1997 P Cr (PLP)

RAJA MUHAMMAD KHURSHID, J.

The above-captioned criminal appeals and Murder Reference have arisen out of judgment, dated 5-11-1992 passed by Mr. Khalid Akhtar, learned Additional Sessions Judge, Depalpur whereby he convicted Muhammad Anwar under section 302/149, P.P.C. on two counts for the murder of Mst. Ghulam Fatima and Muhammad Aslam deceased and sentenced him to death plus a fine of Rs.20,000 or in default to undergo R.I. for two years on each count. Likewise appellants Muhammad Ashraf alias Arshad alias Achhu, Riaz, Rehmat Ali and Mustafa were also convicted for the murder of the aforesaid persons under section 302/149, P.P.C. and sentenced them to imprisonment for life each with a fine of Rs.10,000 each or in default to undergo two years' R.I. on each count. All the aforesaid appellants were further convicted under section 148, P.P.C. and sentenced to two years' R.I. each. A reference was also sent to this Court by the learned trial Court under section 374, Cr.P.C. for the confirmation of death sentence awarded to Muhammad Anwar.

2. Since all the Criminal Appeals and Murder Reference have arisen out of the same judgment, therefore, those are being disposed of through this common judgment.

3. The brief facts are that a case under section 302/148/149, P.P.C. was registered at Police Station, Hujra Shah Muqeem, District Okara at the report of Muhammad Ashraf son of Jalal Khan vide F.I.R. No.311/90 for an occurrence which took place at 2-30 p.m. on 5-8-1990 in the area of village Rakar at a distance of 2 kilometres from the police station. The F.I.R. was lodged on the same day at 3-30 p.m. It was alleged in the F.I.R. by Muhammad Ashraf that about 4 months prior to the unfortunate occurrence Mst. Fiaz Bibi daughter of Faiz Ahmad and a sister of Muhammad Anwar appellant had eloped with Zulfiqar a brother of the complainant. Later on she married the aforesaid Zulfiqar. Her father, brother aforesaid and other family members felt aggrieved of her elopement and subsequent marriage with Zulfiqar. A brother of the complainant namely Arshad apprehending breach, of peace made an application against aforesaid Faiz Ahmad etc. at Police Station Hujra Shah Muqeem whereupon preventive action was taken by the police on 4-8-1990. As a consequence of which the complainant and his elder brother Muhammad Aslam were apprehended and from the opposite side Faiz Ahmad and his son Arshad alias Kausar were arrested as a preventive measure taken under section 107/151, Cr.P.C. On the day of occurrence the parties were produced before the Illaqa Magistrate at Depalpur. Members of the opposite-party Fiaz Ahmad etc. were let off after their bails were accepted whereas the complainant and his brother were released on bail about 2 hours thereafter. Both the brothers alongwith their mother Ghulam Fatima and Allah Ditta alias Sher Muhammad, their sister's husband proceeded from Depalpur for their home. The aforesaid Ghulam Fatima and Allah Ditta had come to Depalpur in connection with the bail matters of the complainant and his brother (deceased). All four of them reached at Hujra in a bus from where they proceeded to Adda Dhaliana Road for catching a wagon for their home. Accordingly they boarded a wagon alongwith other passengers which included Muhammad Yasin son of Said Ahmad caste Chisthi who got `seated on top of the wagon. The deceased Ghulam Fatima and Muhammad Aslam however, got their seats inside the wagon and since it was packed to suffocation, the aforesaid Allah Ditta alongwith the complainant occupied their seats on the top of the vehicle. The wagon had reached near the sugarcane field of Azhar Khan Lodhi; that appellant Ghulam Mustafa empty-handed signalled to stop it. As soon as the wagon stopped, the acquitted accused Arshad alias Kausar son of Faiz Ahmad, and another acquitted accused Abbas son of Muhammad Din, Rehmat Ali son of Ramzan armed with .12 bore guns whereas Riaz armed with .12 bore pistol suddenly appeared at the road from the sugarcane field from its northern side. Meanwhile motor-cycle appeared from the back side of the wagon, which was driven by Muhammad Anwar appellant and its pillion seat was occupied by his co-appellant Ashraf alias Arshad alias Achhu, the former being armed with .12 bore pistol and the latter carrying .12 bore gun. Both of them alighted from the motor-cycle. All the accused raised Lalkara and asked all the passengers to get down from wagon as they had come to take revenge from their enemies for the elopement of Mst. Faiz Bibi. All the passengers came down from the wagon and ran away out of fear. The complainant and his brother-in -law Allah Ditta alongwith Muhammad Yasin jumped from the top of the wagon and took shelter in the nearby crop of sugarcane, from where they saw the occurrence. Mst. Ghulam Fatima and Muhammad Aslam deceased were not allowed to disembark the wagon by the accused, who started heavy firing from their respective weapons upon them. They also raised Lalkara while firing. After some time Anwar, Ashraf alias Arshad and Abbas accused escaped to the side of Kharal Kalan, on the motor-cycle. The remaining accused made their escape good while proceedings towards north on foot. Thereafter, the complainant and aforesaid Allah Ditta and Muhammad Yasin went to the spot and saw both the deceased lying murdered inside the wagon after suffering multiple injuries on their persons due to the firing made by the accused persons. The occurrence was seen by the complainant, his brother-in-law Allah Ditta and Muhammad Yasin while seated on the top of the wagon and also when taking refuge in the nearby crop of sugarcane. According to the complainant all the accused in prosecution of their common object after forming an unlawful assembly had committed the murder of both the deceased.

4. The police investigation led to the conclusion that Muhammad Anwar, Muhammad Ashraf alias Arshad alias Achhu, Mustafa, Rehmat Ali and Riaz appellants had committed the occurrence whereas Arshad alias Kausar and Abbas accused were found innocent. As such the names of the appellants were placed in column No.3, whereas names of Arshad alias Kausar and Abbas were placed in Column No.2 of the report submitted by the Investigating Agency under section 173, Cr.P.C. The learned trial Judge, however, summoned Arshad alias Kausar and Abbas alongwith other accused i.e. appellants to face the trial.

5. The prosecution relied upon the ocular account of occurrence, the medical evidence and recovery of weapons of offence from the accused persons.

6. The ocular account of occurrence was given by Muhammad Ashraf P.W.9 and Allah Ditta P.W.l

1. It was seriously assailed on the ground that they were related inter se and also to the deceased persons; that they were interested and inimical on account of abduction of Mst. Faiz Bibi and as such they had motive to implicate all the accused persons falsely in this case. The witnesses being interested were not corroborated through an independent and unimpeachable source; that it was not safe in the interest of justice. to believe such witnesses particularly when recovery of weapons of offence was also not believed as no crime-empty was found at the place of occurrence; that motive in this case was far-fetched so as to incite the accused persons to commit the assault at the deceased persons. The medical evidence allegedly contradicted the eye witnesses and that one of the eye-witnesses i.e. wagon driver P.W.7 contradicted the other eye-witnesses as according to him the assailants had muffled up their faces while firing at the deceased persons.

7. Lastly it was contended that Mst. Ghulam Fatima deceased had hotly contested litigation with different people and her sons being of aggressive temperament created many enemies and that the possibility could not be ruled out that any one of their enemies had finished them to end the trouble for ever.

8. We have considered the foregoing arguments addressed at the Bar. The learned counsel for the appellants had ably taken us through the evidence brought on record. It is true that Muhammad Ashraf P.W.9 and Allah Ditta PWAI are closely related inter se and are also related to the deceased persons. The mere relationship of these two witnesses would not make their evidence doubtful in any manner until and unless it is found that they were inimical and interested persons to implicate all the accused persons in this case falsely. The touchstone in assessing and evaluating the evidence of eye-witnesses two important factors should be seriously taken into consideration i.e. (1) Whether in the circumstances of the case it was possible for the eye-witnesses to be present at the scene or their explanation for their presence at the place of occurrence could be accepted and (2) whether there was anything inherently improbable or unreliable in their evidence. The ocular evidence would carry convincing weight and create unswerving confidence, which was corroborated by the medical evidence and the motive relating to the occurrence. Such type of evidence is further strengthened if the F.I.R. was promptly lodged without giving any time for fabrication or inventing totally false story. It is true that there is no inflexible role that the statement of an interested or an inimical witness can never be accepted without corroboration. It is also true that interest and truth some times are so intermingled that those might go together and corroborated, therefore, is not always to be considered as a sine qua non for the acceptance of the evidence of such interested witnesses. The creditable value is to be attached even to such witnesses if their evidence is found free from doubt, infirmity or the possibility of the implication of wrong persons is excluded. Rule of prudence in such circumstances requires to find out whether a witness had seen the occurrence, could identify the culprits and was reliable enough to be believed without corroboration. It is also well-understood that the evidence of an interested witness was not like the evidence of an approver, which would need corroboration and abundant caution before its acceptance. The rule of caution cannot be confined to a water-tight compartment nor it can be kept in a straight jacket. In nutshell every case is to be evaluated and considered on its own merits because in human affairs, the facts and circumstances differ from place to place and mostly from time to time.

9. Keeping in view the above test, it is to be seen whether the ocular account of occurrence in this case is sufficient to inspire confidence to accept the prosecution story as truthful and also free from reasonable doubt. In this context, as pointed out above, Muhammad Ashraf and Allah Ditta P.Ws. are closely related to the deceased. Would it be possible for them to tell a wrong story about the killers of their blood relations? It is true that there were other passengers in the wagon but they fled away when they saw the accused armed with deadly weapons and after they were given a chance to flee away in order to save their lives. Any person in that situation would hasten to leave the place, which was to be converted into a butchery within a few moments, except those whose blood was at stake. There can be no grouse or complaint against the passengers who managed to run away on learning from the Lalkaras of the accused that an awful tragedy was to be enacted by the accused to finish their enemies, but Muhammad Ashraf and Allah Ditta stayed back and had hidden themselves in a nearby field to see as to what was going to be the fate of the deceased persons. It would not be somewhat unusual on their part to hold on although they were not in a position to do anything against the accused persons at that time, but they could see the accused committing beastly act in taking away the life of their blood relations. The mere fact that they escaped unhurt would create no doubt in the veracity of their evidence because they were travelling on the top roof of the wagon, and seeing the danger had managed to run away. Travelling on top roof is not uncommon in the Mufassil areas. The people finding no place inside a public transport prefer to travel on top roof to reach their home rather to wait indefinitely for another bus or vehicle. Overcrowding in the buses and wagons seems to be an order of the day. Hence if Muhammad Ashraf and Allah Ditta P.Ws. had travelled on the top of the wagon, and on seeing the accused had jumped down to take shelter to save their skin, it would not be unusual or unnatural conduct on their part. Their presence at the spot or accompanying the deceased persons cannot be doubted because it was expected of them to accompany their kith and kin to watch the security proceedings and also help them in managing their release on bail etc. On such like occasions only close relatives or friends will help the affected party to come out of the wood. After being free from the Court it was, but natural that the eye witnesses being closely related would accompany the deceased persons to home. It was therefore, not unusual or improbable if they accompanied the deceased persons in order to reach back to their homes. But as the bad luck would have it, they met the tragedy on their way. Hence the presence of these two eye witnesses at the spot cannot be doubted in any manner nor it can be said that they will tell lie to screen actual offenders, who were responsible for brutal killing of the deceased persons. The natural instinct on their part would be to name the actual offenders as a spontaneous reaction to the situation and the, tragedy which they had witnessed. Thus their evidence cannot be doubted only because they were related to the deceased persons. Their interest if any would be deeply linked with the truth that the actual offenders should be brought to book. Under the aforesaid impulse these witnesses named such persons who had killed the deceased for a motive, which stood proved and of which the accused side was palpably aggrieved. The abduction of a womanfolk is considered as a most heinous social and criminal offence, even if later on it ends into a marriage. In the instant case also one of the brothers of the deceased namely Zulfiqar had abducted Mst. Fiaz Bibi a sister of Muhammad Anwar, who appears to have never appeased with the incident. In such a situation, it cannot be said that the motive was far-fetched affair because the elopement of Mst. Fiaz Bibi took place only 4 months ago, which later on resulted into the marriage, perhaps adding fuel to the fire with the passage of time. The motive therefore, appears to be truthful and it was a sufficient cause to incite the accused party to come out to take the awful revenge from the family of Zulfiqar by doing away with the life of his mother and his brother. The mere fact that Zulfiqar was not assailed as he was the main wrongdoer would not be material firstly because he was not present at the time of occurrence and secondly because the shock he would have received due to the murder of his mother and a brother in a cruel manner would have totally shakened him with a grief and fear, which in such-like situation is invariably embedded in one's mind making the whole life miserable and awe stricken. On the contrary the killing of the deceased would have satisfied the family ego of the accused side to a large extent because two lives were taken for one elopement. The saga of such revenge can be well-understood in the rural side of our country. Hence it cannot be said that there was no motive with the accused party to finish the deceased persons. As such the motive supports the eye-witnesses like the medical evidence, which discloses 13 fire-arm, injuries on the person of Mst. Ghulam Fatima and 9 fire-arm injuries on the person of other deceased namely Muhammad Aslam. The nature of all the injuries would show that the deceased persons were pierced to death showing that the killers had a deep bedded venom in their minds. Thus, it corroborates the prosecution version that feeling aggrieved of the elopement of Mst. Fiaz Bibi the unfortunate attack was mounted by the accused persons upon the deceased persons.

10. The F.I.R. was promptly lodged. The case was registered within one hour of the occurrence. This excludes the possibility of cooking up a false story or to negate the presence of eye-witnesses at the spot. As such it is clear that the eye-witnesses were supported by the motive, medical evidence and the prompt lodging of F.I.R. Hence their testimony would carry convincing value so as to come to an ultimate truth in passing a judgment. The mere fact that the wagon driver had stated that one passenger had signalled for stopping the wagon whereas the 4 accused with muffled up faces had resorted to heavy firing would' not take away the evidentiary value of the aforesaid two witnesses. The driver was a stranger and would not like to become a victim of tyranny at the hands of accused party. It is very unfortunate that our people feel shy to become witnesses against such desperate persons, who openly destroy the human life in a most fearful manner. Hence it cannot be ruled out that the wagon driver being a stranger, fearing his own safety had made the concession that the occurrence was committed by 4 persons who had muffled up their faces. However, he had stated that both the deceased were in the wagon and that the assailants had warned the passengers to leave the wagon before they killed the victims, by firing at them. On the completion of their mission, the accused ran away leaving the dead bodies in the wagon. In such a situation, it cannot be said that the evidence of the wagon driver should receive more credibility than the two eye-witnesses aforenamed, who as already stated above, would possess natural instinct and desire that actual killers should not be allowed to go scot-free. In such a situation, the evidence of both the eye-witnesses cannot be brushed aside nor it would be considered to have become non-dependable.

11. Now it is to be seen that both the above-named two witnesses had implicated 7 persons in toto to have committed the awful occurrence. Out of them two have been found innocent by the police and ultimately acquitted by the trial Court. Would it discredit the testimony of the said two eye-witnesses qua the convicted accused. A plea was taken that the witnesses, which were disbelieved qua some of the accused could not be safely believed in respect of the convicted accused. This allegedly created a serious doubt in the prosecution case because innocent persons were also mixed up with the guilty persons. Such type of witnesses allegedly lose their credibility regarding their testimony against the convicted accused. No doubt this is very inhibitory proposition but superior Courts have held that the principle of falsus in uno falsus in omni bus is no longer applicable in Pakistan, as the same cannot safely be applied to the evidence of a witness in the present set-up, where evidence is substantially correct but simply because there are some deliberate falsehood in it. Unfortunately a tendency has developed, particularly in our rural side that some persons are involved from the opposite group only to bring maximum harm to the other side. This is no doubt unfortunate but to reach a correct decision in picking out guilty, the principle of "sifting the grain from chaff" has been firmly entrenched in our judicial system for the safer administration of criminal justice. The evidence of a witness should be accepted if it substantially gives the true and correct picture though wickedly mingled up with grains of falsehood. The principle of sifting of truth from falsehood has therefore, been recognized instead of throwing away the evidence altogether. A reference to Zia Ullah v. The State reported as 1993 SCMR 155 (Supreme Court of Pakistan) can be made with advantage. The same is true in this case because in the heat of moments and grief the complainant side may have tried to rope in certain persons whose participation had actually been doubtful. As such two accused out of initially 7 were found innocent by the police. They are Arshad alias Kausar a brother of Muhammad Anwar and one Abbas son of Muhammad Amin. They were also given benefit of doubt by the trial Court and as such their acquittal would in no way spoil the prosecution case or damage the testimony of eye-witnesses. Rather applying the rule of abundant caution and care and to ensure safer administration of criminal justice, it appears that the case of Mustafa accused was also not free from doubt. The role ascribed to him is that he gave signal to stop the wagon while unarmed and thereafter, no active role was performed by him during the occurrence. It also perforated out of the tight lips of Allah Ditta P. W.11, during the cross-examination that three accused had been declared innocent by the police during the investigation of the case and that Mustafa accused was one of them. This makes the case of Mustafa accused reasonably doubtful and as such he too deserves benefit of doubt in the safer administration of criminal justice. We accordingly acquit Mustafa accused after giving him the benefit of doubt. His Criminal Appeal No.963 of 1992 is accordingly accepted and the conviction and sentences passed up him under sections 302 and 148, P.P.C. respectively are set aside.

12. Before we discuss the case of remaining accused, it would be worthwhile to discuss the defence version before proceeding further. All the accused had denied to have committed the murder. Muhammad Anwar accused however, stated in his defence version while making statement under section 342, Cr.P.C. that he was implicated falsely in this case due to enmity flowing from the abduction of Mst. Fiaz Bibi and that the occurrence was committed by some unknown persons, as Mst. Ghulam Fatima had enmity with different persons on account of her litigation with many persons. In this respect reliance was placed on Exh. D.I to Exh.D.7.

13. We have given our careful consideration to this aspect of the defence. The mere fact that there was some sort of litigation of Mst. Ghulam Fatima with some persons would not create any doubt regarding commission of offence by the present accused. As already said, they had clear cut motive and acted in pursuance of that motive to quench the thirst of their revenge. To hold that the occurrence was the result of some litigation would be a far-fetched idea based on unfounded hypothesis. The defence version has, therefore, no genesis to be believed.

14. So far as the remaining accused namely Muhammad Anwar, Muhammad Ashraf alias Arshad alias Achhu, Rehmat Ali and Riaz, there is no doubt that they were the actual killers. Their participation in the occurrence has been fully proved from the ocular account of occurrence supported by motive, medical evidence and other circumstances narrated above. All four of them were therefore, rightly convicted under section 302/34, P.P.C.

15. The question of sentence in this case is not difficult. Muhammad Anwar was sentenced to death on two counts with a fine of Rs.20,000 or in default to suffer further R.I. for two years. His role is similar to the role of Muhammad Ashraf alias Arshad alias Achhu, Rehmat Ali and Riaz appellants as all of them had fired simultaneously and it was not clear as to whose fire had caused fatal injuries to both the deceased. It is well-established principle of law that where any of the accused cannot definitely be fixed with responsibility of having fired the fatal shot, all of them may be awarded life imprisonment. In this respect, a reference to Allah Dad and another v. The State reported as 1995 SCMR 142 (Supreme Court of Pakistan) can be made with advantage. It is held -therein that where the record or the evidence did not show with certainty that it was the shot of the accused, which killed the deceased and not of the other accused, the sentence of death awarded to the accused was liable to be altered to imprisonment for life.

16. In the case in hand, Muhammad Anwar had also fired alongwith other three convicted accused aforesaid, and it was neither clear nor it was certain that his shot had also caused any fatal injury vis-a-vis his co-accused. He, therefore, deserves to be given the same treatment in respect of sentence as was given to the other convicted accused. Accordingly the conviction of Muhammad Anwar under section 302, P.P.C. is maintained on two counts, but his death sentence is converted into imprisonment for life on two counts. As such his death sentence is not confirmed. Criminal Appeal No.937 of 1992 filed by Muhammad Anwar is accordingly dismissed with above modification in the sentence. The sentence of fine awarded to him by the learned trial Court is however, maintained.

17. The convictions and sentences under section 302, P.P.C. awarded to the appellants namely Ashraf alias Arshad alias Achhu, Rehmat Ali and Riaz by the leaned trial Court do not call for interference and are maintained. Their Criminal Appeal No.999 of 1992 is accordingly dismissed.

18. Since all the four convict/appellants acted in furtherance of their common intention to murder the deceased persons, therefore, section 34,'P.P.C. is substituted for section 149, P.P.C. read with section 302, P.P.C. while upholding their convictions and sentences aforesaid. Resultantly, their convictions and sentences under section 148, P.P.C. are not maintainable and the same are set aside.

19. The benefit of section 382-B, Cr.P.C. shall be available to all the appellants including Muhammad Anwar accused.

20. Death sentence of Muhammad Anwar is not confirmed.

21. Murder Reference No.409 of 1992 is answered accordingly. N.H.Q./M-234/L Order accordingly