1985 PLP 1378 (MLD)

JAVID IQBAL, C.J.--Khan Muhammad son of Ahmad Noor, aged 26, armed, with gun, Ghulam Muhammad son of Ghulam Rabbani, aged 20, also armed with gun, and Sahib Khan, son of Muhammad Sher, aged 28, likewise armed with gun, cousins inter se, were charged and tried under section 302/34, P.P.C. for the murder of Muhammad Khan, aged 26, and vide judgment, dated 2-6-1981 of the Sessions Judge, Sargodha, Khan Muhammad son of Ahmad Noor, only was convicted under section 302, P.P.C, and was sentenced to death, whereas the other two namely, Ghulam Muhammad and Sahib Khan were granted the benefit of doubt and acquitted. The appeal of the convict is before us alongwith murder reference for the confirmation of death sentence awarded to him and we are going to dispose them of together alongwith Criminal Revision No.492 of 1981 against the acquittal of two co-accused. namely, Ghulam Muhammad and Sahib Khan and also for imposition of fine on Khan Muhammad convict. These connected matters are being disposed of by this judgment.

2. The occurrence took place on 21-3-19811 soon after Juma prayers inside the shop of one Ali cobbler at Dera Agral within the area of village Nalli at a distance of ten miles from Police Station Katha Sagral. F.I.R. Exh. P.D. was lodged by Lal Khan (P.W.6) paternal-uncle of the deceased, at 5 p.m. on the same day and it was recorded by Muhammad And A.S.I. P.W.12 at the Police Station.

3. The motive for crime as stated in the F.I.R. is that about four years before the present occurrence Muhammad Sherif, maternal-uncle: of the accused party was murdered for which Sanwal, father of the present deceased, Muhammad Mumtaz husband of Mst Shahran (P.W.7), uterine sister of the present deceased and five others were tried. Eventually, Sanwal and Muhammad Mumtaz were convicted and sentenced to life imprisonment in that murder case. It is stated that the appellant and the acquitted co-accused committed the murder of the deceased in order to avenge the murder of their paternal-uncle, namely, Muhammad Sharif. It may be pointed out at dais stage that there is a long-standing enmity between the parties and murders had been committed on both the sides by one or the other. The long-standing enmity between the parties is an admitted fact.

4. The prosecution produced two eye-witnesses of the occurrence vie namely, Lal Khan (P.W.6)), paternal-uncle of the deceased, and also one of the accused persons to the murder case of Muhammad Sharif, and Mat. Shahran (P.W.7) who is uterine sister of the deceased, and her husband Muhammad Mumtaz is undergoing the sentence of life imprisonment for the murder of Muhammad Sharif. The third eye-witness stated in the F.I.R. is Mst. Malkani, mother of tape deceased, but she has been given up as unnecessary. Learned Counsel for the appellant at this stage wants to point out to us that both the eye-witnesses of the occurrence are interested and hostile. He, therefore, is of the view that it would not be safe to accept their testimony without corroboration.

5. In the F.I.R. the occurrence is reported to have taken place in the following manner; Lal Khan (P.W.6), Mst. Shahran (P.W.7) and Mat. Malkari were standing in the courtyard of their house which adjoined the shop of Ali cobbler and were talking. They saw the member of the accused party, armed as described above, coming through the street and since there was previous long-standing enmity between the parties, they suspected that the accused party had come to attack the deceased. Consequently, they also rushed out but by the time they came to the spot, the members of the accused party had attacked the deceased who happened to be at that time present inside the shop of Ali cobbler. At that time Ali cobbler himself was not present in time shop, According to the narrative given in the F.I.R. Khan Muhammad appellant fired the first shot which hit the deceased on the left side cat the face and head. Therefore, Ghulam Muhammad and Sahib Khan acquitted co-accused, fired two shots simultaneously through their respective guns at the deceased which hit the deceased on the lent hand and face. After the commission of crime the members of the accused party decamped. Lal Khan and Mst. Shahran P.Ws. and Mst. Malkani (not produced) went inside the shop shortly thereafter and they found that the deceased had died. Learning behind the two lady witnesses on the spot to guard the dead body ref the deceased, Mst Khan P.W. proceeded to lodge the report.

6. The appellant and the two acquitted co-accused were arrested by Muhammad Anis A.S.I. (P.W.12) on 28-3-1980. From the spot were recovered two crime empties of 12 bore (Exhs. P.5 and P.6) which were taken into possession, vide memo. P.G., dated 21-3-1980. The attesting witnesses are Lal Khan (P.W.6), Mst. Shahran (P.W.7) and Muhammad Anis A.S.I. (P.W.12). Learned counsel wants to point out at this stage that these crime empties have not been mentioned in the F.I.R. nor in the inquest report nor in the site plan. He, however, concedes that the trial Court has relied upon this recovery. It may be noted at this stage that the blood-stained earth was picked up from inside the shop of Ali cobbler which means that at the time when the deceased was fired at, he happened to be present inside the said shop. However, so far as the crime empties are concerned, they were picked up from outside the shop, although specific points have been shown in the site plan and in the memo is mentioned only that they had been picked up from the outer courtyard. Anyway, at the instance of Khan Muhammad appellant was recovered his 4ensed 12 bore gun (Exh.P.7) which was taken into possession, vide memo. Exh. P.H., dated 3-4-1980. The attesting witness are Ahmad Sher (P.W.8), Muhammad Anis A.S.-I. (P.W.12) and Surkhuru (not produced). At the instance of Ghulam Muhammad, acquitted co-accused, was recovered gun (Exh.P.9) and taken into possession, vide memo. Exh.P.I., dated 7-4-1980. The attesting witnesses are Hazar (P.W.9), Muhammad Anis A.S.I. (P.W.12) and Muhammad Mumtaz (not produced). At the instance of Sahib Khan, acquitted car-accused, was recovered .12 bore gun (Exh.P.10) and taken into possession, vide memo. Exh.P.J., dated 10-4-1980. The attesting witnesses are Khuda Bakhsh (P.W.10), Muhammad Anis A.S.I. (P.W.iZ) and Saif Ali (not produced). According to the report of the Fire-arms Expert (Exh. P.O.) at page 11 of the printed paper book both the crime empties which had been picked up from the spot were fired through .12 bore gun (Exh.P.7) recovered at the instance of Khan Muhammad appellant and .12 bore gun (Exh.P.9) recovered at the instance of Ghulam Muhammad, acquitted co-accused.

7. The appellant as well as the acquitted co--accused in their statements before the trial Court admitted the motive version to the effect that there had been a long-standing enmity between the parties but denied having participated in the occurrence. Khan Muhammad appellant also denied that .12 bore gun recovered from him had matched with one of the crime empties picked up from the spot. He stated that this crime empty might have been fabricated by the police. He stated that he had been falsely implicated in this case due to long-standing enmity between the parties. He claimed that he was innocent and declined to produce defence. The two acquitted co-accused also stated that they had been falsely implicated due to enmity and they too did not produce any defence.

8. Dr. Muhammad Riaz Ali (P.W.1) conducted post-mortem examination on the dead body of the deceased at 8-30 a.m. on 22-3-1980 and found the following injuries on his person:- (1) A lacerated-wound 1/3" x 1/3" x deep on left side of nose blow left eye area around was burnt. (2) A lacerated wound " x " x skin deep on left cheek area around was burnt. (3) A lacerated wound 1/3" x 1/3" x deep on the left side of the lower jaw. (4) A lacerated wound 1/3" x 1/3" x deep on left side of face on front and below left ear. (5) A lacerated wound " x " x deep on front of neck on right side. (6) A lacerated wound 2" x 1 " on left palm and 3" x 1 " on its back. The palm was blackened. (7) A lacerated wound 2" x " x skin deep on left side of the head. (8) Two lacerated wound " x " x skin deep and 1/3" x 1/3" x skin deep on left side of the neck. (9) A lacerated wound 1 " x 1/3" x skin deep on left upper lid, The base was blackened. (10) A lacerated wound " x " x deep on back of the head below injury No.7 and communicating with injury No.4. (11) A lacerated wound 1/3" x 1/3" on the left side of back of neck and margins were averted. Death in his opinion was due to haemorrhage (internal and external), shock and injury to vital parts which resulted from Multiple injuries. Injuries Nos. 1, 3 and 5 were sufficient to cause death in the ordinary course of nature and hence were fatal. Injury No.6 was grievous and rest were simple. All the injuries were caused by fire-arm and were ante-mortem. In the cross-examination he stated that injuries Nos. 1, 2 and 3 could not be the result of one shot as in case of injury No.l the pellet went inside the maxilla. He further stated that the deceased received more than one shot but he could not tell the definite number.

9. We have heard learned counsel for the parties and carefully perused the record. The main argument of learned counsel for the appellant is that admittedly there is long-standing enmity between the parties and on the basis of the principle of abundant caution the ocular testimony of interested witnesses could not be accepted without corroboration. He further pointed out that in the present case corroboration is not forthcoming from an independent source and the ocular testimony being that of enemies should not be considered as reliable. He also submitted that two of the co-accused have been given the benefit of doubt and Ghulam Muhammad co-accused it particular from whom gun was recovered and whose gun also matched with one of the crime empties had been given the benefit of doubt and acquitted. His reasoning is that if Ghulam Muhammad acquitted co-accused could be given the benefit of doubt and acquitted, the case of present appellant was identical and that, therefore, he should have been acquitted by the trial Court. He further argued that the main reason for implicating the appellant in the present case was that there is long-standing enmity between the parties and that, therefore, even if the act had been performed by someone else, they mentioned the name of the appellant and his two companions only because of this enmity. It was next argued that the eye-witnesses of the occurrence could not have seen the occurrence as they were inside the courtyard and might have come out only on hearing the report of gunshots. Learned counsel submitted that the deceased was shot at while he was present inside the and that his assailants were outside and since the so-called eye-witnesses were alleged to be present in the Courtyard of their house which was at some distance from the spot, they could have not come out and rushed to the scene of crime and witnessed as to who fired the fatal shot. Learned counsel for the State, on the other hard, argued that the eye-witnesses of the occurrence are natural witnesses and they were standing in the courtyard of their house which is adjoining the shop which happens to be the scene of crime. He also pointed out to us that at the time of occurrence they saw the members of the accused party coming armed, as described above, through the street and suspected that they had come with evil intention. Therefore, they immediately rushed out to see as to what was going to happen and while they came out, they saw that the appellant and his two companions had fired shots hitting the deceased who was inside the shop of Ali cobbler. He, therefore, argues that despite the fact that there is long-standing enmity between the parties, the ocular testimony should be relied upon as it comes from natural witnesses of the occurrence. Learned counsel for the complainant also argued on the same lines and submitted that as three of them were named in the F.I.R. there was no justification in granting the benefit of doubt and acquitting Ghulam Muhammad and Sahib Khan co-accused. We have examined the arguments of learned counsel for the parties. It is an admitted fact that there is long-standing enmity between the parties. The perusal of record indicates that first son of Lal Khan P.W. complainant had been murdered at the hands of the accused party. Thereafter Muhammad Sharif, uncle of the! accused party, was murdered at the hands of the complainant side and, now the deceased had been murdered on the complainant side at the hand of the accused party. Thus, it is evident from the record that al blood feud is existing between the parties and it seems to be continuing for some time. It must be noted that it was a day time occurrence and the F.I.R. was promptly lodged. Be that as it may, although the eye-witnesses produced in the instant case, could be considered ash natural witnesses of the occurrence as they were neighbours but the point for consideration here is that they are at the same time also interested, hostile and inimical witnesses and the trial Court was correct to accept their testimony only to the extent that it found corroboration from an independent source. We have also gone through the relevant parts of the judgment of the trial Court, in the instant case, and our, conclusion is that the trial Judge was right to arrive at the result that corroboration of the ocular testimony was forthcoming in the case of Khan Muhammad appellant, whereas at was not so in the case of Ghulam Muhammad or Sahib Khan, acquitted co--accused. We also note that one of the two crime empties picked up from the spot matched with the .12 bore licensed gun (Exh. P.7) recovered at the instance of Khan Muhammad appellant. So far as gun (Exh. P.9) recovered from Ghulam Muhammad acquitted co-accused is concerned, this is an unlicensed gun and the trial Court rightly doubted this recovery. Hence if the other crime empty had matched with gun (Exh. P.9) the recovery of which was considered doubtful by the trial Judge from Ghulam) Muhammad acquitted co-accused, in our view he was right not to accept) the said recovery as corroborative piece of evidence. Thus, in our considered opinion the appellant in the: instant case was rightly convicted) and his conviction is accordingly maintained. At this stage learned counsel for the appellant argued that since there is background of previous enmity between the parties and the murder was committed, in the instant case, because of avenging the murder of Muhammad Sharif uncle of the appellant, there was mitigating circumstance in the present case calling for the awarding of lesser penalty of Khan Muhammad appellant. He also pointed out that this fact likewise remained p undetermined as to who might have caused the fatal shot to the deceased because according to learned counsel Khan Muhammad appellant even if he is assumed to have fired at the deceased, there was nothing to ascertain as to whose shot proved fatal. Even otherwise the doctor had stated that there was a possibility of more than one shot having been fired at the deceased. We have carefully examined this aspect of the case and we agree with learned counsel for the appellant. It is a case, in which there was extenuating circumstance and consequently it would be sufficient to meet the ends of justice if the death sentence is not confirmed in the instant case. In the light of the above discussion we are convinced in our mind that maintaining the conviction of the appellant under section 302, P.P.C. the sentence of death awarded to the appellant should be altered to sentence of life imprisonment. It is ordered accordingly and he is also sentenced to pay fine of Rs. 5,000 or in fault thereof to undergo further imprisonment for one year's R.I. Ifs fine is realized from him, it should be paid as compensation to the heirs of the deceased. We further direct that the appellant be given the benefit of provisions of section 382-B, Cr.P.C. at the time of computation of his sentence of life imprisonment. With this modification the appeal is dismissed. The death sentence awarded to the appellant is not confirmed. In the light of the above discussion we do not find any substance in Criminal Revision No. 492 of 1981. which is accordingly dismissed in limine. S. A. Appeal dismissed.