made by Mansab P.W.12 without being questioned goes a long way to show that the defence was not at all serious to disbelieve- him. In our view, Mansab P.W.12 is an independent witness and being not resident of the locality and his explanation for being present at the scene of occurrence being plausible in fact corroborates the testimony of complainant Muhammad Ashraf. The witness has also given the minutest details of the attack and, therefore, we are convinced that he was present at the scene of occurrence and had seen the attack being launched on the deceased.
10. Another important circumstances in this case is the motive sought to be set up by the prosecution. On the same day at 11.00 a.m., i.e, 4 hours before the attack on Rustam Ali, the appellants had attacked Muhammad Aslam, the real maternal uncle of the deceased. The evidence brought on record shows that the deceased was also son-in-law of Muhammad Aslam who had brought him up and the deceased was living with Muhammad Aslam since 11/12 years before this occurrence. Muhammad Aslam had allegedly murdered Mehr Khan father of Saghir and grandfather of Pervaiz and Javed, therefore, it is abundantly clear that the appellants settled their accounts by causing attack on Muhammad Aslam and later on Rustam Ali as a result of which Muhammad Aslam was injured and Rustam Ali was killed. It is quite intelligible that Rustam Ali, after the attack, must have gone to his father and the demand of money by him was not unusual. In these circumstances, we are of the view that the prosecution has brought guilt home to the appellants. As far as the necessity of corroboration is concerned, this Court in the case reported as Niaz v. State (PLD 1960 SC (Pak.) 387) clearly stated that even an uncorroborated testimony of an interested witness can be believed if the Court conies to the conclusion that the witness was present and his testimony had inspired confidence. This judgment was further explained by this Court in the case reported as Nazir and others v. The State (PLD 1962 SC 269) and while elaborating the ratio of, the case of Niaz (supra) this Court made the following observation:-- "By what we said in Niaz v. The State PLD 1960 SC (Pak.) 387 we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence. It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts. But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes.
In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness.
Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth."
In the light of the dictum laid down by this Court and applying the aforesaid criteria to the circumstances of this case, we are of the view that although Muhammad Ashraf complainant is not inimical, but assuming for the sake of argument without conceding that he is an interested witness, even then his testimony inspires confidence and his presence cannot be disbelieved. In addition thereto, if corroboration is sought, then the same is available in the form of statement of Mansab P12, who had no axe of his own to grind and being a disinterested witness had offered plausible explanation for his presence at the spot. In this view of the matter, we are of the view that the prosecution has proved its case beyond any shadow of doubt. Resultantly, the appeal filed by Pervaiz and others appellants fails and the same is hereby dismissed.
11. Adverting to Cr.A. No,289 of 1994 filed by Muhammad Ashraf complainant seeking enhancement of sentence from imprisonment for life to death in respect of Mehrban and Saghir appellants, we have given anxious consideration to the prayer made in this appeal. In the High Court a revision petition was filed assailing the acquittal of Javed co-accused and also seeking enhancement of sentences of Mehrban and Saghir convicts from imprisonment for life to death. On this question, it will be advantageous to refer to the views of the trial Court while deciding the question of quantum of sentence. The learned Additional Sessions Judge having come to the conclusion that the prosecution had established its case against Pervaiz, Mehrban and Saghir awarded death sentence to Pervaiz on the ground that fatal shot had been attributed to him. In our view the manner in which the attack was launched and the number of injuries received by the deceased rule out the possibility of determining as to which of the assailants had fired the fatal shot. In fact all the three appellants had acted in furtherance of their common intention to kill Rustam Ali and, therefore, all of them are liable under section 34, P.P.C. In the High Court while disposing of the revision filed by the complainant, the learned Judges of he High Court did not advert to this circumstance .At all the only observation made by the High Court was that the sentence of death awarded to Pervaiz was justified because he had opened the attack. In respect of Saghir and Mehrban the High Court merely stated that they were rightly awarded imprisonment for life. We fail to understand that on what basis this observation was made by the High Court. The law is clear and the normal penalty for the offence under section 302, P.P.C. Is death unless mitigating circumstances exist, on the record. In fact neither the Trial Court nor the High Court has adverted to this aspect of the case. Of course lesser punishment can be awarded to a guilty person provided, as discussed above, mitigating circumstances exist en record. In this context, the failure to award normal penalty of death to person guilty of murder was also deprecated and this aspect was highlighted in a judgment of this Court reported as Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452) and the following observations were made:-- "In an increasing number of convictions on charge of murder there is a kind of inhibition of hesitancy on the part of the trial Courts in awarding the normal penalty of death. The impression is unavoidable that there is often a marked tendency in the High Courts to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The Law of Evidence and in particular the rules of admissibility excluding confessions made before a person in authority, the rule of placing the onus on the prosecution, conceding to the accused the liberty of a privileged liar, the Court's responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not and with the finality of judicial proceedings as the executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not confined to the actual killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be constructively liable. The principal object behind this obviously is to avoid repetition of violent loss of life by award of deterrent punishment. The exaggerated and distorted F.I.R.s., the reluctance of eye-witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subornation and above all the lingering trials or appeals all combine to help out the murderers of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentences both earned and conferred is bound to take away the sting of deterrence, thus, indirectly contributing to the incidence of heinous crime of which the Courts cannot fully *escape their share of responsibility."
12. For the foregoing reasons and because there are no mitigating circumstances on the record and all the appellants having acted in furtherance of their common intention, all of them ought to have been punished with the normal penalty of death. Accordingly, we accept this appeal and hereby order that the appellants Saghir and Mehrban are awarded sentence of death. They shall be hanged till they be dead. As far as enhancement of sentence of fine is concerned, we do not find any substance in the same.