' KAMAL MUSTAFA bOKHARY, J.-Iqbal-ur-Rehman (aged about 45 years), his real brother Altafur Rehman (aged about 55 years), both sons of Abdul Aleem, Ayub (30/32 years son of Hameed, employee of Rehman Transport Company of Altaf-ur-Rehman etc., Abdur Rehman alias bhana (61/62 years son of Amir Dad, transferee of the house in dispute, Muhammad Ashraf (30 years) son of Muhammad Yasin, Shams-ud-Din alias Shammoo (aged 76 years) son of Habib Khan and Ikhlaq-nr-Rahman (18/19 years) son of Altaf-urRahman, were tried for the murders of Muhammad Yaqoob alias Leela, aged 36 years, Muhammad Khalid, aged 45 years, and Islam-ud-Din, aged 36 years and for murderous assault on Muhammad Shafi (P. W. 19), Ghulam Haider (P. W. 16), Noor Muhammad (P. W. 17), Abdul Ghaffar (P. W. 20) and four other persons, not examined, namely Din Muhammad, Mahmood Murad Bakhsh since dead and Suleman and also for rioting after forming themselves into an unlawful assembly in prosecution of their common object after criminal trespass into the house of the complainant party. The learned Additional Sessions Judge, Mianwali, vide his judgment and order passed on 13-2-1976, convicted all the seven of them under section 302/149, P. P. C. On three counts but sentenced Iqbal-ur-Rahman, Altaf-ur-Rahman and Abdur Rahman alias Bhana to death on three counts subject to confirmation by this Court while the remaining four aforementioned persons were sentenced to suffer imprisonment for life each on all counts. All the seven of them were also sentenced to pay a fine of Rs, 1,000 each which if recovered was ordered to be paid as compensation under section 544-A, Cr. P. C. To the heirs of the three deceased persons. All the seven aforementiond accused were further convicted under sections 307/149, P. P. C. And were sentenced to suffer R. I. For seven years each on eight counts plus fine of Rs, 500 each which if recovered was to be paid as compensation under section 544-A, Cr. P. C. To the injured P. Ws. And in default of payment of fine all the seven of them were ordered to further suffer six months' R. I. Each. All the seven of the a were also convicted under section 148, P. P. C. And were sentenced to undergo one year R. I. Each and to pay a fine of Rs, 200 each or in default of its payment to further suffer two months R. I. Each. All of them were also convicted under sections 448/149, P. P. C. And were sentenced to suffer six months rigorous imprisonment each and to pay fine of Rs, 100 each or in default of its payment to further suffer one month's R. I. Each. The sentences in this case were ordered to run concurrently. All the convicts filed appeal against their convictions and sentences while the learned Additional Sessions Judge sent reference for confirmation of death sentences of Iqbal-nr-Rahman, Altaf-ur-Rehman and Abdur Rehman alias Bhana. This judgment will dispose of both the matters.
2. The occurrence in this case is alleged to have taken place on 21-6-1972 at 10 a.m. In Kallurkot Town, District Mianwali and the place of occurrence was two furlongs away from the Police Station, Kallurkot. The F. I. R., was registered at the aforementioned police station on the same day at 10-30 a.m. On the basis of statement (Exh. P. D.) of Muhammad Khalid deceased recorded at the Government Civil Hospital, Kallurkot at 10-20 a.m. On the same day by Dr. Muhammad Mushtaq Ahmad, Medical Officer (P. W. 11) on which formal F. I. R. (Exh. P. D/1) was registered at the police station by Saeed Ak bar, Sub-Inspector (P. W. 22).
3. The motive alleged by the prosecution was that enmity on account of civil litigation between Abdur Rehman alias Bbana appellant on one side and members of party of Muhammad Khalid deceased on the other side existed regarding houses which were in occupation of the complainant party. At the time of occurrence the accused party reached that house armed with guns and rifles in order to take forcible possession and attacked the complainant party as a result of which three persons including Muhammad Khalid first informant died while eight others suffered injuries.
4. The prosecution case as disclosed in the F. I. R. Was that on the day of occurrence at about 9-45 a.m. The appellants armed with guns and rifles reached the house in dispute of the member of party of deceased and attempted to take possession of that house upon which the complainant party requested the appellants to resist but the appellants got enraged and climbed the roof tops.
Iqbal-ur-Rehman fired from his gun while standing on the roof top of the room belonging to the lohars which hit Yaqoob alias Leela deceased who fell down and died at the spot. Abdur Rehman alias Bhana fired the second shot which bit Muhammad Khalid first informant deceased on the left side of his chest. Then Altaf-ur-Rehman fired shot and injured Islam-ud-Din deceased on his face, chest and head who died at the spot. Thereafter, Abdur Rehman alias Bhana, Iqbal-ur-Rehman appellants and their companions opened fire as a result of which number of persons of the complainant party suffered injuries. That was stated in his dying declaration by Muhammad Khalid deceased first informant on the basis of which formal F. I. R. Was registered and therein he also stated that Muhammad Khalid in injured condition was carried on a charpai by his relations to the civil hospital where the medical officer recorded his statement during which period Muhammad Khalid remained conscious. That statement was recorded by Dr. Muhammad Mushtaq Ahmad P. W.
Who wrote on it the date as 21-6-1972 and time as 10.20 a.m.
5. During investigation some recoveries were made. Sneed Akbar S. I. (P. W. 22) who had earlier registered the F. I. R. At the police station reached the spot at 10-40 a.m. On the same day where he found dead-bodies of Islam-ud-Din and MuhammI Yaqub and also found present at the spot all the injured prosecution witnesses. He sent the dead bodies for autopsy after completing formalities. In the meantime all the injured prosecution witnesses left for the hospital on their own accord because the hospital was hardly 200 yards away from the spot. Daring inspection of the spot he secured blood-stained earth from three different places where Yaqub deceased, Islam- ud-Din deceased and Muhammad Khalid who later died in the hospital zespectively were injured, vide memos, Ella P. S., P. T. And P. U. He also 38 PAKISTAN CRIMINAL LAW JOURNAL [VOL. XL] took into possession from over the roofs of kothas of Ghulam Haider and Muhammad Shafi P. Ws. 12 crime empties of '12 bore (P. 10/A/1-12), vide memos. &h. P. R. And also secured two other crime empties (P. 11/1-2) of '303 bore from the ground near the western wall of the kotha of Ghtillam Haider P. W., vide memo.- Exh. P. V. He secured one brick (P. 12) two brick bats (P. 1311-2) and many wads and namdas and three pellets (P. 14/1-3), vide memo. Exh. P. X. From inside the courtyard of the house of Yaqub and Islam-ud-Din deceased and Mahmood. Those recoveries were made by him in the presence of Rana Muhammad Khurshid (P. W. 10). He also secured last worn clothes of Islam-ud- Din and Yaqub deceased and pellets extracted from their dead bodies which had been brought to him by Feteh Khan (P. W. 8) and Gul Muhammad (P. W. 7) Foot-Constable from the hospital.
Muhammad Khalid first informant, who had been taken to the D. H. Q. Hospital, Mianwali in injured condition, died there on the same day and the Investigating Officer also secured his last worn clothes, a phial containing bullet and post-mortem examination report brought by Ranbaz khan. F.
C. (P. W. 6) on the same day at 7-40 p.m. After autopsy at Mianwali where other formalities bad been completed by Rafiq Ahmed Khan A. S. I. (P. W. 5). The Investigating Officer had also visited the hospital where he prepared injury statements of the eight injured persons who had survived. On the day of occurrence he arrested lqbal-ur-Rahman, Ayub, Muhammad. Ashraf, Abdur Rebman and Shams-ud-Din appellants out of whom Iqbal-urRahman was arrested from the bus-stand of Rehman Bus Service, Kallurkot while Muhammad Ayub and Muhammad Ashraf were produced before the Investigating Officer at the same bus-stand by Ayyaz Ahsan A. S. I. Who had been deputed for the job. Abdur Reitman alias Bhana and Shams-ud-Din appellants were arrested by Saeed Akbar P. W. From inside the residential house cf the former. Iqbal-ur-Rehman, Ayub and Muhammad Ashraf were arrested by the Investigating Officer between 4 and 4.30 p.m. While Abdur Rehman alias Bhana and Shams-ud-Din were arrested by him between 6 and 6-30 p.m. On the very day of occurrence. Altaf-ur-Rehman appellant himself appeared and was arrested on 22-4- 1972. On 25-6-1972 Altaf-urRehman led Sated Akbar S. I. P. W. To the recovery of his licensed gun (P.
15), bandolier (P. 16) five live cartridges (P. 17/1-5) and his gun licence (P. 18) from his house through his wife wnich were secured vide memo. Exh. P. Y. On the same day Abdur Rehman alias Bhana appellant led the Investigating Officer to the recovery of his unlicensed rifle (P. 19) from the tube- well of Dr. Shamshad where it was found lying concealed in a heap of bhoosa on the southern side of a kotha which was secured vide memo. Exh. P.
2. A separate case under the Arms Ordinance was registered against Abdur Rehman appellant. On the evening of the same day of 25-6-1972 Saeed Akbar S. I. P. W. Handed over investigation to the D.
S. P., bhakkar. On 30-6-1972 Gul Khan, draftsman delivered the site plan prepared by him in which red notes were given by Saeed Akbar S. I. P. W. Bashir Hussain Shah A. S. I. (P. W. 21) partly investigated this case. On 29-6-1972 Ayub appellant while in custody led him to the recovery of gi.n (P. 20) from inside the residential house of Abdur Rehman alias Bhana appellant where it was lying concealed in an earthen pot (Gahi) which was secured vide memo. Exh. P. A A. On the same day Rana Muhammad Kbursbid (P. W. 10) was given fire arm licence (P. 21) as well as shooting licence (P. 22) of Abdul Rehman alias Bhana appellant by the wife of said appellam which the witness produced before Bashir Hussain Shah, investigating Off cer a bo secured the same. According to the opinion (Exh. P. YY/1 cf Muhammad Ciulder Malik, Firearm Expert (P. W. 1) one crime empty (P.
10. A/11 recovered from the spot had been fired from the left barrel of gun (P. 15) of Altaf-ur-Rehman appellant but no shot had been fired from the right barrel of that gun and rest of the eleven crime empties of 12 bore recovered from the spot did not match with that gun. No opinion could be expressed about the shot fired from Rifle P. 19 of Abdur Rebman alias Bhana, appellant for lack of sufficient data.
' Syed Mahmoed All Shah D. S. P. (P. W. 18) formally arrested Ikhlaq-urFormally appellant on 19-7- 1972 because he had previously been admitted to bail by the High Court. The witness also supervised the investigation of the case in his capacity as Sub-Divisional Police Officer. On completion of investigation the appellants were challaned for trial in Court.
6. Dr. Muhammad Mushtaq (P. W. 11) medically examined Muhammad Khalid deceased, first informant, aged about 45 years, on 2t-6-1972 at 10-25 a.m. While in injured condition and recorded five injuries on his person out of which injury No, 1 was caused by fire-arm on the left chest lower end and rest of the injuries were caused by fall or by rubbing with some object within duration of 1/2 an hour. At the trial the doctor deposed to have recorded his dying declaration Exh. P. D. At 10-20 a.m. On 21-6-1972 which was in the handwriting of the doctor and was deposed by him to be true.
The doctor also deposed at the trial that before recording the dying declaration he satisfied himself that the injured was mentally competent to give the statement. The doctor proved his medico legal report (Exh. P. E.) of Muhammad Khalid and that he referred Muhammad Khalid to D.
H. Q. Hospital at Mianwali on the same day. Muhammad Khalid died on arrival in the Mianwali hospital on the same day at 2 p.m. And post-mortem examination on his dead body was conducted by Dr. Ashiq All Chaudhury (P. W. 12) on 21-6.1972 at 5-45 p.m. In which age of the deceased was given as 45 years and five injuries were recorded in the post-mortem examination report out of which injury No, 1 was deposed by the doctor to have been caused by fire-arm. In his opinion cause of death of Muhammad Khalid was shock and haemorrhage on account of injury No, 1 which was sufficient to cause death in the ordinary course of nature. That injury was the same as described as injury No, 1 in the medico-legal report and was entrance wound of fire-arm on left chest 1/2 by 1-4 size in the mid axillary line in the lower part and there was no blackening and tattooing. Tie gave the probable time between injury and death as about six hours and that between death and post-mortem as 3 hours 45 minutes. He was subjected to lengthy cross- examination at the trial.
7. The post-mortem examination on the dead body of Islam-ud-Din deceased, aged about 36 years, was conducted by Dr. Muhammad Mushtaq Ahmed (P. W. 11), on 21-6-1972 at 2.45 p.m. Who recorded 16 injuries on his dead body. All the injuries were caused by fire-arm. The stomach of the deceased contained fluid, small and large intestines had fluid and the bladder was full of urine. In the opinion of the doctor death had occurred on account of shock and haemorrhage due to fire- arm injuries. He gave probable time between injuries and death as 15 minutes and between death and post-mortem as about five hours. He deposed that five pellets had been recovered by him from dead body of the deceased which were sealed in a bottle and were handed over to the police.
' The same doctor on the same day conducted post-mortem examination on the dead body of Muhammad Yaqub alias Leela deceased, aged about 36 years, and recorded nine fire-arm injuries on his dead body although injury No, 1 was described as 14 entrance wounds, injury No, 2 was mentioned as 13 enterance wounds, injury No, 3 was stated to be 3 enterance wounds and injury No, 4 was shown as 4 enterance wounds. All the injuries :sere caused by fire-arm on the vital parts of the body of the deceased like chest, neck, forehead and cheek. The stomach, small intestine and large intestine contained fluid. In the opinion of the Doctor death of the deceased had been caused on account of shock and haemorrhage as a result of fire-arm injuries. He gave the probable time between injuries and death as instantenous and that between death and post- mortem as within five hours. The Doctor deposed that 13 pellets were recovered from dead body of the deceased and were handed over to the police alongwith his last worn clothes.
8. The same Doctor, Muhammad Mushtaq (P. W. 11), had medically examined eight other persons injured in the same occurrence apart from medical examination of Muhammad Khalid who subsequently died on the same day on arrival in D. H. Q. Hospital, Mianwali.
On 21-6-1972 at 1 p.m. He examined Muhammad Shafi (P. W. 19) and found five injuries on his person all of which were simple caused by blunt weapon within duration of 3 hours.
' The same Doctor on the same day at 12.40 p.m. Medically examined Din Muhammad (given up as unnecessary) and recorded 4 injuries on his person simple in nature caused by blunt weapon within one hour duration.
' The same Doctor on the same day at 12-45 p.m. Medically examined Mahmood (given up as won over) and recorded 16 injuries simple in nature on person caused by fire-arm within one hour duration. He proved the medico-legal report Exh. P. H. And deposed that he had recovered five pellets from the body of said Mahmood which were handed over to the police in a sealed bottle.
' On the same day at 1-15 p.m. The same Doctor medically examined Suleman (given up as unnecessary) and recorded five injuries on his person out of a which injury No, 1 on right hand and No, 4 on upper part of the left forearm were declared grevious in nature while rest of the injuries were described as simple, all caused by blunt weapon within duration of three hours. He proved the medico-legal report as well as X-ray report of Suleman.
' The same Doctor on the same day at 1-30 p.m. Medically examined Murad Bakbsh, who had died his natural death before trial and had recorded five injuries on his person all simple in nature caused by blunt weapon within duration of 3 hours. He proved medico-legal report Exh. P. K. Of Muted Bak h sh.
' The same Doctor on the same day at 1-45 p.m. Also medically examined Ohulam Haider (P. W. 16) and recorded two injuries on his person out of which one was on the left temporal region and the other on left upper incisor which was slightly bleeding but both the injuries were simple in nature caused by blunt weapon within two to three hours. He proved his medico-legal report Exh. P. L.
' The same Doctor on the same day at 1-55 p.m. Medically examined Abdul Gbaffar (P. W. 20), who was real brother of Islam-ud-Din deceased, and recorded one abrasion on the external side of middle of his right leg which injury was described as simple in nature caused by blunt weapon within 2 to 3 hours.
' The same Doctor on the same day at 12-30 p.m. Medically examined Noor Muhammad (P. W. 17) and noted 9 injuries in his medico-legal report (Exh. P. N.). The Doctor deposed that all injuries were kept under observation and the patient was referred to District Headquarters Hospital, Mianwali on 24-6-1972 and that injuries Nos. 1, 2, 3, 5, 6, 7, 8 and 9 had been caused by fire-arm while injury No, 4 was caused by blunt weapon, but all injuries had been caused within duration of one hour.
' In cross-examination of Dr. Muhammad Mushtaq Ahmed (P. W. 11) at the trial the defence questioned him that the medico-legal reports of the injured including Muhammad Khalid deceased first informant were on plain papers or had been tampered with otherwise the printed papers Nos. 10 to 14 had been torn off by the same doctor or by some body else on which subsequently medico-legal reports of Din Muhammad (not examined), Mahmood (not examined), Muhammad Shafi (P. W. 19) Woman (not examined), Murad Bakhsh (since dead), Abdul Ghaffar (P.
W. 20) and Ghulam Haier (P. W. i6) had been prepared by that doctor but the doctor denied to have done so or to have manipulated the printed register for the purpose of medico-legal reports of the prosecution witnesses including that of Muhammad Khalid deceased. The doctor admitted it as correct in his cross-examination that medico-legal report of Muhammad Khalid deceased was written on page 9 of the register whereas it should have been written on page h thereof which page was missing from the register and appeared to have been torn off. The doctor also deposed that Islam-ud-Din deceased was brought to the hospital alive in unconscious condition and expired within his view.
9. At the trial prosecution examined 22 witnesses in all and relied on the dying declaration which comprised of statement of Muhammad Khalid deceased recorded by Dr. Muhammad Mushtaq Ahmedd (P. W. 11) in the Civil Hospital while still alive. The ocular evidence was given by the injured prosecution witnesses. Ghulam Haider (P. W. 16), esoor, viuhammad (P. W. 17), Muhammad Shafi (P.
W. 19) and Abdul Ghaffar (P. W. 20). The motive was also given by them. The recoveries from the spot as well as of the gun (P. 15) with licence from Altaf-ur-Rehman and Rifle ;P. 19) from Abdur Rehman alias Bhana appellants were proved by Rana Muhammad Khurshid (P. W. 10) and Saeed Akbar (P. W. 22) and recovery of gun (P. 20) with licence at the instance of Ayub appellant was proved by same Rana Muhammad Khurshid (P.
W. 10), Bashir Hussain Shah A S.
1. (P. W. 21) and the same Saeed Aar S. I. (P. W. 22). Muhammad Gulsher Malik (P. W. 1) proved his: pinion Exh P. YY/1 and deposed that one crime empty recovered from the spot had been fired from the double barrel shot-gun (P. 15) of Altafur-Rehman appellant but no opinion could be expressed about the rest of the weapons and crime empties. The Investigating Officers proved the investigation conducted by them. Other formal witnesses were also examined.
' They all supported the prosecution case. The statements of two doctors who conducted post- mortem examination on the dead body of the three deceased and medically examined nine injured persons including Muhammad Khalid first informant deceased when alive and four other prosecution witnesses were transferred to the Sessions record and they were cross-examined at the trial.
10. The appellants pleaded not guilty to the charge. When examined under section 342, Cr. P. C. All of them denied the allegations of the prosecution including motive and recoveries alleged against them and stated that they were not present at the spot at the time of occurrence. Abdur Rehman alias Bhana appellant alone admitted the motive in reply to question No, 3 according to which house No, 597 situated in Ward No, 6, Kallurkot, was transferred to him and was in occupation of Sharif Jhandu, Suleman and Nasibud Din at the time of occurrence and that about three years before the present occurrence said appellant had filed an application for their ejectment in the Court of the Rent Controller, Bhakkar which application was decided in favour of said appellant and since passing of that ejectment order Abdur Rehman alias Bhana appellant was making unsuccessful attempts for executing that ejectment order. In reply to question No, 4 Abdur Rehman alias Bhana appellant stated that he had pursued his remedy in respect of house No, 597 and denied that had wanted to grab house No, 595 occupied by Murad Bakhsh and his children. He admitted that Mst. Balqees, Mit. Fatima and Nasibuddin bad filed a revision at the instance of occupants of house in dispute in order to flout the ejectment order passed by the Rent Controller.
He denied recovery of unlicensed rifle (P. 19) at his instance.
' In reply to question why the case against him he stated that he was pursuing his remedy in connection with house No, 597 for the last seven years and the Bailiff of the civil Court had twice earlier visited the house in dispute for ejectment and on the day of occurrence also the Bailiff had come for execution of the Court's order. He continued to state that the deceased and the injured persons had been violently resisting the execution earlier as well He further stated that on the day of occurrence the appellant was not present but his son Khushi Muhammad was with the Bailiff and the Bailiff also obtained police help for his protection but the deceased who were armed with spears and the injured persons who had lathis apart from Muhammad llyas son of Suleman, Aziz- ud-Din son of Khurshid and Yamin who had guns, assaulted son of the appellant named Khushi Muhammad and three tenants of the appellant who happened to be in Kallurkot because of the mela-mandi and fired at them on account of which the tenants were injured and they fired back in self-defence. Abdur Rahman alias Bhana appellant also stated that the injured persons on the side of appellants were got examined by the doctor but later on the record was altered because of the influence of the complainant with the Police and consequently Abdur Rehman alias Bhana appellant and other appellants were falsely involved. The Police ran away after seeing resistence by the complainant party and Bailiff also ran away when the firing started. Abdur Rehman alias Bhana further stated that he had nothing to do with the incident in which three persons were killed and eight persons were injured he was innocent and had been falsely implicated in the case. He tendered in evidence certified copy of the order of the Civil Judge, Bhakkar, dated 4-1-1969 (Exh. D.
P.), copy of the report of the Bailiff of the civil Court, dated 19-4-1969 (Exh. D. P./1), copy of the report of the Bailiff, dated 12-51972 (Exh. D. P./2), copy of the report of the Bailiff, dated 21.6-1972 (Exh. D.
P./3) copy of the kalendera under section 107/151, Cr. P. C. (Exh. D. P./4), certified copies of the judgment and decree, dated 15-10-1975, passed by Additional District Judge, Mianwali (Exhs. D. P./5 and D. P./6) and photostat copy of interlocutory order passed for execution after rejecting objections of the Civil Judge, Bhakkar, dated 6-5-1972 (Exit. D. P./7). He did not lead any oral evidence in his defence.
' Shamsuddin alias Shamoo son of Habib Khan appellant was related with Abdur Rehman alias Bhana appellant. The daughter of Shamsuddin was married to son of Abdur Rebman alias Bhana appellant which fact was admitted by Shsmsuddin appellant was stated that he had been implicated on account of relationship with Abdur Rebman alias Bhana appellant otherwise he was innocent. He did not lead any evidence in his defence.
' The remaining five appellants were related inter se in the following manner Altaf-ur-Rehman and Iqbal-ur-Rehman were real brothers inter se being sons of Abdul Aleem and were owners of a transport company at Mianawali. Ayub appellant was employed by them as a booking clerk in their transport company called Rehman Transport Company. Ikhlaq-ur-Rehman appellant was son of Altaf-ur-Rehman appellant. Muhammad Ashraf appellant son of Yasin was cousin of Iqbal-ur- Rehman and Altaf-ur-Rehman appellants and had a tea shop at their Bus Stand. Those five appellants were not related with rest of the two appellants aformentioned but were known to them and were on friendly terms with them.
' All the five appellants denied their presence and participation at the spot at the time of occurrence and stated that they had been falsely involved. Lqbal-ur-Rehman stated that he was present at Bus Stand of his Bus Service at Kallurkot, had been implicated on account of his rivalry with Rejput Bus Service, enmity with local police S. H.
0. And Nall) Tehslldar and placed on record documents to show his previous implication in cases initiated at their instance. Ayub and Muhammad Ashraf pleaded their false implication because former was employee of Rehman Transport Company and latter was relation of its owners due to which professional rivalry with Rajput Bus Service and enmity with local S. H.
0. Existed against both of them. They did not lead any evidence in their defence. Altaf-ur-Rehman and Ikhlaq-ur-Rehman pleaded alibi and led evidence on that point.
' Altaf-ur-Rebman appellant in reply to question No, 2 stated that Abdur Rehmsn alias Bhana appellant was known to him being resident of the same place but he was not friendly with him.
Altaf-ur-Rehman admitted it correct that his licensed gun had been taken into possession by the police from his house on 22.6-1972 before his arrest. He further stated that he had been implicated because of police animosity and transport rivalry of some persons who had connection with the Rajput Bus Service and Nur Muhammad injured P. W. In this case. He stated that he was not present at Kallurkot at the time of occurrence and in fact he had gone to Lyallpur on 20-6-1972 in order to make arrangement to obtain his passport from Lahore and in that connection ho contacted Ghulam Muhammad (D. W. 2) on the same day who directed the appellant to purchase stamp papers for surety bond in the name of the surety which the appellant did from the stamp vendor, Mukhtar Hussain (D. W. 1) of Lyallpur and the appellant signed his register in token of purchase of the stamp paper on behalf of the surety and the surety bond (Exh. D. P /8) was written thereon which was signed by him as also by Ghulam Muhammad (D. W. 2) as surety. On 21-6-1972 the appellant went to Lahore alongwith Ghulam Muhammad D. W. And others to deposit papers in the passport office and was informed that the papers and the photograph had to be attested and certified on the identification of some responsible person and, therefore, the appellant contacted Rana Muhammad Jamil D. W. Who was on L. P. R. Due to which he did not attest himself but identified the appellant before Abdul Latif, Magistrate Ist Class, Lahore who attested his passport application (Exit. D. P./9) and photographs (Exits. D. P. 10/A and D. P. 10/B) which photographs were taken from him by the Inseector, Crime Branch. The signature of Rana Muhammad Jamil D. W.
Identifying the appellant before Ch. Abdul Latif D. W. Attesting Magistrate on affidauit were (D. P.
9/A, D. P. 9/B) and on application for passport were put in the presence of tue appellant as also in the presence of the attesting Magistrate, Ch. Abdul Latif D. W. Ghulam Muhammad D. W. Had gone away in connection with some purchases when the appellant went for attestation purposes to Ch. Abdul Latif D. W., Magistrate, Lahore and did not turn up till Magistrate was available, therefore, the surety bond (Bah. D. P./8) remained unattested. Later on the appellant produced the documentary evidence before the police in support of his plea of alibi but the local police declined to accept it because of the police animosity and the same was produced before the Inspector, Crimes Branch.
Altaf-ur-Rehman appellant also stated that he had been falsely involved because of animosity of the local police particularly of the S. H.
0. Who was inimical to them, due to the transporter rivalry with Rajput Bus Service the detail of which had already been brought on record of this case and also because of the cases which had been pending in that connection. He examined Syed Mukhtar Hussain (D. W. 1), Stamp Vendor of Lyallpur, who deposed from his relevant register brought in Court, that Altaf-ur-Rehman appellant had purchased stamp paper (Bah. D. P./8) on 20-6-1972 although in cross-examination the witness stated that the relevant register had been started by him only from 1-9-1971 from the reverse side of the register in which entries were continued till 30-6-1972 in that manner and on 1-7-1972 started the register for the new year in which only 9 entries were made all on 1-7.1972 ; that the witness was not supposed to present that register produced in Court regarding the sale of stamp papers to any authority although on completion of the register it was deposited in the treasury and the register in Question had been so deposited on 1-7-1972, that the relevant entry as incorporated on the middle page of that register appeared to have been overwritten. In further cross-examination the witness also deposed that he had used the word "bazaria" in the relevant entry No, 8185 at the behest of the purchaser and that Altatur-Rehman appellant was not previously known to him whom the witness could not identify even in Court if the appellant was brought before him and that the police had joined the witness in investigation in this case for the first time on 30-11-1972. He did not remember if any civil suit was pending against him regarding sale of fictitious stamp papers as deposed by him in cross-examination. The witness also deposed in cross-examination that Ghulam Muhammad (0. W.) on whose behalf the stamp paper was purchased was not known to him.
Ghulam Muhammad (D. W. 2) who allegedly stood surety and signed the surety bond in favour of Altatur-Rehman appellant for obtaining passport supported the said appellant. In cross- examination the witness deposed that Altaf-ur-Rehman appellant and the witness were disciples of the same spiritual leader, namely, Abdul Aziz. In further cross-examination the witness stated that he appeared before Cb. Shafi, Inspector (D. W. 7) at Lahore in connection with investigation of this case after four or five months of the present occurrence and never appeared before any other Police Officer before that date. Rana Muhammad Jamil (D. W. 3), who had retired and was living at Gujranwala, supported Altaf-ur-Rehman appellant and deposed that the witness by chance met the said appellant at Lahore and asked the witness to get attested his pho-tograpbs and application for obtaining passport upon which the witness took him to Ch. Abdul Latif D. W., Magistrate at Lahore and got the same attested except the surety bond. In cross-examination ho stated that he knew Altaf-urRebman appellant since 1950-1951, it was in the month of November 1972, that a Police Officer visited him at Gujranwala and recorded his statement in upport of the plea of alibi of Altaf-ur-Rehman appellant but prior to it the witness did not appear before any Police Officer voluntarily. Ch. Abdul Latif (D. W. 4), then Magistrate 1st Class at Lahore, deposed that he knew Rana Muhammad Jamil D. W. Beforehand, had attested the photographs D. P. 10/A, D. P.
10/B and copy of application for passport (Exh. D. P./9) relating to Altaf-ur-Rehman appellant, on 21-6-1972 and that same more documents were also produced before him for attestation which he refused to do as the concerned man was not available. The witness did not remember if Exh. D. P./8 was amongst such papers which he had refused to attest. In cross-examination he deposed that he knew Rana Muhammad Jamil D. W. Since 1962 when he joined Government service as Tehsildar and Rana Muhammad Jamil D. W remained posted with the witness at Lahore as well as in District Sialkot. The witness also deposed in cross-examination that the witness belonged to district Gujranwala. In further cross-examination the witness stated that his statement was recorded by the police only once at Sheikhupura in the month of December 1972.
' Ikhlaq-ur-Rehman appellant examined two witnesses in his defence. Nazir Ahmed (D. W. 5), Dispenser, Rural Dispensary, Piplan, produced the indoor patients register from 1971 to 1975 and outdoor register from 20.6-1972 to 31-12-1972 in Court. Dr. Muhammad Qasim (D. W. 6) deposed that he was posted in Rural Health Dispensary at Piplan, on 20.6-1972, on which date Ikhlaqur-Rehman appellant visited his dispensary for treatment of his ailment and was found suffering from acute renal colic when the witness examined the appellant and admitted him as indoor patient on the same day about which an entry was made in the outdoor register in the handwriting of the witness and under his signatures. The witness further deposed that after admitting said appellant as indoor patient the witness made an entry about his admission in the indoor register at Serial No, 30 pages of which entries were Exh. D. W. 6/A and D. W. 6/8 respectively. The witness further stated that as indoor patient the witness prepared bed-head ticket of Ikhlak-ur-Rehman appellant which was D.
W. 6/C and the appellant was discharged from his dispensary, on 24.6-1972 and till then the witness had been daily examining him eversince admission of the appellant in his dispensary. In cross-examination the witness stated the relevant outdoor register containing the aforesaid entry started from 20-6-1972 and the entry relating to Ikhlaq-ur-Rehman appellant was the last on first page of that register, the preceding register having expired on 19-6-1972. The witness also stated that the preceding register was maintained in the prescribed printed form and its pages were marked in printed form while the relevant register was maintained on blank paper without printed form and its pages were marked by hand for the reason that no blank register in the prescribed form was available. He also deposed in further cross-examination that he did not give certificate on the relevant register to the effect that the prescribed register was not available, entries in the outdoor registers were sometime made by the dispensers if the witness was occupied in other work. The entries on the first twelve pages of the relevant register were in the hand of the witness himself and as far as the witness remembered he was transferred from that dispensary on 1-7-1972 and the last entry on twelth page of the relevant register was dated 26-6-1972 and that there was no certificate appended either at the beginning or at the end, in the preceding register, in the hand writing of the witness. In further cross-examination he denied the suggestion that those certificates had been intentionally removed from the previous register in order to justify the opening of the new register and it was equally incorrect to suggest that fresh register started from 20-6-1972 was in fact maintained on a prescribed printed register which was destroyed in order to fabricate the entry pertaining to Ikhlaq-ur-Rehman appellant on the relevant register. The witness deposed in farther cross-examination that majority of the entries on the last four pages of that register were in the hand of the dispenser and the serial numbers of three a atria preceding the relevant entry of Ikhlaq-ur-Rehman appellant in the indoor register were interpolated.
' Muhammad Shag (D. W. 7), then posted as Inspector Crimes Branch, Lahore, deposed that he partly investigated the case and recorded statements of Mahmood All Shah, D. S. P. And Dr. Mushtaq Ahmed P. We., copies of which were Exh. D.
0. And D. H. Respectively. He further deposed that he took over investigation of the case on 18-11- 1972 wider order of the Superintendent of Police, Crimes Branch, the estimated distance between Lahore and Kallurkot was given by him as 250/300 miles and that he deposed to have examined reports Ncs. 10 and 11 in the daily diary dated 21.6-1972 of of the police station. He continued to depose that on 20-11-1972 Habib-urRehman, brother of Iqbal-ur-Rehman appellant, produced before him photostat copies of discharge slip of Ikhlaq-nr-Rehman appellant, his prescription slip and cash memo showing purchase of medicines ; an application for obtaining passport of Altaf- ur-Rehman appellant alongwith a it davit of Altaf ur-Rehman wrongly mentioned as lkhlaq-ur- Rehman appellant and surety bond of Ghulam Muhammad D. W. As also original photograph of Altaf-urRehman appellant attested on 21-6-1972 by a Magistrate with Court Seal and by Muhammad Jamil D. W. Were secured by him vide memo Exh. D. W. 7/A. (as detailed therein at pages 129-130 of the printed paper book). About the plea of alibi of lkhlaq-ur-Rehman he further deposed that he visited the Rural Dispensary at Piplan where the witness verified the entries relating to lkhlaq-ur-Rehman appellant from the relevant indoor and outdoor patients registers and secured bed-head ticket of lkhlaq-ur-Rehman appellant which was marked as D. W. 6/C. He continued to depose that the statements of Syed Mahmood All Shah D. S. P. And Dr. Musbtaq Ahmed (D. Ws.) were recorded by him on 4-34973 and the appellants were examined by him on 3- 3-1973 and that on 3-3-1973 he went to Mauro Patti wale in order to record the statements of tenants of Abdur Raman alias Bhana appellant, namely, Anwar, Fetid and Muhammad Khan but all the three tenants slipped away out of fear. He also deposed that eight or nine persons appeared before him in defence of Iqbal-ur-Rehman appellant and earlier about 70 or 80 persons had been examined by his predecessor in that connection and that a considerable number of persons were employed by Iqbal-ur-Rehman appellant in his Rehman Transport Service and number of such employees might be fifty or sixty. The witness deposed that according to the investigation conducted by him Iqbal-ur-Rehman appellant, Ikhlaq-ur-Rehman appellant and Altaf-ur-Rehman were found innocent and were recom-ended by him for being placed in column No, 2 of the challan and the results of his investigation were verified by his Deputy Superintendent of Police and Superintendent of Police and also by the prosecution branch although the prosecution Inspector recommended the names of Altaf-ur Rehman and Ikhlaq-ur-Rehman appellants only to be placed in column No, 2 of the challan while Iqbal-ur-Rehman appellant was challaned for trial in Court. He deposed that it was Muhammad Zeman, Deputy Superintendent of Police Crime Branch, who ultimately challaned all the appellants in this case. In cross-examination the witness deposed that Habib-ur-Rehman had promised on 19-11-1972 at Kallurkot to produce the original documents later on, the photostat copies of which were handed over to the witness at Mianwali, that all of them were residents of Kallurkot and that the witness did not verify the correctness of the cash memos.
(P. 14 and P. 15) from owner of the shop from which the medicines had been purchased for Akhlaqur-Rehman appellant and also did not take into possession counter-foils of those memos. In further cross examination the witness deposed that he did not verify the fatum that Anwar, Farid and Muhammad Khan aforementioned were or were not tenants of Abdur Rehman alias Bhana appellant from the Revenue record and denied the suggestion that he fabricated the documents in support of plea of alibi of Altaf-ur-Rehman and Ikhlaq-ur-Rehman appellants.
' The appellants had placed on record number of documents in their defence which have been painted in the paper book but are not very material to be detailed herein.
11. The trial Court believed the ocular evidence, relied upon the dying declaration of Muhammad Khalid deceased on the basis of which formal F. I. R. Was registered and found that the motive alleged by the prosecution had been established and corroborated the ocular evidence which was supported by the medical evidence. The trial Court also found that the licenced gun (p. 15) recovered from Altaf-ur-Rehman appellant on comparison by the expert had matched with the crime empty secured from the spot and connected him with the crime. The defence version of the appellants was rejected in paragraph 45 of the judgment under appeal and the plea of alibi of Ikhlaq-ur-Rehman and Altaf-ur Rehman appellants was also not believed for the reasons detailed in paragraph 46 to 49 of the judgment under appeal.
12. We were taken through the evidence in this case by learned counsel for the appellants which we have carefully perused ourselves. Learned counsel for the appellants argued that the prosecution had failed to produce independent evidence in the case; that the eye-witnesses examined in the case were related with the deceased and were interested in them whose testimony could not be relied upon without independent corroboration which was not forthcoming in this case and in support thereof cited cases of Wasiullah v. Mirza All and others, Thoba and another v. The State (1), Bagh All and 4 others v. The State (2), Ghulan AI:than:mai and 2 others v. The State (3) and also Sher Dil v. The State (4) that the eye-witnesses had made improvements and had given changing version as had suited the prosecution which cast serious doubt on veracity of the eye-witnesses; and that the prosecution witnesses did not tell the truth. Learned counsel for the appellants further argued that the dying declaration of Muhammad Khalid deceased was not worthy of reliance and did not corroborate the ocular evidence which was in conflict with the medical evidence because it was mentioned in the prosecution evidence that Abdur Rehman alias Bhana had fired at Muhammad Khalid on his chest with rifle but the medical report disclosed one pellet injury and not bullet injury and that learned trial Judge was wrong in finding that number of injuries on the deceased and other victims of the case in the occurrence showed that more than two persons had participated; and that even an old man of the age of 76 years, Shams-ud-Din alias Shamo appellant, and a minor aged 14 or 15 years, lkhlsq ur-Rehman appellant who were not present at the spot but had been falsely implicated. Learned counsel also argued that recovery of gun (P. 15) from Altaf-ur-Rebman appellant had not been proved by the prosecution and did not connect him with the crime as concluded by learned trial Judge particularly because of inconsistency and contradiction in the testimony of Saeed Akbar S. I. (P. W. 22) who deposed that crime empties were sent by him to the Police Station but Shah Nawaz, Head Constable (P. W. 2) deposed that be received parcels from Saeed Akbar S. I. P. W. {{FOOT NOTE}}
(1) PLD 1963 SC 25 (2) PLD 1973 SC 321
(3) PLD 1975 SC 582 (4) 1973 P Cr. L J 802 {{FOOT NOTE}} personally on 23-6-1972 which were delivered by Shah Nawaz P. W. On 26-6.1972 for being taken to the Forensic Science Laboratory. The argument of learred counsel for the appellants was that gun (P. 15) of Altaf-ur-Rehman had in fact been recovered on 22.6-1972 and possibility was that Saeed Akbar S. H.
0. P. W. Fabricated the crime empties secured from the spot as he was inimical towards Altaf-ur- Rehman appellant. Finally learned counsel for the appellants argued that at one stage Iqbal-ur- Rehman, Altaf-ur-Rehman and Ikhlaq-ur-Rehman were found by the investigation conducted by the Crimes Branch to be innocent and if investigation could not make up its mind, the benefit of it should go to the accused as found in the case of Flare Dusadh v. Emperor (1).
' Learned counsel for the State and for the complainant vehemently opposed the appeal and submitted that the eye-witnesses had no direct enmity against the appellants except against Abdur Rehman alias Bhana appellant to substitute them for the real culprits and that there was no dispute about the time and place of occurrence which had taken place in broad day light; that the dying declaration of Muhammad Khalid deceased was truthful and was worthy of reliance because it was made immediately after the occurrence and the defence had suggested tutoring only but Muhammad Khalid deceased had no enmity with the appellants and that Dr. Muhammad Mushtaq Ahmad (P. W. 11) deposed only this much that he was running about in order to save others; that Muhammad Khalid deceased did not mention brickbating which went ahead to show that there was no tutoring; that the dying declaration of Muhammad mad Khalid was recorded by Dr. Muhammad Mushtaq Ahmad P. W. Who was an independent witness and that the suggestion of defence was only to the effect that enmity existed between the appellants and Saced Akbar S. H.
0., P.W. 22) who reached after the dying declaration had been recorded by the aforementioned doctor. Learned counsel for the State further submitted that four of the eye-witnesses were themselves injured whose presence at the spot at the time of occurrence could not bo doubted and whose testimony corroborated the dying declaration; that the ocular evidence was corroborated by the motive alleged by the prosecution which was not even disputed but was admitted by the defence inasmuch as the Bailiff had attempted to execute warrant of ejectment from a house in order to deliver its possession to Abdur Rehman alias Bhana and other appellants were partisans of Abdur Rehman alias Bhana and that Altaf-urRehman and Iqbal-ur- Rehman appellants had accompanied the Bailiff on two previous occasions for the purpose of ejectment from the house in dispute. In support of his submissions learned counsel for the State referred to Ashraf v. The Crown (2), Abdur Rashid v. Umald All (3), Noor Ehlahi v. Ch. Zafar-ul-Haq (4) and Kh.
Azhar-ur- Hag v. The State t5). Precisely submissions of learned counsel for the State was that no doubt corroboration must be strong one independent by itself to bring home guilt of accused as held in the case of Ashraf af and if the evidence was of interested witnesses it required independent corroboration but the rule was found to be not inflexible, that motive and promptitute of F. I. R. Were held to be corroborative evidence and that corroboration was not necesary in every case because each case has to be decided on its own facts.
13. We have considered evidence in this case in the light of submissions made by learned counsel for the parties. This Court under the Constitution {{FOOT NOTE}}
(1) AIR 1944 FC 1 (7) PLD 1956 FC 86
(3) PLD 1975 SC 227 (4) PLD 1976 SC 557
(5) P L P 1976 Lab. 729 {{FOOT NOTE}} is bound to follow the law enunciated by our Supreme Court, It is an established principle of law that testimony of interested witness cannot be implicitly relied upon without independent corroboration. The interested witness does not mean only that who is related with the deceased but is the one who is also inimical towards the appellants. Mere relationship with the victim is no ground for discarding testimony of the witness. Even corroboration is a rule of prudence and is not an inflexible rule as held in number of cases including those mentioned above by learned counsel for the parties but each case has to be decided on its own facts and circumstances. In the case of Ashraf and others v. The Crown (1) the majority view was that corroboration of interested testimony should be such as would remove the doubt that the accused had been falsely implicated and that recovery of a single blank pistol cartridge from the scene of occurrence only supported the evidence that one of the assailants was armed with a pistol but not the evidence that a particular accused was the assailant and in the absence of such an evidence connecting the cartridge with that particular accused his conviction could rest only on the very evidence the impartiality of which was doubted. About the remaining accused it was found that motive against one accused could hardly be said to be a corroboration of the evidence against him and as regards the third accused it was held that he was not merely a tenant but was also a partisan due to which arguments on the basis of partisanship applied. Consequently all the three appellants were acquitted by the Supreme Court. Almost similar view was held by the Supreme Court after discussing the case law since then upto-date, in Shahzado v. The State and 8 others (2). In that case 8 persons were accused of murder of three persons and attempt on life of two persons and the Supreme Court evidently convicted Nazoo and Abdul Hamid but maintained acquittal of Behram and also dismissed appeal against acquittal of rest of the accused for lack of independent corroboration. At page 429 the Supreme Court found that there was no corroboration of the oral evidence from any independent source about the participation of Nazoo accused even in respect of the second incident because injury found on person of Haji Ramzan sustained at the Mill premises was directly attributed to Abdul Hamid and not to Nazoo accused due to which conviction of Nazoo accused under sections 307/34, P. P. C. Was found to be not free from reasonable doubt. Referring to Halsbury's Laws it was mentioned that "in order that evidence may amount to corrobaration it must be extraneous to the witness who is to be corroborated". Referring to a Privy Council case of Lim Yom Hong & Company v. Lim Choon and Company (3) it was mentioned by the Supreme Court in that jugdment that general rule is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of his guilt. It was also mentioned therein that the extent and degree of corroboration rests in the judicial discretion of the Court and necessarily varies with the facts and circumstances of each case. In another Supreme Court case of Mst. Hayat Bib' v. Muhammad Khan 2 others (4) our Supreme Court did not interfere with the view of the trial Court and of the High Court that it was very difficult and impossible to secure independent and disinterested witnesses in a murder case in the District of Miaawali for fear of being regarded as enemies of accused. However, conviction in that case also was upheld on account of independent corroboration. {{FOOT NOTE}}
(1) P L D1956 FC 86 (2) PLD 1977 SC 413
(3) AIR 192$ P C 127 (4) 1976 SCM R 128 {{FOOT NOTE}} ' The occurrence in the case in band took place during the forenoon of 21-6-1972 in the abadi of Kallurkot town which was at a distance of about two furlongs from the Police Station, Mahble at Kallurkot, Tehsil Batkhar, District Mianwali. In that occurrence 11 persons of the complainant party suffered injuries. Of them Muhammad Yaqub alias Leela and Islam Uddin who had suffered 9 injuries and 16 injuries respectively, all by fire-arms, died at the spot while Muhammad Khalid deceased with five injuries including one caused by fire arm was immediately removed in injured condition to the nearby Civil Hospital at Kallurkot. The remaining 8 persons had suffered in all 47 injuries which were described in the medico-legal reports as 25 fire arm injuries and the rest caused by blunt weapon. On arrival in the hospital immediately after the occurrence Dr. Mushtaq Ahmed (P. W. 11), who was then Incharge of the Civil Hospital, Kallurkot, himself recorded the dying declaration of Muhammad Khalid and sent him in injured condition to the District Headquarter Hospital, Mianwali but Muhammad Khalid died at 2 p.m. On the same day immediately on arrival in the hospital at Mianwali before he was admitted in the hospital and was given any treatment there.
' The prosecution had sought to prove its case and the trial Court bad convicted the appellants as aforementioned placing reliance on the dying declaration of Muhammad Khalid deceased, ocular evidence of the four injured eye-witnesses corroborated by the motive alleged in the case which had been established and supported by the medical evidence. The trial Court also believed the recovery of licensed gun (P. 15) recovered from Altaf-urRehman appellant which on comparison by the Expert had matched with one 12 bore crime empty out of '12 such empties secured from the spot and thereby had connected Altaf-ur-Rehman appellant with the crime. The trial Court rejected the defence version of the appellants including the plea of alibi of Ikhlaq-ur-Rehman and Altaf-ur-Rehman appellants. It is to point out that all the seven appellants had taken the plea that they were not present at the spot at the time of occurrence although the case of prosecution was that all the seven appellants having armed themselves with guns and rifles climbed the roof tops of (House No, 596 in the same Ihata) Ghulam Haider and Sharif P. Ws. And fired and as a result of shots fired by Iqbal-ur-Rehman and his real brother Altaf-ur-Rehman as also by Abdur Rehman alias Bhana the three deceased were hit and died while 8 persons including the four eye-witnesses suffered injuries on account of general firing by the seven appellants and brick batting by them. It is also to be mentioned that Abdur Rehman alias Bhana alone had litigation with occupants of House No, 597 situated in the town of Kallurkot while Mahammad Yaqub alias Leela deceased was his next door neighbour in House No, 595 in the same Ihata and Muhammad Khalid deceased lived 70 Karams away from the spot and all the deceased as also all the 8 injured persons including four eye-witnesses were related inter se and had come on migration from the same village in District Karnal and had settled in Kallurkot town and that they were partisans of the complainant party as of the occupants of House No, 597 who were sought to be ejected from that house by Abdur Rehman alias Bhana appellant and except Shams Uddin alias Shamoo appellant, who was married to the daughter of Abdur Rehman alias Bhana appellant, the remaining five appellants were not related with the complainant party including the deceased and injured but were alleged to be partisans or symphathisers of Abdur Rehman alias Bhana appellant. The relationship of these five appellants has already been given above. The main argument of learned counsel for the appellants was that the prosecution evidence in the case could not be formed basis for maintaining convictions of the appellants without its corroboration from some independent source which corroboration was not forthcoming. We are of the view that the real point to be determined by this Court is that if all or any of the appellants were present at the spot and participated in the occurrence as alleged by the prosecution or not. Keeping in view the peculiar social conditions obtaining B in the country, it is the duty of the Court to sift grain from the chaff but the entire evidence of a witness cannot be rejected simply on the ground that be may have exaggerated the part played by some of the accused persons or falsely implicated some of them as was held in Muhammad Din alias Manna v. The State (1). In the case of Muhammad Luqman v. The State (2) the Supreme Court held that finding of guilt against accused persons cannot be passed on conjectures and probabilities. In the case of Noora v. The State (3) the Supreme Court found that the cardinal principle of Criminal Law is that not only evidence going in favour of the prosecution should be taken into consideration but also that which goes in favour of the accused. A coviction in disregard of such principle is liable to be set aside.
13. The dispute between the parties on the possessing a house stands established. It has not even been denied by Abdur Rehman alias Bhana appellant. The only point is that the motive related to litigation about House No, 597 in Kallurkot town in which an order of ejectment from the Rent Controller had previously been obtained by Abdur Rehman alias Wilma and two previous attempts to execute that order by way of ejectment of occupants of the house and delivery of its possession to Abdur Rehman alias Bhana appellant by Bailiff of the civil Court in execution of the decree had failed. It is in evidence that even on the day of occurrence the Bailiff of the civil Court had visited the same house assisted by the Local Police to protect the Bailiff for the purpose of delivery of possession of that House No, 597. The decree-holder, Abdur Rehman alias Bhana appellant, after ejecting its occupants had failed in his mission and the Bailiff submitted his report dated 21.6-1972 (Exh. DP/3) to the civil Court in which it was mentioned that because of resistance the warrants of ejectment could not be executed by the Bailifff. That report was signed by Khushi Muhammad son of Abdur Rehman alias Bhana appellant decree holder. The reports in the daily diary of Police Station, Mahble at Kallurkot relating to departure of Police Guard and its return to the Police Station as revealed by (Exhs. D. I. And D. K.) supported it. The report of Bailiff was signed by Khushi Muhammad alone. According to the defence it was Khushi Muhammad who had taken the Bailiff assisted by the Police for protection of the latter on the day of occurrence and none of the appellants including Abdur Rehman alias Bhaoa were present at that time and later on when the occurrence may have taken place. The undisputed position in the case is that all the three deceased and the 8 injured persons including the four injured eye-witnesses belonged to the same party apart from the fact that they were related to each other. They had collected at the spot at the time of occurrence according to the very case of the prosecution. Muhammad Kha!Id deceased did not live in the premises in dispute but resided in his separate house which was about 70 Karams away from the spot. He was stated to have arrived at the spot after he was attracted on hearing the alarm from the side of the house in dispute. The three reports of the Bailiff on record (Exh. DP/1, dated {{FOOT NOTE}}
(1) 1976 SCM R 185 (2) PLD 1970 SC 10
(3) PLD 1973 SC 469 {{FOOT NOTE}} April 19, 1969, &h. DP/2, dated and Exh. DP/3, dated 21.6-1972) showed that each time the Bailiff of the civil Court visited the house in dispute for executing warrants to deliver possession of the house to Abdul) Rehman alias Bhana appellant it was resisted by the deceased and the four eyewitnesses which evidence leads us to the irresistible conclusion that they were present at the spot before they were fired at or were otherwise injured by brick bate. It is not understandable as to why Muhammad Khalid deceased who lived at a distance of about 70 Karams from the spot had arrived at the scene before he was made a target. This fact rather proves him to be a partisan of the complainant party. It was suggested to the eye-witnesses that Muhammad Khalid was In fact prosecuting case on behalf of occupants of the House No, 597 against Abdur Rehman alias Bhana appellant. The perusal of three reports of the Bailiff as also the reports of the Police who visited the spot to protect the Bailiff on the day of occurrence lead us to the conclusion that Abdur Rehman alias Bhana appellant was taking legal action after obtaining legal remedies from the Courts of law. He had previously obtained order of ejectment from the Rent Controller. There is no evidence on record to show that the order of ejectment had been set aside in appeal or revision rather the very execution proceedings continued eversince April 1969 prove that the order of ejectment passed by Rent-Controller was very much in force and had become final. Apparently Abdur Rehman alias Bhana appellant in the circumstances could not have any motive to attack the occupants of House No, 597 or the symphathisers of those occupants including the deceased and the eye-witnesses. Even otherwise the motive is a double-edged weapon. In the circumstances we are not satisfied that the motive alleged by the prosecution had been proved against Abdur Rehman alias Bhana appellant or any other appellant for the matter of that. Shams Uddin alias Shamoo was married to the sister of Abdur Rehman alias Bhana appellant and lived in a different village. His presence at the spot at the time of occurrence was unnatural. The remaining five persons were connected with Rehman Transport Bus Service which had Bus Stand at Kallurkot town. It is probable that they were sympathisers of Abdur Rehman alias Bhana appellant but that alone will not prove any motive alleged against them by the prosecution.
15. Another piece of evidence against the appellants is dying declaration of Muhammad Khalid deceased on the basis of which formal F. I. R. Was registered on the day of occurrence. The occurrence took place in the very town of Kallurkot where the Police Station was situated.
Muhammad Yaqub alias Leela and Islam Uddin died at the spot and their dead bodies remained at the spot till the arrival of the Police but Muhammad Khalid, aged about 45 years, was immediately removed to the civil hospital at Kallurkot town. On arrival in the hospital his statement was recorded by Dr. Muhammad Mushtaq Ahmad (P. W. 11), who was then Incbarge of the hospital at Kallurkot. After recording that statement the doctor sent it to the Police Station at Kallurkot for registration of the F. I. R. While Muhammad Khalid was referred by him to the District Headquarter Hospital, Mianwali where he died at 2 p.m. On the same day immediately on arrival before any medical aid was given to him. There recording of statement of Muhammad Khalid by Dr. Muhammad Mushtaq Ahmad P. W. Was not usual particularly when the Police Station was situated in the same town and was not very far away. The doctor did not contact the police before recording statement of Muhammad Khalid. In his cross-examination at the trial the doctor admitted that during the course of his recording the statement of Muhammad Khalid the doctor was moving about from patient to patient to perform his duties meaning thereby he was rendering treatment to such of the patients in the hospital who needed help of the doctor. Apparently the recording of statement of Muhammad Khalid by Dr. Muhammad Mushtaq Ahmad P. W. Was not completed in one sitting and continuously but was recorded with intervals and interruptions during which period doctor was unable to tell the Court if Muhammad Khalid deceased was approached by any of his relations. The fact remains that Muhammad Khalid deceased must have been carried to the hospital by some body and evidently by his relations who were present in the hospital during all this time and who took him to the District Headquarter Hospital at Mianwali on the same day.
We have no doubt left in our minds that during these intervals and interruptions when Dr. Muhammad Musbtaq Ahmad P. W. Was attending to other patients after leaving Muhammad Khalid without completing his statement there was sufficient time and opportunity of tutoring by the relations of Muhammad Khalid to name the appellants on suspicion particularly when the defence version supported by the Bailiff report and Police report is that on the day of occurrence the Bailiff was accompanied by Khushi Muhammad and not his father Abdur Rehman alias Bhana appellant. It is also the defence version that Khushi Muhammad and his brother accompanied by three tenants had attempted to take possession of the house when they were attacked and in exercise of right of private defence the tenants of Khushi Muhammad after having suffered some Injuries for which they were medically examined in the same hospital at Kallurkot town, attacked the deceased and the injured members of the complainant party. It is probable that those tenants were not previously known to Muhammad Khalid deceased or other relations or members who were present in the hospital with him at the time of recording of the statement due to which persons who were sympathisers and friends of Abdur Rehman alias Bhana appellant in the civil litigation relating to House No, 597 were mentioned as accused on suspicion. The number and nature of injuries suffered by the three deceased and 8 injured persons may have been the cause for naming seven appellants because it provided scope for naming that number of the appellants.
It is to point out that no certificate was given by the doctor to the effect that Muhammad Khalid was fit to make statement before or after recording his statement which may not be very material because it was the doctor himself who was recording statement of Muhammad Khalid nevertheless requirement of law was not fulfiled to that extent. It is also in evidence that Muhammad Khalid was a dismissed Clerk of Octroi Post which showed that he was a literate person but was not made to sign his statement which bears the thumb-impression of Muhammad Khalid only. In the circumstances we are of the view that the dying declaration of Muhammad Khalid deceased is not worthy of reliance without independent corroboration.
16. The prosecution led evidence of four eye-witnesses, all of whom suffered injuries in the same incident because they were medically examined on the same day in the same hospital at Kallurkot town. The presence of all the four eye-witnesses at the spot at the time of occurrence cannot be doubted. However, it looks strange that the remaining four persons who also suffered injuries in the same incident were not examined by the prosecution. It is understandable that one of those injured persons had died his natural death before the trial but out of the remaining three injured persons one was stated to have been given up as won over while the remaining two injured eye-witnesses were not examined by the prosecution as unnecessary. The failure of prosecution to examine three or at least two injured witnesses on the ground of having been given up as unnecessary casts doubt on the prosecution case. Both of them were members of the party of the complainant and their exists no good reason to withhold them from appearing as witnesses. No matter it was a day time occurrence and identity of the assailants could not be doubted because they were previously known to the four eye-witnesses who appeared for the prosecution at the trial but all the four of them were partisans and their testimony cannot be relied upon without corroboration from an independent source. Ghulam Haider (P. W. 16) and Muhammad Shafi (P. W. 19) were real brothers Inter se and were brothers of Nasib Uddin whose ejectment was being pursued from Home No, 597 due to which both of them were not only partisans of the complainant party but were directly interested in the occupants of that Howe No, 597. Ghulam Haider P. W. Was also inimical towards the appellants because it is in evidence that he had litigation with them. Nur Muhammad P. W. Was also a partisan of the deceased and the injured and was inimical towards the appellants. Abdul Ghaffar P. W. Was real brother of Islam Uddin and was partisan of the complainant party. As such in the circumstances of this case in the safe administration of crijustice we are of the view that the testimony of the eye-witness cannot be relied upon so as to form basis for maintaining convictions of the appellants on the charge of capital punishment, The evidence of these four eyr e-witnesses cannot be corroborated by the dying declaration. As held in the case of Nur Nab! v. The State (1) and Wazir and others v. The State (2) one tainted piece of evidence cannot corroborate another tainted piece of evidence. As such we are of the view that the ocular evidence in the case needed corroboration from an independent quarter which is not forthcoming.
17. The medical evidence also does not fully support the ocular account', Muhammad Khalid deceased was the first to make statement which was recorded by Dr. Muhammad Mushtaq Ahmad (P. W. 11) and on the basis of which formal F. I. R. Was registered. In that statement as also in the subsequent statements made by the eye-witnesses specific injuries were attributed by the three appellants to the three deceased. Muhammad Khalid deceased had alleged that the rifle shot fired by Abdur Rehman alias Bhana appellant had hit him which subsequently resulted in his death in the District Headquarter Mianwali on the same day of occurrence. That statement was in conflict with the medical evidence because according to the medical evidence one pellet had been recovered from the dead body of Muhammad Khalid whose death had been caused by a stray pellet shot fired from gun. Muhammad Khalid and the eye-witnesses had deposed that Iqbal-ur-Rehman fired from his gun which hit Muhammad Yaqub alias Leela resulting in his death while Altaf-ur-Rehman appellant fired from his gun at Islam Uddin and caused his murder and thereafter all the seven appellants generally fired from their guns hitting 8 persons including the four eye-witnesses during which the appellants also pelted brick bats and stones on the injured persona. According to Muhammad Khalid deceased and four eye-witnesses Islam Uddin died at the spot immediately after being shot at by Altaf-ur-Rehman appellant but in a supplementary statement Dr. Muhammad Mushtaq Ahmad (P. W. 11) deposed that Islam Uddin was brought to him in the hospital alive in unconscious condition. It was FOOT NOTE
(1) PLD 1972 Kar. 292 (2) PLD 1960 Kar. 674 {{FOOT NOTE}} also in evidence that register of medico legal reports of Rullurkot hospital relating to medical examination of the injured members of complainant party had been tempered with. The doctor of the hospital had made no effort to inform police immediately on arrival of Muhammad Khalid but did so after recording his dying declaration although the hospital and the Police Station were in one and same small town of Kullurkot.
18. The prosecution proved recoveries of 12 crime empties of 12 bore from the rcof top of Ghulam Haider and Muhammad Shafi eye-witnesses, 2 crime empties from the courtyard of the house of Ghulam Haider P. W., one brick and two brick-bats apart from three pellets and three vads, all of which were allegedly secured on the very day of occurrence, on 21-6-1972. Those recoveries were proved at the trial by Rana Muhammad Khurshid (P. W. 10) Saeed Akbar S. I. (P. W. 22) who investigated this case. The appellants had agitated enmity between them and the investigating Officer aforementioned right from the beginning as a result of which the investigation was transferred from Saeed Akbar P. W. On 25.6-1972 although by that time he had completed the aforementioned recoveries from three of the appellants. There is ample evidence on record to support allegations of the appellants relating to enmity existing between the appellants belonging to Transport Company and Saeed Akbar P. W. Who investigated this case and effected the recoveries. Again out of the 12 crime empties recovered from the spot on 21-6-1972 only one matched with the licensed gun (P. 15), secured vide memo. Exh. P. Y., on 25-6-1972 from the house of Altaf-urRehman appellant. Rest of the 11 twelve bore crime empties did not match with that gun.
An unlicensed rifle (P. 19), was also secured from a heap of bhoosa near tube-well of Dr. Shamshad ride memo. Exh. P. Z. On 25-6-1972 at the instance of Abdur Rehman alias Bhana appellant but none of the two crime empties of rifle (Exh. P11/1-2) matched with that rifle. Another gun (P. 20) licensed in the name of Abdur Rehman alias Bhana appellant was secured at the instance of Muhammad Ayub appellant, vide memo. Exh. PAA, on 29-6-1972 alongwith its licence as also its shooting licence but no crime empty secured from the spot matched with that gun. The recovery of that gun at the instance of Muhammad Ayub appellant was also proved by Bashir Hussain A. S. I.
(P. W. 21). The perusal of evidence relating to recoveries cf two guns and one rifle as also the crime empties aforementioned lead us to the conclusion that the same did not connect any of the appellants except Altai- ur-Rehman with the crime alleged against them but even otherwise we are of the view that all these recoveries were planted on the appellants on account of enmity between the appellants, owners and employees of the Transport Company, and Sated Akbar S. I.
(P. W. 22) against whom complaints had been made by them.
19. All the appellants had pleaded their absence from the spot at the the time of occurrence. Altaf- ur-Rehman appellant had led evidence to show that he was at Lyallpur on 20.6-1972 and was at Lahore on 21-6-1972 in connection with filing of his application for obtaining his passport. D. W. 1 and D. W. 2 had supported him on the point that Altaf-ur-Rehman purchased a stamp paper for executing surety bond which was executed at Lyallpur and on which Ghulam Muhammad D. W.
Signed as a surety at Lyallpur. He also examined Rana Muhammad Jamil D. W. Who identified Altaf- ur-Rehman before Ch. Abdul Latif Magistrate 1st Class, Lahore D. W. At Lahore when the latter attested the application for obtaining passport and two photographs of Altaf-ur-Rehman appellant on 21-6-1972 which date was put under signatures of Ch. Abdul Latif D. W. Rana Muhammad 'mil D. W. Was also a Magistrate but was on L. P. R. And was known to Altaf-ur-Rehman.
It was for the reason of his being on leave that Rana Muhammad Jamil did not himself attest the relevant papers but only signed it in token of identification on the basis of which Ch. Abdul Latif Magistrate 1st Class attested the same. The defence version makes out a reasonable ground to believe that Altaf-ur-Rehman appellant was at Lahore on 21-6-1972 and was not present at the spot at the time of occurrence but was falsely named as accused in the dying declaration as also by the eye-witnesses in which Altaf-ur-Rehman appellant was attributed specific fire arm injury by him to Islam Uddin deceased.
' Ikhlaq-ur-Rehman appellant who was son of Altaf-ur-Rehman appellant also pleaded alibi and produced Dispenser with the relevent register as also Dr. Muhammad Qasim D. W. In support of his plea both of whom proved that Ikhlaq-ur-Rehman appellant was admitted in the rural civil dispensary at Piplan on 2066-1972 as indoor patient where he was treated for renal colic and was discharged on 24-6-1972. The objection that for the disease like renal colic Ikhlaq-ur-Rehman appellant should have better selected the District Headquarter Hospital, Mianwali or some hospital of a better standard has no force. The dispensary as well as the doctor who supported the plea of alibi of Ikhlaq-ur-Rehman were independent witnesses and in view of their evidence the probability cannot be ruled out that Ikhlaq-ur-Rehman was not present at the spot at the time of occurrence but was named in the dying declaration as also by the injured eye-witnesses. Even otherwise it does not appeal to reason that Iqbal-ur-Rehman and Altaf ur-Rehman, real brothers inter se, and Ikhlaq-ur-Rehman son of Altaf-ur-Rehman appellants should have come personally after having armed themselves with firs arms and participated in the occurrence because in view of their status the same job could be done on their behalf by some-one else.
' Six of the appellants had no direct motive against the deceased or the injured. Abdur Rehman alias Bhana appellant alone was alleged to have motive to the extent of ejectment of occupants of House No, 597 in Kallurkot town. Shams Uddin alias Shamoo was his son-in-law, was resident of a different village, had no direct motive and appears to have been falsely named as accused because of his relationship with Abdur Rehm an alias Bhana appellant. The motive against Abdur Rehman alias Bhana appellant also was not established. He was seeking legal remedies in Courts of law. The dying declaration of Muhammad Khalid deceased and the ocula evidence of the four witnesses was of partisan witnesses. It was not supported by the medical evidence. Saeed Akbar, Investigating Office; (P. W.) was inimical towards the remaining five appellants who belonged to Rehman Transport Company at Kallurkot town. The dying declaration as also the ocular evidence was belied by the defence version. Altafur-Rehman and his son, Ikhlaq-ur-Rehman proved their alibi. The defence version made the prosecution story improbable. The recoveries were not proved and did not connect the appellants with the crime. It is not ascertainable from the evidence on record if all or any of the appellants was present at the spot and participated in the occurrence. On the evidence on record and in the circumstances of the case we are of the view that all the seven appellants are entitled to benefit of doubt.
20. As a result of above discussion, the convictions and sentences of all the seven appellants are set aside and they are ordered to be set at liberty forthwith if not required in any other case. The death sentences of Iqbal-ur-Rehman, Altaf-ur-Rehman and Abdurl Reisman alias Bhana appellants are not confirmed.