' ZAFAR PASHA CHAUDHRY, J.---Through this judgment Murder Reference No, 241 of 1993 alongwith Criminal Appeal No, 276 of 1993 as well as Criminal Appeal No,275 of 1993 will be disposed of.
Murder reference as well as Criminal Appeal No, 276 of 1993 relate to the sentence of death awarded to Riaz Ahmad appellant. Criminal Appeal No, 275/1993 has been filed by Wazir Ali alias Taini challenging his conviction and sentence under section 302/34, P.P.C. To the imprisonment for life with a fine of Rs,10,000.
2. The prosecution case in brief as disclosed from the statment Exh.PE made by Faiz Ahmad P.W.7 is that he alongwith Falak Sher, his brother was present on Adda Jamlera for getting his water tap repaired. At about 4.30 p.m Moulvi Rajab Ali was coming on his motorcycle from Boreywala side.
Riaz Ahmad armed with Gun, Wazir Ali alias Taini and another person whose name was not then known armed with sticks were sitting in ambush in a furniture shop near flour mill of Haji Nazir.
When Rajab Ali reached near the canal bridge Wazir Ali appellant blocked his way. Rajab Ali tried to Sneak behind the Tractor but Wazir Ali did not permit him to do so. Riaz Ahmad caught hold of Rajab Ali from his collar on which Rajab Ali and Riaz Ahmad had a scuffle. Riaz Ahmed raised Lalkara on which the third companion brought Danda from the furniture shop. Wazir Ali and said person inflicted Danda blows on head and back of Rajab Ali on which he fell down in the water course. Rajab Ali tried to make his escape by hiding himself in the shop of Iqbal Qasai but Riaz Ahmad fired a shot from his double barrel gun which hit Rajab Ali on his left calf but Rajab Ali managed to reach nearby Ehata of butcher. Riaz Ahmed alongwith his two said assailant chased him and entered the Ehata. Rajab Ali caught hold of the barrel of Gun but Wazir Ali alias Taini and his other companion gave Danda blows on his arms as a result of which the gun was released. Riaz Ahmad fired a second shot hitting his right calf. Thereafter all the three assailants made their escape from the place of occurrence alongwith Tractor. The occurrence was witnessed by complainant Ahmad Ali and Falak Sher. The injured Rajab Ali was removed to the Rural Health Centre Sahuka and was admitted therein.
3. The motive was stated to be that one Mst. Bashiran, about two and a half year prior to the occurrence had been abducted by Riaz Ahmad appellant on which Rajab Ali got a case registered for abduction and adultery. He also supported the family of Bashiran Mai during the Court proceedings and got recovered Mst. Bashiran from the possession of Riaz Ahmed. On account of the said grudge, all the three appellants inflicted injuries on the person of Rajab Ali.
4. Rana Muhammad Akram Inspector/S.H.O Police Station Sahuka recorded the statement of Faiz Ahmad complainant EX.PE. Thereafter, the complaint was transmitted to the police station, on which Ghulam Hussain Moharrir/H.0 (P.W.10) recorded formal F.I.R. No,162 dated 28-7-1986 Exh.PE/1.
After recording the statement Rana Muhammad Akram P.W.11 visited the place of occurrence, prepared his inspection notes, rough site plan Exh.PL and recorded the statements of the P.Ws.
Under section 161, Cr.P.C. He also secured blood stained earth. The Motorcycle P-3 and Tractor were taken into possession vide Exh. PG and Exh.PH respectively. On 11-8-1986 he arrested Khair Muhammad (accused who was not nominated in the F.I.R.) and Wazir Ali. Wazir Ali produced Sota Exh. (sic) which was taken into possession vide memo Exh.PJ. Khair Muhammad accused also produced Sota P-2 which was taken into possession vide memo Exh.PK. On 13-8-1986 scaled site plan of the place of occurrence was got prepared i,e, Exh. PD, Exh. PD/1 and Exh.PD/2. On 28-7-1986 the statement of Rajab Ali (now deceased) was recorded who implicated Riaz Ahmad and his two companions. He was referred to Nishter Hospital where he expired on 31-7-1986. Since Riaz Ahmad appellant remained absconding therefore proceedings under sections 87 and 88 Cr.P.0 were initiated against him. As the offence under section 307/34, P.P.C. Had been substituted to under section 302/34 P.P.C. Therefore all the three accused were charged under section 302/34 P.P.C. And challan was submitted under that section . All the three accused pleaded not guilty therefore, they were put up to trial.
4. The prosecution in order, to prove its case examined fifteen P.Ws. Dr. Munir Ahmad P.W.3 examined Rajab Ali on 28-7-1986 and found the following injuries on his person:- Wound of entry. ' lacerated wound of lateral aspect of right leg measuring 10 cm x 6 cm, cutting skin subcutaneious tissues blood vassels, nerves. Clinically fracture of right fibula was seen at two sides and clinically fracture of right tibia was also seen, distance from right knee joint was 7 cm, outer shell of cartridge was in the wound of entry which was removed and handed over to the police. Wound was profusedly bleeding and corresponding cut on Dothi was seen which was measuring about 13 c.m. x 7 c.m.
1-b. Wound of Exit.
' Lacerated wound on medial aspect of right leg measuring 5 c.m. x 2.5 cm. This wound was through and through. This was also bleeding profusely and corresponding cut on Dothi were seen which was measuring about 6 cm x 3 cm.
2. C-shape, lacerated wound on dorsomedial aspect of left leg measuring 4 cm x 3 cm x bone deep , distance from left knee joint was 15 cm. Whole leg was swollen. And was blush black in colour.
3. 15 to 20 shot wounds (pellet wounds) on dorsomedial aspect of left leg each measuring about 0.5 x 0.5 cm.
4. Lacerated wound on dorsal aspect ring of right hand measuring 1.5 cm x 0.5 cm x skin deep.
5. Bluish red dis-coloration of Anterior of right fore-arm measuring 9 cm x 4 cm there was swelling of right forearm. Lacerated wound with swelling around on left parieto-temporal region of head measuring 3 cm x 3 cm wound was measuring about 1.5 cm x 0.5 cm.
7. Lacerated wound with swelling on mid occipital region of head measuring 2 cm x 0.5 cm swelling was measuring about 4 cm x 3 cm.
8. Lacerated wound with swelling on right occipito parietal region of head measuring 2 cm x 0.5 cm swelling around the wound was measuring about 4 cm x 4 cm.
9. Oblique bruise red in colour on back of right chest measuring 13 cm x 2 cm.
10. An oblique bruise red in colour on back of right chest measuring 2 cm x 1 cm distance from injury No, 9 was 4 cm.
' After the death of Rajab Ali on 31-7-1986 post mortem was conducted on 1-8-1986 by Dr. Riaz-ud- Din P.W.1. He found all the injuries i,e, Nos. 2 to 10 on the body of the deceased as already described in the Medico Legal Report No, 116/86 dated 28-7-1986. Injury No, 1 according to this report was caused on the leg which was subsequently amputated. Death had been caused due to injury No, 1 mentioned in the Medico Legal Report which was sufficient to cause death in ordinary course of nature. Injuries Nos. 1, 2 and 3 had been caused by fire arm while the rest of the injuries were inflicted with some blunt weapon. P.W.2 Haji Muzaffar Hussain Draftsman who prepared the site plan. P.W.4 Muhammad Afzal, P.W.5 Rabnawaz Constable, P.W.6 Muhammad Ashraf ASI are formal witnesses. They performed various acts during the investigation. P.W.7 is Faiz Ahmad. He is the complainant and also eye witness. He reiterated and endorsed the statement Exh. PE made by him.
He also deposed about the motive as disclosed by him in Exh.PE. He admitted in cross-examination that Falak Sher P.W.9 was his real brother whereas Ahmad Ali P.W. Was brother of Rajab All deceased. Rajab Ali was his relative and also of Mst. Bashiran whose abduction furnished the motive to the present occurrence. P.W.8 Ahmad Ali is another eye witness who made the statement consistent with the statement made by Faiz Ahmad P.W.7. He also deposed about the motive of the case which is in line with the statement made regarding motive by P.W.7 in his statement in Court as well as in the F.I.R.. Falak Sher P.W.9 is another witness of the occurrence. He too made the statement narrating the incident as already stated by P.W.7 and P.W.B. He also attested the recoveries of Motorcycle P-3 and Tractor vide Exh. PG and Exh.PH. He also associated with the recovery of weapons from the accused. P.1 was recovered from Wazir Ali appellant and P-2 was recovered from Khair Muhammad accused. All the recovery memos Exh. PE to Exh. PK were attested by him P.W.10 recorded formal F.I.R. Exh. PE/1. P.W.11 Rana Muhammad Akram DSP who was posted at the time of occurrence as Inspector! S.H.O Police Station Sahuka made statement with regard to various functions peformed by him during the investigation which has been noted above. P.W.12 Mehr Muhammad Sher Inspector, who arrested Riaz Ahmad accused on 23-3-1988 who had already been arrested on 18-3-1988 in some case registered with Police Station Gaggoo. He recovered Gun P-4 at the instance of Riaz Ahmad accused from his house vide memo Exh. PO.
P.W.13 Muhammad Akbar constable and P.W.14 Aleem Ullah constable are formal witnesses. P.W.15 Ghulam Qadir is a witness of recovery of Gun P-4 from Riaz Ahmad accused while he was in custody of Mehr Muhammad Sher P.W.12. After examining the aforesaid P.Ws. The learned Prosecutor tendered in evidence the report of the Chemical Examiner Exh.PS and report of the Serologist Exh.PT and with that closed the case for the prosecution.
5. On close of the prosecution case the accused persons were examined under section 342 Cr. P.C.
Wazir Ali appellant denied the various allegations Revelled against him. In answer to question No, 12 he stated that PWs were rimical towards Riaz his co-accused and he was falsely implicated being his sister's son. He did not lead any evidence in defence nor appeared as his own witness as envisaged under section 340 (2) Cr.P.C. Riaz Ahmad appellant also denied the various allegations leveled against him. In answer to question No, 10 "as to why the case was against him", he made the following answer:- "The prosecution case is fabricated against me and my co-accused only to avenge the enmity between myself and the complainant party including the deceased over the abduction of Mst.
Bashiran. The PWs are closely related to each other and have deposed falsely. In fact deceased had so many enemies. One Nazir Chiwera, a big man of the area, was inimical towards the deceased and his legs were fractured by the deceased and his relatives. Some persons with muffled faces had attacked the deceased and had decamped from the spot after the occurrence.
Inspector police had investigated the occurrence for twice, some time at the Adda and thereafter on the arrival of the complainant and his relatives from their village, he registered this case against me and my co-accused."
' He did not explain his absconsion. He also did not lead any evidence in defence nor he appeared as his own witness as envisaged under section 340(2) Cr. P.C.
6. The learned Sessions Judge, on the conclusion of the trial held the appellants as guilty, convicted them under section 302/34 P.P.C. And sentenced to them as detailed above.
7. It was argued on behalf of the learned counsel for the appellants that the witnesses were inimical to the appellants therefore, no safe reliance could be placed on their testimony, there are discrepancies in between the statements made by them which render their statements incapable of any credence. It was also argued that it is spelt out from the facts and circumstances of the case that the complainant party were aggressors and appellants had hidden themselves therefore, their conviction is not sustainable, Alternately he has argued that the occurrence appears to be a result of sudden flare up therefore imposition of sentence of death is not justified.
As regards first contention that there was enmity between the parties, he has not been able to bring on record any material or circumstance to show that the PWs were inimical to the extant that they would have falsely implicated the accused persons in the present case, Mere fact that Mst.
Bashiran had been abducted by Riaz appellant and the deceased helped the abductee and her parents to get her recovered and as such he supported and helped the complainant party in abduction case and that the PWs are his relatives does not indicate any enmity of the nature whereby appellants would have been falsely implicated in this case. We are unable to agree with the learned counsel to hold that the P.Ws. Had many enmity against the appellants. As regards alleged discrepancies or variations in the statements made by the PWs, we have gone through the statements of the P.Ws. And have not been able to find any material discrepancies wherefrom to infer that PWs were not speaking truth or that their evidence should be discarded. All the three PWs had been subjected to lengthy cross-examination but the defence has not been able to elicit any material wherefrom to show that they are not witnesses of truth. They have successfully stood the test of cross-examination.
8. However, with regard to Wazir All alias Taini, it has been argued with vehemence that Wazir Ali as well as his co-accused namely Khair Muhammad were both armed with Dandas, and both of them had inflicted Danda blows on the person of the deceased as such the allegations against the accused Wazir All and Khair Muhammad are similar and identical. Khair Muhammad has been acquitted by the learned trial Judge on the ground that his name had not been mentioned in the F.I.R.. According to the learned counsel non-mentioning of name of Khair Muhammad was not that material. Khair Muhammad alongwith Wazir alias Taini was collectively held responsible of causing Danda blows on the person of deceased. During the trial similar and identical. Allegations were made by the PWs against both the accused namely Wazir as well as Khair Muhammad. According to the medical evidence also the deceased received injuries caused by some blunt object. The learned trial Judge if extended the benefit of doubt to Khair Muhammad, the same should have been extended to Wazir also. Further submits that no appeal or revision was filed against the acquittal of Khair Muhammad or Wazir therefore, keeping in view the rule of parity and consistency, both the accused should be treated and dealt with similarly. The learned counsel appearing on behalf of the prosecution has not been able to explain as to why the discrimination should be made in between the two accused. If the prosecution considered that the evidence warranting the conviction of Wazir was available on the record then the same evidence was available against Khair Muhammad as well. But no appeal or revision was filed, meaning thereby that prosecution did not dispute or challenge the acquittal of Khair Muhammad. Although we have observed above that prosecution witnesses have made consistent statements and their testimony can be relied upon yet by taking into account the rule of consistency as well as guided by the principle laid down by Hon'ble Supreme Court in Abdul Tawab's case (PLD 1970 SC 13) laying down that grain has to be sifted from chaff. It is not necessary that if a witness is not relied upon qua one accused, cannot be relied upon qua other accused. Since eye witnesses have deposed similarly against Wazir and Khair Muhammad we consider that the benefit extended to Khair Muhammad should be extended to Wazir as well. Even if it is viewed from another angle as argued by the learned counsel for the appellants, that it was a sudden flare up and only Riaz Ahmad fired fatal shot on the person of the deceased, the benefit should be extended to Khair Muhammad as well as to Wazir alias Taini. We therefore, set-aside the conviction recorded against Wazir alias Taini. He is as such, acquitted of the charge against him. He will be released from jail forthwith if not required in any other case.
9. As discussed above in detail the prosecution has proved the case beyond my shadow of doubt against Riaz Ahmad appellant. In spite of the best efforts made by Rajab Ali deceased to save him Riaz fired first shot and thereafter repeated another shot hitting the deceased on his legs. His leg was amputated and ultimately he died on account of injuries suffered by fire arm caused by Riaz Ahmad. Riaz Ahmad therefore is guilty of murder and he has been rightly convicted by the learned trial Judge. There is no mitigating circumstance in his favour. He acted in a cruel manner as is.
Evident from the motive that firstly he abducted Mst. Bashiran and when she was got recovered by Rajab Ali, he was murdered because he helped the relations of abductee in that behalf. We, therefore up hold and maintain his conviction under section 302, P.P.C. And sentence of death with fine. Criminal Appeal No, 276 of 1993 filed by Riaz Ahmad appellant is therefore dismissed however, with slight modification that in case fine of Rs,20,000 is recovered the whole of it shall be paid to the legal heirs of the deceased. In default of payment he will undergo R.I for two years.
' Sentence of death is confirmed.