' M. S. H. QURESHI, J.-The six appellants, namely, *Mutual, Fatta. Thafi, Rehman. Sarja and Bhani, were tried by the Court of Sessions Gujrat under sections 148, 307/149 and 302/149, P. P. C. For the triple murder of Lela aged 30, Amir aged 12, and his father Karam Ali, aged 50/55 years. In the result of the trial, all the appellants were convicted and awarded the following sentences : (0 R. I. For two years each under section 148, P. P. C.
(II) R. I. For five years each under section 307/149, P. P. C.
(iii) Mutualli to death and the other five to life imprisonment under section 302/149, P. P. C. For the murder of Lela 6,4ceased.
(iv) Rehman to death and the other five to life imprisonment under section 302/149, P. P. C. For the murder of knit deceased, and
(v) Bhani to death and the other five to life imprisonment under section 302/149, P. P. C. For the murder of Karam Ali deceased.
' In case of Mutalli, Rehman and Bhani if their death sentences were not confirmed, and In the case of others, the sentences of imprisonment were to run concurrently. ALL the appellants filed appeal through counsel which is Criminal Appeal No, 623 of 1912. Subsequently, they separately filed appeals from the jail which all bear Criminal Appeal No, 736 of 1972. Both the appeals Substantially being for the same purpose have been heard by tie. We have also heard the Reference made for cnnermation of the death sentences awarded to Mutalli, Rehman and Bhani.
2. Mutalli and Fatta appellants are brothers Inter se, and Rehman and Tabri who are uterine brothers inter se are one of their maternal aunt. Bhani appellant is son of sister of Sarja appellant and both belong to the same cute as that of Mutalli, Khanu, the cousin of Mutalli and Fatta, had been murdered by Lela deceased about twelve to thirteen years prior to the occurrence and Lela along with others bad been tried for that murder but had been acquitted. Two three months before the occurrence, Mirza, brother of Rehman and Tahri appellants abducted Mst. Bano daughter of Amir P. W. And sister-in-law of Salehon complainant, and refused to restore the girl and even taunted that they had still to avenge the murder of Khanu.
3. Mutalli, Fatta, Tehri and Rehman appellants who were residing at Ootian. Had come to village Khizar two days prior to the occurrence and had been staying at the house of Sarja appellant. On 14th November 1961 at about sunset time, Maula and Salehon P. Ws. And Amir and Lela deceased were coming in their cart from village No kipur. As the lane was narrow, Maulu was holding the strings of bullocks from the front while Salehon sitting on the cart was driving the bullocks. Amir and Lela deceased were also sitting on the cart. When they reached near the house of Mutalli, which the latter had left on taking up residence at Ootian, the six appellants emerged from that house, Mutalli armed with a single-barred gun, Rehman also with a gun. Fatta, Sarja and Bhani with spears and Tahri with a Chhuri. They all attacked the complainant party from behind. Mutalli fired the first shot which hit Lela. Rehman also fired a shot bitting Salehon and Amir. Mutalli chased Lala who was running towards his own house and fired a second shot. On receipt of this shot, Lila entered his house. Mst. Ajjan P. W. Whose house adjoins that of Lala came out entreating Mutalli not to use his gun again, but Mutalli fired at her, at which she fell down injured, at the door of her courtyard. In the meantime, the . Other assailants had chased Amir who also was running towards his house. Karam Ali, father of Amir, on seeing his son being chased by the assailants came out of his house to request them to spare his son but he was dealt with spear blows by Bhani. Karam Ali, too, fell in his courtyard. Tahri and Sarja appellants continued shouting tauntingly that they would now return.
Mst. Bano to them. The occurrence was witnessed by Mahi and Muhammad. The appellants then left the spot carrying away their respective weapons. Salehon P. W. Went to Malikwal P. S. Which was eight miles away and lodged report at 2 a.m. (15th November 1967).
4. Assistant Sub-Inspector Muhammad Mahbub, who recorded the F. I. R. Proceeded to the spot reaching there at 6.30 a.m. And took up the investigation of the case. He completed the formality in respect of the injured and the dead persons. He recorded the statement of Karam All and sent him and the other injured persons to the hospital. He recovered four empties (Mts. P. 3/1-4) from the spot-two from the courtyard of the house of Mutalli, third in the 'gall' and the fourth from near the house of Mst. Ajjan. He arrested Bhani, Sarja and Tahri on 18th November 1967. After interrogation, Bhani led the police party to his house. It was locked with lock (Us. P. 10) which he opened with key (Ezh. P. 9) which was in his possession, and from inside his Kotha brought out blood-stained spear (Exh. P. 11). Sarja produced 'balam' (Fah. P. 12) and Tahri 'Chhavi' (EA. P. 13) which were not blood- stained. In the course of a 'Naka-bandi' held at Mona Bridge in the night of 22nd November 1967, Muhammad Yousif Khan, the S. H.
0., Malikwal, arrested Mutalli and Rehman appellants. Mutalli was found in possession of gun (Ezh. P.
1) in respect of which he had no licence. Similarly, Rehman was carrying a carbine (Exh. P. 2) also without a licence.
5. The post-mortem examination conducted on the person of Amir deceased on 16th November 1967 at 8 a.m. Disclosed the presence of eight separate gunshot wounds of entrance on the left outer side of lower chest and abdomen 6'x4'. Three of the pellets had existed. The pellets passed through and destroyed the spleen, pierced the stomach and finally the liver. The death had been due to shook and haemorrhage resulting from the said injury which was sufficient in the ordinary course of nature to cause death.
6. The post-mortem examination conducted the same day, Le. 16th November 1967 at 9-15 a.m.
Disclosed the presence of the following injuries on the person of Lalla deceased.
(1) Five gunshot wounds of entrance in an area of 31' 1.1/3' on the back and inner side of left fore- arm, 2' above the wrist joint.
(2) Five gunshot wounds of entrance in an area of 31' X 3' on the outer side of left lower part of the chest and abdomen. The death in the opinion of the doctor had been due to shock and haemorrhage on account of injury No, 2 which was sufficient to cause death in the ordinary course of nature.
7. Karam Ali was admitted at Rural Dispensary, Rukan, a14-30 on 15th November 1967 and was attended to in respect of his injuries but as his condition was getting worse, the Assistant Medical Officer sent message to the police to arrange a Magistrate for recording his dying declaration. But, when no one turned up from the police he recorded the dying declaration of Karam All (Bib. P. K. ) at 8.30 p.m. Karam All succumbed to his injuries at 10 p.m. The same day.
8. Dr. Muhammad Aslam who had attended to the injuries of Karam All deceased at the time of his admission had found the following injuries on his person I
(I) Punctured wound 1-1/4' a 1/4' on the left side of abdomen. (2) Punctured wound if' x 1/4' x 1' on the left elbow-joint."
' Injury No, 1 was dangerous to life. The post-mortem examination on the deceased was conducted by Dr. Ghulam Ahmad on 17th November 1967 at 8-15 a m. Which confirmed the presence of the above-said swo injuries. Death in the opinion of the doctor had been due to shock and heamorrhage caused by injury No, 1 which was sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem and had been caused by sharp-pointed weapon. The death had occurred about twenty-eight hours after the receipt of the injuries.
9. On 15th November 1967, Dr. Muhammad Aslam also examined Mat. Ajjan and Salehon. Mat. Ajjan was found to have suffered the following injuries :
(1) Penetrated wound 1/4' circular on the right breast about 2-1/2' above medial to nipple and 3-1/2' from the middle line with marked swelling of breast.
(2) Penetrated wound 1/4' on the anterior thigh about 6' about the knee joint.
(3) Punctured wound I/4'x 1' on the right thigh, 2-1/4' from injury No, 3'
All the injuries were simple in nature.
10. The examination of Saloon disclosed the presence of three fire-arm wounds on the left thigh.
The injuries were simple in nature.
11. The four empties recovered from the spot, were dispatched on 20th November 1967 to the Forensic Science Laboratory where they wore received on 21st November 1967. The gun (Exh. P. 1) and the carbine (Exh. P. 2) were despatched on 6th December 1967 and were received there the next day. In the result of the test carried out in the laboratory, the empties (Exh. P. 3/1-3) were found to have been fired from the gun and empties (Exh. P, 3/4) from the carbine. The presence of human blood on the spear (Exh, P. 11) recovered from Bhani appellant was confirmed by the Serologist.
12. The prosecution case during the trial rested on 1:--
(I) The ocular testimony of Maulu (P. W. 10), Mst. Ajjan (P. W. 11) and Mahli (P. W. 12). As Salehon complainant had died before the trial could commence, his statement recorded before the committal Court was brought on record under section 33 of the Evidence Act;
(Ii) The dying declarations of Karam All deceased Exh. P/1 proved by A. S. Muhammad Mahbub (P.
W. 15) and Exh. P. K. Proved by Dr. Muhammad Aslam:
(111) The recovery of the empties proved by Sher Muhammad (P. W. 8) and A. S. I. Muhammad Mahbub (P. W. 15) and the recovery of the gun and carbine proved by Baqr1 Khan (P. W. 13) and Muhammad Yusuf Khan S. H.
0. (P. W. 16) ; and
(iv) Motive for which the evidence came from Amir son of Channan (P. W. 7), Maulu (P. W. 10), Salehon (since dead), and Wali (P. W. 6). The dying declarations also supported the motive.
13. The appellants pleaded not guilty to the charges. Mutalli and Fatta admitted that Lala deceased had been tried for the murder of Khans but had been acquitted while Tahri, Sarja, Rehman and Bhani had expressed lack of knowledge. Mutalli, Fatta, Tahri, Rehman and Bhani had admitted the factum of abduction of Mst. Bano, but Sarja had denied knowledge. All the appellants had denied the recovery and the ownership of the respective weapons. They had led no defence. Their plea, however, did not prevail and in the result they were convicted and sentenced as aforesaid.
14. Before us, learned counsel for the appellants pointed out to the discrepancy in regard to the distance from whivh the shots were fired. Maulu stated that Mutalli fired the first shot at Lala from a distance of three or four karams and that Lela ran for a distance of five karams when the second shot was fired at him. Mahn, on the other hand, stated "Lela was fired at from a distance of four or five feet. This was the first shot. The second shot was fired from a distance of two feet", Salehon had given the distance of the first fire as 3/4 karams. It was urged that since no blackening or charring was found, the shots had not 6een fired from a close distance of two feet or 4/5 feet. It is difficult to expect complete accuracy in a situation where the firing takes place from a running position. This is not a case where it can be said that the witnesses had not seen the occurrence. Two of them, namely, Mat. Ajjan and Salehon, had themselves received Injuries during the occurrence. Maulu (P.
W. 10) had been bringing the cart by holding the string of the bullocks at the time of the occurrence. Mahli had come attracted by the commotion and seen the occurrence. The names of both these witnesses duly appear in the F. I. R. The discrepancies in regard to the distance from which the shots had been fired are, therefore, not material. It was however, urged that Maulu stated that he did not run away from where he was standing at the time of the occurrence and that as such he could not see the entire occurrence. As the shooting had taken place in the same lane in which Maulu was standing. Maulu could set the same though he could not see the inflicting of injury on Karam All deceased. About Mst. Ajjan, it was urged that as she had remained inside her courtyard where she had been hit, she could not see the occurrence. It is to be noted that the woman had spoken only in respect of Mutalli chasing Lela. She does not say that she was watching the inflicting of injuries on the others in respect of whom she only says that they were injured. About Mahli (P. W. 12) it was pointed out that he had mentioned hatchet as the weapon carried by Sarja although the other witnesses had described that to be a %Edam'. It was also pointed out that the F.
I. R. Had been recorded after the arrival of the police. In this connection, our attention was drawn to the statement of Mst. Ajjan that the police came to the spot as Sotewela, and to that of mall that the police came to the spot at 12 midnight. According to the Investigating Officer the F. I. R. Had been recorded at 2 a.m. And he reached the spot at 6.30 a m since the witnesses were deposing after some five years of the occurrence, these lapses are not material. It was then urged that the cart in question not being in evidence, there was nothing to help locate the spot from where the trouble had started and to say who could be present at that time. The non-production of the cart is not fatal. The shooting had taken place even away from the cart. Moreover, as already held the presence of the injured witnesses could not he doubted.
15. Learned counsel also attacked the relevance of the dying declaration on the ground that at the time of its recording at the dispensary, the other injured persons had also been present there, there being only one ward at that dispensary. In this connection, reliance was placed on Muhammad Latif and another v. Muhammad Hussain and others (1), in which it was held that who e a dying declaration is recorded in hospital in the presence of all the eye-witnesses, the possibility that the deceased was tutored by them could not be ruled out. The argument before us was based on the supposition that as Salehon and Mat. Ajjan had also been attended to in respect of their injuries at the same dispensary, those two witnesses were present at the time of recording of the dying declaration. There is no direct evidence to sustain these suppositions. There is no mention in Bah. P.
K. Of the presence of any of those injured persons or any of the other eyewitnesses. Dr. Muhammad Aslam stated, do not remember if relatives of Karam Ali were present with him when I recorded the dying declaration". The declaration had been recorded by Dr. Muhammad Aslam himself and was attested by Dr. Munir Ahmed Khan, Incharge, Veternary Hospital Rukan, as well as by Ch. Ghulam Ahmed, the dispenser of the dispensary. We therefore, find nothing to detract from the relevance of the dying declaration. It was also pointed out that the name of Rehman appellant did not appear in the dying declaration. Since Karam Ali had been attacked by Bhani as soon as he had come out of his house, to save his son, it is quite understandable that he could not see all the assailants
16. As regards the recovery of the various weapons from and at the instance of the appellants, nothing was said against the recovery witnesses, namely, Sher Muhammad (P. W. 8) and Band Khan (P. W. )1) to impeach {{FOOT NOTE}}
(1) @ L D 1970 SC 406 {{FOOT NOTE}} their reliability. It was, however, pointed out that Fatta appellant, who had been arrested on 19th November 1967, bad according to Sher Muhammad (P. W. 8) 'produced his 'Salem' before the police at the time of his arrest". The same witness had further stated, "1 saw Mutall and Ahmed accused with the police when Faits accused produced his 'Balm'. They were in handcuffs". From this, it was contended that the arrest of and the recovery of the gun (Exh. P. 2) from Mutalli and the carbine (Exh. P. 2) from Rehman appellants in the course of a Nakabandi on 22nd November 1967 was fake as the said appellants had already been with the police from 19th November 1967. This point had been raised before the learned Sessions Judge and he had disposed of the same by observing c "On what data Fatta accused produced his Belem' is not clear from the record. So, it cannot be said with judicial certitude that Mutalli and Rahman accused persons were arrested on a date earlier than 22nd November 1967". The position remains the same before us as the exact date of Fatta's production of 'Balam" has not been shown to us. It is also to be remembered that Sher Muhammad was deposing after some five years. Moreover, the recovery of the firearms in the course of the Nakabandi on 22nd November 1967, is fully supported by Baqri Khan.
17. It was then urged that the fact that the crime empties had been found by the Fire-arms Expert to have been fired from the firearms recovered from Mutalli and Rehman appellants had not been put to them in their examination under section 342, Cr. P. C. And that as such the evidence of the Firearms Expert was not relevant. For this reliance wu placed on Kandr v. The State (1) in which it had been observed E This report of the Firearms Expert was never put to Kamir appellant during his examination under section 342 of the Criminal Procedure Code and has therefore, to be excluded from consideration on this short ground alone". In making this observation, the Division Bench of this Court had relied on a Single Bench Authority reported as Muhammad Akbar Khan Burt v. The State (2). In this latter case, which was ender section 124-A, P. P. C , the two seditious letters which formed important part of the prosecution evidence had not been put to the person accused and the learned Single Judge had held that the same could not be used in evidence. The question of putting the Firearms Expert's opinion is, however, on a different footing, for the real circumstances there is the recovery of the weapon itself from the possession of the accused person, and if the recovery itself is not put t the accused person under section 342, Cr. P. C. Then it could be argued, not without force, that the recovery as well as the expert's opinion would not be relevant. The same principle applied to the Serologist's report regarding t presence of human blood on a crime article.
There, too the recovery of the crime article, has been done, it is not necessary under section 342, Cr.
P. C. To put the (Serologist's opinion alio to the accused person we hold t view all due respect to the opinion expressed in Kamles case cited on behalf of the appellant. We are also of the view that where the accused's stand is of outright denial of the recovery of the weapon itself, an omission to put the expert's opinion to the accused, does not operate to his prejudice and is as such immaterial. In the present case, the question of recovery of the firearms had been duly put to Mutalli and Rehman and they had both denied the same. They bad also denied ownership of the same. No prejudice can therefore, be said to have been caused by not putting the firearms expert's opinion to them in their examination under section 342, {{FOOT NOTE}} (1)1974 P et% L 16S (2) P 1. D 1967 Kar. 1t6 {{FOOT NOTE}} Cr. P. C. The objection taken to the recovery of the blood-stained 'Belem' (Fah. P. 1) at the instance of Bhani appellant on the ground that the recovery witness Sher Muhammad had not spoken of such recovery before the committing Magistrate and that he had found men and families in the Kotha where the 'Belem' was lying, although according to the A. S. I.'s evidence, the Kotha had been locked and had been opened by Bhani appellant at the time of the recovery, is not material because the witness had admitted to have attested the relevant recovery memo. (Exh. P. E. E.).
18. On a proper appraisal of the entire evidence, we feel that the partie having been on inimical terms with each other for the last 12-13 years, and the ocular witnesses being relations of the deceased, it will be necessary to apply the rule of cauticn in accepting the evidence which means that the ocular evidence, even though believable, should not be relied upon completely unless corroborated by some independent circumstance. Such corroboration is available by the recovery of gun (Bah. P. 1) from Mutalli, carbine (Eel. P. 2) from Rehman and the blood-stained 'Belem' (Bah.
P. 11 from Bhani. These weapons are linked with the crime by virtue of th opinion expressed by the Fire-arm Expert and the Serologist. The c against the three is thus fully established. The recovery of the weapons from Patta, Sarja and Tahri which bore no blood stains, does not provide the necessary corroboration. No injury is attributed to them. In the circumstance, we are of the view that it will not be safe to maintain their conviction on the basis of the ocular evidence only.
19. In the result of the above discussion, we accept the appeal as regards Fatts, Sarja and Tahri appellants, set aside their conviction and sentences and acquit them on all the counts. They shall be released forthwith if not wanted in any other case.
20. The remaining three appellants, namely, Mutalli, Rehman and Bhani are proved to have committed the murders in furtherance of their common intention and as such they are fully liable by application of section 34, P. P. C. Their conviction under section 302/149, P. P. C. Is now recorded under section 302/34, P. P. C. For each murder and the sentences already awarded to them for the said murders are maintained. Their conviction under section 307/149, P. P. C. Is similarly to be now read as under section 307/34, P. P. C. And the sentence awarded to them therein are also maintained. Their conviction and the sentence passed under section 148, P. P. C. Are set aside. The death sentences awarded against these three appellant., namely Mutalli, Rehman and Bhani, are confirmed. The reference is disposed of in the affirmative.