' RIAZ KAYANI, J.--- Abdul Khalik and Atta Ullah sons of Ahmad alongwith Jamil alias Jeela son of Sultan have assailed the validity of the judgment, dated 24-3-1992 passed by the Additional Sessions Judge, Sheikhupura whereby all the appellants were sentenced to death on two counts for the murder of Manzoor and Muhammad Nawaz after being convicted under sections 302/34, P.P.C. Alongwith a fine of Rs,25,000 each also on two counts and to further undergo R.I. For three years each in case of non-payment. Further each of the appellant was directed to pay compensation in the sum of Rs,25,000 each under section 544-A, Cr.P.C. To the heirs of the deceased on each count and in default of payment to further suffer R.I. For three years. However, the appellants were acquitted under section 307 read with sections 148 and 149, P.P.C.
2. The occurrence which resulted in the death of Manzoor and Nawaz took place on 25-3-1989 at 9- 30 a.m. At the bus stop of Mauza Thatha Ali at distance of 9 miles towards the east of Police Station Khanqah Dogran, District Sheikhupura. The complaint was made by Rehmat Ali brother of Nawaz deceased which was recorded by S.H.O. Aman Ullah of the police station at 10 a.m. When he was present at Adda Pandianwala in connection with his official duty. After recording the same he sent it to the police station for registration of formal First Information Report which was duly registered at 11-30 a.m.
3. Story of the prosecution gleaned out from the complaint is that on the fateful day at 9-30 a.m.
Complainant's brother Nawaz son of Akbar and uncle Manzoor Hussain son of Allah Ditta came to Adda Thatha on the metalled road leading to Sheikhupura. He alongwith Abdullah son of Shahadat and Nazar Muhammad son of Ali Muhammad also were proceeding towards the Adda when in the meanwhile a bus bearing No,9511/LER came from the side of Gunjial and stopped at the Adda upon.
Which Abdul Khaliq son of Ahmad armed with .12 bore gun, Riaz son of Akbar armed with .12 bore gun, residents of the village came on a motorcycle bearing No,6089/FDD following the bus and after parking the motorcycle came down and simultaneously on the soling road coming from the village Ashiq Hussain son of Sarang armed with 7 m.m. Rifle, Akbar son of Murad armed with .12 bore gun, Jamil son of Sultan also armed with .12 bore gun came towards the Adda. Sultan son of Murad, Mansha son of Ahmad, Muhammad Arshad son of Akbar and Nawaz son of Inayat armed with fire-arms who were at the shop towards West of the Adda accompanied by Muhammad Azam and Muhammad Nawaz sons of Ashiq and Muhammad Afzal son of Sultan also armed with fire-arms came to the spot. Abdul Khaliq raised a Lalkara that time has come to avenge the murder of Arif and exhorted his companions to finish Nawaz and Manzoor, Atta Ullah fired with his gun which hit Manzoor on the front of his forehead. Nawaz after seeing start of the onslaught, took to his heals followed by Abdul Khaliq, Riaz, Ashiq son of Sarang, Akbar son of Murad and Jamil son of Sultan by the time Nawaz reached the fields of tobacco Abdul Khaliq fired at him with his 7 m.m.
Rifle which hit him on the temporal side of his head. Akbar and Murad fired with their respective guns which hit Nawaz on his right thigh. Jamil fired with his gun whereas Ashiq fired with his .7 m.m.
Rifle which hit Nawaz on front of his abdomen felling him to the ground. Manzoor had already fallen after being struck with the shot fired by Atta Ullah near the gate of the bus on the road. The accused started firing indiscriminatory injuring passengers of the bus, namely, Samanda son of Fazal Din, Shafiq son of Siddique Tarkhan, Allah Muafi daughter of Shahbaz, Sarwar son of Abdul Ghafoor, apart from damaging the doors and window panes of the bus resulting in huge loss.
Manzoor and Nawaz succumbed to the injuries at the spot. Nawaz who had revolver kept for protecting his body from the attack was also taken by the accused while fleeing away.
4. Motive for the occurrence is stated to be the murder of Arif brother of Khaliq on 21-12-1988 by Boota and others as a sequel to old enmity. Accused left their motorcycle at the spot while running towards the South.
5. Co-accused Sultan, Akbar, Afzal, Muhammad Ashraf, Muhammad Mansha, Nawaz son of Inayat, Azam, Nawaz son of Ashiq and Riaz were acquitted whereas Ashiq was declared as proclaimed offender and continues to be so till today having been informed by the learned counsel for the appellants.
6. None of the injured appeared as prosecution witness, therefore, charge under section 307, P.P.C.
Could not sustain rather out of the injured Sarwar and Samanda appeared as D.W.1 and D.W.3.
7. Inspector Aman Ullah after recording the complaint proceeded to the place of occurrence. He prepared the inquest report Exh.P.N. And injury statement Exh.P.L. Regarding the dead body of Manzoor Hussain. Near the dead body of Manzoor 3 crime-empties P.13/1-3 were recovered vide memo. Exh.P.R. Blood-stained earth where Manzoor was lying was taken in possession vide memo.
Exh.P.Q. Bus bearing No,9511/LER and a piece of glass were taken in possession vide memo. Exh.P.U.
Whereas motorcycle bearing No,6089/FDD P.15 left by the accused was taken in possession vide memo. Exh.P.V. Inquest report Exh.P.J. And injury statement Exh.P.I. Were prepared pertaining to deceased Muhammad Nawaz. Near the dead body of Muhammad Nawaz five crime empties P.14/1-5 were taken in possession vide memo. Exh.P.T. On 2-4-1989 while the Investigating Officer was present at bus stop of Padianwala he received secret information about presence of Atta Ullah appellant alongwith his co-accused. Resultantly a raid was conducted and Atta Ullah was arrested who was in possession of gun P.11 which was taken in custody vide memo. Exh.P.O. On 4-4-1989 while he was present in the area of Thatha Ali he received information about presence of Abdul Khaliq and Jamil appellants alongwith their co-accused. By conducting a raid he arrested all of them. On 5-4-1989 Jamil appellant while in police custody made disclosure about recovery of crime weapon accordingly gun P.16 was recovered from his house which was secured through memo. Exh.P.W. On 9-4-1989 appellant Abdul Khaliq got recovered 7 m.m. Rifle from his residential house which was secured vide memo. Exh P . AA .
8. Dr. Manzoor Hussain Kazmi, Medical Officer, District Headquarters Hospital, Sheikhupura on 26-3- 1989 conducted post-mortem examination on the dead body of Muhammad Nawaz at 1-15 p.m.
And found the following injuries:--
(1) No ligature mark on or around the neck. A dead body of a male, well built.
(2) A fire-arm wound 0.7 c.m. x 0.7 c.m. On the right side of the face, 4.5 c.m. In front of right ear, 3.5 c.m. Behind the outer angle of the right eye. The bullet travelled through the back of the skull, damaging right jaw upper part and roof of the mouth and fracturing all the bones of the jaw, base of skull and left temporal bones of skull and making its exit wound 4.2 c.m. x 3.1 c.m. Just under the angle of the left jaw.
0.5 c.m. Behind it up to the lobule of the left ear.
(2) An abrasion 3 c.m. x 1.5 c.m. On the back of the right elbow joint.
(3) A fire-arm wound of entrance 3.1 c.m. x 4.2 c.m. With tattooing of the edges of the wound. The pellets entered as single mass in the abdominal cavity and travelled ahead outwards, leftwards and down to the hip joint and left illiac fossa, where the pellets made their exit as detailed below:--
(a) Three wounds of exit in the area of 11 c.m. x 6 c.m. In front of left illiac fossa region two and one on the outer part of left illiac fossa.
(b) Two exit wounds in an area of 2.5 c.m. x 2 c.m. On the left gluteal region upper and outer part all the exit wounds in (a) and (b) 0.7 c.m. x 0.7 c.m. In diameter. Three pellets became lodged under the skin under the left gluteal region and back and outer part, from where those were removed.
One piece of card board complete removed, lodged in the way of exit and entrance wound.
(4) A fire-arm wound of entrance 2.5 c.m. x 2.5 c.m. On the front of right thigh lower part 13 c.m.
Above the upper margin of petella bone i.e, knee cap. The pellets entered as a single mass; tattooing of edges of the wound present. The pellets travelled ahead to the back of the thigh where they made five exit wounds; 1 c.m. x 1 c.Rn. Each on the back of the thigh lower part. One pellet and one piece of card board from the depth of the wound. Shaf of the femour bone was fractured into many pieces with destruction of the muscles of vessels of the right thigh.
9. In the opinion of the doctor all injuries were by fire-arm except injury No,2 which was caused by either a blunt weapon or fall on the ground having hard surface. All the injuries were grievous and dangerous to life. In the opinion of the doctor death occurred due to severe shock and haemorrhage. Injuries Nos.1, 3 and 4 were individually as well as collectively sufficient in the ordinary course of nature to cause death of the deceased at the spot. Probable time that elapsed between injuries and death was immediate and between death and post-mortem within 29 to 36 hours.
10. On the same day at 2-11 p.m. The doctor conducted post-mortem examination on the dead body of Manzoor Hussain and found the following injuries:--
(1) A fire-arm wound of entrance 1 c.m. x 1 c.m. On the left side of the forehead 4.5 c.m. Above the mid part of the left eyebrow. The pellet entered in the cavity of the skull fracturing the frontal bone on the left side and travelled through the substance of the back and became lodged in the back of the cavity of the skull between skull and left' occipital part of the brain.
(2) A fire-arm wound of entrance 1 c.m. x 1 c.m. On the left jaw upper part 2.5 c.m. In front of left ear and 5 c.m. Behind the outer angle of the left eye. The pellet travelled upward and rightward, entered the cranial cavity through the base of the skull (fracture present) and became lodged in the substance of the brain right hemisphere of cerebrum (brain). The pellets of Nos.1 and 2 were removed, packed and sealed and handed over to the police."
11. In the opinion of the doctor death occurred due to severe shock and haemorrhage as a result of injuries to the vital organs (brain). Both the injuries individually as well as collectively were sufficient in the ordinary course of nature to cause death. Probable time that elapsed between the injuries and death was immediate and between death and post-mortem was within 29 to 36 hours.
12. After submission of the challan in the Court appellants alongwith their co-accused were called to face the trial, they were charged tp which they denied, pleaded not guilty and claimed a trial.
The prosecution examined as many as 16 witnesses. The ocular testimony account was furnished by the first informant Rehmat Ullah P.W.8 and Abdullah as P.W.9.
13. The Public Prosecutor submitted in evidence report of the Forensic Expert Exh.P.A./H wherein empties C.1 and (sic) were found to have been fired with the right barrel of the double-barrel gun recovered from the accused Riaz. Crime-empties C.2 and C.3 had been fired from the left barrel of the double-barrel shot gun of .12 bore also recovered from the accused Riaz whereas crime- empties C.5 and C.7 were found to have been fired from the single barrel shot gun of .12 bore recovered from Jamil appellant and lastly crime-empties C.4 and C.6 were wedded with the single barrel shot gun recovered from appellant Atta Ullah.
14. Abdul Khaliq when examined under section 342, Cr.P.C. Denied his participation in the occurrence but admitted that his brother Arif was murdered and a case was registered. He also denied the recovery of the motorcycle as well as the crime weapon and stated that the case was foisted on him due to enmity. Remaining appellants Atta Ullah and Jamil made the similar statements.
15. Defence also examined Samanda D.W.3, one of the injured witnesses and D.W.1 Muhammad Sarwar who is also injured.
16. Learned counsel appearing for the appellants bitterly criticised the prosecution evidence stating that the witnesses were chance witnesses and have deposed due to long-standing enmity; that the F.I.R. Was recorded after preliminary investigation and that the medical evidence was incongruent with the ocular testimony apart from pointing out discrepancies and contradictions in the statements of various witnesses. As regards recoveries it was stated that the weapons which were recovered from Jamil and Atta Ullah from their residential houseS were not in their exclusive possession and were shared with other inmates, therefore, the same were of no value. Conversely learned State Counsel supported the conviction and sentence recorded by the trial Judge.
17. We have closely addressed ourselves to the arguments of the respective counsel and have also thoroughly perused the record 'Both Rehmat Ullah P.W.8 and Abdullah P.W.9 who were the eye- witnesses have reiterated the contents of the F.I.R. In their examination-in-chief. Murder of Arif is an admitted fact for which Boota, Ali Muhammad, Allah Ditta, Wilayat and Ahmad were indicted.
Walayat is the father-in-law of the first informant. Earlier to the murder of Arif, Ahmad son of Bahadur was murdered in the year 1971 by said Arif. Arif deceased is the brother of Abdul Khaliq accused. Liaqat an accused in the murder case of Arif is the nephew of the wife of Manzoor deceased. On the other hand, daughter of Manzoor deceased is the wife of Umar Hayat brother of Liaqat. The deceased are closely related to the complainant party and there is every reason to believe that the deceased were helping the accused of the murder case of Arif and on the day of occurrence they were proceeding to Sheikhupura for appearance before D.S.P. Gul Nawaz for change of investigation as deposed by Rehmat Ullah P.W.8. The continuous help being rendered by the deceased to the accused of murder case of Arif is the cause which motivated them to liquidate both Manzoor and Nawaz. The ocular testimony account particularly evidence of Abdullah P.W.9 is totally free from taint. Abdullah is a witness who is neither related to the appellants nor to the complainant.
' He belongs to the village from where both the parties hail. He knows both the parties very well and has absolutely no rancour or with the appellants so as to be motivated by consideration other than to speak the truth. He states that he had to go to Mandi Farooqabad whereas the other witnesses were said to have to go to Thatha Nasar to participate in the marriage ceremony of the son of Mistri Nazir Ahmad. There is no reason to disbelieve these witnesses in particular Abdullah P.W.9.
The time of occurrence i.e 9-30 a.m. Is the time when people usually go out to fulfil their arounds and make purchases. Presence of these witnesses at the bus stop from where either they had to go on bus or on foot to their respective destination is not unnatural. No question was asked from the Investigating Officer regarding evidence collected to prove the presence of the eyewitnesses so as to create doubt in our minds that they were not present and in order to show their presence to have witnessed the occurrence they have advanced reasons which have proved to be incorrect.
We are impressed with the testimony of the eye-witnesses which is confidence-inspiring and has a ring of truth around it. The usual discrepancies and contradictions which appear in the statements of the witnesses have not disturbed our mind to reach a conclusion that such improvements were made to conceal facts or to bring the evidence in line with the events and happenings discovered in the investigation. Undoubtedly their is enmity between two groups. Statement of Rehmat Ullah has to be scrutinizedin said perspective. However, as we have noted we are convinced that he was present at the spot and witnessed the occurrence. We are particularly impressed with the statement of Abdullah P.W.9 who has no animosity with the appellants. This fact has already been adverted to. He has been cross-examined at length and no answer has been obtained so as to satisfy us that his presence at the spot was doubtful.
18. Undoubtedly about 9 co-accused have been acquitted but most of them did not commit any overt act and were present at the spot encouraging the principal accused by word of mouth to finish the deceased. However, no overt act was ascribed to make them vicariously liable and have been rightly acquitted by the trial Judge. It cannot, therefore, be said that if the evidence against the acquitted accused is discarded the same evidence cannot be relied upon for conviction of the appellants for the reason that as far as appellants Khaliq and Atta Ullah are concerned the ocular testimony is in absolute accord with the medical evidence which provides corroboration. Recovery of gun P.15 from Atta Ullah on 2-4-1989 is wedded with the crime-empties C.4 and C.6 recovered from the spot. This provides additional corroboration. Atta Ullah is said to have fired with his .12 bore gun on front of the forehead of Manzoor deceased and single injury caused immediate death of the deceased at the spot. Similarly shot fired by Abdul Khaliq with his 7 m.m. Rifle hit deceased Nawaz on his forehead. The medical evidence corroborates the ocular testimony account with injuries caused by Atta Ullah and Abdul Khaliq to Manzoor and Nawaz respectively proved their cause of death.
Recovery of motorcycle bearing No,6089/FDD from the spot being driven by Abdul Khaliq and abandoned at the spot, having been seen by the eyewitnesses is also a piece of evidence which can be considered to be of corroborative value. The prosecution, therefore, has beyond any shadow of doubt proved its case against Abdul Khaliq and Atta Ullah for having caused murders of Manzoor and Nawaz. There is no mitigating circumstance to persuade us to take a lenient view.
Their appeal is dismissed and conviction and sentence recorded by the trial Judge vide his judgment dated 24-3-1992 is affirmed. Death sentence imposed on Abdul Khaliq and Atta Ullah is confirmed. Murder Reference is answered in the affirmative.
19. As far as Jamil is. Concerned we find that the ocular testimony account regarding injuries which he has suffered was witnessed by the witnesses namely Rehmat Ullah P.W.8 and Abdullah. P.W.9 from a distance. It is stated that when Manzoor was shot dead by Atta Ullah, Nawaz took to his heels and while running covered distance towards the field in which tobacco was cultivated followed by Khaliq, Jamil and others. Possibility that Nawaz and his pursuers got out of sight or had covered a sufficient distance so as the viewing of the incident cannot be ruled out and it is for this reason we find that there is disharmony between the ocular account of firing by Jamil at Nawaz deceased and the medical evidence. Medical evidence shows tattooing of the injury caused by Jamil so much so that even card board of the cartridge was recovered from the injury caused. On the other hand, Rehmat Ullah P.W.8 states that firing made by assailant at Muhammad Nawaz may be from a range of 6 Karams. As far as Abdul Khaliq is concerned P.W.8 has categorically stated that the distance was about 6 Karams. Abdul Khaliq was armed with .7 m.m. Rifle and his fire hit.
Nawaz deceased on his head and there is no blackening or tattooing mark, therefore, injury attributed to Abdul Khaliq tallies with the post-mortem report. However, as commented earlier there is difference in the ocular testimony and the post-mortem report regarding injury caused by Jamil. The Investigating Officer Aman Ullah has also stated that when he apprehended Jamil his first version was that he was not present at the spot. Recovery of crime weapon from his house which was inhabitated by other inmates also proves that his abode was not in his exclusive possession. For all these factors when kept in juxtaposition case of Jamil becomes doubtful.
Following the golden principle of criminal jurisprudence that whenever a doubt is created its benefit should go to the accused, we adhere to the said principle and extend the benefit of doubt to Jamil appellant. His appeal is, therefore, accepted and the conviction and sentence recorded against him by the trial Judge on 24-3-1992 is set aside. Death sentence imposed on Jamil is not confirmed. He shall be released from jail if not required in any other case.