1999SCMR2419 (PLP)

SH. IJAZ NISAR, J.

This appeal by leave of the Court is directed against the judgment, dated 9-4-1997, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No.206 of 1992 and Murder Reference No.473 of 1992.

2. The relevant facts are that on 20-1-1991, a case under section 302/34, P.P.C. was registered at Police Station Talagang, District Chakwal, against Muhammad Saleem appellant and his brother Muhammad Afzal accused (since acquitted), at the instance of Nawab Khan complainant P.W.7 for the murders of Baz Khan and Qadir Hussain deceased. It is stated that Nawab Khan complainant had a land dispute with the accused party, and a few days prior to the occurrence Muhammad Saleem appellant and his brother Muhammad Afzal co-accused tried to forcibly occupy the disputed land, but could not succeed and the matter was got patched up.

3. On 20-1-1991 at about 9.00 a.m. Qadir Hussain deceased was present in the house of Sharaf Khan, his uncle. Nawab Khan complainant P.W.7 alongwith Muhammad Riaz P.W. (not produced) and Muhammad Ameer P.W.8 was sitting in the adjoining Haveli of Muhammad Razzaq. Muhammad Saleem appellant and Muhammad Afzal accused armed with 12 bore guns came there raising Lalkara that the deceased would be taught a lesson for restraining them from occupying the land. They forcibly opened the outer gate of the house of Sharaf Khan and entered into it. Muhammad Afzal co-accused fired from his gun at Qadir Hussain deceased, while Muhammad Saleem appellant fired a gun shot on Baz Khan deceased, who in the meantime had climbed over roof of the haveli of Haji Muhammad Amir towards the south of the house of Sharaf Khan where Qadir Hussain deceased was fired at. Both the deceased succumbed to the injuries at the spot.

4. The motive for the offence was that widow of Karam Khan was living with her daughter Mst. Satt Bharai, wife of Nawab Khan complainant. Karam Khan left no male to inherit his property and the land devolving on his widow and daughter was in the cultivating possession of the complainant. The accused in addition to their share also wanted to get possession of the land of the widow of Karam Khan and in order to achieve that object committed the murders of Qadir Hussain and Baz Khan who were putting up resistance.

5. Ghulam Murtaza Inspector (P.W.11) investigated the case. After arrest of the accused, on 26-1-1991, the Investigating Officer recovered 12 bore gun P.19 at the instance of Muhammad Saleem from the baithak of his house, and another 12 bore gun P.20 at the pointation of Muhammad Afzal. The crime empties recovered from the spot were found to have matched with the gun of Muhammad Saleem appellant.

6. The learned trial Court, vide its judgment, dated 30-11-1992 convicted Muhammad Saleem appellant under section 302, P.P.C. for the murders of Qadir Hussain and Baz Khan deceased and sentenced him to death with a fine of Rs.40,000, or in default to undergo R.I. for four years. The fine if recovered was ordered to be paid, as compensation, to the legal heirs of Baz Khan and Qadir Hussain deceased. He was also convicted under section 452, P.P.C. and sentenced to five years R.I. with a fine of Rs.5,000 and in default thereof to undergo further R.I. for one year. However, it acquitted Muhammad Afzal accused by giving him the benefit of doubt.

7. On appeal, filed by Muhammad Saleem appellant, a Division Bench of the Lahore High Court, vide judgment dated 9-4-1997, maintained his conviction and sentence. The revision filed by the complainant against the acquittal of Muhammad Afzal was dismissed.

8. Leave to appeal was granted to examine whether the conviction of Muhammad Saleem appellant was based on proper appraisal of evidence. However, the petition filed by the complainant challenging the acquittal of Muhammad Afzal was dismissed by this Court on 12-5-1998.

9. It is contended that there are inherent probabilities in the case set up by the prosecution, that both the eye-witnesses were inimically disposed towards the appellant and had been disbelieved qua Muhammad Afzal co-accused. Their testimony could not have been acted upon against the appellant, without some independent corroborative piece of evidence, that the ocular testimony is in conflict with the medical evidence and lastly that the presence of the eye witnesses at the spot was highly doubtful and, if they had been actually present, the accused would not have spared them, particularly Nawab Khan complainant, who on his own showing was occupying the land of his mother-in-law.

10. The motive set up by the prosecution is that Karam Khan left behind a widow and a daughter, namely, Satt Bharai, who was married to Nawab Khan complainant, father of Qadir Hussain deceased. Pehlwan, father of Muhammad Saleem appellant, was brother of Karam Khan aforementioned. After the death of Karam Khan, Pehlwan father of Muhammad Saleem appellant, had received his share through inheritance, but Muhammad Saleem appellant and his brother Muhammad Afzal co-accused (since acquitted) wanted a further share in the land inherited-by the widow of Karam Khan and her daughter Mst. Salt Bharai to which Nawab Khan was not agreeable. This had led to a quarrel between the parties a few days before the occurrence. Nawab Khan P.W.7 made a detailed statement in this behalf, which could not be shattered in the cross-examination made on him. The argument advanced by the learned defence counsel that if Nawab Khan P.W. had been present on the spot at the relevant time the accused would not have spared him is not appealing because nothing can be said about the state of the mind of the accused in selecting their target. They might have considered the deceased persons as more effective opponents being youths as. compared to Nawab Khan complainant.

11. To prove the ocular account, the prosecution produced Nawab Khan P.W.7 and Muhammad Ameer P.W.8. Both of them were closely related to the deceased persons, but their evidence could not be brushed aside on that score only. They stand corroborated by the medical evidence as well as the matching of crime empties with the gun of Muhammad Saleem appellant. The crime empties were sent in a sealed parcel to the Forensic Science Laboratory, prior to the recovery of the gun at the instance of the appellant. The appellant could not explain this incriminating piece of evidence.

12. According to the eye-witnesses, Baz Khan deceased was done to death by the shots fired by Muhammad Saleem appellant while Qadir Hussain deceased was killed on account of firing made by the acquitted accused Muhammad Afzal but the learned trial Court disbelieved the ocular account to the extent of role attributed to Muhammad Afzal and held Muhammad Saleem appellant responsible for both the murders. In the absence of any strong circumstance we cannot subscribe to this view and evolve a conclusion totally different from the prosecution version. However, so far as the murder of Baz Khan deceased is concerned, we think that the prosecution has been able to prove its case against the appellant beyond all shadow of doubt because of the motive and matching of the crime empties with his licensed gun. The maxim falsus in uno, falsus in omnibus is not applicable to the facts and circumstances of this case because of the availability of corroboration of the ocular testimony from other sources.

13. For the reasons discussed above, the conviction and sentence of Muhammad Saleem appellant the extent of the murder of Baz Khan deceased is maintained. But it is set aside in respect of the murder of Qadir Hussain deceased. His conviction and sentence under section 452, P.P.C. is also set aside. With the above modification the appeal filed by him is otherwise dismissed. N.H.Q./M-354/S Order accordingly.