' SH. IJAZ NISAR, J.---The criminal appeals mentioned above by leave of the Court are directed against the judgment, dated 25-7-1993, passed by the Lahore High Court, Lahore, in Criminal Appeal No,162 of 1990 and M.R. No,239 of 1990.
2. The facts, in brief, are that on 8-8-1987, at 11-30 a.m. a case under section 302/307/148/149, P.P.C.
Was registered with Police Station Saddar, District Layyah, at the behest of Muhammad Ismail complainant P.W.5, for the murder of Muhammad Yaqub deceased. The case of prosecution is that on 8-8-1987 Muhammad Ismail complainant was proceeding to the house of his brother Muhammad Yaqub deceased in Chak No,319/TD. When he reached near the Primary School of the said Chak, the accused namely Muhammad Rafique, Muhammad Naeem, armed with .12 bore guns, Iftikhar with a Churri, Muhammad Sarfraz with a .32 bore revolve and .Farrukh Aftab armed with a pistol came there. All of them declared that they would teach the complainant a lesson for their insult. Muhammad Ismail P.W. Raised alarm which attracted Muhammad Yaqub deceased, Muhammad Ibrahim, Muhammad Boota P.W.6 and Muhammad Anwar to the spot. Muhammad Naeem appellant opened fire hitting the left leg of Muhammad Ismail complainant. Muhammad Rafiq appellant fired at the abdomen of Muhammad Yaqub deceased. Iftikhar appellant gave churri belows to Muhammad Yaqub deceased on his chest, as a result whereof he fell down and succumbed to the injures. Iftikhar gave a Churri blow on the left elbow of Farrukh Aftab while Sarfraz accused kept on firing. Muhammad Ismail complainant and others ran away from the spot but the assailant followed them. In the meantime, Zulfiqar P.W. 10 and his son Mukhtar reached the spot. They were also attacked. Naeem appellant fired hitting the abdomen of Zulfiqar P.W. And the left arm pit of Mukhtar. After the occurrence the accused persons fled away.
3. The motive of the offence was that 5/6 months before the present occurrence Iflikhar appellant had caught hold of Mst. Seema Bibi, daughter of Muhammad Boota, (injured P.W.) for committing Zina. Mst. Seema Bibi raised alarm, whereupon her brothers came and caught hold of Iftikhar.
Naeem appellant, brother of Iftikhar and his father Muhammad Rafique also reached there to help Iftikhar. They were also caught hold of by the brothers of Mst. Seema and taken to Chak where they were given shoe-beating. The accused launched attack on the complainant party to avenge the said insult.
4. The learned Sessions Judge. Layyab, vide judgment. Dated 14-10-1990, convicted Iftikhar appellant under section 302, P.P.C. And sentenced him to death with a fine of Rs,10,000 or in default to undergo two years' R.I. The rest of the accused namely Muhammad Rafique, Muhammad Naeem, Muhammad Sarfraz and Farrukh Aftab, were convicted under section 302/109, P.P.C. And sentenced to imprisonment for life with a fine of Rs,10,000 each, or in default thereof to undergo two years' R.I. Each. All of them were further convicted under section 148, P.P.C. And sentenced to six months' R.I. Each. They were also convicted under section 307, P.P.C. On four counts for causing injuries to the prosecution witnesses and sentenced to three years' R.I. On each count plus a fine of Rs,5,000 or in default six months' R.I. Each. It was further directed that out of fine Rs,30,000 if recovered, shall be paid to the legal heirs of deceased Muhammad Yaqub, and Rs,5,000 as compensation to each of the injured witness.
5. On appeal, filed by the appellants, a Division Bench of the Lahore High Court, vide judgment, dated 25-7-1993 maintained the conviction and sentences of Muhammad Rafique, Muhammad Naeem and Iftikhar. However, Farrukh Aftab and Sarfraz accused were given the benefit of doubt and acquitted.
6. Hence these appeals by Iftikhar Hussain, Muhammad Rafiq and Muhammad Naeem against their conviction and sentences, and Criminal Petition No,419-L/93 by Muhammad Ismail complainant against the acquittal of Muhammad Sarfraz and Farrukh Aftab accused.
7. Leave to appeal was granted by this Court on 8-5-1994 in Criminal Appeals Nos.256 and 257 of 1997, to consider, inter alia: "Whether the Lahore High Court was right to maintain, conviction of the petitioners on capital charge, on the statements of two eye- witnesses, namely, Muhammad Ismail P.W.5, and Muhammad Boota, P.W. 6, who were real brothers of Muhammad Yaqoob 'deceased, without sufficient corroborative evidence on the record, as also by ignoring the defence version altogether."
8. Sardar Muhammad Latif Khan Khosa, learned counsel for the appellants argued that the two eye-witnesses Muhammad Ismail P.W.5 and Muhammad Boota P. W.6 were brothers of Muhammad Yaqub deceased and their statements could not be relied upon without corroboration. According to him, the recoveries of fire-arms and Churri allegedly made from the accused were not believed by the trial Court and the High Court. He contended that the alleged motive that Mst. Seema Bibi was caught hold of by Iftikhar appellant for ZinaBil-Jabr and her rescue by her brothers would have furnished a ground to the complainant party to launch attack on the accused and not vice versa, that the observation by the learned trial Court that the accused were to prove their pleas taken in defence and the adverse inference drawn for their non- appearance under section 340(2), Cr.P.C. Was not justified. He also pointed out certain inconsistencies and contradictions in the evidence of the prosecution witnesses.
9. The prosecution examined Muhammad Ismail P.W.5 and Muhammad Boota P.W.6 as eye- witnesses. Both of them had suffered injuries during the occurrence at the hands of the accused.
They were medically examined and injuries caused by fire-arm and sharp-edged weapon were found on their persons. The duration thereof tallied with that of the deceased. According to Muhammad Ismail P.W., he had suffered fire-arm injuries at the hands of Muhammad Naeem appellant, while Muhammad Boota P.W. Attributed his injuries to Iftikhar appellant. One of the injuries suffered by him was on the forehead which could not be self-suffered. Muhammad B000ta P.W. Also testified about the motive. He is father of Mst. Seema, who had been caught by Iftikhar appellant for having sexual relations with him and which had led to the shoe-beating to him by the complainant party. Iftikhar appellant admitted the motive to some extent. According to him, he was suspected of maintaining illicit relations with Mst. Seema.
10. The non-production of Zulfiqar and Mukhtar Ahmad, the injured eyewitnesses, does not in any way discredit Muhammad Ismail and Muhammad Boota P.Ws., for, it is not necessary that the prosecution must produce all the persons witnessing the occurrence. No particular number of witnesses is fixed under the law to prove the offence of murder. Muhammad Ismail and Muhammad Botta P.Ws have given a detailed account of the occurrence and despite lengthy cross-examination no infirmity could be brought out in their statements. True that they are real brothers, but the mere fact of their relationship inter se would not dub them as interested witnesses. The motive as stated by Muhammad Boota P.W.6 fits in with the prosecution version and there is nothing on record to indicate that there was any other reason leading to the occurrence, or some persons other than the appellants had any grouse or grievance against the complainant party. The defence version put forth by the accused that the complainant party had attacked them when they were passing near the house of the deceased, does not appear to be convincing. They further maintained that Iftikhar appellant was not with them at that time. This does not appeal to reason because the entire grievance was against Iftikhar as admitted by him also and unless he had been accompanying his co-accused there would have been hardly any reason for the complainant party to have launched the attack on them. Moreover, the version that someone from the crowd had started firing, which hit the deceased, does not appear to be true. There is nothing on the record to suggest that a large number of persons had gathered when the alleged quarrel ensued between the parties. The appellants could have produced material to this effect either before the Investigating Officer or at the trial but they did not do so. It is unbelievable that the firing from the crowd would have injured the complainant party only and not even a single pallet would hit the appellants.
11. The injuries found on the persons of Muhammad Naeem appellant and Farrukh Aftab accused (since acquitted) do not demolish the prosecution case because they did not appear before the police for about 9 days after the occurrence. It is difficult to say that they had suffered those injuries in the course of the occurrence in question. Had it been so, they could have appeared before the police earlier or lodged a report to that effect but they kept silent.
12. Iftikhar and Naeem appellants are real brothers while Muhammad Rafiq appellant is their father.
The latter is reported to be an elderly person who was F found innocent in the investigation carried out by Ghulam Qadir, D.S.P. He was allegedly armed with a gun during the occurrence and is stated to have fired at Muhammad Yaqub deceased alongwith his son Muhammad Naeem. As per case of the prosecution. Muhammad Naeem appellant was armed with a single barrel gun and that he had fired at Muhammad Ismail P.W. And Zulfiqar P.W. (given up) after re-loading the gun. It would not be out of place to mention here that no crime empty was recovered from the spot by the Investigating Officer. From the circumstances of the case it appears that it was Muhammad Naeem appellant only who was armed with a gun during the occurrence and from the shot fired by him Muhammad Ismail P.W. And Yaqub deceased had received injuries, and that the name of Muhammad Rafiq appellant was introduced being head of the family to prevent him from defending his four sons involved in the case.
13. In this view of the matter, by way of abundant caution, we accept the appeal of Muhammad Rafiq appellant and acquit him of the charge by giving him the benefit of doubt. He shall be set at liberty forthwith, provided he is not required in any other case. So far as Iftikahr and Muhammad Naeem appellants are concerned, we do not find any infirmity in the case of the prosecution.
Iftikhar appellant is alleged to have dealt a fatal blow to the deceased. He was, therefore, rightly awarded the death penalty. Muhammad Naeem appellant deserved a lesser sentence, as he did not cause any fatal injury to the deceased and the injuries attributed to him were not declared grievous or dangerous to life. He was, therefore, rightly awarded the lesser penalty provided for the offence of murder.
14. For the foregoing reasons, the appeals filed by Iftikhar and Muhammad Naeem appellants fail and are consequently dismissed.
15. Criminal Petition No,419-L/93 filed by Muhammad Ismail complainant against the acquittal of Muhammad Sarfraz and Farrukh Aftab is dismissed in the light of the above discussion.