' The appellants, namely Lal Zamurrad, Ghulam Sarwar sons of Phaja Khan and Nasar Mahmood son of Lal Zamurrad having tried for the charge of committing murder of Muhammad Iqbal and Muhammad Miskeen deceased by the Special Court, Rawalpindi Division and Islamabad Territory established under Anti-Terrorism Act, 1997, were convicted under section 302/34, P.P.C. And sentenced as under:--
(i) Lal Zamurrad and Ghulam Sarwar appellants Sentenced to death on two counts with a fine of Rs,75,000 each and in default of payment thereof to further undergo R.I. For five years each.
(ii) Nasar Mahmood appellant ' Awarded imprisonment for life on two counts under section 302(b), P.P.C. With a fine of Rs,75,000 or in default thereof to undergo R.I. For five years.
' It was also directed that the amount of fine if realized from all the three appellants, was ordered to be paid to the legal heirs of both the deceased as compensation in equal share under section 544-A, Cr.P.C.
2. The appellants have challenged their conviction and sentence through Criminal Appeal No,184/T of 1997, whereas the Special Court has sent a reference bearing Murder Reference No,252/T of 1997 under section 25 of the Anti-Terrorism Act, 1997. Both the matters are proposed to be disposed of through this single judgment.
3. The persecution case in brief as contained in the statement (Exh.P.F.) of Mst. Sandal Bibi (P.W.6) on the basis of which formal F.I.R. (Exh.P.F./1) was registered under section 302/34, P.P.C. Against the appellants, is to the following effect:-- "That the complainant on 20-7-1993 at about 8-30 a.m. Went towards her land located at Plantar with her buffaloes, whereas Muhammad Miskeen, her husband, had already gone with cattle to that side. Muhammad Iqbal brother of Muhammad Miskeen and Mst. Walayat Jan, his wife, having also gone to the said land were making hedges with bushes and Lehrasap Khan son of Muhammad Ashraf (given up) was cutting wood in the nearby. At about 9-00 a.m., Lal Zamurrad, Ghulam Sarwar appellants armed with 7 mm rifles and Nasar Mahmood (acquitted accused) with hatchet appeared at the scene raising Ankara to teach a lesson for taking the land. Lal Zamurrad fired at Muhammad Iqbal hitting on his belly, whereas shot fired by Ghulam Sarwar hit Muhammad Miskeen and upon receiving injuries both expired at the spot. The appellants with the weapons of offence decamped from the place of occurrence.
' The motive behind the occurrence was that Lal Zamurrad and others were in unauthorized possession of the land belonging to the complainant side and being under litigation with Muhammad Iqbal and Muhammad Miskeen before the Civil Court were causing damage to the trees he land. The occurrence was witnessed by Mst. Sandal, Mst. Alayat Jan, widows of both the deceased."
4. After registration of the case, Muhammad Yar Gondal, S.H.O. (P.W.1) reaching at the place of occurrence prepared injury statements and inquest reports of the two deceased, namely Muhammad Iqbal and Muhammad Miskeen and dispatched thir dead bodies for post-mortem examination through Khalid Saleem, Constabu:-.'The S.H.O. After preparing injury statement of Mst.
Walayat Jan also sent her for medical examination. She was examined by Dr. Munawar Hussain Gondal (P.W.1), who found the following injury on her person:- "Contused swelling 4 x 6 c.m. On left side of chest, on interior axillary line tenderness present over the area."
5. The Investigating Officer apart from the blood-stained earth taken from the two points of the place of occurrence also secured two crime empties of 7 trim rifle (Exhs.P.3 and P.4). He arrested the accused on 25-7-1993 and thereafter, handed over the investigation to Muhammad Afzal. S.-I.
On 28-7-1993, which was later entrusted to Ch. Nisar Ahmad (P.W.13), S.H.O. Of the police. Station. Lal Zamurrad appellant, while in police custody led to the recovery of 7 mm licensed rifle from his residential house on 6-8-1997, which was taken into possession through memo. Exh.P.G. Ghulam Sarwar appellant also led to the recovery of 7 mm rifle from his house on 8-8-1993, which was taken into possession vide memo. Exh.P.H. And a separate case under the West Pakistan Arms Ordinance, 1965, was registered against him. After completing the investigation, the S.H.O. (P.W.13) finding all the three accused involved in the case challenged them to face the trial for the charge under section 302/34, P.P.C. For committing Qatl-e-Amd of Muhammad Iqbal and Muhammad Milken.
6. Dr. Muhammad Saeed (P.W.2) conducted the post-mortem examination of the dead bodies of Muhammad Miskeen and Muhammad Iqbial deceased on 21-7-1993 and found the following injuries on their persons:- Injuries on the person of Muhammad Miskeen.
(1) A lacerated gunshot wound of entry measuring 1 c.m. x 1.25 c.m. On right hypoehondriun with slight blackening of edges inverted 17 c.m. Below the right nipple 13 c.m. Above and right to the umbilicus.
(2) A lacerated gunshot wound of exit with obverted edges measuring 1.5 c.m. x 1 c.m. On right lower back of chest 8 c.m. Below to the inferior angle of scapula and 15 c.m. Right to the vertebral column. Scalp and skull healthy. Vertebrae not open. Membranes brain and spinal cord healthy.
Brain healthy. Spinal cord not opens.
Injuries on the person of Muhammad Iqbal.
(1) A lacerated gunshot wound of entry measuring 1.5 c.m. x 1 c.m. With slight blackening of edges on right anterior shoulder 19 c.m. Above right nipple.
(2) A lacerated wound of exit with overted edges 1.5 c.m. On back of chest in centre on vertebral column 24 c.m. Below the base of neck.
7. Mst. Sandal Bibi (P.W.9) widow of Muhammad Miskeen and Mst. Walayat Jan (P.W.7) widow of Muhammad Iqbal have furnished the ocular account of the occurrence. Allah Dad (P.W.9) has witnessed the recovery of the licensed rifle (Exh.P.1) from Lal Zamurrad appellant and rifle (Exh.P.2) belonging to Ghulam Sarwar appellant. The remaining witnesses apart from Muhammad Yar Gondal. Inspector (P.W.11) and Ch. Nisar Ahmad, Inspector (P.W.13) being of formal nature need not to be discussed. Lehrasap Khan, P.W. Was given up as won-over and Muhammad Nawaz as unnecessary. The reports of the Chemical Examiner (Exh.P.W.) and Serologist (Exh.P.O.) and that of Forensic Science Laboratory (Exh.P.P.) -pertaining to the fire-arms recovered from Lal Zamurrad appellant and the empties from the spot, have been part of the record as evidence.
8. Lal Zamurrad appellant making statement under section 342, Cr.P.C. Took the specific defense plea, whereas the remaining two appellants having denied their presence and participation in the occurrence pleaded innocence and false implication.
9. The Trial Court relying upon the testimony of eye-witnesses, namely Mst. Sandal Bibi and Mst.
Walayat Jan, rejected- the defense version and believing the prosecution case in toto finding all three appellant guilty of the charge convicted and sentenced them in the manner, referred to above.
10. Learned counsel for the appellants contended that the eye-witnesses are unreliable as their deposition relating to the motive part of the prosecution story is not supported by evidence and instead the factum of possession of Lal Zamurrad over the land in question a year ago through the decree of the civil Court, being established, the complainant party knowingly through concealment of material fact and the actual story hold the appellants responsible for the fateful incident. He contended that involvement of Ghulam Sarwar and Nasar Mahmood appellants on the basis of special oath given to the parties is a strong circumstance to suggest the exclusion of the presence of the P.Ws. At the spot and the occurrence being of witnessed. He next contended that the defense plea of grave and sudden provocation raised by Lal Zamurrad appellant _ containing the story of making an attempt by Muhammad Iqbal deceased with the help of Muhammad Nawaz to commit Zina with his daughter, Mst. Nasrin was more plausible to be accepted in the given circumstances.
Learned counsel argued that the motive having not proved beyond doubt and there being no other reason for causing injuries to the deceased by the appellants, the defence plea advanced by Lal Zamurrad has been wrongly ignored. He next contended that Nasar Mahmood appellant is not assigned any describable role or overt act and rather P.W.7 in her statement has excluded his presence and participation in the occurrence. Taking the case of Ghulam Sarwar, learned counsel argued that the same is not free from doubt as except the statement of the two interested and inimical ladies, there is no evidence direct or circumstantial to connect him with the commission of offence and consequently, the sole evidence of ocular account in the circumstances of the present case is not enough to make basis of the conviction. The two crime empties recovered from the place of occurrence were matched with the rifle recovered from Lal Zamurrad. The medical evidence as such has no corroborative value against him without the proof of use of fire-arm by him. He taking us to the statement of Ch. Nisar Ahmad (P.W.13), the Investigating. Officer, argued that in fact Nasar Mahmood and Ghulam Sarwar appellants were challenged not on the basis of material but on the special oath taken by the persons, named therein and- contended that this method of determining the guilt of an accused on the basis of special oath being foreign to the criminal administration of justice is not approvable. He summing up his arguments submitted that Ghulam Sarwar and. Nasar Mahmood appellants deserve acquittal, whereas the case against Lal Zamurrad in view of the defense plea taken by him is covered by the exception falling within the ambit of section 302(c), P.P.C. And the maximum sentence in such cases in any case is not more than ten years.
11. Learned Assistant Advocate-General appearing on behalf of the State conversely argued that the case of Ghulam Sarwar and Lal Zamurrad appellants is different to that of Nasar Mahmood appellant as they have been attributed role of causing injury to Muhammad Miskeen and Muhammad Iqbal deceased and 7 mm rifles the weapons were also recovered from them. He contended that notwithstanding the fact that the crime empties recovered from the spot matched with the rifle of Lal Zamurrad, the case of Ghulam Sarwar is not distinguishable to that of Lal Zamurrad and they being equally responsible for committing murder of that two deceased, namely, Muhammad Miskeen and Muhammad Iqbal did not deserve any leniency even in the matter of sentence.
12. We have heard the learned counsel for both the sides and perused the record. The detente without denying the occurrence in the present case pleaded false implication with introduction of specific version. The prosecution version is supported by the evidence of Mst. Sandal Bibi and Mst.
Walayat Jan, injured (P. W.7), who being the wives of the deceased were present with The deceased in the land. They were the natural witnesses of the occurrence, which took place in the land situated nearby the residential houses of the parties, therefore, the presence of the ladies at the spot in Plantar land with cattle is not questionable. The deposition made by the women, eye- witnesses of the occurrence, fully seeks support from the medical evidence and the recovery of the crime weapons in addition to the motive part of the story. The statements of the eye-witnesses are free from any major discrepancy. Whereas the minor discrepancies and contradictions here and there have no material effect and consequences to create describable doubt or dent in the prosecution case. Lal Zamurrad appellant taking specific plea of grave and sudden provocation admitted the causing of fire-arm injuries to the two deceased when they were making attempt to commit Zina-bilJabr with his daughter Mst. Nasreen. The suggestion put by the witnesses during the cross-examination regarding the correctness of the version advanced by Lal Zamurrad appellant was categorically denied, except that Muhammad Nawaz, brother of Mst. Walayat Jan was involved in a case under Hudood Ordinance for committing excess upon Mst. Nasreen, daughter of Lal .Zamora appellant about 8/10 months ago. However, except having put the suggestion in question to the witnesses and making a statement under section 342, Cr.P.C. By Lal Zamurrad appellant, the defiance did not produce any evidence in support of this version. The defiance even has not bothered to bring the daughter of Lal Zamurrad in the witness-box to substantiate the defiance plea. The defiance further did not examine any person as witness among the people, wha immediately after the occurrence gathered at the spot and were in the knowledge of the occurrence including the defiance version. Lehrasap Khan stately was present at the spot during the course of occurrence and was given up as won-over, but the defiance did not even bother to bring this witness in the witness-box. There is also no material on record to suggest that any effort was made on behalf of the appellants to advance their version either during the investigation or before the Trial Court through a counter-case or filing a private complaint, as the case may be. The defiance version while putting in junta position with the prosecution story does not appeal to mind and the same being not convincing was rightly rejected by the Trial Court.
13. The analysis of the prosecution evidence visa-a-visa the defiance plea and the examination of the circumstances under which the occurrence took place, and following the rule of curious station, it is essential to ascertain the question of common intention as per role played by each appellant in the occurrence. There was no other enmity between the parties except the dispute over the land and the grudge of Lal Zamurrad appellant against Muhammad Nawaz, brother of Mst. Walayat Jan.
Thus, there being element of and grudge inter se the parties, it would not be proper to believe the eye-witnesses account as such against all the appellants without independent corroboration. Lal Zamurrad appellant having pleaded a specific plea has admitted the occurrence but failed to substantiate the same through any material evidence direct or circumstantial. The motive of the dispute of land is attributed to him and he, while putting suggestion to the P.Ws. Regarding his possession over the land since the time of his fore-fathers, has supported the prosecution version that the dispute of possession was in existence between the parties.
14. The crime empties recovered from the spot have been found matched with the rifle recovered from Lal Zamurrad appellant. These empties were dispatched to the Forensic Science Laboratory on 26-7-1993, whereas the rifle upon recovery from Lal Zamurrad on 6-8-1998 was dispatched on 12-8-1993. Therefore, positive report of the Forensic Science Laboratory provided an independent source regarding the use of recovered rifle as weapon of offence by Lal Zamurrad in the occurrence. The medical evidence further supported the nature and location of the injuries and the kind of weapon used by the appellants as narrated by the eye-witnesses. The injuries on the persons of both the deceased being of similar nature could be caused with the same weapon. The story of the F.I.R. Lodged without loss of time is fully corroborated with the evidence of eye- witnesses on each material point. From perusal of the defiance plea raised by Lal Zamurrad, the prosecution case agianst him seeking ample corroboration from his own admission stood proved against him beyond reasonable doubt and, consequently, his conviction under section 302(b), P.P.C. Is unexceptional.
15. Considering the quantum of sentence, we find that there is no extenuating or mitigating circumstance in favour of Lal Zamurrad for the lesser punishment and the contention of the learned counsel that there being no male witness of the occurrence, the capital punishment on the basis of the statement of female under Islamic Law was not possible. The contention has no force for the simple reason that Lal Zamurrad has been sentenced under section 302(b), P.P.C. As Tazir for which the standard of evidence is different to that of the Qisas as envisaged under section 304, P.P.C. Read with Article 17 of the Qanune-Shahadat Order, 1984. It is noticeable that even on the basis of circumstantial evidence conviction under sections 302(b) and 302(c), P.P.C. For Qatl-e- Amad can sustain as provided under the above provisions of law.
16. The next contention of the learned counsel is that the possession of the land in question being already with Lal Zamurrad, the motive of possession set up by the prosecution was not proved and the same being shrouded in mystery, the capital punishment was not warranted. The perusal of the F.I.R. And the statements of the witnesses unambiguously makes it clear that the parties were carrying animus against each other due to the dispute over the land in question. The decision of the suit in favour of the appellants and the failure of appeal would not be a proof of the fact that the tension between the parties regarding the dispute of possession of the land came to an end and there being no other reason traceable behind the occurrence, the dispute of possession of land as disclosed in the prosecution and also admitted by the defiance through putting suggestion to the witnesses appeared to be the real bone of contention, which led to this fateful occurrence.
We, therefore, are not persuaded to disbelieve the motive part of the prosecution story and withheld the normal penalty of death awarded to the appellant Lal Zamurrad. Consequently, dismissing the appeal of Lal Zamurrad, we confirm the death sentence awarded to him by the Trial Court.
17. Judging the case of Ghulam Sarwar and Nasar Mahmood appellants on the basis of role of corroboration, we find that the statements of the two witnesses contained material contradictions creating doubt about the presence and participation of Nasar Mahmood in the occurrence. We do not find any corroborative evidence available on record to connect him with the commission of offence. The occurrence having taken place in the vicinity of the residential houses of the parties, therefore, mere presence at the spot with no overt act was not an enough circumstance to attract the provisions of section 34, P.P.C. Against Nasar Mahmood appellant. Undoubtedly, both the eye- witnesses attributed to him the role of causing fire-arm injury to Muhammad Iqbal deceased by Ghulam Sarwar but this bare statement is not seeking support from any other independent source.
The motive is attributed to Lal Zamurrad, who allegedly was interested in possession of the land and two crime empties recovered from the spot were also found matched with the rifle recovered from Lal Zamurrad. The assailant being not identifiable through the medical evidence with the result the role attributed to this appellant having not proved beyond reasonable doubt his conviction and sentence on the basis of sole uncorroborated testimony of eye-witnesses is not safe in the given circumstances.
18. . We, therefore, are not satisfied with the view of the evidence taken by the learned Trial Court quo Ghulam Sarwar and Nasar Mahmood, as the case against them being full of clouds is of doubtful character and consequently, we extending benefit of doubt to them set aside their conviction and sentence and acquit them from the charge. The criminal appeal to their extent is allowed and they are directed to be released from jail forthwith' if not required in any other case, whereas the appeal to the extent of Lal Zamurrad appellant is dismissed and Murder Reference to his extent is answered in affirmative. The sentence of fine being not imposable under section 302(b), P.P.C. The same is converted into compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased.