P L D 1983 Lahore 602 (PLP)

MUHAMMAD IVIUNIR KHAN, J.-This criminal appeal and the connected murder reference arise from the judgment of learned Additional Sessions Judge, Sahiwal whereby he on 31-7-1979 convicted Faiz, aged 50 years, Boota, aged 55 years and Shabnawaz aged 30 years under various sections of Pakistan Penal Code. Sentences (i) Under section 148, P. P. C. for having alongwith Abdul Sattar absconder and Ilyas (who was later on killed :n a police encounter) formed themselves into unlawful assembly duly armed with deadly weapons and sentenced them to one year R. I. each. (11) Under section 302/149, P. P. C. for causing the death of Ibrahim, Isa and Muhammad Ashraf and sentenced Faiz to death and to pay a fine of Rs. 2,000 or in default to undergo to one year' R. 1. on 3 counts, Boota and Shahnawaz appellants to imprisonment for life and a fine of Rs. 1,000 or in default thereof to 6 months' R. I. each on 3 counts. (iii) Under section 307/ 149, P. P. C. for murderous assault upon Mukhtar P. W. 6 and sentenced to 5 years' R. I. each and a fine of Rs. 500 each or in default 3 months' R. I. each. (iv) Under section 323/149, P. P. C. for causing hurt to Anwar P. W. 8 and sentenced to 6 months' R. I. each and a fine of Rs. 500 or in default thereof further R. I. for 3 months each. It was directed that the sentences of imprisonments shall run concurrently and the fine if recovered half of it shall be given equally to the heirs of 3 deceased.

2. The occurrence took place on 18-10-1972 at about aftarwela in a field of Chak No. 54-E. B. Tehsil Pakpattan. The F. I. R. Exh. P. O: was lodged by Mukhtar P. W. 6, the brother of Muhammad Ashraf deceased at P. S. Arifwala on the same day at 10-00 p.m. and was recorded by Muhammad Tufail S. H. O. P. W.

9. The distance between place of occurrence and the police station is 12 miles.

3. The prosecution case in brief is that on the eventful day, some time before aftarwela, Muhammad Ashraf plucked two sugar-canes from the sugar-cane field of llyas co-accused for aftari purposes and was beaten by Ilyas and Abdul Sattar co-accused. Thereafter, Muhammad Ashraf went to Chak and informed his brother Mukhtar Ahmad P. W. 6 of the incident who alongwith Muhammad Ashraf deceased, Isa deceased, Muhammad Anwar and Muhammad Akbar P. Ws. left for the field where Muhammad Ashraf was neaten. They reached there shortly before aftarwela. On seeing them arrived, the appellants and the co-accused namely Abdul Sattar, absconder and Ilyas (since deceased) came towards them. At, that time, Faiz was having his licensed gun while others were armed with Sotas. Mukhtar Ahmad enquired from them as to why they gave beating to Muhammad Ashraf over a petty matter whereon the appellants and the co-accused abused Mukhtar who in return paid them in the same coins. Boota appellant, Ilyas and Abdul Sattar co-accused opened the attack on Mukhtar. On this to save Mukhtar, Ashraf deceased gave hatchet blow on the back of the chest of Abdul Sattar. In the mean-time Faiz appellant fired at Muhammad Ashraf who fell down. Isa intervened but was gunned down by Faiz appellant. In the mean-time, Ibrahim reached the spot, he was also shot dead by Faiz. Muhammad Anwar P. W. when attempted to apprehend Faiz, he was injured by Boota and Shahnawaz with their Sotas. Muhammad Anwar after having succeeded to snatch Sota from Boota injured him with the same. Muhammad Ibrahim and Isa expired on the spot. The occurrence was also seen by Muhammad Shah, (not produced). The appellants and the co-accused then dragged the dead bodies of Ibrahim and Isa to their Dharies. Ashraf who was still living was removed to Chak Where he succumbed to the injuries. Mukhtar then left for police station to lodge the report.

4. Muhammad Tufail S.-I. P. .W. 9 after recording the F.

1. R. reached the spot at 12-00 mid-night. He recovered the dead bodies of Ibrahim and Isa from the Kothas of the appellants. He then came to Chak No. 54-EB, where the dead body of Multammad Ashraf was lying. He sent the dead bodies to mortuary under the escort of Sardar Muhammad, Foot Constable. He also got Mukhtar Ahmad and Muhammad Anwar P. Ws. medically examined. On 20-10-19)2, he arrested Abdul Sattar and Boota who were found injured. He got them medically examined. At the time of arrest, they were wearing blood-stained shirts which were removed and taken into possession vide memoranda Exh. P.A.A. and Exh. P.B.B., attested by Barkat Ali and Ghulam Rasul (both not produced). Abdul Sattar and Boota produced blood-stained Sotas which were taken into possession vide memoranda Exh. P. C. C. and Exh. P. D. D. attested by the same witnesses. Faiz appellant was arrested on 27-11-1972. He produced licence Exh. P. 11 of his gun which was taken into possession vide memo. Exh. P: E. E. It is to be noted that blood-stained clothes and Sotas were not sent to the Chemical Examiner and that no gun was recovered from Faiz, etc.

5. Dr. Muhammad Rafi Ullah, P. W. 1 conducted post-mortem examination on the dead bodies on 20-10-1972. He performed autopsy examination of Muhammad Ashraf deceased and found the following injuries on his person: Injuries (i) Seven fire-arm wounds (wounds of entry) over the left arm 1/3" x 1/3" each and 2" apart from each other. Margins were blackened and inverted. Three wounds of exit on inner side of left arm 1" apart from each other. Margins were everted and not blackened. (ii) Four fire-arm wounds on the left side of chest I f apart from each other 1/3" x 1/3' with blackened and inverted margins (wounds of entry). (iii) A fire-arm wound over the back on right side 1/3" X"1/3". Margins were everted and not blackened being the wound of exit. In the opinion of the doctor, the cause of death was haemorrhage and shock resulting from injuries Nos. 1 & 2 which were sufficient to cause death in the ordinary course of nature. On .the same day, he conducted post-mortem examination on the dead body of Muhammad Ibrahim and found the following injuries: Injuries (i) Four rounded.fire-arm wounds over the inguinal region 1/3' X 1/3" each one inch apart going deep into the pelvis. The margins were blackened and inverted. (ii) A rounded fire-arms wound over the penis 1/3"X 1/3" communicating with a similar injury on the shaft of penis being wound of entry and exit respectively. In his opinion, the cause of death was shock and haemorrhage resulting from injuries No. 1 & 2 which were sufficient to cause death in the ordinary course of nature. On the same day, he performed autopsy on the dead body of Isa and found 7 injuries on his person. Injuries (1) A rounded fire-arm wound on the right flank 2" X 1" going deep into the abdomen. (ii) Three small fire-arm wounds around injury No. 1, 1/3" X 1/3" each. The abdominal contents were coming out of injury No.

1. These injuries were the wound of entry. (iii) Six fire-arm wounds over the left flank 1/3" x 1/3" each one inch apart from each other. The margins were everted (wound of exit). One pellet was removed from the left flank. (iv) An abrasion over the right deltoid region 21/2 ' x 1 1". (v) An abrasion over the inner side of the right knee 7' x 4'. (vi) An area of abrasions over the left side of chest 9' x 5". (vii) An abrasion over the nose 1" x 1'. In his opinion, the death was due to shock and haemorrhage resulting from injuries Nos. 1, 2 and 3 which were sufficient to cause death in - the ordinary course of nature. The doctor had also examined Mukhtar Ahmad, P. W: 6 on ?9-10-1972. . He found as many as 15 injuries on his person including lacerated wounds, swellings and bruise marks. In his opinion, the injuries were caused by blunt weapon. The injuries, other than injury No. 3 were simple. Injury No. 3 was, however, declared grievous The doctor had also medically examined Muhammad Anwar, P. W. Boota appellant and Abdul Sattar, absconder and found 2 lacerated wounds on the person of Muhammad Anwar, one lacerated wound and one abrasion on the person of Boota appellant and one incised wound, one oblique bruise and an abrasion on the person of Abdul Sattar. The injuries found on the persons of Muhammad Boota, Muhammad Anwar and Abdul Sattar except one incised wound on the person of Abdul Sattar were inflicted by blunt weapon and all simple in nature.

6. In order to prove its case, the prosecution examined as many as 9 witnesses out of whom Mukhtar Ahmad, P. W. 6 Muhammad Anwar, P. W. 8 have given the ocular account of the occurrence while supporting the prosecution case. They have stated that the appellants and the co-accused had opened the attack. Faiz caused the death of Isa, Ibrahim and Ashraf by causing fire-arm injuries on their persons, whereas, Shahnawaz and Boota had injured Muhammad Anwar and Mukhtar with their Sotas. The other 2 witnesses namely Akbar and Muhammad Shafi were given up as unnecessary and as won over respectively. The evidence of other P. Ws. is more or less of formal nature.

7. The appellants when examined under section ' 342, Cr. P. C. have denied the incriminating circumstances and have taken the plea of false implication on account of enmity. They, however, did not lead any evidence in defence. For the facility of the appreciation of the case, it may be noted at this stage, that the suggestion given to the-prosecution witnesses was to the effect that Abdul Sattar absconder and Ilyas (since deceased) had killed the 3 deceased and injured the prosecution witnesses. For example, it has been suggested to Muhammad Anwar, P. W. 8 that "it is incorrect to suggest that after Muhammad Ashraf deceased was beaten by Ilyas and Abdul Sattar absconder, we went armed to the spot and attacked Ilyas and Abdul Sattar, absconder. It is incorrect that the abovesaid absconders gave injuries in selfdefence."

8. The learned counsel for the appellants has submitted that the prosecution has failed to prove its case beyond reasonable doubts ; that as stated by Fazal Din, P. W. 5 at the trial . and Muhammad Anwar, P. W. 8 (in committing Court) that the F.

1. R. was recorded on the spot after preliminary investigation ; that the appellants had no motive to kill the deceased or injure the P. Ws. that since Abdul Sattar and Ilyas had beaten Muhammad Ashraf, therefore, motive was with the deceased party to attack Abdul Sattar and Ilyas, the co-accused ; that the eye-witnesses are not reliable inasmuch they have given the contradictory statements ; that since the occurrence took place in the land of Ilyas as admitted by Mukhtar, P. W. 6 and Muhammad Ashraf was having a hatchet at the time of occurrence, therefore, there is a reasonable possibility of the suggestion of self-defence as given to the eyewitnesses being true. Strangely enough, the learned counsel for the state has not supported the conviction of the appellants recorded by the trial Court and that too, without giving any cogent reasons for that.

9. We have considered the arguments presented by the learned counsel for the parties in the light of the guiding principles laid down by the Superior Courts for the appreciation of such like cases that it is for the prosecution to prove its case beyond any reasonable doubts on the strength of its own evidence and that if there is a slightest doubt its benefit shall go to the accused and that the accused is not bound to prove his defence version just like prosecution and if there is a reasonable possibility of the plea taken by an accused person being true, the benefit would go to the accused. After having appreciated so in the light of the record, we are inclined to hold that the prosecution has proved its case beyond shades of doubts and there is no possibility at all of the existence of the right of self-defence for the reason that it is a case of prompt F.

1. R. The occurrence took place at about A aftarwela and the' F.

1. R. was lodged at 10-00 p.m. at police station which at a distance of 12 miles from the spot. The names of the appellants and the co-accused, the names of the witnesses, the weapons carried by the appellants and the co-accused, the place of occurrence, the part played by them and the injuries on the person of Abdul Sattar absconder and Boota appellant have been explained therein. As far the criticism of the learned counsel that the F.

1. R. was recorded on the spot after preliminary investigation, we have examined the statements of Fazal Din, P. W. 5 and Muhammad Anwar, P. W. 8 referred to by the learned counsel. We find that Fazal Din, P. W. has not stated so at the trial inasmuch as be simply stated that "the police had interrogated Mukhtar Ahmad and Muhammad Anwar, P. Ws. Volunteered Mukhtar Ahmad had to be interrogated as be had lodged the F.

1. R." The trend of this statement rather shows that the F.

1. R. had already been recorded. As far Muhammad Anwar, in cross-examination he stated that : "it is incorrect to suggest that the F.

1. R. was recorded at the spot at 10-00 p.m. on the day of occurrence. I inadvertently stated before the C. M. that the F.

1. R. was recorded at 10-00 p.m in Chak No. 54/ E.B. where the

1. O. had visited and obtained thumb-impression of Mukhtar P. W. after writing his statement." and as such it cannot be said that it stands proved that the F.

1. R. was registered on the spot after preliminary investigation. To us, Exh. P. O. the F.

1. R. appears to be a genuine document and was in fact written at the time and in the manner as it purports. This F.

1. R. thus can be used to corroborate its maker namely Mukhtar Ahmad, P. W.

6. As for the motive, we find that the motive in a way has been admitted by the defence through suggestions detailed above. The motive no doubt is a double-edged weapon as it cuts both ways and in what way it actually cuts, G that depends upon the peculiar circumstance of each case. Coming now to the ocular evidence, since the eye-witnesses claim to have witnessed the occurrence, we propose to appreciate the ocular account in accordance with the guiding principles laid down by the Supreme Court in case Muhammad Hussain . The State (P L D.1960 S C 387) as wherein it has been laid down that . "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons .whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything, making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court found that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborate their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be a circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However, the circumstance itself must be proved beyond all reasonable doubt."

11. Having appreciated the evidence of Mukhtar Abmad, P. W. 6 and Muhammad Anwar, P. W. 8 in accordance with the case-law referred above, we find that it was a daylight occurrence and the presence of these eye-witnesses is very much proved by the fact of injuries on their persons. Furthermore, the appellants and the co-accused were previously known to these eye-witnesses. To our mind, there is no reason to doubt that the eye-witnesses in fact saw the occurrence and were in a position to identify the assailants. Now, we proceed to the further question whether these witnesses can be relied upon for sustaining the conviction of the appellants without corroboration. In the case in band, we find that the evidence of these eye- C witnesses is inconsonance with the probabilities and fits in with the other evidence so as to inspire confidence of truth inasmuch as no animus ha been proved or even suggested against these witnesses. They have stood the test of cross-examination except any immaterial contradiction, omission and improvement from the previous statement here and there. We do not find any flaw or legal infirmity in their evidence sufficient to reject their testimony. Since the statement of these witnesses before the trial Court were recorded after about 7 years of the occurrence, these discrepancies, etc., are but natural in the evidence of a truthful witness. We are infact very much impressed by the straightforward manner of the occurrence given in the F.1. R. and stated at the trial by these witnesses although 3 persons had lost their lives as a result of fire-arm injuries yet these witnesses have attributed firing to Faiz appellant alone. Had there been any consultation or anxiety to introduce a false story then they could easily attribute the fire-arm injuries to their co-accused. Furthermore, they have explained the injuries found on the person of Boota appellant and Abdul Sattar absconder m the F. I. R. as well as in their statements, and as such we are satisfied that the eye-witnesses have sworn nothing but truth. Since the 3 persons have lost their lives and the eye-witnesses have suffered as many. as 18 injuries, the number of the assailants whom these eye-witnesses have named does not exceed that which appears from the circumstances, not open to doubt to be the true number of culprits. Furthermore, in the peculiar circumstances of the case, there is nothing unsafe to accept the evidence of these eye-witnesses without corroboration. To our mind, it is a case wherein, even for the. safest administration of justice in criminal cases we do not need any D corroboration of the evidence of Mukhtar Ahmad. P. W. 6 and Muhammad Anwar, P. W.

8. Even otherwise, there is sufficient corroboration in the shape of prompt F. I. R. and the circumstances that the number and the nature of the injures found on the pers9n of the complainant party and the harm done to them do commensurate with number of the appellants and the co-accused who being the tenant as stated by Muhammad Anwar, P. W. 8 in the last line of cross-examination are expected to have joined the attack. Faiz is not only brother of Shahnawaz and Boota but a friend of Ilyas an Abdul Sattar co-accused. As far the defence plea that the 3 deceased and, the 2 injured witnesses had opened the attack on Abdul Sattar and ilyas who in self-defence caused the death of 3 persons and injuries to 2 witnesses, we have not been persuaded to accept the same. Had the 5 persons gone to the place of occurrence with the object to attack Ilyas and Abdul Sattar, then, the damage and the harm to the co-accused would have been much more. It appears that since Ilyas is no more alive and Abdul Sattar is absconder, the learned counsel for the appellants in his wisdom had deemed it proper to throw the entire blame on them. It is remarkable that the appellants when examined under section 342, Cr. P. C. have not taken the plea of self-defence as suggested by the learned counsel for the appellants to Mukhtar Ahmad, P. W. 6 and Muhammad Anwar, P. W.

8. Even otherwise, neither the appellants have led any evidence to prove the plea of self-defence p suggested by the learned counsel for the appellants nor the same is spelt out from the circumstances or prosecution evidence and as such it is held that there is no possibility of the defence plea taken by the learned counsel in his cross-examination as being true. As far the sentence, we find that .Fat appellant has murdered 3 persons without legal or moral justification. We do not see any mitigating circumstance to reduce the sentence. As far Boota and Shahnawaz, although they did not cause any injury to the deceased yet they actively participated in the occurrence and as such they have been rightly convicted under section 302/149, P. P. C. and awarded a legal sentence.

12. For what has been stated above, the appeal is dismissed. The convictions recorded and the sentences awarded to the appellants are upheld and the death sentence of Faiz is, hereby, confirmed. M.Y.H.?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.