' SH. RIAZ AHMED, J.---This appeal through leave of this Court is directed against the judgment dated 24-9-1991 delivered by a Division Bench of the Lahore High Court whereby an appeal filed by the appellants assailing their conviction and sentence under section 302/34, P.P.C. Was dismissed.
2. The facts in brief are that appellants Gul Khan and his son Amir Khan alongwith Fateh Khan and Ataullah co-accused were tried by an Additional Sessions Judge at Mianwali for having murdered Mehar Khan and for having launched murderous assault on his son Umer Hayat. The learned Additional Sessions Judge vide judgment dated 4-5-1989 found appellants guilty on the said charges and, thus, appellant Gul Khan was sentenced to death and to pay fine of Rs,20,000 or in default thereof to suffer further R.I. For a term of six months. The appellant Amir Khan having been found guilty was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs,10,000 or in default thereof to suffer R.I. For a term of three months. They were acquitted of the charge under section 307/148/149, P.P.C. The co-accused Fateh Khan and Ataullah were acquitted of the charge. Another co-accused Abbas Khan, named in the F.I.R., had absconded and had been declared proclaimed offender and, thus, he could not be tried alongwith the appellants. The appellants then challenged their conviction through an appeal while the case was also referred by the Additional Sessions Judge to the High Court. Vide judgment impugned the appeal preferred by the appellants was dismissed but I the murder reference was answered in negative. The death sentence awarded to Gul Khan was altered to sentence of imprisonment for life because the learned Judges of the Division Bench came to the conclusion that the mo ive as set up by the prosecution was very week. However, the sentences of me were maintained and the appellants were given benefit under section 38 -B, Cr.P.C.
3. The appellants then filed a petition in this Court seeking leave to appeal against the aforesaid order. Vide order, dated 15-2-1994 this Court granted leave to appeal to consider as to whether the Courts below had correctly followed the principles governing appraisal of evidence as laid down by this Court.
4. The unfortunate occurrence resulting into the death of Mehr Khan took place on 26-4-1986 at 7.00 a.m. In the area of village Pai Khel situated at a distance of 4-1/2 miles from Police Station Mochh in District Mianwali. The deceased Mehr Khan and his injured son Umer Hayat were removed to the Civil Hospital where on receipt of the information of the occurrence Masood Ahmed A.S.I.
Reached there and recorded the statement of Mst. Pishtian Bibi widow of the deceased at about 10.00 a.m. And sent the said statement to the police station for registration of a case where formal F.I.R. Was drawn.
5. In brief the first information Mst. Pishtian Bibi stated that on the fateful day at about 7.00 a.m. She alongwith her deceased husband and injured son Umer Hayat were present in their house. The deceased went out of the house to urinate and soon thereafter she heard hue and cry. She rushed outside and saw that from the shop of Fateh Khan, Abbas Khan armed with 12 bore gun, Gul Khan appellant armed with 12 bore gun, Fateh Khan armed with a 12 bore pistol, Amir Khan appellant armed with rifle and Ataullah Khan armed with 12 bore gun came out and raised a Lalkara that the deceased would be taught a lesson for not giving the hand of his daughter Alam Khatoon to appellant Amir Khan and also for having raised a quarrel in this behalf. According to the complainant, after raising this Lalkara, all the assailants named above including the appellants started firing from their weapons. On receipt of the injures the deceased fell down. Umer Hayat tried to shield the deceased by falling upon him when Abbas Khan fired a shot, which hit the head of Umer Hayat.
6. The motive for the occurrence as narrated in the statement/F.I.R. Was that at one point of time they had agreed to give the hand of their daughter in marriage to Amir Khan to, but after sometime the deceased, father of Mst. Alam Khatoon resiled and refused to marry his daughter with Amir Khan. It was stated that on this grouse a day before the occurrence a quarrel had also taken place between the injured Umer Hayat and Amir Khan. The occurrence was seen by the complainant, Umer Hayat injured and Muhammad Ashraf. Mehr Khan deceased succumbed to the injuries in the hospital.
7. The autopsy conducted on the dead body of. Mehr Khan revealed that he had received 12 injuries in to out of which six were entry wounds on the abdomen and chest while there was one grazing wound over the right forearm and another entry wound on the back of the left forearm. Three entry wounds were on the abdomen while two were on the chest. There were five exit wounds. Sixth rib was found fractured. Pleurea, right lung and peritoneum were found punctured and liver was smashed. All injuries were caused by a firearm. Injured Umer Hayat had received only two injuries, both grazing wounds with blackening and burning on the right ear.
8. On 18-5-1986 except Abbas Khan, appellants and the acquitted co-accused were arrested by Karam Hussain Shah, Sub Inspector. On 23-5-1986 the appellant Amir Khan led the police and got recovered rifle P.4 with live cartridges P.7/1-2. On the same day appellant Gul Khan also got recovered gun P.5 along with live cartridges.
9. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Mst. Pishtian Bibi and Umer Hayat. Muhammad Ashraf, an eye-witness named in the F.I.R. Was given up. In addition to the ocular testimony the prosecution placed reliance upon the evidence as to the motive, the medical evidence and the recoveries of guns.
10. When examined under section 342, Cr.P.C., the appellants denied the charge. Amir Khan made the following statement:- "The deceased was gambler and during the night preceding the occurrence he had been gambling alongwith others near the place of occurrence. There was an altercation over the gambling between the deceased and Abbas Khan accused (PO). The deceased was armed with a firearm and there was exchange of fires between the gamblers. I refused to join and help the relatives of the deceased against Abbas Khan so they falsely implicated me and my father alongwith may relatives. The motive attributed to us is false."
' Sultan Ahmed Constable appeared in defence and stated that according to the No,52, dated 3-6- 1948, the deceased Mehr Khan was named as an accused alongwith others. The deceased had also been named as an accused alongwith six others in another case registered on 2-8-1969 under section 302/148-149, P.P.C.
11. The learned counsel for the appellants vehemently argued that both the eye-witnesses being related were unreliable and the narration of the occurrence by them does not inspire confidence. It was further contended that denial by these witnesses about the past history of the deceased clearly proves them as liars. The learned counsel also contended that improvements were made by both the witnesses, particularly the manner in which the deceased received injuries, their version as to the receipt of injuries runs counter to the version given in the F.I.R. It was further argued that the acquittal of the appellants of the charge under section 307, P.P.C. Casts doubt upon their veracity, and therefore, the credibility of the witnesses was doubtful and hence the appellants were entitled to be acquitted. It was contended that the version given by the appellants that the deceased had died as a result of the quarrel that ensued between him and the persons with whom he was gambling, appears to be reasonable explanation of the manner in which the occurrence took place. It was also argued that the injuries received by the deceased were the result of one shot.
12. After anxious consideration, we are of the view that the contentions raised on behalf of the appellants are devoid of force. The acquittal of the two co-accused would not prove that the appellants were also innocent. There is no denying the fact that Mst. Pishtian Bibi had not mentioned the individual role of infliction of injuries by each accused in the F.I.R. While at the trial she had specifically stated about each of the injuries caused by each of the accused. She was confronted with this improvement during cross-examination but we are of the view that she is a natural witness and after hearing the hue and cry she came out of the house and saw the occurrence. Her presence at the spot cannot be doubted. Obviously, when all of a sudden, such an occurrence takes place, the eye-witness also receives a shock and, thus, the absence of the individual role in the F.I.R. In the peculiar circumstances of this case would not make her testimony doubtful. It is now well settled that F.I.R. Is not a substantive piece of evidence. It only sets the law into motion. No doubt it is an important piece of evidence, but the absence of individual role in it would not make its maker as hear if otherwise it is established that such witness could have seen the occurrence. She may not have seen the occurrence from its inception, but in the circumstances of this case there is no reason to doubt her having seen the occurrence and particularly when her husband and son received the injuries. By way of natural instinct she would emerge out of the house because her husband had left the house immediately before the occurrence. As far as Umer Hayat injured witness is concerned, the stamp of injuries speaks for itself. These injuries cannot be self-inflicted and therefore, his version as to the manner in which he and his father had received injuries cannot be doubted.
13. The appellant Gul Khan is real brother of Fateh Khan, the acquitted accused. Abbas Khan Absconder is son of their sister. Attaullah Khan acquitted accused is son of Fateh Khan while Amir Khan appellant is son of appellant Gul Khan. Both Gul Khan and Fateh Khan are sons of the sister of the deceased. Umer Hayat P.W. At the time of the occurrence was aged 25 years and during all these years the deceased had lived peacefully and amicably with the appellants and their family.
The record further speaks that never any dispute or enmity existed among them except of course the grievance with regard to the refusal of the deceased to give the hand of his daughter Mst. Alam Khatoon in marriage to Amir Khan appellant. This part of the motive was denied by the appellants.
On the other hand the family of Khan Dil, the enemy of the complainant was living in the village and was reported to have murdered by Noor Khan uncle of Umer Hayat P.W. Alongwith his co-accused.
The house of Khan Dil is at a distance of 200-300 yards from the house of the complainant.
Although the witness has denied these facts, but this material was brought on the record by the defence and it came to light that the deceased had been challaned twice in murder cases; one in 1948 and the second in 1969. It was also the case of the defence that in one case the deceased was sentenced to imprisonment for life. Although it was denied, but the defence alleged that the deceased had murdered one Mst. Fateh Khatoon.
14. In the light of the background of the case, if at all the complainant Mst. Pishtian Bibi and her son had not seen the occurrence or had failed to identify the assailants or they had to lodge the F.I.R.
Merely on the basis of suspicion and surmises, then why they would have chosen their own kith and kin as the 'known enemies were living nearby. The last reported and admitted case of murder in which the brother of the deceased was challaned had occurred only in 1984 and therefore, very conveniently the known enemies could have been named in the F.I.R.
15. The defence version as to the gambling and the quarrel between the deceased and his gambler associates does not appeal to reason because had it been true, the complainant and her son would have named them. As already stated by us that the absence of individual role in the F.I.R.
Would not destroy her testimony, it is noteworthy to mention that Umer Hayat P.W. Was not at all confronted with his statement under section 161, Cr.P.C. Hence it is crystal clear that the version of the complainant is corroborated by the version of Umer Hayat. The acquittal of the co-accused, as already observed by us, cannot destroy the prosecution case against the appellants because the concept of falsus in uno falsus in omnibus is not known to our jurisprudence. After examining the demension and the seat of injuries, we cannot subscribe to the view that the injuries were the result of single shot. As far as motive is concerned, we are in agreement with the learned Judges of the Lahore High Court that the same was weak and therefore, it was rightly concluded by the learned judges that it was not a fit case for imposition of death penalty on Gul Khan appellant. The alteration of his sentence to imprisonment for life is not open to exception.
16. Resultantly, this appeal fails and is hereby dismissed.