' ABDUL HAMEED DOGAR, J.---The above appeals by the leave of this Court are being disposed of by common judgment as they arise out of judgment, dated 12-6-1997 passed by Division Bench of Lahore High Court, Lahore.
2. By Criminal Appeals Nos.294 and 295 of 1997 the appellants Mehboob Sultan, Muhammad Ashraf, Muhammad Akram, Muhammad Bashir and Muhammad Basharat have challenged their conviction and sentences whereas complainant/appellant Muhammad Zafar vide Criminal Appeal No,406 of 1999 has prayed for the enhancement of sentence of appellant Muhammad Bashir from life imprisonment to death. In Criminal Appeal No,407 of 1999 he has assailed the acquittal of Amjad Hussain, Matloob Hussain and Rab Nawaz passed by the High Court.
3. In this case accused Muhammad Bashir, Muhammad Basharat, Amjad Hussain, Saleem Akhtar, Matloob Hussain, Rab Nawaz, Muhammad Akram, Muhammad Ashraf and Mehboob Sultan were sent up to face trial alongwith absconding accused Muhammad Rafiq before the Additional Sessions Judge, Rawalpindi who vide his judgment, dated 3-2-1991 found all of them guilty under section 302/149, P.P.C. On four counts. Mehboob Sultan, Muhammad Ashraf, Muhammad Basharat and Muhammad Bashir were sentenced to death whereas Amjad Hussain, Saleem Akhtar, Matloob Hussain, Rab Nawaz and Muhammad Akram were sentenced to imprisonment for life. They were also sentenced to fine of Rs,25,000 on each count or in default whereof to undergo further R.I. For two years. They were also convicted under section 149, P.P.C. And sentenced to two years' R.I. On each count. All of them were, however, acquitted of the charges under section 307, P.P.C. The High Court dismissed the appeals of appellants Muhammad Akram, Mehboob Sultan, Muhammad Ashraf, Muhammad Basharat and Muhammad Bashir and confirmed the death sentence of Mehboob Sultan, Muhammad Basharat, Muhammad Ashraf whereas commuted the death sentence of appellant Muhammad Bashir to imprisonment for life. The participation of accused Saleem, Matloob Hussain, Amjad and Rab Nawaz in the commission of the crime was found doubtful, as such they were acquitted. Saleem expired during pendency of appeal before the High Court, as such his appeal was abated.
4. The case of prosecution as set out in the F.I.R. Is that on 21-2-1989 at about 8-45 a.m.
Complainant Muhammad Zafar left for attending hearing of the case of murder of his brother Ghulam Shabbir alongwith P.W. Muhammad Zaman in a Taxi being driven by Abdul Khaliq alias Kala. His brothers Muhammad Razzaq and Muhammad Riaz, as well as Muhammad Ayoub were also going towards the Court in their own car alongwith driver Muhammad Riaz as they had to give evidence in the said case. Their car was ahead of the complainant's Taxi and when they reached near the Commissioner's House, suddenly a Suzuki van in which appellants Muhammad Akram and Mehboob Sultan armed with kalashnikov, Muhammad Ashraf and Muhammad Basharat armed with 7 MM rifles and Bashir who was driving the said van came from, behind and overtook the Taxi of first informant and as well as the car of Muhammad Riaz and others. The appellants opened the back door of the van and started firing at the car of Razzaq and others, resultantly Razzaq, Riaz and Ayoub got injured and the car stopped. The complainant stopped his taxi and came out to help the injured and in the meanwhile another car being driven by Saleem with Matloob Hussain, Amjad and Rab Nawaz inside came there. Matloob Hussain fired a burst of kalashnikov at the complainant but he escaped. Thereafter, Matloob Hussain, Amjad and Rab Nawaz fired at injured and as a result of the said firing a passerby namely, Muhammad Ilyas also got injured. All the four injured expired while being shifted to the hospital by complainant, P.Ws. Abdul Khaliq and Muhammad Zaman.
Motive behind the incident was that about a year ago, Ghulam Shabbir, brother of complainant was murdered and the abovementioned accused with the conspiracy of absconding accused Muhammad Rafiq have killed Muhammad Razzaq, Muhammad Ayoub and Muhammad Riaz, the witnesses who were going to give evidence in the said murder case.
5. Leave to appeal was granted by this Court on 17-12-1997 and 24-11-1999 to consider whether in the facts and circumstances of the case, the evidence produced by the prosecution was such on which reliance could be placed for the conviction and that grant of lesser punishment to Muhammad Bashir and acquittal of Amjad Hussain, Matloob Hussain and Rab Nawaz was justified.
6. On receiving wireless message, S.H.O. Qurban Ali the Investigating Officer proceeded to place of incident and found a car with bullet marks present on it which was taken into possession. Five blood-stained lead bullets were recovered from inside the car. Five empty bullets lying outside the car were also taken into possession under memo. He arrested appellants Muhammad Bashir and Muhammad Basharat on 26-2-1989 and acquitted accused Matloob, Amjad, Salim and Rab Nawaz were arrested on 11-3-1989. On 23-3-1989 appellants Mehboob Sultan, Akram and Muhammad Ashraf were arrested. A kalashnikov and 20 live bullets were recovered from appellant Mehboob Sultan. A carbine with six live cartridges were taken into possession from appellant Muhammad Akram. From appellant Muhammad Ashraf two currency notes of fifty rupees denomination were recovered. Separate Mushirnamas were prepared with regard to the above articles.
7. At the trial prosecution examined 17 witnesses in all. To prove its case the prosecution placed reliance on ocular testimony furnished by complainant Muhammad Zafar P.W.9 Abdul Khaliq alias Kala P.W.10 and Muhammad Zaman P.W.11. In addition to the ocular testimony, prosecution also relied upon the recoveries of empties from the place of occurrence and inside car, kalashnikov recovered from appellant Mehboob Sultan, the motive and medical evidence.
8. Mr. Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court for the appellants, Mehboob Sultan, Muhammad Ashraf and Muhammad Akram vehemently argued that ocular testimony furnished by P.Ws. Muhammad Zafar, Abdul Khaliq alias Kala and Muhammad Zaman is neither believable nor acceptable as it lacks the inherent truth and the substance. The very eye- witnesses have been disbelieved by the High Court in respect of assault on their own persons, for if they were fired at with kalashnikov and 7 MM rifle, inevitably they would have been injured.
According to him in such a situation there is no physical guarantee of their presence at the spot. He next contended that High Court accepting plea of alibi proceeded to acquit accused Matloob Hussain, Amjad and Rab Nawaz, who were travelling in another car. Even on the same evidence these three accused have been acquitted, as such conviction cannot be sustained unless there is independent corroborative evidence. He further contended that the recovery of 5 empties from spot and 5 lead bullets goes counter to the ocular version that nine persons had fired indiscriminately during the occurrence. According to the forensic expert all the empties were fired from one weapon recovered from appellant Mehboob Sultan. Here in the totality and facts medical evidence negates the ocular evidence and number of injuries do not commensurate with the medical evidence. He argued that all the eyewitnesses were interested, related and highly inimical.
They were chance witnesses as well. He further argued that Mst. Naseem wife of Muhammad Hanif, the brother of complainant, sister of P.W. Abdul Khaliq alias Kala wife of Rasheed brother of complainant are real sisters. With regard to the presence of another car in which the three acquitted accused were said to have been travelling, he referred to the statement of P.W.
Muhammad Bashir, GTS Bus Driver who had categorically deposed that he did not see any other vehicle except the Suzuki Carry at the scene of offence. According to him there were 2/3 persons in the Suzuki which goes to rebut the case of prosecution regarding the number of assailants also.
The learned counsel submitted that motive which admittedly is a double-edged weapon is not an indiscriminating piece of evidence and should not be treated as corroborative piece of evidence.
He lastly argued that prosecution has failed to establish recoveries as no memo. Of the said recoveries was ever prepared or exhibited at trial.
9. Mr. Sardar Muhammad Latif Khan Khosa, has cited the following case-law in support of his contention:--
(i) Munawar Ali alias Munawar Hussain v. The State (PLD 1993 SC 251),
(ii) Israr v. The State (1994 SCM R 1082),
(iii) Tariq Khan v. The State (1997 SCM R 254) and
(iv) Sheral alias Sher Muhammad v. The State (1999 SCM R 697).
10. Ch. Afrasiab Khan, learned Advocate Supreme Court for the appellants Muhammad Bashir and Muhammad Basharat while adopting the arguments advanced by Mr. Sardar Abdul Latif Khan Khosa further added that eye-witnesses viz. Complainant Muhammad Zafar, Abdul Khaliq alias Kala and Muhammad Zairian are related and interested. Had they been the strangers, accused would not have been known to them by their names. According to him appellant Muhammad Basharat, a boy of 14 years of age was said to have been carrying 7 MM rifle at the time of occurrence, no corroboration can be sought against him due to absence of recoveries of empties of 7 MM from the spot and he is implicated because of his father.
11. On the other side Khawaja Sultan Ahmad, Senior Advocate Supreme Court for the complainant vehemently controverted the contentions advanced by appellant's counsel and argued that there was a sufficient motive for the appellants and the acquitted accused to commit murders of Muhammad Razzaq, Muhammad Riaz, and Muhammad Ayoub as they were going to appear as witnesses in the previous murder case of one Muhammad Bashir brother of complainant Muhammad Zafar in which Muhammad Banaras, the relative of the appellants was challaned whereas the others were let off with the connivance of police. Irrespective of this the appellants had made murderous assault on Muhammad Razzaq complainant's brother earlier to this and as such case under section 307, P.P.C. Was filed against appellants Muhammad Ashraf and Muhammad Akram. Proceedings under sections 107 and 151, Cr.P.C. Were also taken against Muhammad Matloob, Rab Nawaz, Amjad Hussain, Imtiaz, Abdul Hameed and Shafaat. He lastly contended that learned High Court was not justified in acquitting Amjad Hussain, Saleem Akher, Matloob Hussain and Rab Nawaz and awarding lesser punishment of imprisonment for life to Muhammad Bahsir in presence of sufficient prosecution evidence regarding their participation in the commission of offence.
12. We have anxiously considered the arguments of the learned counsel for the parties and have minutely gone through the evidence on record. Admittedly the incident in this case has not been disputed. The moot point for determination before the trial Court, High Court as well this Court is whether P.Ws. Muhammad Zafar, Abdul Kahliq alias Kala and Muhammad Zaman the eye- witnesses were present at the spot or not and that they had stated the whole truth or exaggerated the incident.
13. On the presence of abovementioned P.Ws. At the spot trial Court has elaborately dealt with the same in the judgment and believed their evidence and convicted all the accused except absconder Muhammad Rafiq. However, High Court acquitted accused Amjad, Muhammad Matloob and Rab Nawaz as their participation in the crime was found doubtful. It was observed that it did not appeal to the mind that complainant would escape unhurt in case he was fired at by the abovesaid accused who came in another case. The High Court, however, believed the presence of above eye-witnesses at the time of occurrence keeping in view the background of pitched enmity. In our opinion, the reasoning of the High Court regarding presence of above witnesses at the time of the incident seems to be plausible and cannot be discarded. To clarify further it would be pertinent to refer the statement of complainant who in his statement has categorically stated that on the fateful day the car of deceased had left for the Court, the moment he came out of his house and at that time P.W. Muhammad Zaman who had some private business with him came to him, as such he hired a taxi to reach the Court to attend the proceedings. His presence cannot be disbelieved only because he did not receive any injury. There are so many occurrences of this nature where people escape unhurt though fired. He being the real brother of deceased Ghulam Shabbir and also complainant in his case was bound to attend the Court whereas P.W. Muhammad Zaman came to collect his money from the complainant, who told him that he will get the same from his brother Abdul Razzaq as such he accompanied the complainant. P.W. Abdul Khaliq alias Kala being a Taxi Driver his presence was also natural at the spot and was not a chance witness. The contention that the number of injuries on the persons of deceased do not commensurate with the number of fires said to have been made is without any substance. Admittedly in this case indiscriminate firing was said to have been made from the appellant's side on the deceased persons which gets support from the fact that deceased Muhammad Riaz sustained eight fire-arm injuries, deceased Muhammad Ayoub had received six fire-arm injuries, deceased Abdul Razzaq sustained two fire-arm injuries crossing from the forehead and passerby Muhammad Ilyas also suffered two fire-arm injuries. Irrespective of above, the car of deceased was found to have been hit severely and about twelve fire-arm holes were noticed on it. Furthermore, the firing was so intensive that the bullets had gone astray and one passerby became the victim.
14. From the case of prosecution, the relationship, inter se of the prosecution witnesses is not established. Though the defence suggested that wives of complainant's brothers Muhammad Hanif and Rasheed were real sisters but failed to prove from the document viz. Nikahnama and 'B'
Form from registration office. The same on its face clearly shows some interpolations and thus, cannot be believed to be true. The report of the ballistic expert that the empties recovered from scene of offence were fired from kalashnikov recovered from appellant Mehboob Sultan further corroborates the ocular version. From the evidence on record motive also stands established. The factum of incident stands corroborated by the statement of D.W. Muhammad Bashir, the Bus Driver who while narrating incident deposed that on the fateful day and time he parked his bus on the left side in front of Punjab House, Rawalpindi as one of passenger alighted and saw a Suzuki Carry going ahead being followed by a blue car. All of a sudden the firing started from the back side of Suzuki at the car and all the three persons sitting inside sustained injuries and died. Two bullets hit front screen of his bus and a bullet also hit a passerby who also died.
15. The case-law referred by appellants' counsel do not support case of appellants but is on different facts and circumstances. This Court in the case of Munawar Ali (supra), acquitted the accused on the ground that he had no motive to kill the deceased and that in the absence of positive opinion of firearm expert against accused reliance could not be placed on medical evidence to prove that specific injuries attributed to him were caused by him. In case of Israr, this Court as a measure of abundant caution acquitted those persons who were not accused in the F.I.R. Though implicated subsequently by the complainant, whereas in the case in hand the position is quite different. An additional ground which weighed for acquittal of accused was that his right hand was incapacitated and he must be experiencing a great difficulty in holding gun in his left hand and firing at the opposite-party. In the case of Tariq Khan, acquittal was based on the ground that there was no independent corroboration of the statement of interested witnesses, whereas in this case, the eye-witness account has been furnished by independent and natural witnesses which is corroborated by the evidence of recoveries, medical evidence and motive. In the case of Sheral alias Sher Muhammad, the accused was acquitted from the charges on the ground that out of five persons only one had fired at deceased and crime empties did not match the gun recovered from accused and there was no material corroboration coming from some independent source. Moreover, F.I.R. Was recorded after preliminary inquiry and motive was also not proved.
16. Adverting to the case of appellant Muhammad Ashraf, we are of the considered view that his case is at par with that of Muhammad Akram, who was sentenced to imprisonment for life by the trial Court while taking lenient view as he was aged about 70 years. Similarly appellant Muhammad Ashraf is aged about 75 years and thus, he is entitled to the same benefit as per rule of consistency. Accordingly, his sentence is reduced from death to imprisonment for life.
' Now coming to the case of appellant Muhammad Basharat, he was 16 years of age at the time of incident and being minor might acted under the influence of his father Muhammad Bahsir as such we commute his sentence from death to imprisonment for life. So far the case of Mehboob Sultan appellant is concerned, sufficient material has been placed on record to prove the case against him as such the sentence of death awarded to him is maintained. The fine if recovered be paid as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. With the above modification the appeals of Mehboob Sultan, Muhammad Bashir and Muhammad Basharat are dismissed. For the same reasons Criminal Appeals Nos.406 and 407 of 1999 are also dismissed.