' TASSADUQ HUSSAIN JILANI, J.---This judgment shall dispose of Criminal Appeal No,31 of 1994 filed by appellants Rabnawaz son of Ghulam Ali aged 38 years and Talib Hussain son of Muzaffar Hussain aged 40 years who alongwith two others were tried by Mr. Ghulam Hussain Awan, Additional Sessions Judge, Chakwal (in case F.I.R. No,168, dated 25-12-1992 under sections 302 and 34, P.P.C. Registered with. Police Station, Talagang, District Chakwal) and vide judgment, dated 27- 2-1994 while acquitting co-accused Mujahid Hussain son of Noor Khan aged 30 years and Muhammad Aslam son of Fateh Khan aged 33 years, convicted the appellants under sections 302 and 34, P.P.C. For the murders of Noor Elahi aged 36 years and Ashiq Hussain aged 50 years sons of Ahmed Khan on two counts and sentenced them to death and a fine of Rs 50,000 on each count in default whereof to undergo two years R.I. Each. The amount of fine if recovered, half of the same was directed to be paid to the legal heirs of the deceased.
2. Criminal Revision No,55 of 1994 filed by the complainant against the acquiltal of the afore- referred accused and Murder Reference No,55 of 1994 sent by the trial Court are also being disposed of by this judgment.
3. The prosecution story as given in the F.I.R. (Exh.P.R.) registered on the statement of Mehr Khan P.W.9 (brother of the deceased) recorded by the Muhammad Riaz Anwar Inspector S.H.O. P.W.11 at about 4-15 p.m. Briefly stated is that on the fateful day, the complainant hired a tractor trolly No,SLF/3834 from Abdul Hafeez Driver (not produced) for taking the dung lying at their land to 'Mauza Kumharanwali'. When the said tractor trolly came back to take the dung for the third round at about 2-00 p.m. Appellants Rabnawaz and Talib Hussain armed with .7 m.m. Rifle, Mujahid Hussain armed with .12 bore gun and Aslam Khan armed with pistol .30 bore who were sitting in the 'Haveli' of Ghulam Haider, suddenly emerged and commanded the driver of the tractor to stop and at the same time exhorted in loud voice that Noor Elahi and Ashiq Hussain should not go alive. The driver stopped the Tractor and ran away. As soon as the Tractor stopped, the complainant and his father Ahmed Khan P.W. And his maternal uncle ran towards the tractor. Rabnawaz fired which hit Noor Elahi on the left side of his neck and he fell down in the trolly. Talib Hussain fired which hit Ashiq in the abdomen. He also fell down in the trolly. This was followed by indiscriminate firing by all accused which hit Ashiq Hussain and Noor Elahi on different parts of their bodies. Both Noor Elahi and Ashiq Hussain succumbed to the injuries and died in the trolly. The complainant and others raised hue and cry and the accused decamped while firing in the air. The motive alleged is that about five years prior to the occurrence, complainant's brother Muhammad Anwar was killed by 'Muhammad Nawaz. The said Muhammad Nawaz was convicted and sentenced to imprisonment.
Besides this grudge the complainant party ,had litigation with the accused party and hence the murders.
4. After recording the F.I.R. Muhammad Riaz Anwar P.W.11, went to the spot, prepared injury statement of both the deceased, Exh.P.A. And Ex inquest reports Exh.P.J and Exh.P.F., collected blood-stained dung from inside the trolley vide recovery memo. Exh. PB, collected bloodstained earth underneath the trolly vide recovery memo. Exh.P.C., and recorded statements of recoveries and eye-witnesses. On 26-12-1992, he inspected the spot and recovered two empties of .7 mm.
Rifle, 6 empties of .30 bore pistol vide Exhs.P-12 and P.15/1-6 vide recovery memos. Exhs.P.T. And P.S. Which were witnessed by Mian Khan and Mehr Khan P.Ws. 9 and 10. The tractor No,3834/SLF was also taken into possession vide recovery memo. Exh.P.U. The last worn clothes of the deceased were also taken into possession vide recovery memos. Exh.P.M. And Exh.P.K. And on the same day, he arrested Rabnawaz and Talib Hussain appellants. On 27-12-1992, he arrested Mujahid and Muhammad Aslam. The site-plans Exhs.PA, PA/1 and PA/22 were prepared by patwari. On 7-1-1993, Rabnawaz appellant led to the recovery of .7 mm. Rifle, P.10 in the presence of Talib Hussain (P.W.
Given up) and Noor Hussain P.W.7. 7 live cartridges P.X. Were also recovered. This was vide recovery memo. Exh. P.O. Two live bullets were sent to Director Forensic Science Laboratory. On 8-1-1993, Talib Hussain appellant led to the recovery of .30 bore pistol P.12 alongwith magazine P.13 and ten live cartridges from his residential house in the presence of Noor Hussain P.W.7 and Talib Hussain (P.W. Given up). Five lives cartridges were sent to Director Forensic Science for testing and the reports received are positive Exh.P.B.B.
5. During trial, the prosecution examined 11 witnesses including the Doctor and the Investigating Officer.
6. Dr. Muhammad Aftab Medical Office, THQ Hospital, Talagang appeared as P.W.3. He conducted post-mortem examination on the dead body of Ashiq Hussain and found following injuries:--
(1) A fire-arm entry wound 1/4" x 1/4" blackening around and with inverted margins located at the front of abdomen, 1" below from umbilicus. It was passing through the abdominal wall. Its direction was towards back into the abdominal wall.
(2) A fire-arm wound 1/2" x 1/2" on the front of upper part of left thigh, 3-1/2" below the anterior superior iliac spine of left side.
(3) A fire-arm entry wound 1/4" x 1/4" on the supraclavicular fossa of right side, 4" from the right shoulder.
(4) A fire-arm entry wound 1/4" x 1/4" on the front of left side of chest, 1" to the left of middle line and just below the medial part of left clavicular lower border.
(5) A fire-arm exit wound 1-1/2" x 1/2" located on the right upper chest 6" below the right shoulder, 3" from mid line.
(6) A fire-arm exit wound 1/2" x 1/2" on the back of lower part of the left chest, 3" below the left shoulder and 2" from midline.
' According to the Doctor, injuries Nos.1 and 4 were grievous and dangerous to life and were individually as well as collectively sufficient to cause death in the ordinary course of nature.
7. The same day, he conducted the post-mortem examination of the Noor Elahi, deceased and found following injuries on his person:7
(1) A fire-arm entry wound 1/4" x 1" with blackening and tattooing around and with inverted margins.
It was directed somewhat towards right and downward and inward and was located at the left side of the neck, 1-1/4" above left clavicle and 4" below the left ear. Fresh blood was seen in the wound which was pooling in the wound.
(2) A fire-arm entry wound 1/2" x 1/2" with blackening going towards right and upwards located on lateral side of left thigh, 6" below left anterior superior iliac spine, the margin of this injury were also inverted.
(3) A fire-arm entry wound 1/2" x 1/2" with blackening around on the back of left leg, 9" above the left lateral malleus of left ankle and it was directing to the front.
(4) A fire-arm entry wound 1/2" x 1/2" on the back of left leg, 2" above Injury No,3 and this was also having inverted margins and blackening around was present and it, was also directing to the front.
(5) A fire-arm entry wound 1/4" x 1/4" on the back of hip on the right side 1" to the right of central line, 7" above the top of natil cleft.
(6) A fire-arm entry wound 1/4" x 1/4" on the hips backside 7" above natil cleft. Injuries Nos.5 and 6 were connected with each other like the figure 8" lying horizontally.
(7) A fire-arm entry wound 1/4" x 1/4" on the back of hip, 3" above the top of natil cleft and 1" from Injury No,6 to the left. Small black spots of tattooing were seen in area of 4" x 5" around the injuries Nos.5, 6 and 7.
(8) A fire-arm entry wound 1/4" x 1/4" on the left buttock, 4" form the natil cleft, going downward and to the front.
(9) A fire-arm injury 1/4" x 1/4" on the left buttock, 2" above injury No,8.
(10) A fire-arm entry wound 1/4" x 1/4" on the left buttock, 1" above injury No,9.
(11) A big swelling over area about 5" x 7" with repetitions beneath, located on the lateral and front of left leg. Both bones beneath tibia and fibula of left side were fractured.
' According to the doctor injury No,1 was grievous to life and it was probably due to injury No,1 that the death could have been occurred. But adds that, "total effect of all the injuries was much more correct to cause sufficient haemorrhage and shock which was the probable cause of death in this case".
8. Mehr Khan appeared as P.W.9. He made statement consistent with the version given in the F.I.R.
Except the one i,e, in the F.I.R. He stated that Talib Hussain appellant was carrying rifle whereas in the statement made before the trial Court, he stated that he was carrying a pistol. However, according to him, the same day after the lodging of F.I.R. He got recorded his supplementary statement in which the afore-referred position was clarified and he stated that Talib appellant was carrying a pistol .30 bore. Statement of P.W.9 was corroborated by P.W.10 Ahmed Khan who, is father of deceased. So far as the statement of this witness recorded under section 161, Cr.P.C. And during trial are concerned, they are consistent in alleging that Talib appellant was carrying a pistol with which he fired.
9. P.W.1 is Shamsher Ali Patwari, who prepared the site plans. P.W.2 is Muhammad Iqbal. He is the witness of the collection of blood-stained dung from trolly. P.W.4 is Ghulam Muhammad A.S.I. He kept the four sealed parcels containing blood-stained earth, blood-stained dungs, empties of .7 m.m. And .30 bore pistols for keeping them in Malkhana and handed over these parcels to Nasir Javed Constable for onward delivery to the office of the Chemical Examiner, Lahore. P.W.5 is Muhammad Arif, Constable. He shifted the dead body of Noor Elahi to mortuary for post-mortem examination. P.W.6 is Noor Zaman Constable. He shifted the dead body of Ashiq Hussain deceased to mortuary for post-mortem examination. Noor Hussain P.W.7 identified the dead bodies before the Investigating Officer and the doctor during post mortem examination. P.W.8 is Nasir Javed Constable who took the afore-referred four sealed parcels to the office of the Chemical Examiner.
10. P.W.11 is Muhammad Riaz Anwar Inspector S.H.O. Who investigated the case.
11. Exh.P.X. And Exh.P.Y. Are the reports of Chemical Examiner qua the blood-stained earth which are positive. Exh. P.Z. Is the report of Serologist qua the blood-stained dung and the same are also positive. Exh.P.A.A. Again is the report about blood-stained earth. Exh.P.B.B..Is the report of the Forensic Science Laboratory to the effect that crime empties of .7 mm are the same which had been fired from rifle .7 mm and crime empties of .30 bore pistol marked as C/1 to 8 indicated that the same had been fired from .30 bore pistol.
12. The appellants when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity.
13. Learned counsel for the appellants in supports of this appeal has made following submissions:--
(1) That its a motive less murder. Admittedly Muhammad Anwar brother of the complainant was killed in 1987 and from that year till 1992 when the occurrence took place, there was no incident which could indicate that the accused side bore any grudge against the appellant. Muhammad Nawaz who was convicted for the murder of Muhammad Anwar is brother of the Rabnawaz appellant. There was no reason why he should have killed the deceased who were brothers of Muhammad Anwar referred to above.
(2) That the medical evidence contradicts the ocular account as the seat of injuries, would indicate that those could not have been caused the manner in which allegedly the deceased 'were fired upon.
(3) That there is no independent witness of occurrence although it was a broad daylight occurrence. Both the eye-witnesses are blood relations and no independent corroboration is coming forth.
(4) That the investigation has been dishonest and the recoveries based on such a dishonest investigation cannot be accredited with truth. Even. Otherwise, according to learned counsel the only public witness of recovery is related to the complainant.
(5) That the Police during investigation declared Mujahid Hussain and Muhammad Aslam to be innocent. How can the other two be held guilty on the same set of evidence.
(6) That although it is alleged that the dung was being carried from one place to another but no "Kassis" were found in the trolly which indicate that the prosecution story is not worthy of reliance.
(7) That P.W.9 Mehr Khan cannot be relied as in the F.I.R. He stated that Talib Hussain appellant was carrying a rifle but in his subsequent statement before the trial Court, he alleged that Talib Hussain was carrying a pistol.
14. Learned counsel for the complainant assisted by learned counsel for the State, on the other hand, have defended the impugned judgment and submitted as under:--
(1) That it was a broad daylight occurrence; F.I.R. Was lodged promptly; all the accused were specifically named and a definite role has been assigned to each of them which rules out the possibility of false implication or mistaken indentity.
(2) That the ocular account of the prosecution evidence consists of P.Ws. 9 and 10 who though are related but they are natural witnesses; they have explained their presence at the spot and their statements also stand corroborated by the medical evidence.
(3) That substitution is a rare phenomenon in criminal cases and there is no reason why the complainant party should left off the real culprits and implicates the appellants.
15. We have gone through the prosecution evidence and have given anxious thoughts to the arguments addressed at the bar.
16. Much stress was laid by the learned defence counsel that the prosecution evidence consisted of related and partisan witnesses and therefore, they should not be extended credence. To hold this as a principle of appreciation of evidence in criminal trial may lead to dangerous consequences.
Situations are not lacking when the natural witnesses of an occurrence are not only close relatives of the victims and may be partisan as well on account of previous litigations. The superior Courts, therefore, have time and again observed that the weight and evidentiary value of an interested witness may depend on facts and circumstances of the particular case. In Nazir and others v. The State (PLD 1962 SC 269), it was held as under:-- "For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty, the circumstances relied upon must have a bearing on this question."
' The afore-referred view was reiterated in yet another judgment in Sharif and another v. The State (1973 SCM R 83).
17. Judged in the light of the foregoing principles we find that it is in evidence that the dung was being lifted from a place from which the land of the complainant party was at a distance of four furlongs. The complainant P.W.9 and Ahmad Khan P.W.10 are, therefore, natural witnesses. It was a broad daylight occurrence and the promptitude with which the F.I.R. Was lodged wherein all the accused were specifically named, rules out the possibility of mistaken identity: Both the prosecution witnesses were subjected to lengthy cross-examination with regard to various aspect of the occurrence and their credibility could not be shaken. Learned counsel for the appellants with reference to cross-examination over P.W.9 tried, to bring home the point that he witnesses at such a distance at the time of occurrence from where he could not have possibly seen the occurrence.
However, while convassing this point, he missed two important things. Firstly, that the site plan indicates that the witness was at a distance of 47 Karams and secondly it is in evidence that both the witnesses ran towards tractor trolly when the appellant raised lalkara to stop the tractor. This running factor must have brought them nearer enough to have witnessed the occurrence. The statements of both the eye-witnesses inspire confidence as they are consistent on all material points and their testimony is corroborated by the medical evidence in so far as the role attributed to Talib Hussain and Rab Nawaz appellants is concerned. Injury No,1 on the person of Noor Elahi deceased is relatable to Talib Hussain appellant and it proved fatal. Similarly. Injuries Nos.2, 3 and 4 could also have been caused by pistol as indiscriminate firing is attributed to Talib Hussain appellant as well as he was carrying .30 bore pistol.
18. Coming to the injuries of Ashiq Hussain deceased we find that injury on the abdomen could be an injury caused by pistol from a close range as there is no blackening around the injury. Had it been caused by gun fire, there would have been cluster around the injury and pellets inside the said injury. Similarly, Injuries Nos.3 and 4 on his person could also be the result of the similar weapon. The gun shot injuries from a close range would be different and would be something like Injuries Nos.5, 6 and 7 on the person of Noor Elahi deceased which is a cluster and, "small black spots of tattooing were seen in area . Of 4" x 5" around the Injuries Nos. 5, 6 and 7". Thus, these injuries are distinct from the one caused by rifle and .30 bore pistol to which reference has been made above. There were in all ten entry wounds found on Noor Elahi and four on Ashiq Hussain.
Although there were gun fire injuries on the. Person of Noor Elahi deceased as 12 pellets were recovered from his body, but this would not whittle down the criminal liability of Rabnawaz and Talib. Hussain appellants who were armed with rifle and .30 bore pistol as fires are attributed to them and there are' specific injuries which correspond with those fires to which reference has already been made.
19. So far as argument of the learned counsel for the appellants that since P.W.9 complainant had alleged in the F.I.R. That Talib was carrying \rifle and subsequently he changed it into pistol .30 bore, and, therefore, he could not be believed is concerned, the same is not tenable for following reasons:--
(i) P.W.9 at page 146 in his examination-in-chief has stated that he had given a supplementary statement the same day and he had clarified position.
(ii) There could be an honest mistake on the part of P.W.9 in making that statement as it was a moment of great anxiety and tension and he could have got mixed up.
(iii) The statement of Ahmed Khan P.W.10, the recovery of pistol from Talib Hussain appellant, the report of the Forensic Expert with regard to empties and the said pistol inspire confidence.
(iv) The recovery of empties from the dung the next day is also not an unusual feature to raise any doubt about this circumstances because it is in evidence that the Investigating Officer reached the spot at 5.30, he must have taken some time in recording evidence, it was December evening, darkness must have set in rather early and it could not have been possible for him to recover the empties from the dung because of the darkness around.
20. The afore-noted analysis of the prosecution evidence would show that the prosecution has succeeded in proving its case against the appellants beyond a reasonable doubt.
21. Coming to Criminal Revision No,55 of 1994 we find that the accused Mujahid and Muhammad Aslam were declared innocent during investigation; that no weapon of offence was recovered from them; that the attempt to link Mujahid with the empties recovered from the spot and which sent to the Forensic Science Expert and the report received is to the effect that they were fired from .30 bore pistol is, therefore, misconceived. Thus, Muhammad Aslam accused to whom pistol firing is also attributed gets benefit. In this view of the matter, the acquittal of Mujahid and Muhammad Aslam is neither perverse nor against the weight of evidence.
22. For what has been discussed above, Criminal Appeal No,31 of 1994 filed by the appellants and Criminal Revision No,55 of 1994 filed by the complainant are dismissed.
23. Murder Reference No,55 of 1994 is answered in affirmative.
24. The death Sentence awarded to appellants Rabnawaz and Talib Hussain is hereby confirmed.
Death .