1997 PCr (PLP)

MUHAMMAD ISLAM BHATTI, J.

Muhammad Siddique son of Sher Muhammad (62/63), Abdul Hakeem son of Amir Din (60), his brother Abdul Ghafoor (4.0), Muhammad-Rafiq son of Abdul Aziz (30) all Chohan by caste, Muhammad Nawaz son of Muhammad Bakhsh (40), Khoja by caste, all the five residents of Village Ahmadpur and Allah Din son of Imam Din Chohan (55) resident of Mauza gaghban, Tehsil Khairpur, District Bahawalpur faced trial in case F.I.R. No.229/91 registered at Police Station Khairpur Tamewali on 2-9-1991 under section 148/302/149/120-B, P.P.C. on the allegations that on the night between 1/2-9-1991 in the area of Village Ahmadpur, situate within the limits of Police Station Khairpur Tamewali, Muhammad. Siddique, Abdul Hakeem, Abdul Ghafoor, Muhammad Rafiq and Allah Din while armed with lethal weapons former an unlawful assembly with the common object of causing death of Mazhar Hussain .(20) son of Nazir Hussain complainant resident of Mauza Chandrani and at the same time and - place all the five of them in prosecution of the common object of the said unlawful assembly committed the murder of Mazhar Hussain by firing, at him and inflicting hatchet blows, after Muhammad Nawaz son of Muhammad Bakhsh accused had deceitfully decoyed Mazhar Hussain deceased to the house of Muhammad Siddique, with intent to cause his death in pursuance of criminal conspiracy hatched by him with his co- accused, to which charge they pleaded not guilty. The prosecution examined as many as 14 P.Ws. besides production of the report of Chemical Examiner and that of the Serologist in the statement of the D.D.A. to establish their guilt: All the accused 'were then examined under section 342, Cr.P.C. Muhammad Siddique accused produced in his defence Allah Bachaya a stamp-vendor as D.W. while Abdul Hakeem accused produced certain documents in his own statement.

2. It was on the basis of this evidence that the learned Additional Sessions Judge, Bahawalpur held all the six accused guilty of the offences under section 302/120-13/149, P.P.C. All pf them except Muhammad Nawaz were also found guilty under section 148, P.P.C. He convicted Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq under section 302/120-13/149, P.P.C. and sentenced them to suffer death. He also convicted them all under section 148, P.P.C. and sentenced them to suffer R.I. for a period of three years each. He convicted Abdul Ghafoor and Muhammad Nawaz accused under sections 302/120-B and 149, P.P.C: and sentenced them to suffer life imprisonment, keeping in view the nature of the roles assigned to and proved against them. He also convicted Abdul Ghafoor accused under section 148, P.P.C. and sentenced him to undergo imprisonment for a period of three years. All the six accused were also sentenced to pay fine of Rs.20,000 each and in default in the payment of this fine, each one of them had to suffer further R.I. for a period of one year. They were also ordered to pay Rs.20,000 each as compensation under section 544-A, Cr.P.C. to the heirs of the deceased in default of which, each one of them had to further undergo R.I. for one year. Benefit of section 382-B, Cr.P.C. was ordered to be given to all the accused if death sentences of Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq were not confirmed and to Abdul Ghafoor and Muhammad Nawaz accused in case of confirmation of the death sentences aforesaid. All the sentences were also directed to run concurrently.

3. Muhammad Siddique, Muhammad Rafiq and Allah Din have challenged their conviction and sentences by preferring an Appeal (No.19 of 1994). Similarly Abdul Hakeem, Abdul Ghafoor and Muhammad Nawaz have assailed their conviction and sentences by filing Criminal Appeal No.20 of 1994. Murder Reference No.15 of 1994/BWP seeks confirmation of death sentences awarded to Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq. Both the Criminal Appeals and the Murder Reference are being disposed of by this judgment.

4. It may be mentioned here that the occurrence in the present case took place at about 1-00 a.m.' on the night between 1/2-9-1991 at a Kacha road, the site of occurrence being at a distance of six Karams from the main gate of the residential house of Muhammad Siddique accused and half a Karam from the outer wall of the said house as per Exh. P.B. (the site plan prepared by the Patwari), situated at a distance of 8 k.m. from the police station, in the area of Village Ahmadpur towards its north and the same was allegedly recorded at 2-30 a.m. vide Rapat No.37, dated 2-9-1991 on the statement of Nazir Hussain Shah father of the deceased (copy Exh.P.E.), by Madad Hussain I./S.H.O. of the said police station.

5. Nazir Hussain narrated the occurrence in Exh. P.E. as follows:-- "I am the resident of Basti Aara Mauza Chandrani and work as a tube-well operator with Sh. Abdul Rahim Zamindar of village Syed Imam Shah. My son Mazhar Hussain remained employed as a tractor driver with Muhammad Siddique son of Sher Muhammad caste Chohan, resident of Araywali Village Ahmadpur, about one year back. During this period, suspecting that Mazhar Hussain had illicit relations with his daughter Mst. Jamila, Muhammad Siddique accused removed him from service and was then after taking his life. Today at about Isha Wela, to came back to my house and found that Mazhar Hussain was not available therein. My wife Mst. Allah Wasai and daughter-in-law Mst. Kausar Mai wife of Mazhar Hussain told me that only some time back, Muhammad Nawaz son of Muhammad Bakhsh Khoja resident of Ahmadpur had taken him out. Since Mazhar Hussain did not turn up till midnight, I got extremely worried thinking that Muhammad Nawaz, aforesaid being an employee and very special man of Muhammad Siddique, might not get him killed by Muhammad Siddique deceitfully. I, therefore, got out of my house for inquiring about my son Mazhar Hussain from the house of Muhammad Nawaz. Meanwhile I came across Riaz Ahmad son of Ghulam Farid, caste Sipra, resident of Mauza Syed Imam Shah, an employee of Sh. Abdul Rahim, who was then riding a motor-cycle. He told me that the tube-well at the Factory had gone out of order and as such I should accompany him and set it right. I told Riaz Ahmad about my upsetness and then accompanied him on his motor-cycle to the house of Mehr Allah Dewaya son of Allah Bakhsh Arain, a Zamindar and neighbourer. I told him about my upsetness to Mehr Allah Dewaya also hereafter all the three of us went to the house of Muhammad Nawaz in order to inquire about Mazhar Hussain. Muhammad Nawaz was not present at his house. This added to my upsetness. I, therefore, accompanied by Riaz Ahmad and Mehr Allah Dewaya, left for the Basti of Muhammad Siddique by riding over the said motor-cycle. We reached near the house of Muhammad Siddique at about 1-00 p.m. where I saw, in the light of motor-cycle, Muhammad Siddique armed with hatchet Muhammad Raft son of Abdul Aziz armed with a pistol, Abdul Hakeem son of Amir Din armed with gun, Abdul Ghafoor son of Amir Din armed with Dang all. Chohan by caste, Muhammad Nawaz aforesaid and Allah Din son of Imam Din caste Chohan armed with a gun, all of them catching hold of my son Mazhar Hussain. No sooner Muhammad Siddique etc. did see us than Abdul Hakeem fired straight at my son Mazhar Hussain with his gun, which hit him in the left side of his chest. Then Allah Din and Muhammad Rafiq also fired at him with their gun and pistol, whereupon Mazhar Hussain fell down on the ground. When he had so fallen down, Muhammad Siddique accused gave him successive- hatchet blows. I, Riaz Ahmad and Mehr Allah Dewaya went forward in order to rescue Mazhar Hussain whereupon all the accused exhorted that if you came near, you would be done to death. Feeling frightened, we receded. My son Mazhar Hussain remained convulsing and expired in a shortwhile, within our sight. The accused left him there and went to the house of Muhammad Siddique. The alarm raised by us attracted Imam Bakhsh Arain etc. to the scene of occurrence. I have come to the police station with Riaz Ahmad, on his motor-cycle for reporting the matter. Mehr Allah Dewaya and others are present at the scene of occurrence. Muhammad Siddique, Muhammad Rafiq, Abdul Hakeem, Abdul Ghafoor and Allah Din accused have in conspiracy with Muhammad Nawaz, after sending for him through the latter, murdered my son Mazhar Hussain."

6. After recording this formal F.I.R. Exh.P.E.,-Madad Hussain, .Inspector P:W.14 who was then the S.H.O. at Police Station Khairpur Tamewali reached the spot, inspected the .dead body .of Mazhar Hussain, prepared-inquest report Exh. P.D. and injury statement Exh.P.D:/1. He then handed over the dead body to Muhammad Maroof (P.W.1) for escorting the same to the mortuary for post -mortem examination. He also prepared site plan without scale Exh P.M. He secured blood-stained earth from the spot and 'sealed it into a parcel vide memo. Exh. P.F. He also secured a pair of shoes EXh.P.4/1-2 which was taken into possession. By him vide memo. Exh. P.G.

7. It was Dr. Ashiq Ali, Medical Officer, R.H.C. Khairpur Tamewali (P.W.5) who conducted the post-mortem examination on the dead body of Mazhar Hussain deceased .on 2-9-1991 and found the following injuries on his person:-- (1) There was a circular entry wound on inner side of upper lip in its middle, opposite to upper inside, incisor tooth., The burning and tatooingwas present in connection with entry wound. There was an exit wound on outer side upper lip circular in shape and edges were everted. (2) First incisor tooth was broken from its root and there was clotted blood in and. around the neck. (3) Entry wound circular in shape on left side of chest 4 c.m. upward and, lateral left nipple burning and tatooing present. (4) There was exit wound 1 c.m. x 1 c.m. in the inner, side of right thigh slightly upward. The edges were everted. (5) There was entry wound 1/2 c.m. in diameter on upper edge of right knee burning and Wooing present. It was entry wound of-injury No.4. (6) There was lacerated wound 1 and 1/2 c.m. x skin deep on outer side of left thigh 18 c. m. upward from left knee joint. (7) Exit wound. 1.c.m. in diameter on inner side of left thigh 10 c.m. upward from left knee joint the edges were everted (8) There was entry wound 1/2 c.m. in diameter of injury No.7. There was burning and tatooing present. It was situated on upper edge of left on its outer side. (9) There was entry wound on left side of glans penis burning and tattooing present corresponding exit wound on left side of glans penis. (10) There was entry wound 1 /2. c.m. in diameter on outer side of right heal burning and tatooing present. There was corresponding exit wound on inner side of right heel. It was 1 c.m. in diameter. (11) Incised Wound 8 c.m. x 4 c.m. into bone deep on inner side of right upper arm 3 c.m. upward from right elbow, joint. The lower end of right humrus was fractured. (12) there was incised wound 7 c.m. x 3 c.m. x muscle deep 3 c.m. upward and parallel to -injury- No. 11. (13) Entry, wound 1/2 c. m. in diameter on dorsal surface of right elbow joint. Its exit was through injury No. 11. (14). Incised wound 8 c.m. x 4 c.m. x bone deep on outer side of lower 1/3 of left lower leg. Both tibia and febula were fractured. (15) Incised wound 7 c. m. x 3 c.m. x muscle, deep on outer side of left lower leg 3 c.m. upward to injury No.14. Thorax: Left 5th rib was fractured corresponding to- injury No.3. There was a circular bone on the interior surface of pleura corresponding to 4th intercostal due to injury. No

3. There was a circular hole on its medial border just, opposite to pericordium due to injury No.

3. There was also circular hole on left side of the heart and pericordium. The pleoral and pariqordial cavity was full of blood due to injury No.3. The oilier organs were intact. On dissection hyoid bone was found intact. Abdomen: The right incisor tooth was broken due to injury No.3. Mouth contained clotted blood. There was circular hole in diaphragm and posterior surface of stomach. A pellet was found in small intestine. The bladder contained 200 cm. urine. There was an entry and exit wound on penis. The rest of the organs were healthy. In his opinion, the death had occurred due, to injury No.3 which ruptured the heart muscles and caused severe haemorrhage which was sufficient to cause death. The injuries were ante-mortem. He added that the probable time between injuries and death was immediate and between death and post-mortem about 6, to 8 hours. Exh. P.C. is the correct carbon copy of his post-mortem examination report. Exh.P.C./1 and EXh.P.C./2 are the pictorial diagrams showing the location of the injuries. He also signed the inquest report Exh. P.D. and injury statement Exh.P.D./1.'Afterthe post-mortem examination, he handed over the last-worn clothes and sealed bottle containing pallets to the concerned police official. 8 It was Maroof P.W who produced last-worn clothes shirt P.1 Shalwar P.2 and Vest P.3 and one sealed phial containing pellets recovered from the dead body of Mazhar Hussain deceased to Sh. Muhammad Hussain, Inspector (P.W.14), which were taken into possession by the latter vide memo. Exh.P.A. Sh. Madad Hussain recorded the statements of P.Ws. under section 161, Cr.P.C. on the same day. He arrested Muhammad Siddique, Abdul Ghafoor, Allah Din and Abdul Hakeem accused persons on 11-9-1991. Muhammad Nawaz accused was arrested on 14-9-1991 while Muhammad Rafiq accused was arrested by him on 15-9-1991. While in custody, Muhammad Siddique accused led to the recovery of blood-stained hatchet P.5 on 17-9-1991 which was sealed into a parcel and taken into possession vide recovery memo. Exh. P.H. On the same day, Abdul Ghafoor accused while in custody led to the recovery of Dang P.6 which was taken into possession vide recovery memo. Exh. P.1. These recoveries were witnessed by Nazir Hussain complainant (P.W.8) and Iqbal Shah P.W.11. On 18-9-1991, Allah Din accused while in custody led to the recovery of .12 bore gun P.7 which was taken into possession vide recovery memo. Exh. P.J. alongwith its licence which recovery was witnessed by Nazir Hussain P.W.8 and Muhammad Murad Shah P.W.12. On 21-9-1991, Muhammad Rafiq accused while in custody led to the recovery of .12 bore pistol P.9 which was taken into possession vide recovery memo. Exh. P.L. On the same day, Abdul Hakeem, accused while in custody led to the recovery of .12 bore gun without licence P.8 which was taken into possession vide recovery memo. Exh. P.K. Nazir Hussain and Allah Ditta P.W.8 and P.W.13 witnessed these recoveries.

9. To give a brief resume of the prosecution evidence except that of the eye-witnesses, Muhammad Maroof P.W.1 had accompanied the dead body to the mortuary and brought back the blood-stained clothes of the deceased alongwith one sealed phial given to him by the doctor which he delivered to the S-4I.O. Maqbool Hussain P.W.3 had while posted as Muharar Head Constable at Police Station, Khairpur on 2-9-1991 received one sealed parcel containing blood stained earth and sealed phial containing pellets recovered from the dead body of the deceased from the S.H.O. for keeping them in safe custody. Similarly on 17 9-1991, 18-9-1991 and 21-9-1991, he received sealed parcels of crime hatchet (blood-stained) .12 bore crime gun, .12 bore pistol and gun respectively for safe custody in the Malkhana. According to him, he delivered all these parcels to Abdul Ghaffar Constable No.736 P.W.2 on 6-10-1991 and the latter delivered them intact at the office of the Chemical Examiner and Forensic Science Laboratory, Lahore, respectively. Riaz Hussain Patwari P.W.4 had prepared the site plan Exh. P.B. on the direction of the police. Iqbal Shah P.W.11, Muhammad Murad Shah P.W.12 and Allah Ditta P.W.13 had witnessed the recoveries, as stated above. Mst. Allah Wasai mother of the deceased was produced as P.W.6 for deposing that on the day of occurrence at about Isha prayer time, she, her sons Azhar Shah and Mazhar Shah and her daughter-in-law Mst. Kausar Bibi were sitting in the compound of their house when Muhammad Nawaz accused came there and knocked at the door. Both of her sons Azhar Shah and Mazhar Shah went to the door. Azhar Shah came back and on being asked told her that Muhammad Nawaz Khoja had taken Mazhar Shah to Khairpur in order to show him a picture. Her husband came back to the house late in the night. He asked about Mazhar Shah on which she told him that Muhammad Nawaz Khoja had taken him to Khairpur to show him a film. Mazhar Shah did not come back which worried her husband. Meanwhile Riaz Sipra P.W. came there on a motor cycle and took her husband. She did not know as to what happened thereafter. Azhar Hussain P.W.7 was also produced to corroborate the version of his mother about the departure of Mazhar Shah in the company of Nawaz Khoja for seeing film and not returning whereafter Riaz Sipra P.W. came to their house and his father went out with him in search of Mazhar Shah.

10. Nazir Hussain Shah P.W.8 (complainant), Riaz Ahmad P.W.9 and Allah Dewaya P.W.10 were examined to give the eye-witness account of the occurrence. Nazir Hussain elaborated and reiterated the version of the F.I.R. with slight improvements and variation here and there. Riaz Ahmad P.W.9 also supported his version but failed to nominate Siddique, Abdul Hakeem accused and confined himself, with regard to this part of the prosecution story, to deposing that when Nawaz was not found at home, they (meaning thereby he alongwith Nazar Hussain Shah complainant and Mehr Allah Dewaya) proceeded to the house of Siddique and Rafiq accused for the search of Mazhar Hussain Shah and reaching near the house of Siddique and Rafiq, they saw Allah Din, Rafiq, Nawaz and Ghafoor accused when Allah Din was armed with a gun, Rafiq with pistol, Nawaz empty-handed and Ghafoor with Soti. According to him, Allah Din and Rafiq fired shots at Mazhar Hussain on receiving which he fell down and then Ghafoor gave Sod blow to Mazhar Hussain while in falling position. Allah Dewaya P.W.10, however, corroborated the version of Nazir Hussain Shah complainant P.W.8 on all material points.

11. In their statements under section 342, Cr.P.C. all the accused denied all the suggestions arising out of the prosecution evidence and in reply to the question as to why this case against them and why the witnesses had deposed against them, claimed that it was due to enmity with the complainant as well as with P.Ws. Everyone of them claimed that he had been falsely implicated at the instance of Sh. Abdur Rahim. It is interesting to Note that due care was not exercised in recording their statements. All the question r6mained the same and their wording was not changed with the change of the accused. Question No.6 reads as under:-- "Is it a fact that on the said date and time Abdul Hakeem fired with his gun hitting on the chest of Mazhar Hussain and at the same time Allah Din and Muhammad Rafiq fired shots at Mazhar Hussain and after he had fallen down, Muhammad Siddique inflicted hatchet blows on Mazhar Hussain causing his death in presence of eye-witnesses? This question was put in the same form and words to all of them including Abdul Hakeem, Allah Ding Muhammad Rafiq and Muhammad Siddique. Similarly question No.7 which rends as under:-- "Is it a fact that Muhammad Siddique accused led to the recovery of blood-stained hatchet, while Abdul Hakeem and Allah Din got recovered guns and Muhammad Rafique got recovered carbine and Abdul Ghafoor accused led to the recovery of a Dang?" Was put in the same form and wording to Muhammad Siddique, Abdul Hakeem, Allah Din, Muhammad Rafiq and Abdul Ghafoor and all of them replied that recoveries were fake and planted. They all denied that they had formed an unlawful assembly and had committed the murder of Mazhar 'Hussain in prosecution of the common object of that unlawful assembly of which they were members. They also denied that Mazhar Hussain deceased had been serving as a tractor driver with. Muhammad Siddique accused who had' dismissed him on the suspicion that Mazhar Hussain had developed illegal intimacy with Mst. Jamila daughter Muhammad Siddique. They all maintained that they were innocent and had been falsely implicated.

12. The learned counsel for the defence have raised the following pleas in support of their appeals for securing the acquittal of all the convicts/appellants:-- (i) That the F.I.R. was' lodged after preliminary investigation acid due deliberations and not at 2-30 a.m. as mentioned in the F.I.R. or-claimed by the prosecution. For this much reliance has, been placed on the statements of Azhar Hussain P.W.7, a real brother of the deceased Mazhar Hussain. According to him, they reached the police station alongwith the dead body at about 6-00 a.m. and it was there at the police station that his statement and the statement of his father were recorded. Nazir Hussain Shah also stated so towards the end of his cross-examination. According to him, his statement as well as the statement of Azhar Hussain were recorded at the police station when they took the dead body there. He added that they reached the police station at 6-00 a.m. alongwith the dead body. (ii) That the police prepared the inquest report Exh. P.D. and injury statement Exh. P. D. / 1, after the post-mortem examination because the sequence of injuries given in the injury statement is the same as given in the post-mortem report which also indicates that F.1.R. was perhaps not recorded even up to 6-00 a.m. (ii) That the prosecution has not been able to establish with cogent and convincing evidence that Muhammad Nawaz accused had deceitfully taken the deceased from his house to the house of Muhammad Siddique and that as such the prosecution story is improbable and intrinsically false. (iv) That it cannot appeal to reason and no man of ordinary prudence can believe that the accused continued waiting for the P.Ws. to turn up and then to murder the deceased in the manner claimed by the prosecution. The fact that motor-cycle was not taken into possession- in order to establish that its light was in working order and that 'as such P.Ws. could be expected to see the accused doing away with the deceased in the manner claimed by them has also been pressed into service. The claim of the P.Ws. (Nos.8 and 10) that they had identified all the accused and Mazhar Hussain in the light of motor-cycle arid also in the light of an electric bulb has also been controverted by the defence in view of the statement of Sh. Madad Hussain, Investigating Officer (P.W.14) that he did not mention any electric light in the site plan of, place of occurrence or 'inspection note as there- was no electric light at the said place. (v) That no empties were recovered from the site of occurrence and as such the recoveries of guns and pistol cannot be of any avail to the prosecution for connecting the accused with the commission of the offence or for corroborating the ocular evidence. (vi) That Allah Din had no relationship or sympathies with Muhammad 'Siddique etc. for becoming their accomplice and there was no good reason for him to join the others in the commission of the offence. (vii) That Allah Dewaya P.W. is admittedly inimical towards the accused and bore grudge against them on account of some previous criminal litigation, as admitted by him in his cross-examination and his evidence, therefore, cannot be safely relied upon because he cannot be termed as an independent and disinterested witness and also because there was no good reason for him to join Nazir Hussain Shah complainant and Riaz for going to the house of Siddique in search of Mazhar Hussain; and (viii) That the evidence regarding motive is also lacking and there is no truth, in the allegation that Mazhar Hussain deceased had been removed from service by Siddique after suspecting that he had developed some illicit relations with her daughter Mst; Jamila. For this, the learned defence counsel have referred to the statement of Azhar Hussain P.W.7 who in his cross-examination deposed that it was not known to them before the occurrence that Siddique accused removed Mazhar Hussain from service on the suspicion of his illicit relations with his daughter and that they came to know about it after the occurrence. Reference has also been made to the statement of Nazir Hussain Shah who on being cross examined deposed that none of the accused told him regarding the suspicion of illicit relations of Mst. Jamila and the deceased.

13. The learned counsel for the complainant has, on the other hand, defended the findings of the learned Additional Sessions Judge by making the following submissions:-- (i) That the F.I.R. was lodged with promptitude without any deliberation and there is no force in the contention of the learned defence counsel that it had been recorded after preliminary investigation or even after the receipt of post-mortem examination report. According to him, supplementary statement of Nazir Hussain Shah under section 161, Cr.P.C. was recorded and the complainant might be referring to that statement when he admitted that his statement was recorded at the police station and that a thoughtless and wanton statement made by Azhar Hussain in this behalf is of no evidentiary value because he was none to depose on this aspect of the case and his statement was obviously recorded some time later. (ii) That the sequence of the injuries in the injury statement being the same as in the post-mortem examination report is also of no advantage to the defence because it can equally be said that the Doctor might have checked up the injuries after going through the injury statement. (iii) That it is immaterial if Muhammad Nawaz accused had deceitfully taken the deceased to the house of Muhammad Siddique because the necessary details of the main occurrence have been described by the star witnesses i.e. Nazir Hussain Shah and Allah Dewaya and their testimony cannot be brushed aside on the ground that the deceitful taking of Mazhar Hussain by Nawaz has not been established beyond doubt. (iv) That the occurrence had taken place not in a house but at an open site and, therefore, it is immaterial if any electric bulb was on or not in order to enable the P. Ws. to see the occurrence; (v) That the mere fact that empties were not recovered from the site of occurrence also does not help the accused in claiming that the occurrence had not taken place in the manner described by the prosecution, because defence has not at all controverted the site of occurrence which is adjacent to the house of Muhammad Siddique accused and from where the blood-stained earth was collected by the police, besides a pair of shoes admittedly belonging to the deceased; and (vi) That the motive also stands established not only by the inference drawn from all the circumstantial evidence that the deceased was murdered near or about the house of Muhammad Siddique accused where the deceased might have gone at the dead of night to see Jamila but also from the fact that he had earlier been involved in a case of theft of revolver by Abdul Hakeem who is a close relative of Muhammad Siddique accused and had all sympathies for zealously safeguarding the family honour and respect.

14. We have very carefully and minutely gone through the evidence on record and given our anxious and thoughtful consideration to the arguments addressed at the Bar by the learned counsel and the case-law relied on by both the sides. We are not at all convinced that the F.I.R. was recorded after deliberations or preliminary investigation. Nazir Hussain Shah complainant obviously had no enmity, ill-will or motive for falsely implicating Muhammad Siddique accused and his accomplices. Had there been any such intention, he would have definitely tried to put the main blame of doing away with his son on Muhammad Siddique because, as the prosecution evidence suggests, it was Muhammad Siddique who suspected Mazhar Hussain deceased of having illicit relations with his daughter Mst. Jamila. The fatal shot resulting in injury No.3, which was sufficient in the ordinary course of nature to cause death, could also be conveniently attributed to him but it was not done by the complainant. There is as such no convincing evidence on record to suggest that the F.I.R. was recorded after deliberations or preliminary investigation. It is, therefore, a good piece of corroborative evidence.

15. The fact that the correctness of site of occurrence has not at all been controverted by the defence also goes a long way to lend support to the prosecution evidence. Point (3) in Exh. P.B., the site plan, where the occurrence had allegedly taken place and from where the blood-stained earth was taken into possession by the police is allegedly a Kacha road, the eastern corner of which is at a distance of six Karams from the main gate of the house of Muhammad Siddique accused and hardly half a Karam from the outer wall of the said house. Riaz Hussain Patwari who prepared this site plan was not at all subjected to any cross-examination on this point. Even the Investigating Officer Sh. Madad Hussain, Inspector P.W.14 was not put a single question in this connection. It, therefore, follows that the accused did not at all controvert the claim of the prosecution that the occurrence had taken place so near rather adjacent to the house of Muhammad Siddique accused. Analysed in this perspective but simultaneously keeping in view that maxim "falsus in uno falsus in omnibus" has no universal application and grain has to be sifted from the chaff, we find that the ocular evidence, as contained in the statements of the complainant Nazir Hussain Shah P.W.8 and Allah Dewaya P.W.10, has to be relied upon. The complainant being the father of the deceased, upset as obviously he was, took alongwith him Allah Dewaya P.W.10, a neighbourer, besides Riaz Ahmad P.W.9 who was already available having visited him in connection with the tube-well having gone out of order, and having a, definite suspicion with regard to Muhammad Siddique's being annoyed with his son on account of alleged illicit relations the latter had with his daughter Jamila, could naturally be expected to go to the side of the house of Muhammad Siddique in search of his' son. Riaz Ahmad P.W.9 obviously did not fully corroborate the version of the complainant with regard to the identity of the accused and confined himself to deposing that he saw Allah Din, Rafiq, Nawaz and Ghafoor accused when Allah Din was armed with gun, Rafiq was having a pistol, Nawaz was empty-handed and Ghafoor had a Soti. He had earlier stated that on reaching near the house of Siddique and Rafiq, he had. seen these persons. He added that- he did not note any other person there. From his cross-examination, it is abundantly clear that he is not .a truthful witness and had suppressed' some material facts. He has been appearing, as a P. W. in a large number of cases. He being a servant of Sh. Abdur Rahim, it was put to him if it was not a fact that Sh. Abdur Rahim got the cases registered through him and he deposed in those cases at his instance. He turned down this suggestion but the fact remains that he suppressed the names of Siddique and Hakeem accused for reasons best known to him.

16. The truthfulness of Allah Dewaya P.W.10 has also been questioned by the defence mainly because he admitted at the very outset on being cross-examined, that his brother' Ramzan got a case registered against Hakeem and Allah Din accused etc. under section 307, P.P.C. over a dispute of land in the year 1988 and also that he having been falsely implicated in a complaint case, by the accused party of this case, he bore a grudge against them. But to our mind, these admissions do not adversely effect on his credibility, rather this part of his evidence strengthens our view that he had the courage to speak the truth. It may be mentioned here that Muhammad Siddique accused manoeuvred the execution of a document Exh. D.D. available on record (at page 53 of the paper book) on a five rupees stamp paper purporting to be an affidavit of this very witness in which he had allegedly declared and sworn that Muhammad Siddique son of Sher Muhammad, accuse in this case, was not present at the scene of occurrence and that he; who was an aged person of 62/63 years, was involved in this case by the complainant because the occurrence had taken place at his house. The deponent has allegedly claimed further in his affidavit that Muhammad Siddique was totally innocent and had not participated in the commission of the offence or caused any injury. It is really interesting to note that after. Allah Dewaya P.W.10 opted to appear as a P.W. and an eye-witness of the occurrence, the defence subjected him to a lengthy cross-examination on this point. He admitted that thumb-impression Exh.D.D./1 on Exh. D.D. as his own but claimed that he did not swear this affidavit and that the thumb-impressions were got affixed on the pretext of a Nikah of a girl and that a copy of his National Identity Card was got from the Cooperative Finance Corporation where he had opened an account. He denied further that he had stated in Exh. D.D. that the accused Muhammad Siddique was not present at the spot. The defence did not feel satisfied by confining to the cross-examination of this witness alone and went to the extent of producing Allah Bachaya D.W.1 for establishing on record that this affidavit had in fact been sworn in by Allah Dewaya. It is, however, sad that D.W.1 also could not come to the rescue of Muhammad Siddique or that of the defence. He admitted in his cross-examination that he could not identify the person who purchased this stamp paper from him. According to him, the purchaser of this stamp paper affixed his thumb-impression in the register but he did not know him personally. The mere fact that this stamp paper was purchased from Allah Bachaya for the execution of an affidavit in the name of Allah Dewaya son of Allah Bakhsh bearing his National Identity Card, does not in any manner establish that it was purchased by Allah Dewaya or that Exh. D.D. was sworn in by him. But one thing is clear, and that is, that the accused have themselves admitted and owned the site of occurrence which is said to be the house of Muhammad Siddique accused and the occurrence itself.

17. The claim of the prosecution that Mazhar Hussain deceased was earlier employed with Muhammad Siddique accused as his tractor driver during which period Muhammad Siddique suspected that he had developed some illicit intimacy with his daughter Mst. Jamila and he then turned him out of his house after dismissing him, has also not been seriously controverted by the defence. Although Nazir Hussain was subjected to cross-examination on this aspect of the case but no serious effort appears to have been made to dislodge this claim or to bring on record evidence to suggest that it was false. It was on being cross- examined that Nazir Hussain deposed that Mazhar Hussain had been serving Muhammad Siddique for one year whereafter his services were terminated and that none of the accused told him regarding the suspicion of illicit relations of Mst. Jamila and the deceased. Azhar Hussain P.W.7 had deposed on being cross-examined that they did not know of the suspicion of the accused regarding illicit relations of Mazhar Hussain with the daughter of Muhammad Siddique earlier and that they came to know about it after the occurrence. On being further cross-examined, he deposed that they came to know about it one month after the removal of Mazhar Shah deceased from service whereafter Mazhar Shah never went to Muhammad Siddique accused. We are, therefore, convinced that the accused had a motive for the commission of the offence, may be just to vindicate the honour of the family or may be the deceased reached the house of the accused in order to see ~Mst. Jamila at the dead of the fateful night where he was done to death by Siddique and his close relatives. It is also not unbelievable that the complainant and Allah Dewaya also reached the scene of occurrence just at the moment when Mazhar Hussain Shah was being done to death. We are constrained to arrive at this conclusion for the reason that no effort has been made by the defence to suggest otherwise.

18. There is no denying the fact that no empties were recovered -from the scene of occurrence and the recoveries of fire-arms do not help much the prosecution in connecting the accused with the commission of the offence. But the fact remains that Abdul Hakeem accused led to the recovery of .12 bore gun P.8 without licence while Muhammad Rafiq accused led to the recovery of .12 bore pistol P.9 and Muhammad Siddique accused led to the recovery of hatchet P.5. These recoveries when considered together with the ocular evidence and the medical evidence do help us in arriving at the conclusion that they were the persons who had done away with the deceased. The first shot, which resulted in causing injury No.3 has been attributed to Abdul Hakeem whereafter the deceased might have naturally fallen down. It is abundantly clear from the statement of the complainant, who was examined as P.W.8, that the accused Rafiq also fired at him with his pistol, which hit him on his mouth. Siddique accused had allegedly given him hatchet blows on his left leg and other parts of the body. His claim that Allah Din and Rafiq accused had also fired shots one each by their respective weapons on the deceased when he had not yet fallen down does not appeal to reason and his testimony in this behalf cannot be safely relied upon. Similarly, the version of Allah Dewaya that Abdul Hakeem fired the first shot which hit Mazhar Hussain on his chest, appears to be keeping in with the medical evidence but his statement that Allah Din also fired a shot which hit Mazhar Hussain in the chest and Muhammad Rafiq also fired a shot whereafter Mazhar Hussain fell down does not inspire confidence. The Court has always the onerous duty of finding out the truth lying deep under a heap of lies and applying this principle we are of the convinced opinion that the deceased had been done away with by Muhammad Siddique, Abdul Hakeem and Muhammad Rafiq accused obviously because they suspected him of having developed some illicit relations/intimacy with Mst. Jamila, a daughter of Muhammad Siddique. All of them are closely related to each other. Siddique and Hakeem are cousins while Rafiq accused is nephew of Siddique accused.

19. We are not at all inclined to believe that all the accused had been falsely implicated at the instance of Sh. Abdur Rahim for the simple reason that the accused have not brought on record any evidence to suggest as to why Sh. Abdur Rahim could be expected to involve them all falsely and what motive had he for doing so. Similarly we are also not convinced about the participation of Allah Din, Muhammad Nawaz and Ghafoor accused in the commission of the offence. Abdul Ghafoor accused was allegedly armed with a Dang/Soti but he did not inflict any blow therewith nor does the medical evidence indicate the presence of any such blow/injury on the person of the deceased. Allah Din belongs to a different village and has no relationship whatsoever with Siddique, Hakeem and Rafiq nor was there any occasion for him to join hands with them E for doing away with Mazhar Hussain. The evidence regarding the participation of Muhammad Nawaz accused in the commission of the offence is also lacking. Even if it be believed that he had taken Mazhar Hussain from the house of the complainant outside allegedly for showing him a picture, no effort has been made by the prosecution to suggest that the complainant and the other P. Ws. had first tried to search him out on the side of the picture house. There is also no cogent and convincing evidence inspiring confidence to suggest that Muhammad Nawaz had in fact brought Mazhar Hussain Shah to the house or to the side of the house of Muhammad Siddique after hatching a conspiracy with his co accused. All the three of them namely Abdul Ghafoor, Allah Din and Muhammad Nawaz are, therefore, entitled to the benefit of doubt

20. Consequently, we held Muhammad Siddique, Abdul Hakeem and Muhammad Rafiq accused guilty for causing the death of Muhammad Hussain Shah. The remaining three accused are acquitted having been given the benefit of doubt.

21. This brings us to determining the quantum of punishment. We have already held above that the accused presumably did away with the deceased in order to vindicate the family honour. The question of family honour has been held to be good reason for awarding a lesser penalty in a leading judgment re: Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 and also in Muhammad Afzal v. The State and another 1987 SCMR 1864. The case is, therefore, not a fit one calling for capital punishment. While convicting Muhammad Siddique, Abdul Hakeem and Muhammad Rafiq under section 302/34, P.P.C. we sentence them to suffer life imprisonment and to pay a fine of Rs.20,000 each or in default of the payment of fine to further undergo R.I. for a period of one year each. They are also ordered to pay a sum of Rs.50,000 each as compensation under section 544-A, Cr.P.C. to the heirs of the deceased and in default of payment, every one of them shall suffer further R.I. for a period of two years. All the three of them shall be given the benefit of section 382-B, Cr.P.C.

22. The result is that the death sentences of Muhammad Siddique, Abdul Hakeem, Allah Din and Muhammad Rafiq are not confirmed. Murder Reference is disposed of accordingly. The appeal filed by Muhammad Siddique, Muhammad Rafiq and Allah Din (No.19 of 1994/BWP) is accepted to the extent of Allah Din and he is acquitted having been given the benefit of doubt. It is, however, dismissed in so far as it relates to Muhammad Siddique and Muhammad Rafiq and their conviction is upheld but their sentences of death are not confirmed and are converted to life imprisonment. The appeal filed by Abdul Hakeem, Abdul Ghafoor and Muhammad Nawaz (No.20 of 1994) is accepted to the extent of Abdul Ghafoor and Muhammad Nawaz and their conviction and sentences are set aside, they having been given the benefit of doubt but is dismissed in so far as it relates to Abdul Hakeem and his conviction is upheld. His sentence of death is, however, converted into life imprisonment. Both the appeals and the murder reference are accordingly disposed of. N.H.Q./M-237/L Order according