' ABDUL JABBAR KHAN, J.-Muhammad Zamurad aged 35 years, Allah Bakhah aged 55 years and Muhammad Nawaz aged 70 years, have been convicted and sentenced to death each with a fine of Rs, 5,000 each or in default to suffer farther two years' R. I. Each with the direction that the fine if realized Rs, 10,000 out of it should be given to the widow of Muhammad Nazir deceased as compensation under section 544-A, Cr. P. C., under section 302/34, P. P. C. For the murder of Muhammad Nazir deceased vide judgment of the learned Additional Sessions Judge, Sargodha, dated 24th June 1975.
' All the three convicts have filed an appeal against their conviction and sentences. There is also a Murder Reference under section 374, Cr. P. C. Before us, for the confirmation of the sentence of death awarded to the appellants. We will dispose of both, the appeal as well as the Murder Reference by a single judgment.
2. It was on-13-1-1973 at 1-00 p. m. (noon time) that Muhammad Nazir was murdered in village Padhrar situated at a distance of 15 miles from Police Station. Katha Saghral, District Sargodha. F. I.
R. Exh. P. A. Was recorded at the instance of Muhammad Amir P. W. 13 on the same day at 2-00 p. m.
Which was recorded by Muhammad Ashraf S. I. P. W.
16.
3. The motive as set up by the prosecution is that a close relative of the three appellants, namely Muhammad Akbar son of Fateh Khan, was murdered in 1955. In that case Muhammad Nazir deceased alongwith thirteen others were challaned but ultimately acquitted. Since, his acquittal the deceased had left village Padhrar and settled down in Sargodha City, 60 miles away from the place of earlier occurence. On the fateful day he had visited the village in connection with the demise of his mother as he was to receive condolence. According to the prosecution Capt. Fateh Khan also left his residence from village Padhrar and started living in District Multan after the murder of his son Muhammad Akbar.
4. The account as to how this murder was committed, finds mention in the statement of Muhammad Amir P. W. 13, which is to the following effect :- According to this witness when he alongwith Abdur Rashid P. W. 14, and the Muhammad Nazir deceased, his maternal cousin, was going from his house towards the dera to receive condolence from visiting friends and guests, they were suddenly confronted by Muhammad Zamurrad, Allah Bakhsh and Muhammad Nawaz, the three appellants, who were all armed with guns. The appellants had emerged out of their dera and had come into the street. At that time Muhammad Nazir deceased was going a little ahead of the complainant and Abdur Rashid P. W. Muhammad Zamurrad appellant raised a lalkara and told his companions that Muhammad Nazir should not be allowed to escape and simultaneously fired a shot from his gun which hit on the chest of the deceased. After receiving the shot Muhammad Nazir deceased turned round and tried to run for his life. The other two appellants did not allow him to escape, by firing a number of shots from their respective weapons, which hit at the back of the deceased. The deceased fell down near the door of the haveli of one Walayat Shah. During this firing made by the appellants upon the deceased, the two witnesses took shelter behind a wall and thus saved their lives. According to the complainant. Akbar Khan (not produced) also saw this occurrence. After committing this crime the appellants went back to their dera. The complainant alongwith Abdur Rashid went near the deceased and found him dead.
5. Muhammad Ashraf P. W. 16, who was posted as an S. H.
0. At the 'Police Station, Katha Saghral in January, 1973, promptly recorded the F. I. It and left for the spot where he reached at about 3-20 p. m. He prepared the injuest report Exh. P. H. And injury statement Exh. P H/1, in respect of the dead body of Muhammad Nazir deceased and sent it for post-mortem examination under the escort of Dost Muhammad constable. He inspected the spot and collected some blood-stained earth from the place where the deceased had died and sealed it into a parcel vide memo. Exh. P B. He found 4 empties of 12 gun P. 1/1-4 which he took into possession vide memo Exh. P C. On 21-1.1973, all the three appellants were produced before the S. I.
At village Padhrar by Capt. Fateh Muhammad and were taken into custody. He interrogated the appellants and during the course of interrogation, Muhammad Nawaz appellant offered to lead to the recovery of gun P. 2 from his house. The same was recovered and taken into possession vide memo Exh. P D. This was an unlicensed gun. Allah Bakhsh appellant led to the recovery of gun P. 3 from his residential Kotha which was taken into possession vide memo. Exh. P. E. And sealed into a parcel. He also produced the licence of the gun before the S. I. Similarly, Muhammad Zamurad appellant led to the recovery of gun P. 4 from a Kotha of his house and the same was taken into possession vide memo Exh. P. F. The licence of the gun was also produced by this appellant. On 22- 1-1973, the S. I. Got a site plan Exh. P. G. And its duplicate Exh. P G. GP prepared from the Draftsman.
' The crime empties recovered from the spot, were deposited in the Malkhana on 16-1-1973 and were despatched on 19-1-1973 to Forensic Science Laboraory at Lahore. These were received by the Ballastic Expert on 22-1-1973. According to the report of the Fire Arms Expert Exh. P. M. Crime empties P. 3 and 4, were fired from 12 bore gun, P. 2 recovered from Muhammad Nawaz appellant, whereas crime empties P. 1 and 2, were fired from l2 bore gun P. 3, recovered from Allah Bhkhsh appellant.
However, the gun recovered at the instance of Muhammad Zamurad appellant was not connected with the crime empties found from the spot.
6. Dr. Syed Muhammad Iqbal who performed the autopsy on the dead body of the deceased on 14- 1-1973 at 8-00 p. m. Could not be examined as he had gone out of the country. However, his post- mortem examination report Exh. P. L. Was proved by Asghar All Dispenser P. W. 2 as he had been working with the aforesaid doctor and was familiar with his signatures. According to post-mortem report Exh. P. L. The following injuries were found on the person of the deceased:- "(1). A gunshot wound with 6 entry wounds each measuring 1-2 x 1-2 cavity deep on the left outer side of chest (scalpular region). No burning or blackening.
(2) A gunshot wound with multiple perforations spread over in an area of 5x1-2x5 on the left outer side of chest 4/1-2 below the armpit. No burning or blackening. This was an entry wound.
(3) A gunshot wound with 5 entry wounds each measuring 1-2 x 1-2 cavity deep on the right front upper part of chest. No blackening and burning. The wound was spead in an area of 6/1-2" x 2/1-2.
(4) A gunshot wound with perforation (entry wounds x 4" x cavity deep each spread in an area of 44' x 3' on the right scapular region. No burning or blackening.
(5)An exit wound with 5 (exit wounds) preforation on the middle skull of chest in an area of 5' x 3'.
The margins an everted. No blackening or burning.
(6)A gunshot wound (entry) on the left buttock in an area of 5' x 4'.
' Injury No, 1 was an entry wound while injury No, 5 was the exit wound of this injury. Injuries Nos. 2, 3, 4 and 6 were all wounds of entry which had no exit wounds. Death in the opinion of the doctor was due to shock and haemorrhage as a result of injuries to vital organs like both lungs, heart, liver, spleen and blood vessels. Injuries Nos. 1 to 4 were grievous while the rest were simple caused by fire arms. These injuries were sufficient to cause death in the ordinary course of nature.
7. The prosecution case rests on the following categories of evidence:-
(i) the evidence of motive ;
(ii) the ocular testimony as provided by two related and inimical witnesses ;
(ill) the evidence of recovery of crime empties from the spot and matching with the guns recovered from Allah Bakhsh and Muhammad Nawaz appellants ; and
(iv) the medical evidence.
8. The defence of the three appellants is that of bare denial and they have attributed their involvement in this case due to suspicion and enmity.
9. We have beard the learned counsel for the appellants as well as the learned counsel for the State assisted by the learned counsel for the complainant at length and have perused the record of the case carefully with their assistance.
' Learned counsel for the appellants initially launched his criticism on the veracity of the F. I. R. And forcefully pleaded that although the occurrence is alleged to have taken place at 1-00 p. m. But it was found from the record that the police had left Police Station after receiving the information at 12 o'clock. As this was a very serious charge which would have shaken the foundation of the case itself, we summoned the police officer with the original record and found that this objection was without any force as the correct time given in that record was 2-00 p. m. And not 12 o'clock as suggested by the defence counsel. This point was resolved in favour of the prosecution as it was found that the report was immediately lodged by the complainant without loss of any time within one hour, with the police. Learned counsel for the appellants contended that in fact no empties were found at the spot because their mention as lying at the place of occurrence has not been made in the F. I. R. By the complainant nor this has been done so by the S. I. While preparing the inquest report. It was pointed out that in column No, 23 which was meant for this purpose to show as to what articles were found lying near the dead body, nothing is mentioned to this effect and the column has been left blank. By these omissions on the part of the complainant as well as the Investigating Officer in the F. I. R. And the inquest report, respectively, a premises was built that in fact these empties were planted later on by the police to -strengthen the case of the prosecution.
In this respect our attention was 'further drawn to certain dates relating to the despatch of these empties from Police Malkhana and their being received at Lahore in the Forensic Science Labortory and the recoveries of guns with which they were found, later on, connected to show that lot of hanky-pankp was done in this matter and the possibility that empties were available with the police when the guns were shown to have been recovered from the appellants, could not be excluded. A reference is also made to Exh. D B, a report of the Madad Muharrir who had received certain articles for deposit and it was pointed out that there were certain insertions and interpolations in that document. It was forcefully argued by the learned counsel for the appellants that such like omissions were fatal to the case of the prosecution as they violated the mandatory provisions of law. It was further submitted that the ocular evidence in this case was positively an evidence of related and inimical witnesses, therefore, the rule of prudence requires that before a reliance could be placed on such evidence, a strong corroboration of such evidence from unimpeachable source was absolutely essential. According to the learned counsel, in view of certain infirmities and flaws as pointed out earlier by him, no such corroboration was forthcoming in this case against any of the appellants. He also challenged the presence of the witnesses and considered it highly doubtful that they had ever seen the occurrence. According to the learned counsel although both of the eye-witnesses were close relations of the deceased, one out of them i. e. Abdur Rashid P. W. Even did not belong to the place where the occurrence took place. Learned counsel considered this proposition highly irreconcilable that although the locality was inhabited, not a single witness would come forward to support the prosecution case both as eye-witness of the occurrence or witness of the recovery of weapons of offence. Learned counsel relied on Muhammad Salim v. State (1) and Qadir Bakhsd v. State (2) regarding the points raised by him in connection with the omission to mention the crime empties in the inquest report and delay in their despatch.
10. On the other hand, learned counsel for the State assisted by the learned counsel for the complainant has submitted that even if the eyewitnesses were related to the deceased, they were also equally distantly related to the appellants as well. He mentioned in detail the string of relations and also referred to the statement of Muhammad Zamurrad appellant himself in which although he had denied his relationship earlier before the committing Magistrate, with the witnesses, had later on accepted before the learned trial Court that the eye-witnesses were distantly related to him as well as co-appellants. He relied on Niaz v. State (3) and submitted that if a witness who is once established to have seen the crime and his evidence is found reliable then no corroboration of any sort was needed to base conviction on his evidence. He further submitted that the presence of Muhammad Amir P. W. Is fully established by the fact that he was the person who immediately reported the matter to the Police within a span of one hour. According to the learned counsel, Muhammad Amir, P. W. Whose presence cannot be doubted in any manner, immediately gave a detailed information to the Police in which he mentioned the names of the appellants, the role played by them, which was fully supported and borne out by the medical evidence in that matter.
As regards Abdur Rashid P. W. It was submitted that his coming to the village was most natural because keeping in view the village social order, the friends and relations were expected to come and condole a person who has lost his dear ones. Regarding the absence of mention of crime empties in the inquest report in column No, 23, he relied upon section 174, Cr. P. C. And argued
(1) 1968 P Cr. L J 538 (2) 1972 P Cr. L I 820
(3) PLD 1960 SC 387 that it was only the statutory provision which was to be observed by the police during the investigation and the reading of it revealed that it did not require such like details to be mentioned in column No, 23 of the inquest report. He also referred to Rules 25.33 and 25.35 of the Police Rules and submitted that although the Rule required that the things lying near the dead body should be mentioned in the inquest report yet this was neither mandatory nor a statutory provision and if the police officer has otherwise recovered the same vide a memo and has mentioned the same in the ziminis, the requirement was satisfied. It was argued on behalf of the State that the case of the prosecution stood fully proved by the evidence of motive corroborated by the testimony of two eye-witnesses who had given a reliable account of the occurrence and were further fully supported by the evidence of Fire Arms Expert which fully connected at least two of the arpellants directly, with the crime. Reliance has been placed on Mela v. The State (1) that in a case of cold- blooded murder as like the instant case even if more than one persons are awarded death sentence against one murder, the conviction and sentences cannot be considered either unjust or excessive. He also devolved upon the delay in the despatch of crime empties to the Forensic Science Laboratory and asserted that no flaw or infirmity could be found which should lead to an inference that the investigation was mala fide.
11. Before we deal with the merits of ocular testimony and evidence of motive, we will first of all like to resolve the controversy which has been stirred up in this case regarding the effect of omissions by the police in mentioning the presence of crime empties lying near the dead body in column No, 23 of the inquest report as well as the delay in despatch of the said crime empties to the Ballistics Expert. Section 174, Cr. P. C. Is the only statutory provision which deals with the subject of this kind.
The power of the Police is drawn to hold an inquest under the provisions of this section and relevant portion of the same reads as follows:- "174.- (1) The officer in charge of a Police Station or some other police officer specially empowered by the Provincial Government in that behalf, on receiving information that a person-
(a) has committed suicide, or
(b) has been killed by another, or by an animal, or by machinery, or by an accident, or
(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence, ' shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. (2) (3) . . (5) ..............................
(1) PLD 1962 Lah. 58 ' In Police Rules, we find Rule 25.33 also deals with the duties of the Investigating Officer when he reaches the sconce of crime and starts his investigation. Following duties have been laid upon him to complete the investigation in that regard :- "25.33.-(1) He shall prevent the destruction of evidence as to the cause' of death.
(2) He shall prevent crowding around the body and the obliteration, of footsteps.
(3) He shall prevent unnecessary assess to the body until the investigation is concluded.
(4) He shall cover up footprints with suitable vessels so long as may be necessary.
(5) He shall draw a correct plan of the scene of death including all features necessary to a right understanding of the case.
(6) If no surgeon or other officer arrives, he shall, together with the other persons conducting the investigation, carefully examine the body and note all abnormal appearance.
(7) He shall remove, mark with a seal, and seal up all clothing not adhering to, or required as a converting for, the body, all ornaments and anything which may have caused or been concerned in the death of the deceased and shall make an inventory thereof. In the inventory shall be described the position in which each thing was found and any bloodstain, mark, rent, injury or other noticeable fact in connection with such thing. The number and dimensions of such stains, marks, rents, injuries, etc. Shall also be given in the inventory. A counterpart of the mark and seal attached to such thing or to the parcel in which it has been enclosed shall be entered in, or attached to, the inventory. Such inventory shall form part of the inquest report.
(8) He shall take the finger prints of the deceased person if the body is unidentified.
(9) The photographing of the body in situ and of the scene of the occurrence may prove of great evidential value."
Rule 25.35 reads as follows:- ' The Inquest Report.-(l) When the investigation has been completed the Investigating Officer shall draw up a report, in duplicate by the carbon copying process, in Forms 25.35 (1) A. B. Or C.
According as the deceased appears to have died-
(a) from natural cause.
(b) by violence.
(c) by poisoning.
(2) Such report shall state the apparent cause of death, give a description of any mark or marks of violence which may be found on the body and describe the manner in which and the weapon or instrument with which such marks appear to have been inflicted.
(3) The report shall be signed by the police officer conducting the investigation and by so many of the persons assisting in the investigation as concur therein and shall be forwarded without delay through the Superintendent to the District Magistrate or, if the District Magistratc has so directed, to the Sub-Divisional Magistrate.
(4) The following documents shall form part of such report-
(a) The plan of the scene of death.
(b) The inventory of clothing, etc.
(c) A list of the articles on and with the body is sent for medical examination.
(d) A list of articles sent for medical examination, if any.
(5) ......................
(6) . .
(7)
A reading of the statutory provisions of section 174, Cr. P. C. And the Police Rules 25.33 and 25.35 clearly show that the omission of the Investigating Officer to fill in column No, 23 of the inquest report in no way violates either the spirit of the section or the rules. Undoubtedly the reading of column No, 23 indicates that the Investigating Officer should mention anything of incriminating nature lying near the dead body but the failure to do so does not cast any aspersion or doubt on the veracity of the investigation. In the B instant case, we have noted with care that the recovery of the crime empties was made through a memo. And the mention of the same finds its way in the police diary on the same day. From the legal and the factual aspects of the case, we are fully satisfied that the crime empties were found at the spot near the dead body and were duly taken into possession by the police and were sealed into parcels.
' As regards the second point that the receipt and despatch of these crime empties was not above board, we have found that the crime empties were recovered on the 13th January, 1973 1. e. On the day of occurrence and were deposited and kept in the Malkhana on 15th, a fact which has been proved by Nadir Khan Naib Muharrir P. W.
11. He is the person who has prepared Exh. D B and has explained in his cross-examination that when he prepared this document he failed to notice the parcel containing cartridges lying on the table but as soon as he noticed the same, he entered the fact of the deposit of these parcels in Exh.
D B although he had first closed the document by writing "Baqalam Maded Mohirrir." He denied that the entry regarding the deposit of these parcels was made later on or this was an interpolation. The parcels relating to the crime empties was despatched on the 19th which was a Friday and were received on 22nd i. e. Monday. It was objected that why the parcels despatched on the 19th should reach Lahore on Monday, was explained by the fact that the person carrying the parcels left late on Friday and reached Lahore on Saturday after the office of the Forensic Science Laboratory, had closed, therefore, the next day being Sunday, the parcels were duly handed over on Monday, for examination and report. We have attended to the evidence of Nadir Khan P. W. 11 and that of S. I.
And find the explanation quite plausible. We have no reason to doubt the veracity of these two witnesses about whom there is nothing on the record to show that they had any positive motive to fabricate false evidence of this serious nature in a capital charge against the appellants. The argument that the possibility of such like collusion could not be excluded as the gun was recovered on the 21st of January, is without substance for the reason that if the gun was available alongwith the crime empties with the police, then the gun of Muhammad Zamurrad appellant would also have stood connected by the Fire Arms Expert and there was no reason why the manipulation should not have been completed in each and every respect. The very fact that the Ballistic Expert did not find The crime empties matching with the gun recovered from Muhammad Zamurad appellant, goes to show that the things were done in normal manner and no manipulations or machinations were made in this case to connect the crime empties and the guns recovered at the instance of the Police. The law cited on this point by the learned counsel for the apppellants does not advance his arguments as in criminal matters the cases are decided on facts which are always different to the facts cited in the authorities. In the case of Qadir Bakhsh the incriminating articles were sent to the Chemical Examiner and Ballistic Expert with unexplained great delay which is not the matter in this case. The delay is very small as well as stands fully explained. Similarly, in the case of Muhammad Salim the facts of the case indicated tbat the crime weapon recovered at the instance of the accused was sent to the Chemical Examiner for report after more than a fortnight, therefore, an adverse inference made out in that case cannot be applicable to the facts and circumstances of the case in hand.
12. It is a common case both of the prosecution as well as of the defence that murder of Muhammad Akbar son of Fateh Khan was avenged c against Muhammad Nazir deceased and therefore, the motive in this case is not disputed. Undoubtedly, Muhammad Akbar was killed long time ago but it is in the evidence that Muhammad Nazir deceased as well as Fateh Khan had left their original place of residence i. e. Village Padhrar, out of fear of reprisals, therefore, the long waiting in this matter to wreak vengeance stands fairly explained. We have also looked, with great care, into the evidence as to find if there were some other potent enemies who could have wanted to kill Muhammad Nazir but we do not find any positive evidence in this regard. The learned trial Court was fully justified to hold that there was a strong motive with the appellants to commit this crime.
13. In the case of Niaz v. State (1) it was held that:- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it."
' Following the principle laid down in this weighty authority of their Lordships of the Supreme Court, we find that the presence of Muhammad
(1) PLD 1960 SC 387 ' Amir P W. Stands fully established as he was the person who immediately reported the matter to the police within a span of one hour. He is the resident of the village. The narration of this witness in the F. I. R. Stands fully corroborated by the medical evidence in this case. He has spoken of 4/5 fire shots by the appellants and the same is the result given by the doctor. According to him the first shot was fired by Muhammad Zamurad appellant which hit on the upper part of the chest near the shoulder and after the impact of this shout the victim turned round and started running and was fired at his back. All this stands fully corroborated by the statement of the doctor who conducted the post-mortem examination on the body of the deceased. Therefore, we can safely place reliance on the evidence of this witness even without seeking any corroboration but as a rule of prudence, we have considered it safe to seek corroboration from the evidence of recoveries as this witness and Abdur Rashid P. W. Are related to the deceased and have long standing enmity with the appellants. The evidence of Abdur Rashid P. W. Cannot also be ruled out only for the reason that he was not resident of the village because as mentioned in the earlier part of our judgment, his visit to the deceased was natural as he came to condole him for the death of his mother. The evidence of recovery in this case only connects positively Allah Bakhsh and Muhammad Nawaz appellants and not Muhammad Zamurad, therefore, in view of safe administration of criminal justice, we are of the considered opinion that the conviction of Muhammad Zamurad appellant was not proper by the learned trial Court based solely on the testimony of two witnesses who though were present on the scene of occurrence but had a motive to falsely implicate their enemies. W accordingly, accept the appeal as far as it relates to Muhammad Zamurad appellant, set aside his conviction and sentences and acquit him. He shall be released forthwith from the Jail unless he is wanted in some other case. The sentence of death qua him is not confirmed.
' As far as Allah Bakhsh and Muhammad Nawaz are concerned, we dismiss their appeal, uphold the conviction and maintain their sentences as arrived at by the learned trial Court, for the reason that we do not find any mitigating circumstance in their favour for lesser penalty. They have acted in a cold blooded manner and deserve the normal penalty of death as provided under section 302, P. P.
C. The sentence of death imposed upon Allah Bakhsh and Muhammad Nawaz appellants, is confirmed.