AMAN ULLAH KHAN YASINZAI, J.--Appellants Gul Mir son of Ghulam Muhammad Mehmood son of Gurooh, Haji Gaboo son of Zaroo, Rana son of Ramzan, Karman son of Tullan, Wali Dad son of Tullan, Khadim Hussain son of Gul Mir and Ghulam Rasool son of Muhammad Usman were tried under section 302/324/147/148/149, P.P.C. By Special Judge, S.T.A., Jaffarabad at Dera Allah Yar for the murders of Arbab Ali and Haji Muhammad Rahim and causing injury to Abdul Shakoor. All of them were convicted to suffer R.I. For 20 years under section 302, P.P.C. And under section 324, P.P.C.
To suffer R.I. For 7 years and under section 148, P.P.C. To suffer R.I. For 3 years with a fine of Rs,50,000 each to be paid as compensation to the legal heirs of the deceased persons and Rs,5,000 each to be paid to injured Abdul Shakoor vide judgment dated 24-3-1999, all these sentences were ordered to run concurrently. The appellants have assailed the impugned judgment through Appeal No,71 of 1999 against their conviction. The complainant Ghulam Ali and widow of deceased Arbab Ali have filed Constitutional Petition No,345 of 1999, for the enhancement of the sentence of the appellants.
Both the matters shall be disposed of by this judgment.
2. Briefly stating the facts of the case are that on 8-11-1997 on the basis of Fard-e-Bayan Exh.P/2-A of P.W.2 Ghulam Ali, report was lodged with Sanhari Police Station under section 147/148/149/303/324, P.P.C. Alleging therein that the complainant is resident of Goth Haji Muhammad Salah Gajani and is landlord of the said area, It is further averred that on the day of incident, he (Ghulam Ali) alongwith Arbab Ali, Haji Muhammad Rahim, Abdul Shakkoor and Rahim Dad were harvesting the Paddy Crop and were loading the same in bullock cart. At about 3-00 p.m., the accused persons namely Abdul Karim alias Adok, Rehmatullah alias Khan, Nisarullah all sons of Muhammad Bakhsh, Amanullah, Abdul Hameed, both sons of Sabbir Ahmad, Shehbaz son of Abdul Majeed Garrah, Karamullah sons of Mushtaq Ahmad, Fazal Rehman son of Nazeer Ahmad, Nango son of Raz Muhammad, Dad Muhammad son of Yara, Khadim son of Gul Mir son of Ghulam Muhammad, Sachchal alias Sachcho and Ghulam Rasool sons of Muhammad Usman and five other unknown persons came and surrounded them. Thereafter, they started indiscriminate firing at them with kalashnikov due to which Arbab Ali and Haji Muhammad Rahim died on the spot and Abdul Shakoor received bullet injuries on his left leg. It is further stated that complainant alongwith Rahim Dad took shelter in the watercourse. The accused persons after firing at them, decamped from the place of incident. The motive for the said incident is stated to be old enmity.
3. On the basis of Fard-e-Bayan F.I.R. Exh.P/11-A was lodged with Police Station Sanhari, District Jaffarabad. After receiving report, P.W.11 Ubaidullah, S.I., proceeded to the place of incident and prepared site sketch Exh.P/11. And prepared site inspection report Exh.P/5-A, took into possession 120 empties of kalashnikov vide memo. Exh.P/11-C, secured blood-stained earth of deceased Arbab Ali vide memo. Exh.P/5-B and bloodstained earth of deceased Muhammad Rahim vide Exh.P/5-C and also prepared parcel of the 120 empties secured from the place of incident. Inquest report of deceased Arbab and Muhammad Rahim was prepared vide Exh. P/11 -D and Exh. P/11-E, respectively.
4.On the next day i,e, 9-11-1997, investigation of the case was handed over to P.W.10 Noor Hussain who arrested accused Gul Mir, Rana, Kirman, Wali Dad, Haji Gabboo and Mehmood. He recovered kalashnikov alongwith 17 live cartridges from Gul Mir and took the said kalashnikov into possession vide Exh.P/6-A. A kalashnikov was also recovered from possession of accused Mehmood which was taken into possession vide memo Exh.P/7-A. The blood-stained clothes of deceased Arbab and Mehmood were taken into possession vide memo. Exh.P/4-A and Exh.P/4-B respectively.
Medical reports of deceased Muhammad Rahim and Arbab were collected from the hospital being Exh.P/1-A, Exh.P/1-B. He carried out identification parade of accused mentioned above vide Exh.P/8- A and submitted incomplete challan against them vide Exh.P/10-A. On 3-12-1997, accused Khadim Ali was also arrested and incomplete challan Exh.P/10-B was also submitted by him. On 20-1-1998, accused Ghulam Rasool was arrested, After investigation, incomplete challan Exh.P/10-C was also submitted. He collected report of chemical expert being Exh.P/10-D and submitted the same vide challan Exh.P/10-E. Report of the ballistic expert Exh.P/10-F was also obtained and medical report Exh.P/10-G of injured Abdul Shakoor was also collected from the hospital and complete challan Exh.P/10-A was submitted.
4-A. After completion of investigation, challan against those accused persons who were arrested, mentioned above, in para.1 was submitted before Special Judge, S.T.A. However, the remaining accused persons were declared absconders. Charge against these accused persons was framed on 2-4-1998 which was denied. To substantiate its case, the prosecution produced the following witnesses:-- P.W.1 Dr.Taj Muhammad, Medical Officer Dera Allah Yar examined the deceased persons. On the person of deceased Arbab Ali he observed the following injuries:-- "(1) Entrance fire-arm wound on the front of chest left side 1/2 inches x 1/2 inches. (2) Exit fire arm wound on the back of the chest, left scapular region. OPINION. Cause of death was due to excessive haemorrhage and shock." He issued medical certificate Exh.P/1-A in respect of deceased Arbab Ali. He also examined deceased Haji Muhammad Rahim and observed the following injuries:-- "(1) Entrance of fire-arm wound on the front of the chest, right side 1/2 inches x 1/2 inches.
(2) Exit of fire-arm on the back of the chest right side. OPINION. Cause of death was due to excessive haemorrhage and shock." He issued certificate Exh.P/1-B,
5. P.W.2 Ghulam Ali is the complainant l and eye-witness of the incident. He stated that on 8-11- 1997, he alongwith Arbab Ali, Haji Muhammad Raheem, Abdul Shakoor and Rahim Dad were working in the Paddy field while accused persons namely Rehmatullah, Sanaullah, Amanullah, Abdul Karim, Abdul Hameed, Shehbaz Garrah Khan, Karamullah, Nago Dad Muhammad alias Dado, Gul Mir, Khadim Ali, Ghulam Rasool Machal and five other unknown persons came there and started indiscriminate firing upon them with kalashnikovs. Arbab Ali and Haji Muhammad Rahim died on the spot. Abdul Shakkoor received bullet injuries on his left leg. Thereafter, the accused persons ran away. Police came to the spot and recorded his Fard-e-Bayan Exh.P/2-A. During this period, accused Haji Gabbu, Mehmood, Rana, Karman and Wali Dad were arrested and he identified them during identification parade.
6. P.W.3 Abdul Shakoor and P.W.5 Rahim Dad reiterated the same facts as narrated by P.W.2 Ghulam Ali. P.W.5 is also witness to the site inspection note Exh.P/5-A and marginal witness to blood-stained earth of the deceased persons vide memos. Exh.P/5-B and Exh.P/5-C.
7. P.W.4 Muhammad Fazil Head-Constable is marginal witness to the recovery of blood-stained clothes of the deceased persons vide Exh.P/4-A and Exh.P/4-B.
8. P.W.6 Khalid Mehmood Head-Constable is marginal witness to the recovery of blood-stained clothes of the deceased person vide Exh.P/4-A and Exh.P/4-B.
9. P.W.6 Khalid Mehmood Head-Constable is Masheer to the recovery of kalashnikov recovered from the possession of appellant Gul Mir alongwith seven live cartridges which were taken into possession vide Exh.P/6-A.
10. P.W.7 Binyamin is Masheer to the recovery of kalashnikov recovered from the possession of appellant Mehmood which was taken into possession vide Exh.P/7-A alongwith 27 live cartridges from his possession and 310 live cartridges loaded in the magazine of the kalashnikov, at the time of the recovery.
11. P.W.8 Manzoor Ahmad is Naib-Tehsildar. In his presence identification parade of accused Haji Gabbu, Mehmood, Wali Dad, Rana and Karman was held. He prepared identification parade memo. Exh.P/8-A.
12. P.W.9 Abdul Jabbar is also marginal witness to the recovery of kalashnikov from Mehmood.
P.W.10 Noor Hussain S.-I. And P.W.11 Ubaidullah, S.I. Conducted investigation of the cases as mentioned above.
13. The appellants were examined under section 342, Cr.P.C. However, they did not record their statements on oath under section 340(2), Cr.P.C. Nor led any evidence in their defence. After assessing the evidence on record, the learned Sessions Judge/Special Judge S.T.A., Jaffarabad convicted the appellants in the terms mentioned hereinabove.
14. During pendency of the appeal, appellants Mehmood, son of Gurroh, Haji Gabboo son of Zarroo, Rana son of Raman, Karman son of Tullan and Wali Dad son of Tullan entered into compromise with the legal heirs of the deceased Akbar Ali and Haji Muhammad Rahim. Legal heirs of the deceased persons appeared before the Court and confirmed the contents of the compromise entered into between them and the accused. Thus, in view of the compromise, the afore- mentioned accused persons were acquitted of the charge under sections 302(c) and 342, P.P.C.
Vide Order dated 26-8-1999. However, it was ordered that case under section 148, P.P.C. Shall be disposed of against them independently as the same was not compoundable. This judgment shall dispose of the case of the remaining accused namely Gul Mir S/o Ghulam Muhammad, Khadim Ali S/o Gul Mir and Ghulam Rasool Sio Muhammad Usman under section 302/324/147/148/149, P.P.C.
And the case of the acquitted accused under section 148, P.P.C.
15. Mr. Muhammad Aslam Chishti, learned counsel appearing for the appellants contended as follows:--
(1) Eye-witnesses are not only related to the deceased, but are also interested witnesses, thus, their evidence without corroboration cannot be believed.
(2) Medical evidence regarding the deceased persons is inconsistent with the ocular evidence.
(3) Medical evidence regarding injury of Abdul Shakoor has not been placed.
(4) Recovery of kalashnikovs from appellants Gul Mir and Mehmood is not confidence inspiring.
(5) Motive is not alleged against the appellants, but it is alleged against the absconders.
(6) The prosecution case is not free from doubt, thus, the appellantS are entitled to the benefit of doubt.
(7) Benefit of section 382-B, Cr.P.C. Has been withheld by the trial Court without giving any cogent reasons.
20. Mr.Mumtaz Hussain Mehfooz, Advocate appearing on behalf of the complainant contended that presence of the eye-witnesses has been established and F.I.R. Was lodged promptly, the accused persons were identified by the eye-witnesses and have recognized the accused persons as the incident took place in broad daylight some of the empties recovered from the place of incident matched with the kalashnikovs recovered from appellants Gul Mir and Mehmood.
21. Mr. Nasrullah Khan Achakzai, learned counsel appearing for the State also adopted the arguments of Mr. Mumtaz Hussain Mehfooz, Advocate.
22. Mr. Muhammad Aslam Chishti, Advocate for the appellant strenuously alleged before us that the complainant P.W.2, Ghulam Ali and P.W.3, Abdul Shakoor and P.W.5, Rahim Dad are related to the deceased persons and are also interested witnesses, thus, their testimony without independent corroboration cannot be relied upon.
23. We are not inclined to agree with the contention of Mr. Muhammad Aslam Chishti, Advocate, aforementioned eye-witnesses were very much present at the place of occurrence and their presence has been established on record. During cross-examination their presence at the place of incident has not been disputed. P.W.2, Ghulam Ali, who is complainant of the case stated that on the day of incident he alongwith deceased Arbab Ali, Haji Muhammad Rahim (deceased) P.W.3, Abdul Shakoor and P.W.5, Rahim Dad were present and harvesting the paddy crop, when the accused persons namely, Rehmatullah, Sanaullah, Amanullah, Abdul Karim, Abdul Hameed, Shahbaz, Garrah Khan, Karamullah, Najoodad, Muhammad alias Dado, Gul Mir Khadim Ali, Ghulam Rasool, Sachal and 5 other unknown persons came there and started indiscriminate firing upon them with kalashnikovs as a result of the firing Arbab Ali and Haji Muhammad Rahim died on the spot and P.W.3, Abdul Shakoor, received bullet injuries on his left leg.
24. It may be pointed out that the F.I.R. Was lodged promptly, the accused persons and the eye- witnesses present at the place of occurrence were mentioned in the F.I.R. Besides, the incident took place in broad daylight and since the accused persons and the complainant party were also known to each other, thus, there was no chance of mistaken identity of the accused persons.
Despite a lengthy cross-examination complainant Ghulam Ali stood firm and could not be shaken and the presence of this witness was not denied. Nothing has been brought on record to show that he had any animus towards accused persons for false implication. The statement of complainant was further corroborated by the statement of P.W.3, Abdul Shakoor, who himself received bullet injuries which has not been denied by the prosecution during the cross-examination and his presence has also been established beyond any shadow of doubt, he has also named all the accused persons including the appellants in the commission of offence. P.W.5, has also established his presence at the place of incident and he is also a witness of the site inspection report and in his presence blood-stained earth of the deceased persons was also recovered, his presence has also not been disputed by the prosecution. Besides his presence has also been proved through documentary evidence site inspection Exh.P/5-A and he is also a witness of the recovery of the blood-stained earth Exh.P/5-B and Exh.P/5-C. The prosecution has not denied the presence of the aforementioned 3 eye-witnesses it has only been alleged that the incident took place after dark and further the appellants were implicated in the case due to the enmity.
25. It may be mentioned here that act of firing by the accused persons has been further corroborated from the recovery of 120 kalashnikov empties from the place of occurrence which further can support to the testimony of the eye-witnesses that firing was made by many persons, as 120 empties were recovered soon after occurrence place of incident. All the eye-witnesses unequivocally stated that the incident took place at about 3-00 p.m. And the accused persons fired upon them from very close range i,e, from the distance of about 30 paces, thus, in such circumstances it can safely be held that accused persons were rightly identified by the eye- witnesses as they were known to each other. The complainant Ghulam Ali and P.W.5, Rahim Dad have even explained that due to taking shelter in the watercourse they did not receive any bullet injury, which fact was also not disputed by the prosecution. Thus, the presence of the eye- witnesses was established at the place of incident.
26. As regards the arguments of Mr. Muhammad Aslam Chishti, Advocate that all the 3 eye- witnesses being related to the deceased and were interested witnesses, therefore, without independent corroboration, no reliance can be placed on their statements. It may be mentioned here that even the testimony of the interested witnesses without independent corroboration can be relied upon if the same is confidence inspiring. It may be pointed out that it is only the rule of prudence which requires of an interested witness to be corroborated independently and the said rule is not to be applied strictly in each and every case. It is no inflexible rule to be applied rigidly that in every case testimony of an interested witness cannot be relied upon without independent corroboration, there might be cases in which the witnesses are related to the deceased, but being natural witness furnishing direct and convincing evidence the same cannot be ruled out of consideration merely the witnesses are related to the deceased persons, their uncorroborated testimony can be implicitly relied upon if the same is otherwise confidence inspiring. In the present case as discussed above the presence of the eye-witness has been established on record, F.I.R.
Being lodged promptly leaving no chance for deliberations and the witnesses standing the test of the cross-examination giving a natural account of the incident, corroborating each other in material aspects of the case and their intrinsic value has not been shaken, thus, their testimony which otherwise is confidence inspiring cannot be discarded merely because they were related to the deceased and interested witnesses. Besides it was for the appellant to show that the witnesses had a strong motive to falsely implicate them in the commission of the offence, wherein they have failed to do so. In this regard reliance is placed on the following cases:--
1. Niaz v. The State PLD 1960 Supreme Court 387.
2. Nazir Ahmed and others v. The State PLD 1962 Supreme Court 269.
27. In the former case the following observations were made:-- "Whenever interested person claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independence evidence or from circumstances not open to doubt to be the true number of culprits their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstances which corroborates their testimony."
28. In the, latter case it was observed as follows:-- "By what we said in Niaz v. The State we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence... ... ... But we had no intention of laying down an inflexible rule that the statement of an interested witness (. ) can never be accepted without corroboration.
There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent persons. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned, it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes. In order, therefore, to be satisfied that no innocent persons are being implicated alongwith the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which can be made the basis of conviction. This is what is meant by saying that the statement of an interested witness ordinarily needs corroboration."
29. The statement of the eye-witnesses further gets support from the report of the balistic expert i,e, Exh.P/10-F. According to the report Exh.P/10-F 4 empties of kalashnikovs out of 120 secured from the place of incident matched with the kalashnikov recovered from the person of Gul Mir, whereas 5 empties matched with the kalashnikovs recovered from Mehmood, thus, in view of the above balstice expert report the statement of the eye-witnesses is further strengthened.
30. Adverting to the next contention of Mr. Muhammad Aslam Chishti, Advocate that there are contradictions and variation in the prosecution case inasmuch as the ocular account is not consistent with the medical evidence. Mr. Muhammad Aslam Chishti, learned Advocate contended that all the eyewitnesses have stated that the deceased person received many bullet injuries, whereas of the deceased received one bullet injury each. It may be mentioned here that minor contradictions in the statement of the witnesses with the passage of time is but natural, which cannot materially brush aside the prosecution case, if such contradictions do not destroy the intrinsic value of the evidence of such witnesses; thus, the statement of the witnesses cannot be discarded, merely for minor variation, otherwise their testimony appears to be confidence inspiring and convincing. It may be mentioned here that the presence of the eye-witnesses has been believed and they were not shaken in cross-examination, hence such minor contradictions in medical and ocular evidence would hardly matter. In this regard reliance is placed on Mushtaq alias Shaman v. The State PLD 1995 SC Page 46, wherein the following observations were made:-- ''These contradictory accounts given by the eye-witnesses according to learned counsel raised the doubt about their presence on the scene of offence. The variation in the evidence of two prosecution eyewitnesses pointed out by the learned counsel for the petitioner does not relate to the material part of the prosecution case and as such it has no effect on the intrinsic value of the evidence of these witnesses. This Court in the case of Roshan and 4 others v. The State (PLD 1977 SC 557) while taking note of the fact that variation in the evidence of witness may occur due to various reasons which may be natural or artificial observed as follows:-- As to the contradictions in the statements of the eye-witnesses on which the defence has placed so much reliance, I may point out that some counsel devote all their energies to create such contradictions and to this end lengthy cross-examination is conducted for hours and days which is intended to confuse, even an intelligent person, and is not calculated to elicit any useful information. This exercise is undertaken because Courts give undue importance to the contradictions found in the statements of the prosecution witnesses. To my mind, the primary consideration in appraising the evidence given by a witness is to determine, firstly, why has he offered to testify? Has he seen the occurrence? If so, has the witness a motive to implicate a person who was, not among the culprits or to exaggerate the part played by any of them? If a witness satisfies these two tests, then the Court should watch the general demeanour of the witness in order to judge the quality of his perception and his factually to recall the past incidents. A witness may make. Contradictory statements on some of the details of the incident in respect of which he is deposing in Court. The variation may be due to mere lapse of, memory or the confusion caused in his mind by a relentless cross-examiner. Very often a witness gives an incorrect statement because he must answer every question regardless of the fact whether he knows the answer to it or not It is not uncommon that the cross-examiner puts words in the mouth of witnesses'and the Presiding Officer is not vigilant enough to check. It.. It is also common experience that without any particular intent, even educated people exaggerate when, describing an event. Some witnesses may be prone to it more than others. Mere contradictions, therefore, do not lead to the result that whatever the witness has said on the salient features of the case and which conforms to the other evidence on the record, is to be thrown overboard." From the above-quoted observations, it is quite clear that all variations in the evidence do not destroy the intrinsic value of the evidence of such witness. The variations which do not relate to material part of the prosecution story or the salient and important features of the case may be ignored for reasons given in the above-quoted passage as immaterial. I am, therefore, of the view that the variations pointed out by the learned counsel for the petitioner in the evidence of two eye- witnesses in this case, were not such which could affect the credibility of prosecution case.
31. Mr. Muhammad Aslam Chishti, learned counsel attempted to argue that the presence of injured Abdul Shakoor is doubted as the injury allegedly sustained by him was not proved. Suffice it to observe that the injury sustained by P.W.3, Abdul Shakoor was not denied by the prosecution, though the doctor who examined the said witness did not appear but the medical certificate issued by the Medical Officer Civil Hospital, Quetta regarding Abdul Shakoor was tendered in evidence by the Investigating Officer and the same was not objected to by the appellants. Besides it was not the case of the appellants before the trial Court that P.W.3, Abdul Shakoor did not receive any injury before the trial Court, thus, the contention raised by the learned counsel is repelled.
32. Reverting to the contention of Mr. Muhammad Aslam Chisti, Advocate regarding motive. Record reveals that motive alleged for the commission of offence is old enmity, the prosecution though has alleged that there was old enmity between the parties but the particulars of the same have not been given. It is a settled principle of law, that prosecution is ndt bound to prove the motive but once a motive is set up then it is for the prosecution to prove the same. In the case in hand the motive alleged is old enmity but no details have been given of the same. Mr. Muhammad Aslam Chishti, Advocate pointed out that since the motived, therefore, the prosecution failed to prove the guilt of the appellant established beyond any shadow of doubt, we do not agree with the learned counsel, though the prosecution has failed to prove the motive but case against the appellants has been proved beyond any shadow of doubt. It is for non-proving the motive the trial Court has taken a lenient view. In our considered opinion the prosecution since failed to prove the motive the trial Court has rightly taken a lenient view by convicting the appellants to undergo R.I. For 20 years under section 302, P.P.C., thus, we are not inclined to interfere with the impugned judgment regarding quantum of sentence.
33. As the appellants Mehmood, Haji Gaboo, Rana, Karman and Wall Dad have already been acquitted under section 302/324, P.P.C. Due to the compromise and their case is to be dealt with under section 148, P.P.C. As the parties have compromised through the intervention of their notables and their differences have been patched-up, to honour the compromise and to leave a cordial atmosphere, we-are inclined to reduce the sentence of 3 years under section 148 to that of already undergone the aforementioned appellants shall be released forthwith if not required in any other case.
34. Mr. Muhammad Aslam Chisti, Advocate lastly contended that the learned trial Judge while convicting the appellants have withheld the benefit of section 382-B, Cr.P.C. Without any cogent reasons. When confronted with the said aspect Mr. Mumtaz Hussain Mehfooz, Advocate and Mr. Nasrullah Khan Achakzai, learned counsel for the State could not answer the same satisfactorily, thus, in our considered opinion the trial Court could not with hold the benefit of section 382-B, Cr.P.C. Without giving any reasons. Thus, we are inclined to extend the benefit of section 382-B, Cr.P.C. To the remaining appellants i,e, Gul Mir, Khadim Ali and Ghulam Rasool. However, the fine imposed upon the appellants is set aside.
35. As a result of the above discussion with the remission of fine, the appeal of Khadim Ali, Gul Mit and Ghulam Rasool is dismissed.