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Criminal Appeal No.420 and Murder Reference No.104 of 1983, heard on 25th April, 1987.

---Ss.302 & 304/34--Recoveries--Whether incriminating--Blood-stained clothes removed from persons of accused after 6 days of occurrence- Blood-stained hatchet recovered after 11 days of occurrence--No evidence on record suggesting that accused had no opportunity' to destroy articles or at least wash off blood ;on them.--Presence of blood on allegedly incriminating articles, held, was highly doubtful as it would not appeal to reason that accused would, wear telltale clothes for six days--Recovery of blood-stained cloths and hatchet was discarded in circumstances.--[Recovery].

---Ss.302 & 304/34--Recoveries--Weapons of offence and crime empties--Whether incriminating--Crime empties recovered from spot- Weapons of offence recovered much later--Crime empties and weapons sent together to Fire Arms Expert--No explanation forthcoming for sending empties so late after recovery of crime weapons--Possibility of preparing empties from crime weapons for sending them to expert, held, could not be ruled out and no sanctity could therefore, be attached to expert's positive report in circumstances.

---Ss.302 & 304/34--Ocular testimony, appreciation of--Witnesses claiming to know accused by faces and not by names--Witnesses coming to know their names during occurrence--Statements of witnesses on this count not seriously challenged during cross-examination--F.I.R. lodged within an hour of occurrence carrying, details of accused, their weapons and names of witnesses--F.I.R. a genuine document and its authenticity not challenged--Two of eye-witnesses travelling in bus where occurrence taking place and third witness resident of village close to place of occurrence--Witnesses having no relationship with deceased nor enmity with accused--Discrepancy regarding injury caused with particular shot fired by particular accused, existing but witnesses making consistent statements as to number of shots fired by each accused and role played by each of them--Two types of weapons used in occurrence suggesting two or more assailants participating--Accused having strong motive to liquidate deceased- Witnesses, held, were present at spot and had seen occurrence Discrepancy could be safely disregarded--Finding of Trial Court, holding accused guilty of murder in furtherance of their common intention was upheld--Where witnesses knew accused by face though not by names, identification parade was unnecessary.

1974 S C M R 175 ref.

---Ss.301, 302 & 304/34--Nature of offence--Accused having no motive to kill 'A'--Firing at 'S' in furtherance of common intention resulting in killing of 'A' instead of 'S' in a bus--Offence of murder as envisaged by 5.301 would be constituted in circumstances.

---S.302/34--Quantum of sentence--Discrepancy as to who caused fatal injury to deceased, existing--Accused attributed fatal shot only at trial, held, was entitled to equal treatment with his co--accused awarded imprisonment for life--Death sentence of accused commuted to imprisonment for life in circumstances.--[Sentence].

Amjid Ahad Sheikh and Ras Tariq Chaudhry for Appellants.

Sh. Naseeruddin Ahmad for A.A.-G. for the State.

Abdul Majid Khan for the Complainant.

Date of hearing: 25th April, 1987.

.--Mansha s/o Said, aged 35 years, r/o Kot Kala, Muhabat alias Muhaba s/o Raja aged 35 years r/o Nahipur and Allah Ditta s/o Raja, aged 40 years r/o Jhoke Mathela Chak No.145/RB, have been convicted by Additional Sessions- .Judge, Sheikhupura, vide judgment dated 10th May, 1983, a/s 302/34, P.P.C. sentencing Munsha to death and the rest to imprisonment for life and a fine of Rs.5,000/- each for the murder of Sardol. Allah Ditta has been further sentenced to 10 years' R.I. and a fine of Rs.5,000/ u/s 304, P.P.C. for committing culpable homicide not imounting to murder of Muhammad Asghar. In default of payment of fine Allah Ditta and Muhabat have been ordered to undergo one year's R.I. each. The convicts have jointly filed this appeal (Criminal Appeal No.420-83) against their conviction and sentence. while .r a complainant has filed Criminal Revision No.450-83) praying for the enhancement of the sentence of Allah Ditta and Muhabat. The trial Court has also sent a reference a/s 374, Cr.P.C. (murder reference No.104-83) for confirmation of death sentence awarded to Mansha. We propose to dispose of these three matters by this consolidated judgment.

2. The prosecution case as disclosed at the trial was that Sardol (deceased) resident of Lundianwala district Sheikhupura was employed in WAPDA Department and posted at Nankana Sahib where he used to go daily by bus. His uncle Dosa ( PW 8) was ailing, whom he wanted to show to a doctor at Nankana Sahib. On iat-_fid day (20-7-1981) at morning time, he alongwith his uncle Dosa (PW 8) left Lundianwala for Nankana Sahib by bus No. FDD/5900. The bus stopped at Bucheki for a while. When it again started moving Allah Ditta, Muhabat and Mansha (appellants) got into it. In the way near Dhari of Shahna Kharal village Burkhurdar, Mansha appellant stood up and exhorted his companions that Sardol (daceased) should not be allowed to go alive. The bus was stopped the passengers started getting down for taking refuge outside i At this, Allah Ditta (appellant) fired with his carbine at Sardo' The shot missed him and instead hit Asghar deceased, a passenger in the bus. Mansha appellant fired two shots at Sardol, one had hit him on the left side of his neck near the shoulder and the other on the back of the right scapula and some of the pellets of 2nd shot hit P.W. Muhammad Hussain (not produced), another passenger. The appellants pulled Sardol (deceased) out of the bus through driver's window and Muhabat appellant then dealt him hatchet blows on his head and shoulder. Sardol as well as Asghar succumbed to the injuries on the spot. The appellants thereafter decamped from the scene while firing with their weapons. The motive behind the attack was stated to be that a year prior to the occurrence Mansha, appellant, abducted Mst. Sheeman daughter of Rahmat Ali caste Sheikh. Regarding this a case was registered at police station Mangtanwala against him. As a sequel to this occurrence Dulls. and Mooba, real brothers of Mansha appellant were murdered by Sardol's father Jahana and four others against whom Muhabat appellant had lodged F.I.R. Jahana, father of Sardol deceased, was released on bail in the days of occurrence. The appellants in order to avenge murder of Dulls. and Mooba had murdered Sardol (deceased). The occurrence was seen by Adalat (PW. 9) and Amir (PW.10) besides the complainant.

3. Leaving the dead bodies of Sardol and Asghar in the care of Adalat and Amir PWs, Doss complainant (PW. 8) left for making report and met SI Muhammad Ashraf (PW. 11) in the way at Bucheki who recorded his statement Ex.PE at 8.40 a.m.

4. S.I. Muhammad Ashraf (PW. 11) sent complaint Ex.PE to police station Baraghar for formal registration of case and himself left for the spot. Reaching there at 10 a.m., he collected blood-stained earth from outside the bus and removed frozen blood and also five crime empties P.4/1-5 from inside the ill-fated bus and secured them under separate memos Exs.PI, PJ and PL, respectively.

5. The bus which bore parks of pellets was also seized. The S.I. prepared inquest reports, Ex.FO of Sardol (deceased) and Ex.PP of Asghar (deceased) and sent the dead bodies under the police escort for post-mortem examination.

5-A. On 26-7-1981 S.I. Muhammad Ashraf (PW. 11) arrested Mansha and Muhabat accused/appellants and removed blood-stained Chadar (P.6) and Shirt (P.7) from the person of Mansha and blood-stained shirt (P.8), Chadar (P.9) and Parna (P.10) from the person of Muhabat and secured then under memos Ex.PM and PN, respectively, in the presence of Adalat (PW.9) and Khan (not produced). On 31-7-1981 Muhabat accused/appellant, while in custody, got recovered blood-stained hatchet (P.1) which was seized after making its parcel under memo Ex.PF: Likewise Mansha accused/ appellant got recovered carbine (P.2) on the same day which was secured under memo Ex.PG. Allah Ditta accused/ appellant was arrested on 31-7-1981 who also got recovered carbine (P.3) on 13-8-1981 which was taken into possession vide memo Ex.PH. These recoveries were witnessed by Doss, (PW.8) and Adalat (PW.9) besides Muhammad Ashraf S.I..(PW.11).

6. According to Chemical Examiner's report Ex.P.O. and that of Serologist Ex.PH, hatchet (P.1), clothes of the accused /appellants (Ex. P.6 to P.10) and blood-stained earth collected from the spot were found besmeared with human blood.

7. Out of the 5 empties (Ex.P4/1-5), secured from spot 3 were found as fired through carbine (P.2) recovered from Mansha appellant and the other two matched with carbine (P.3) recovered from Allah Ditta accused/appellant by the fire-arms expert vide his report Ex.PS.

8. Dr. Muhammad Akhtar Chatha (PW.1) conducted the post-mortem examination on the dead body of Sardol and found the following injuries on it:

(1) An incised wound 12 cm x 4 cm x bone deep on the left temporal region of skull just above left pinna.

(2) An incised wound 8 cm x 4 cm x bone deep on occipital region of skull.

(3) An incised wound 7 cm x 3 cm x bone deep on the occipital region of skull just below injury No. 2.

(4) An incised wound 12 cm x 4 em on the back of left shoulder joint. Head of the left humerous and spine of the left scapula were cut.

(5) A fire-arm wound 4 cm x 4 cm on the right deltoid region. Gun powder smelling and burning present (wound of entry) a fire-arm wound 8 cm x 5 cm zig- zag edges on the back of right chest medial to scapula and lateral to central line (vetebral line) and smelling gunpowder charring present over the banyan (wound of exit).

(6) 8 round punctured wounds on the left side of neck and upper part of left shoulder, pellets 8 in number were removed underneath the skin of chest and abdomen (no charring' and smelling tatooing etc. present).

In the opinion of the doctor, the deceased died of excessive haemorrhage and shock due to injury No.5 caused with fire-arm found to be sufficient to cause death in the ordinary cause of nature. Injuries No. 1 to 4 were grievous, caused with sharp-edged weapon while injury No.6 was simple in nature and caused with fire-arm. All the injuries were antemortem. The time between injuries and death was 5 to 15 minutes and between death and post-mortem about 8 hours.

9. On the same day the same doctor conducted the post-mortem examination on the dead body of Asghar aged 12 years at 3-30 p.m., and found the following injuries on it:-

Seven round punctured wounds, six in front of neck slightly on right side and one on the left side of chin.

Each wound was 2 cm x 2 cm in diameter.

In the opinion of the doctor, the deceased died of excessive haemorrhage and shock due to injury No.l caused with fire-arm which was sufficient to cause death in the ordinary course of nature. The time between injuries and death was 5 to 15 minutes while between death and post-mortem examination was about 8 hours.

10. The prosecution in support of its case examined 11 witnesses. Of them the complainant Dosa (PW.8), Adalat (PW.9) and Amir (PW.10) furnished eye-witness account of the occurrence. Dosa (PW.8) and Adalat (PW.9) have also stated about the incriminating recoveries made from the appellants while SI Muhammad Ashraf (PW.11) stated about the investigation he had conducted in this case.

11. The appellant when examined under section 342, Cr.P.C., denied the allegation of murder levelled against them and also the recovery of blood-stained clothes as well as the weapons of offence allegedly made from them and professed innocence. Allah Ditta appellant also stated that Mansha had not abducte, Mst. Sheeman, rather she married him (Mansha) of her own accord. Jahana, father of Sardol deceased, felt annoyed over it and murdered Mooba and Dulla brothers of Mansha. Jahana and others were facing trial in that murder case during the days of occurrence and that due to this enmity they have been falsely implicated in this case. They did not produce any defence evidence.

12. Learned trial Court on detailed examination of the evidence on record believed the evidence of motive, incriminating recoveries and the ocular testimony and held all the accused/ appellants guilty under section 302/34, PPC for the murder of Sardol and awarded death penalty to Mansha for he was found to have caused the fatal injury to Sardol. For causing the death of Asghar (deceased) Allah Ditta appellant alone was convicted under section 304, PPC on the ground that the shot which hit Asghar (deceased) was fired by him aiming at Sardol. Furthermore, he had no motive to kill Asghar (deceased). It was also observed that the other appellants did not share "common intention in this context" with him. Feeling aggrieved thereby the instant appeal has been filed.

13. Learned counsel appearing on behalf of the appellants submitted that Muhabat appellant had lodged FIR against Jahana (father of Sardol deceased) and his relatives for murdering two brothers of Mansha appellant and during the days of occurrence they were being tried by Additional Sessions Judge, Sheikhupura. The complainant party, therefore, named Mansha and Muhabat appellants as murderers of Sardol (deceased) in this case in order to bring pressure to bear on them to effect compromise with them in the said case. He next contended that recoveries of blood-stained clothes and the weapons of offence are fake. They cannot be treated as corroborative evidence due to the fact that these recoveries have been sought to be proved AKI through the same witnesses who are also eye-witnesses, namely, Dosa (PW.8) and Adalat (PW.9) because a witness cannot corroborate his own evidence. Further submitted that eye-witnesses are not reliable because Dosa complainant (PW.8) is the real uncle of the deceased and is real brother of Jahana who was being prosecuted for the murder of two brothers of Mansha. Adalat (PW.9) and Amir (PW.10) did not know the appellants prior to the occurrence and no test identification parade of the appellants was held in this case. Again, ocular evidence is in conflict with medical evidence and that the witnesses had made deliberate improvements upon their statements made before the police in order to fall in line with medical evidence. Replying, learned counsel for the State assisted by learned counsel for the complainant supported the conviction of the appellants and urged that Muhabat and Allah Ditta appellants deserve death penalty like Mansha appellant as they had acted in a high-handed manner and killed on a highway two persons travelling it a bus.

14. We have carefully considered the contentions of learned counsel for the parties and have minutely perused the record with their assistance.

15. First of all, we take up the incriminating recovery of blood stained articles. Clothes P.6 to P.10 removed from the persons of Mansha and Muhabat appellants at the time of their arrest on 26-7-1981 and hatchet P.1 recovered at the instance of Muhabat appellant on 31-7-1981, according to Sorologist's report Ex.PQ are found as besmeared with human blood'. It is worth noting that clothes of the appellants were removed from their persons after 6 days of the occurrence while the hatchet P.1 was recovered after about 11 days of the occurrence. It does not appeal to reason that 6 days after the occurrence the said appellants were wearing tell tale clothes. There is no evidence that they did not find opportunity during this period to destroy these clothes as well as the hatchet or at least wash off the blood-stains from them, therefore, even if we believe recovery of these articles, the presence of blood on them is highly doubtful. Consequently, we are constrained to discard recovery of blood-stained clothes and hatchet P.1 from them.'

16. The other incriminating recovery is of the fire-arms namely, carbine of P.2 from Mansha effected on 31-7-1981 and carbine P.3 from Allah Ditta on 13-8-1981. According to the report Ex.PS of the Fire-arms Expert, out of five empties P.4/1-5 (allegedly picked up from the scene of offence on 20-7-1981) three matched with carbine P.2 and the remaining two with carbine P.3. SI Muhammad Ashraf (PW.11) has admitted that he had sent the crime empties and the carbines together for examination by Fire-arms Expert. No explanation is forthcoming for sending the crime empties so late and that too after the recovery of the fire-arms. In the circumstances, the possibility of preparing the empties from carbines P.2 and P.3 before sending them to the Forensic Science Laboratory cannot be ruled out. Consequently no sanctity can be attached to the Fire-arms Expert's report that the empties P.4/1-5 matches with carbines P.2 and P.3. These recoveries, therefore, in our view, are also inconsequential.

17. We are now left with the ocular testimony which is most important piece of evidence from the prosecution view-point. It comprised statements of Dosa, Adalat and Amir PWs. Before we embark upon analysing their testimony it would be worthwhile to give a resume of the evidence of these witnesses.

18. Dosa (PW.8), the complaintant, supported prosecution story as given in paragraph 2 above. He also stated to have witnessed recovery of blood-stained hatchet P.1 from Muhabat, carbine P.2 from Mansha and carbine P.3 from Allah Ditta (appellants). He stated that Sardol (deceased) was not an accused in the murder case of brothers of Mansha (appellant) nor was he a witness against Mansha in the abduction case of Mst. Sheeman. He asserted to have mentioned in FIR Ex.PE that first shot fired by Mansha had hit Sardol on the lest side of his neck near the shoulder while the second one had hit on the back of his scapula, but on confrontation with FIR it was not found so recorded. He denied to have stated in the FIR that Manaha's first fire had hit Sardol and the second one hit him on his back but on confrontation with FIR it was found so recorded. He barried the suggestion that he did not see the occurrence or that in his deposition at the trial he made departure from the version given by him in the FIR (Ex.PE) in order to ascribe fatal shot to Mansha .and to bring his statement in line with the medical evidence.

19. Adalat (PW.9) claimed to be travelling in the same bus from Lundianwala to Nankana Sahib sitting next to Dosa complainant (PW.8). He was going to Nankana Sahib for purchasing cots. He supported the prosecution story wholeheartedly. He also stated that in his presence Mansha and Muhabat (appellant) were arrested from bus-stand Nankana Sahib and the police had removed blood-stained clothes P.6 and P.7 from the person of Mansha and blood-stained clothes P.8 to P.10 from the person of Muhabat and secured them after making their sealed parcels vide memos Ex-PM and PN. He also deposed about recovery of blood-stained hatchet P.1, carbine P.2 and carbine P.3 effected separately at the pointation of Muhabat, Mansha and Allah Ditta, appellants (on 29-7-1981, 31-7-1981 and 13-8-1981) respectively. In cross-examination he stated that he knew Mansha and Muhabat (appellants) by face but not by name prior to the occurrence and that he learnt their names as they had been addressing each other by name at the time of occurrence. According to him, the first and second shots which hit Sardol (deceased) were fired by Mansha but on confrontation it was not found so recorded in his police statement Ex. DA. Although he denied to have stated in Ex. DA that Sardol was hit on his right Daula (deltoid) with shot fired by Allah Ditta, appellant, yet it was found so recorded in it. He admitted that Dosa, complainant had taken him to the police station .on few occasions for joining investigations as he was a witness of the occurrence he refuted the suggestion that tie deposed in support of prosecution due to his friendship with the complainant.

20. Amir (PW.10) is a resident of village Barkhurdar situate near place of occurrence. He was ploughing his, land at a distance of one Killa from the spot at the time of occurrence. Hearing a report of gunfire from a bus he rushed there. He saw Muhabat, appellant, inflicting blows with hatchet to Sardol (deceased) while Mansha and Allah Ditta, appellants, armed with carbines stood nearby. Adalat, Dosa and Khan PWs. brought dead body of Asghar out of the bus. He told his name to Dosa, complainant, who then went to the police station for making the report. He asserted that he knew the accused/ appellants by face prior to the occurrence and learnt their names as they were addressing each other by name at the time of occurrence. He stated that he knew that Mansha was Sheikh by caste and belonged to Kot Tahir. He admitted that no test identification was held in this case.

21. It is true that Adalat (PW.9) and Amir (PW.10), as admitted by them, did not know the appellants by their names prior to the occurrence but' at the same time they claimed that they knew them by face. They also stated that they learnt their names as well when the appellants addressed each other by name at the time of occurrence.

It is noteworthy that Muhabat and Mansha, appellants, were arrested, by the police it the presence of Adalat (PW.9), therefore, it was of no use :o array these accused in any test identification parade. It is well settled that if an accused is known to the witness by face although not by name then it is unnecessary to put up such a witness to a test identification for the reasons that on the parade he identifies the accused by face 'and not by name. If any authority is needed for this view, reference may be made to Ismail's case 1974 SCMR 175. In the instant case also Dosa, complainant, knew all of them both by face and by name, while Adalat and Amir (PW.9/PW.10) knew them by face and this statement of the witnesses has not been seriously challenged by, the defence during cross-examination. It was neither a legal requirement nor of prudence in peculiar circumstances of the case to array the appellants in test identification parade for being picked up by the witnesses.

22. As for the second objection, regarding improving of statements by eye-witnesses, namely, Dosa and Adalat (PW.8/PW.9) at the trial particularly about the shots fired at and injuries caused to Sardol (deceased), precisely is as follows: -

During investigation they had stated that- '

Allah Ditta's fire had hit Sardol on his right Daula (deltoid). Then Mansha fired with his carbine which hit Sardol on his right ear and then he fired second shot which hit Sardol on his back.

Whereas their case at the trial was that

Mansha fired two shots at Sardol (deceased) one of which hit him on the left side of his neck near the shoulder and the other on his back of right scapula.

According to the doctor no injury was found on the right ear of Sardol- (deceased), and the injury found on the back was an exit wound. Learned counsel has, therefore, argued that both the fire-arm injuries attributed to Mansha, appellant, during investigation are non existent, therefore, ocular evidence is in conflict with medical evidence, hence not reliable. It is true that discrepancy about the injuries caused with a particular shot fired by a particular appellant do exist but about number of shots fired by each appellant they are consistent. We are of the view that in the terrifying situation created in the bus at the time of occurrence due to the firing by the appellants, it would be expecting too much from the witnesses to tell with precision as to which shot fired by a particular appellant hit what part of body of the deceased. This discrepancy, therefore, can be safely disregarded in the circumstances as we find that substance of their evidence remains unchanged and inspires confidence.

23. The weapons used in the occurrence are of two types which suggest that there were two or more than two accused who took part in the occurrence. We are convinced that Dosa, complainant (PW.8) and Adalat (PW.9) were travelling in the same bus in which the occurrence took place. Their presence is further fortified by the fact that the FIR lodged within an hour or so of the occurrence carries all the details of the accused, their weapons as well as the names of eye-witnesses. The FIR seems to be a genuine document. Its authenticity has not been challenged before us either Amir (PW.10) is resident of the village situate close to the place of occurrence. It has not even been suggested that Adalat and Amir PWs. had any relationship with the complainant or enmity with the appellants. They are entirely unconnected independent witnesses. Amir PW gave a very straight forward account of what he had seen, i.e., dealing of hatchet blows to the deceased by Muhabat, appellant. About Mansha and Muhabat, appellants, he stated that they stood close by with guns in their hands. Furthermore, Mansha's sister is married to Muhabat while Allah Ditta is real brother of Muhabat. As two brothers of Mansha had been allegedly killed by Sardol's father (Jahana) and his relatives, therefore, Mansha as well as other appellants who are closely related had a strong motive to liquidate Sardol a member of Jahana's family. Keeping all these facts in view we have come to the conclusion that the eye-witnesses, namely, Dosa, Adalat and Amir were present at the time of occurrence and that they saw the appellants committing the murders. We have, therefore, no hesitation in agreeing with learned trial Court that they are guilty of murdering Sardol in furtherance of their common intention and they have been rightly convicted and we uphold the same. However, we find that as for Asghar's death is concerned, learned trial Court has erred in recording conviction of Allah Ditta, appellant, under section 304, PPC instead of 302, PPC and also by acquitting the rest from the charge pertaining to his (Asghar's) murder. May be that the appellants had no motive to kill Asghar, but since Allah Ditta fired at Sardol in furtherance of common intention to kill him and the shot instead of hitting Sardol had hit Asghar it clearly constitutes offence of murder as envisaged in section 301, PPC which reads as under: -

"301. If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the discription of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause."

But unfortunately neither any appeal nor any revision against acquittal has been filed in this regard, therefore, at this belated stage we are not inclined to take suo motu action in this respect.

24. This brings us to the question of sentence. As pointed out earlier, there is discrepancy in the statements of the witnesses made before the police and those made at the trial, as to who caused fatal injury to deceased Sardol. Attribution of fatal shot to Mansha has been made at the trial by way of improvement. Mansha is, therefore, entitled to equal treatment with his co-accused. Consequently, while maintaining the sentence of imprisonment and fine awarded to other appellants we feel disposed to commute the death sentence of Mansha appellant and award him sentence of imprisonment for life plus fine of Rs.5,000/- or in default to undergo one year's R.I. The fine if realised from the appellants shall be paid to the legal heirs of the deceased. With this modification in sentence we dismiss the appeal. The death sentence of Mansha, appellant, is NOT confirmed and the reference is rejected. Criminal revision for the same reasons also fails and is dismissed.

S.A./M-256/L Order accordingly.

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