' NASIR-UL-MULK, J.--- Mumtaz Khan son of Muhammad Ali, Amanullah son of Sadullah and Muhammad Ali son of Sadullah, were tried for the murder of Behram Shahzada son of Hazrat Ghulam, by the learned Sessions Judge, Lakki Marwat. Mumtaz Khan and Amanullah were convicted under section 302/34, P.P.C. And each sentenced to imprisonment for life and fine of Rs,40,000, in default of payment whereof to further suffer five years' simple imprisonment, vide judgment, dated 15-11-1995. 2/3rd of the fine, if realized, was to be paid, as compensation, to the legal heirs of the deceased. The convicts were extended the benefit of section 382-B, Cr.P.C. For the period already undergone as under trial prisoners. Muhammad Ali accused was acquitted. The two convicts have preferred appeal against their conviction and sentences through Criminal Appeal No,62 of 1995 whereas the complainant, the father of deceased Hazrat Ghulam, has filed Criminal Appeal No,63 of 1995 against the acquittal of Muhammad Ali accused and Criminal Revision No,11 of 1995 for enhancement of the sentences of the two convicts. The three matters are being disposed of by this common judgment.
2. The murder of Behram Shahzada was reported to the police at Police Station Naurang, Lakki Marwat by his father Hazrat Ghulam and the information furnished was recorded in F.I.R. No,327, registered by Abdur Rahim Khan, S.H.O. Of the police station on 8-9-1991 at 7-40 p.m. The information was furnished at 7-10 p.m. On the same day whereas the occurrence was stated to have taken place at Digar Qaza Vela (a little before sunset). The complainant had alleged that he and his two sons, Muhammad Fanoos and Behram Shahzada, were busy in their field, he, in cutting grass whereas his two sons in clearing up the vegetable crop, when Muhammad Ali, empty- handed, his brother Amanullah and his son Mumtaz Khan, armed with Topaks (guns) appeared on the scene. No sooner had Behram Shahzada noticed the presence of the three accused when he started to run. Muhammad Ali commanded the other two accused not to let Behramshahzada escaped. Responding to the command, Mumtaz Khan and Amanullah opened at Behramshahzada. He was hit and died instantly. Motive for the offence was stated to be the enmity between the two parties arising out of a case of attempted murder.
3. The S.H.O. After having recorded the F.I.R. (Exh.P.A.) prepared the injury-sheet (Exh.P.W.8/1) and inquest report (Exh.P.W.8/2) of dead body of the deceased which had been brought to the police station at the time of registration of the case. That done the corpse was sent to the hospital for autopsy and the Investigating Officer proceeded to the spot for inspection. There he prepared the site plan (Exh.P.B.), took into possession cut gross through recovery memo. Exh.P.W.4/1, blood- stained earth vide recovery memo. Exh.P.W.4/2 and two empties of .12 bore through recovery memo. (Exh.P.W.4/3). The clothes worn by the deceased at the time of his murder along with phial sent by the Doctor were sealed in a parcel through recovery memo. Exh.P.W.4/4. As the accused could not be found, the same Investigating Officer applied for issuance of warrants under section 204, Cr.P.C. And proclamation under section 87, Cr.P.C. The accused were eventually arrested on the same day on 10-12-1991 when their bail before arrest was not confirmed by the Sessions Judge.
4. Doctor Muhammad Yunis Khan, Medical Officer, Civil Hospital, Sarai Naurang conducted the autopsy on the dead body of Behram Shahzada and found the following injuries:--
(1) Young healthy man wearing Shalwar Qamis of greenish colour.
(2) One entrance wound on the left side of the face at angle of lower jaw adjacent to neck size 1- 1/4" in diameter.
(3) Three exit wounds present on right side of neck, two size 1/2" in diameter located on upper part of neck right side.
(4) One entry wound on left side of back. 1-1/2" medial to the posterior axillary line 4" lateral to mid- line horizontally on line of nipple size 2" in diameter with inverted margin.
(5) Seven exit wounds present on front of chest right side two inches above in medial to right nipple about.
1/4" each in diameter cross to each other.
Thorax Walls, ribs, cartilages,- pleurae, larynx and thread right lung, left lung panjandrum and blood vessels injured.
Abdomen Mouth pay, esophagus injured. Stomach healthy.
5. In opinion of the doctor, the deceased died instantaneously and the time between death and post-mortem report was 12 to 24 hours. The dead body was examined by the doctor at 7-00 a.m.
On 9-9-1991.
6. The three accused were tried under section 302/34, P.P.C.They all pleaded not guilty and chose to defend themselves. At the trial, the prosecution examined eight witnesses, two of them, Hazrat Ghulam (P.W.5) and Muhammad Fanoos Khan (P.W.6), as eye-witnesses. None of the three accused testified under section 340(2), Cr.P.C. And in their statements under section 342, Cr.P.C.
Apart from total denying the charge, pleaded that the deceased was done to death by one Abdul Qayyum son of Abdul Jalil who had confessed his guilt before the Magistrate.-- The defence also produced evidence and examined as many as eight witnesses for the purpose of establishing the plea of alibi for Muhammad Ali accused and to show that there were reasons to believe that the murder had been committed by the aforementioned Abdul Qayum.
7. The mainstay of the prosecution case was the ocular testimony of the two eye-witnesses, recovery of two empties of .12 bore, recovery of bloodstained earth, medical evidence, motive for the crime and the three months' long ascendance of all the three accused.
8. Mr. Muhammad Karim Anjum Qasuria, Advocate, representing the two convicts, maintained that the F.I.R. Was registered with unexplained delay as the occurrence had taken place at Digar Qaza Vela, which, according to him, was around 6-00 p.m. On the day of occurrence, whereas the report was made more than one hour later at 7-10 p.m. And the distance to be covered to the police station was only one and a half mile. As regards the ocular testimony, he argued that not only that the two eye-witnesses are closely related to the deceased, and, therefore, interested, their presence at the spot was doubtful because there was no reason for the accused to have spared them. Attacking the testimony of the two eye-witnesses, the learned counsel submitted that it was unnatural for the deceased alone to have started running away after seeing the accused and that too in the direction of the accused. The ocular testimony, it was contended, was contradicted by the medical evidence because although the deceased had received shotgun injuries, one of the entry wound of 1-1/4 inches and presence of cardboard and plastic on that wound would show that the shots must have been fired from a close range within 12 feet, whereas the site plan has shown the distance between the accused and the deceased at the time of the assault to be 15 paces, which translated into standard measurement, would mean over forty feet. For this proposition, the learned counsel cited Captain Mahmood Jan v. Madad Khan and another 1981 SCM R 474. Relying upon Muhammad Ishaq v. The State 1994 PCr.LJ 814, it was contended that the recovery of empties is to be excluded from consideration as corroborative piece of evidence because they were not sent to the Arms Expert to determine whether they were fired from one or two weapons. The learned counsel further urged that the plea of alibi of Muhammad Ali, the confession of Abdul Qayum of his guilt and the acquittal of Muhammad Ali accused gives rise to a reasonable doubt that the convicts had not committed the murder. As regards the prosecution case, the learned counsel submitted that the ocular testimony, being of interested witnesses and contradicted by medical evidence does not find any corroboration, as the recovery of empties, as already contended, is to be excluded from consideration.
7. Responding to the above arguments, Mr. Dost Muhammad Khan, Advocate, counsel for the complainant, argued that the time consumed to report the crime to the police \was reasonable in the circumstances considering the fact that the dead body was to be taken in a horse-cart. As regards the contention regarding distance between the accused and the deceased, the learned counsel referring to Muhammad Rafiq alias Titai v. The State PLD 1974 SC 65 and Dr. Ihsan Illahi v. Dr. Islam Mahmood and others 1981 SCMR 787 submitted that the distance cannot be indicated with exactitude by illiterate or semi-illitrate witnesses. Furthermore, the learned counsel submitted, that the assessm ent of the distance in the present case became more difficult, as at the time of the assault, the assailants and the target were both moving. Even otherwise, it was argued, that site plan is not substantive piece of evidence and cannot be used to contradict the ocular testimony.
Reliance was placed on Taj Muhammad v. Muhammad Yusuf and 2 others PLD 1976 SC 234. As to the interestedness of the witnesses, it was maintained that in the absence of motive to falsely implicate the accused, the eye-witnesses cannot be termed as interested. Placing reliance upon Sibghatullah and another v. The State and others 1996 SCM R 842, Samano v. The State 1973 SCM R 162 and Abdus Samad v. The State 1972 SCMR 215, the learned counsel submitted that it is now settled that the principle falsus in uno falsus in omnibus is no longer applied while appraising evidence in criminal cases and, therefore, acquittal of Muhammad Ali accused should have no bearing on the prosecution case against the convicts. As to the confession of Abdul Qayum, the learned counsel referred to the application made to the Magistrate for recording of the confession and the use of that confession to grant bail to convicts argued ... That the confession was clearly manipulated. In this context, he pointed out that the said Abdul Qayum never approached the Investigating Agency for recording his statement nor was he produced by the defence at the trial and, therefore, the so-called confession shall be totally excluded from consideration.
8. Mr. Sanaullah Khan Gandapur, counsel for the acquitted accused Muhammad Ali, defended the acquittal on the ground that not only the prosecution case as a whole was doubtful, but that Muhammad Ali had only been given the proverbial role of Lalkara. Since the judgment of the trial Court, it was maintained, was not perverse or unreasonable qua the acquittal of Muhammad Ali, the appal against acquittal does not merit acceptance.
9. The learned Assistant Advocate-General while opposing the appeal against conviction and supporting the appeal against acquittal adopted the arguments advanced by Mr. Dost Muhammad Khan, Advocate, counsel for the complainant. In revision for enhancement of sentences, the learned counsel for the complainant argued that the only reason given by the trial Court for not awarding the normal sentence of death, namely absence of motive, is not in consonance with the record, as motive stands fully established. Relying upon case Talib Hussain and others v. The State 1995 SCM R 1776, the learned counsel submitted that under section 544-A, Cr.P.C. Compensation must be awarded separately and shall not be given out of the fine, as the trial Court did in the present case, for fine is part of the sentence.
10. ' The foundation of the prosecution case is the ocular testimony of the father and the brother (P.Ws.5 .And 6) of the deceased. Their presence was questioned by the defence on a number of grounds. The witnesses claimed to have been busy in their own fields, along with the deceased, at the time of occurrence. Their presence in their own field is not unnatural. An argument was advanced by the defense that the witnesses' story of starting their work in the field towards the end of the day is not believable because ordinarily the farmers start their work at the advent of the day.
This argument is belied by the evidence because both the witnesses had only stated that they were present in their field at the time of the occurrence and they had nowhere alleged that they came to the field moments before the attack. As regards the sparing of the two eye-witnesses by the accused and the running away of the deceased from the scene of occurrence, learned counsel for the complainant has furnished a plausible explanation that in the earlier case (F.I.R. No,235, dated 4-8-1989 registered at Police Station Anuran, which is the motive for the present occurrence), the deceased Behram Shahzada was charged for effectively firing at Mumtaz appellant. It was, therefore, natural for the deceased to apprehend attack on him which made him run for safety. The previous case also explains why the deceased alone was targetted. The prosecution case is that it was only when the deceased had started to run that Muhammad Ali accused ordered the other accused to attack. The accused appeared from the north-west to the point where the complainant party were standing and moved towards east when they saw the deceased running to the north. To the north is the village Abadi and it was quite natural for the deceased to have run towards the Abadi for refuge, because the deceased started to run before the firing started. It may be added that according to P.W.5 the deceased had only gone about seven steps when he was fired upon. In this view of the matter, no capital can be made out of the running of the deceased towards the north. Intrinsically the testimony of the two eye-witnesses is credible. They had successfully withstood the test of cross-examination. Not even minor contradiction between their inter se testimony or between their statements at the trial and earlier statements have been brought out by the defence. No doubt, the eye-witnesses are related to the deceased, but it is settled that this per se would not make them interested persons in absence of any evidence of motive for false implication. The defence has not been able to show as to how the complainant would gain from their false implication. Even if the witnesses are considered to be interested, their testimony should not be discarded totally, but to be accepted with caution and with corroboration.
11. The thrust of the defence case before us is the contradiction between medical evidence and the site plan. The argument was that a single aperture with card-board cannot be caused by a shot gun from a distance of 15 paces as given in the site plan. The Supreme Court in the case of Captain Mehmood Jan, referred to above, relying upon Modi's Medical Jurisprudence and Toxicology, had held that entry of pellets in a mass causing a whole must have been fired within 12 feet. On the other hand, in Barkat Ali v. The State 1970 PCr.LJ 87, cited by the counsel for the complainant, it was held that wad struck in a wound must have been caused by a shot fired from a distance of fifteen to twenty feets. Fifteen paces cannot be translated into standard measurement with precision.
' However, ordinarily a pace is considered to be 2 to 3 feet. Thus, the distance, according to the site plan between the deceased and the accused should have been anything between 30 to 45 feet.
The distance given in the site plan loses significance because the deceased was running and the accused were moving quickly at the time of firing. In those circumstances, the eye-witnesses are not expected to give the distance with exactitude. Even otherwise, the Supreme Court in the cases of Muhammad Rafique and Dr. Ehsan Elahi cited above had held that distance cannot be indicated with exactitude by illiterate or semiliterate witnesses. On the other hand, the medical evidence supports the site plan regarding the direction from which the shots were fired. The two entrance wounds found on the dead body of the deceased were on his left side; one on the left side of the face and the other on left side of back. According to the site plan since the deceased was running from south to north and the firing was opened from the west, the left side of the deceased was exposed to the accused.
12. Admittedly, the two shot gun empties recovered from the spot were not sent to the Fire-Arm Expert. The Investigating Agency should have got the opinion of the Fire-Arms Expert. Having not done so would not be fatal to the prosecution case. At best these recoveries of empties can be ruled out of consideration. However, since two persons are charged for firing at the deceased, opinion of the Fire-Arms Expert would have helped in determining whether the empties were ejected from one or two shot guns. Had the empties been sent to the Expert and an opinion that the empties were fired from two shot guns given, it would have added further corroboration to the fact that two persons had shot the deceased. However, the absence of such an opinion does not mean that the firing was done by one person, if through other evidence, like the ocular testimony, it is established that two persons had fired at the deceased. One thing, however, is clear that the recovery of empties of shot guns from the scene of occurrence lends support to the medical evidence that the injuries received by the deceased were from a shot gun.
13. The motive for the crime has been established. P.W.5 had stated in his examination-in-chief, and not challenged in cross-examination, that in the year 1989 the deceased was charged for effectively firing at Mumtaz appellant and that a compromise was effected later on. An argument was advanced by the defense that having compromised the earlier case, no motive remained for the present occurrence. Effecting compromise does not necessarily mean that the complainant party has really forgiven the accused. It is not unknown that revenges are taken even after compromise when the accused become complacent of his security. On the other hand, the defense has not made any suggestion to the prosecution witnesses for false implication of the accused or that they had old enmity with somebody else. As regards ascendance, although it was argued on behalf of the complainant that the accused remained absconders for three months, the record shows that on 19-9-1991 just 10 days after the occurrence, the accused obtained transitory bail from the Sessions Judge, Nowshera and surrendered to the police after their bail before arrest was not confirmed by the Sessions Judge, Lakki on 10-12-1991. The accused, therefore, did not abscond.
14. This brings us to the evidence of the defense. The first part of the defense evidence relates to plea of alibi of Muhammad Ali, the acquitted accused. For this, Maulana Khan Muhammad D.W.1 and Mulana Muhammad Bashir Khan (Pesh Imam of Mosque in Sakhi Abad, District Tank) were examined. Their testimony was to the effect that between 6-9-1991 and 9-9-1991, Muhammad Ali was seen praying in the mosque of Sakhi Abad. To establish a plea of alibi it must be established that at the time the crime was committed, the accused was at some other place and, therefore, could not have committed the offence. General statements that Muhammad Ali had been offering prayers in the mosque would not be sufficient unless there was categorical statement that around 6-00 p.m. On 8-9-1991 the accused was present in the mosque of Sakhi Abad. The plea of alibi, therefore, cannot be accepted. However, such plea is immaterial because Muhammad Ali accused had already been acquitted and for reasons hereinafter appearing we would uphold his acquittal.
The rest of the defence witnesses relate to the admission made by one Abdul Qayum son of Abdul Jalil that he alone had murdered Behram Shahzada. The circumstances under which such an admission was made clearly shows that his admission was manipulated. He did not go to the police for getting his statement recorded but went straight to the Magistrate, made an application, drafted by his counsel, for getting his statement recorded. The copy of the F.I.R. Was not attached to the application. The statement of Abdul Qayum was recorded by the E.A.C./Magistrate, Serai Naurang on the direction of S.D.M. On 31-12-1991. On the following day an application for bail was moved before the same Magistrate by all the accused and on the strength of the admission of Abdul Qayum, the accused were released on bail on 10-1-1992. Later one, however, the bail was recalled by the Sessions Judge. Abdul Qayum was not handed over to the police for investigation but interestingly was sent directly to the judicial lock-up. In fact Abdul Qayum never associated with the investigation nor made any statement to the police. Eventually Abdul Qayum was also released on bail because the prosecution had not made him an accused in the case. Even tested on legal parlance, the statement made by Abdul Qayum before the Magistrate is of no benefit to the defence, because, firstly, he did not even appear as a defence witness, and his statement before the Magistrate cannot be regarded a confession within the meaning of section 164 read with section 364, Cr.P.C. As he was not an accused in the case. Even otherwise, the statement of Abdul Qayum is not an admission of his guilt as he has raised a plea of self-defense therein.
15. We, therefore, conclude that the prosecution has been able to prove its case beyond reasonable doubt against the two convicts Mumtaz Khan and Amanullah. The ocular testimony receives corroboration from the medical evidence, the motive for the commission of the crime and to certain extent the recoveries of the two empties. As regards the acquittal of Muhammad Ali accused, we are inclined to maintain the order of acquittal because the accused was empty- handed and has only been attributed the role of Lalkara. Thus, for safe dispensation of justice, the Sessions Judge has rightly acquitted Muhammad Ali and since the order of acquittal is neither perverse nor unreasonable, we would not interfere with it.
16. As for the sentence is concerned, the learned Sessions Judge has erred in awarding lesser sentence on the ground that motive has not been proved, because there is sufficient evidence in the form of ocular testimony and the previous F.I.R. Regarding motive, namely, previous attempt on the life of Mumtaz convict by the deceased. However, having said that, there are other reasons for granting lesser punishment. Two persons have been convicted for the murder of one, who has received two injuries and it has not been pointed out by the prosecution as to whether the shots fired by both the accused were effective. Furthermore, the accused are uncle and nephew. The capital punishment is not warranted in these circumstances. However, the learned Sessions Judge has not separately awarded compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. But had ordered payment of 2/3rd of the fine of Rs,40,000 each as compensation. This needs correction.
17. We would, therefore, dismiss Criminal Appeals Nos.62 and 63 of 1995 and partially allow Criminal Revision No,11 of 1995 to the extent of awarding Rs,25,000 as compensation by each of the convicts to the legal heirs of the deceased. However, we would reduce the fine imposed on the convicts from Rs,40,000 each to Rs,10,000 each.