This judgment will dispose of Crl. Appeal No, 231/1992, Crl. Appeal No, 22/1993 and Crl. Revision No, 186/1992 as all these matters have arisen out of the same judgment dated 23.7.1992 passed by the learned Sessions Judge, Layyah Crl. Appeal No, 231/1992 has been filed by Bashir Ahmad, Manzoor Ahmad sons of Haider Ali, Manzoor son of Sher Muhammad and Liaqat All son of Ghuram Muhammad, who were convicted under Section 304 Part-I/34 PPC and sentenced to 10 years R.I. with a fine of Rs, 5,000/-each, in default of payment whereof to further undergo two years R.I. each which if realized Rs, 4,000/- from each accused were directed to be paid to the legal heirs of the deceased. All the said appellants were also convicted under Section 368 Part-II PPC read with Section 34 PPC and sentenced to three years R.I. with a fine of. Rs, 2,000/- and in default of payment thereof to further undergo one year R.I. each, which if realized Rs, 1500/- from each accused were to be paid to Maqsood Ahmad injured PW as compensation. Both the sentences were directed to run concurrently and benefit of Section 382-B Cr.P.C. was also extended to the appellants. Crl. Appeal No, 22/1993 has been filed by the State against the acquittal of all the four convicts from the charges under Sections 302/307/452/380/34 PPC, which was directed to be heard along-with Crl. A. No, 231/1992 filed by the convicts. Similarly Crl. Revision No, 186/1992 was filed by Abdul Malik complainant against the acquittal of the convicts from the charges under Sections 302/307/452/380 PPC Part-I/34 PPC.
2. FIR No, 110/89 (Ex. P.L) was recorded on 6.6.1989 at 8.30 A.M. on the statement of Abdul Malik (PW- 9) maternal cousin of Sarfraz deceased and uterine brother of Maqsood Ahmad injured PW at Police Station Fatehpur District Layyah.
3. The brief , facts narrated in the FIR are that Abdul Malik Complainant was Lambardar. At 7:30 a.m. he along with Maqsood Ahmad 18 his uterine brother and Muhammad Younas was present in the Cigarette Khokha of Sheikh Nawab Maqsood PW intended to purchase the cigarettes. In the meanwhile Bashir Manzoor son of Haider Ali, Manzoor son of Sajwara and Liaqat son of Ghulam Muhammad armed with guns .12 bore came there from the side of their houses who raised lalkara that over the quarrel which took place two years ago on the dispute of payment of Chanda to Mosque and a case was also registered against them, they would teach them a lesson. Within the view of the complainant and other witnesses all the four appellants fired one shot each on Maqsood Ahmad hitting on his thigh who fell down. Then the appellants started running towards the complainant's house and entered the same. Maternal cousin of the complainant Sarfraz who was present there due to fear of the appellants had hide himself inside the room. Bashir appellant had caught hold of him from his collar, dragged him towards the courtyard and thrown there who beseeched the appellants to save his life. In the meanwhile the complainant and the witnesses also reached there. The appellants directed Sarfraz to raise his hands upwards. Then all the four appellants made fires with their guns at Sarfraz hitting on the front side of chest and arms who fell down and died at the spot. The appellants threatened the witnesses with dire consequences and directed not to come near them. The appellants while leaving the place of occurrence also took away cash amounting to Rs, 10,000/- a rifle .7 MM along-with cartridges and a 12 bore gun from the rooms of Maqsood and the complainant. The complainant after leaving Muhammad Younas and Nawab Sheikh with the dead-body at the spot went to Police Station alongwith Maqsood Ahmad for reporting the occurrence.
4. After the registration of the FIR Falak Sher -SI PW 17 had inspected the spot, taken into possession empties lying near the dead-body as well as four empties from the first place of occurrence near Khokha. He had also taken into possession blood-stained earth from the place where the dead body was lying, prepared the necessary documents and sent the dead body to he Mortuary through Mouj Din Constable PW-3 who after post-mortem examination produced last worn clothes of the deceased alongwith vial containing pellets as well as blood stained clothes of the injured PW Maqsood Ahmad before the I.O.
5. During investigation appellants Liaqat, Bashir and Manzoor sons f Sajwara were arrested on 23.6.1989 by SI Khuda Bukhsh (not produced and his handwriting was identified by (PW-19) Khuda Bukhsh SI recovered 7 MM rifle P-18 with cartridges from Bashir Ahmad .7MM rifle P-19 with 5 artridges from Manzoor SP Sher Muhammad, and .12 bore gun P-20 with artridges from Liaqat and took the same into possession vide recovery memos Ex. P.N.0 and P respectively. The complainant also produced incenses of the said weapons, which were taken into possession vide Memo x. M. All the three appellants also, got recovered guns .12 bore on 26.6.1989, which were taken into possession vide Memos Ex. P.Q.R. and S. Bashir also of recovered Rs, 10,000/-. However, Manzoor son of Haider became fugitive from justice, who was arrested on 14.9.1990 and he also led to the recovery of gun P.34 on 22.9.1990 vide Memo Ex.PJ.
6. After the completion of the investigation report under Section 173 Cr.P.C. was submitted in the Court whereafter copies of the statements required, u/S. 265-C Cr.P.C. were supplied to the appellants and charge was framed which was denied by all the appellants and they claimed to be tried. The prosecution in order to prove the guilt of the appellants produced 19 witnesses. The ocular account was furnished by Abdul Malik PW-9. Maqsood Ahmad PW-13 and Sh. Nawab Din PW-14 whereas medical evidence was given by Dr. Sakhawat Ali PW-4 who conducted the postmortem examination of Sarfraz deceased and Dr. Muhammad Iqbal PW-8 who medically examined Maqsood Ahmad PW-13. The injuries were caused with firearms. The remaining witnesses are of formal nature except Falak Sher PQ-17 who had firstly investigated the case. The reports of the Chemical Examiner, Serologist and Forensic Science Laboratory were tendered in evidence and the prosecution evidence was closed. The appellants in their statements recorded under Section 342 Cr.P.C. had denied the allegations and claimed innocence. On a question "Then why this case against you and why the PWs have deposed against you?" Bashir Ahmad replied as under: "When the Thal area was brought under cultivation a different schemes Abdul Malik complainant settled here with his family. He created terror and harassment in the area to become a prominent figure. One Muhammad Aslam was the owner of some land continuous to the land of the complainant. The said Muhammad Aslam wanted to sell his land and the complainant wanted to purchase the same for a nominal price due to his terror but be could not succeed and my father Haider Ali purchased land from Muhammad Aslam. For that reason, the complainant became our enmity. On Warahbandi, he used to lease us so as to compel to relinquish the land which my father had purchased in 1970 but we did not I have, therefore, been falsely implicated in this case.
However, we have now sold away that land."
This reply was also adopted by his brother Manzoor. However, on a question "Then why this case against you and why the PWs have deposed against you?" Liaqat Ali appellant made the following reply, which was also adopted by Manzoor son of Sajwara: "The complainant is an influential Zamidar. One of his near relative is a Magistrate on whose account the complainant is in collaboration with the local police. The complainant is a criminal minded man and gots various crimes committing including abduction of women and usurping the landed property of others, so as to grab money from them. We are poor cultivators of the Chak and always sided the complainant in political matters. Sometimes before the alleged occurrence, the complainant wanted' to make us as stooges for his unlawful activities to which we resisted and this annoyed the complainant. On the day of occurrence, I was not in the Chak but was rather on my land. In those day Khuda Bakhsh, SI was the SHO of Police Station Fatelipur who was a man of bad charactor. He also used to get heinous crimes of murder and dacoity and was himself involved in a number of murder cases pending at that time. In one of such cases, he was convicted and sentenced to death but with the abatement of his members of the gang, he absconded from the Sessions Court, Muzaffargarh and is still absconded. Khuda Bakhsh, SI was friendly with the complainant and in collusion with each other, they have falsely implicated us in this case."
They also produced DWs 1 & 2 in their defence. The learned Sessions Judge after hearing learned counsel for the parties passed the impugned judgment and has acquitted' all the appellants from the charges under Sections 302/307 452/380/34 PPC, but convicted and sentenced them under Section 304 Part-II, PPC and 308 Part-II PPC, hence, these appeals and criminal revision were filed.
7. Learned counsel for the appellants contends that the learned trial Court has already disbelieved the evidence of the complainant (PW-9) and Sh. Nawab Din (PW-13) as their statements were full of improbabilities and they were not found truthful witnesses. It is further contended that it is borne out from the record that Abdul Malik complainant (PW-9) was not present at the spot at the time of occurrence as he failed to give replies to certain questions and he also avoided to give definite relies to the questions. It is further contended that PW-9 has been proved to be lair as he firstly stated that no case was registered against him for taking bribe in the name of DSP but subsequently admitted that the said case was registered against him. It is further contended that PW-9 had tried to conceal the true facts, thus, he having not given the statement at the trial with clean hands is not worthy of any reliance. Learned counsel emphasized that according to PW-9 he was the complainant of the case, which was earlier registered against the appellants and he was the target of the appellants but in spite of that he was present in the Khokha alongwith Maqsood it is very strange that he was not injured by the appellants, who according to PW-9 had in fact motive against him. Similarly learned counsel again contends that it is improbable version that Maqsood Ahmad his uterine brother had received fire-arm injuries on his legs but instead of looking after him, the complainant and other PWs had chased the appellants who had allegedly gone to the house of the complainant and murdered Sarfraz there. It is further contended that there are material contradictions in the statements of the eye-witnesses and they are not worthy of reliance. It is also contended that compromise was arrived at between the parties in the earlier case and no fight or incident over took place between the parties thereafter and there Was no occasion for the appellants to commit the murder of Sarfraz and to injure Maqsood Ahmad PW due to said reason. It is further contended that reports of Forensic Science Laboratory are not worthy of reliance as empties and the guns were sent to the office of Forensic Science Laboratory collectively. It is also contended that Sh Nawab Din (PW-14) also contradicted Abdul Malik (PW-9) on material points as PW-9 stated that both the planks of door were openeded when they had seen the occurrence while Sh. Nawab Din (PW-14) stated that one plank of the door was closed and they had witnessed the occurrence by hiding themselves under the cover of the said plank whereas Falak Sher (PW-17) stated that both the planks of the door were opened when the witnesses had seen the occurrence. It is also contended that the complainant was not present at the spot at the time of occurrence, who was later on introduced as complainant being close relative and false story was concocted to build up case against the appellants, as such it cannot be admitted that the FIR was lodged withy promptitude and it is strange that Maqsood in spite of having been injured with fire-arm had accompanied the complainant to the Police Station first for reporting the occurrence instead of shifting to the hospital for medical treatment. It is also contended that Maqsood Ahmad injured PW had not witnessed the occurrence wherein Sarfraz was murdered.
8. Learned counsel for the injured PW Maqsood Ahmad also opposes this appeal against conviction and supports the revision petition and the appeal against acquittal filed by the State on the ground that all the three witnesses remained consistent on material points, medical evidence is in line with the ocular account and the prosecution has succeeded in proving the case against the appellants beyond any shadow of doubt under Sections 302/452/307/380 PPC. Also contended that the acquittal under the said provision being based on surmises and conjectures is liable to be set aside and the accused may be convicted under Sections 302/452./380/34 PPC. It is further contended that the defence has failed to show any reason for false implication of the accused in the present case. It is also contended that the learned trial Court has not applied its mind and has acquitted the accused on the discrepancies, which were not considerable and were minor in nature.
9. Learned State counsel also opposes the acquittal of the respondents from the charges under Sections 302/452/307/34 PPC and prays for conviction of the accused under the above said provisions as the prosecution has succeeded in proving the case beyond any reasonable doubt.
10. I have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution. The prosecution claimed that FIR was lodged at 8.30 a.m. while the occurrence had taken place at 7.30 a.m. In this case occurrence is alleged to have taken place at two different places. At the first place Maqsood Ahmad (PW-13) had sustained fire-arm injuries near the Khokha while Sarfraz deceased was done to .death inside the house. The complainant in the FIR claims that Maqsood Ahmad (PW-13) was with him when he went to the Police Station for lodging the FIR and then Maqsood Ahmad was taken to the hospital by the police. Maqsood Ahmad also stated that he had accompanied the complaint to the police station. Falak Sher SI also stated that the injury statements were prepared and injured was sent through police for his medical examination. However, PW8 Dr. Muhammad Iqbal deposed that Maqsood Ahmad was brought at 1.20 p.m. as a private case and he medically examined him. He categorically stated that he was not brought by the police and he himself had taken the responsibility to inform the police about the incident. Had the case been registered at 8.30 a.m. and Maqsood Ahmad was with the complainant at that time, there was no reason for not sending Maqsood Ahmad with the police assistance immediately for his medical examination. There are contradictions in the statements of the Medical ,Officer, the police and the eye-witnesses. It is also strange that Maqsood Ahmad had received injuries by fire-arm, but he was medically examined after about six house of the incident without any explanation for such delay in the medical examination. It is thus clear that FIR was not registered with such promptitude as climed by the prosecution.
11. The only evidence against the appellants is in the shape of ocular account comprising the statements of Abdul Malik (PW-9), Maqsood Ahmad injured (PW-13) and Sh. Nawab Din (PW-14).
The prosecution claimed that the first occurrence had taken place near Khokha while second occurrence had taken place in the house of the complainant and both the incidents were witnessed by the complainant (PW-9) and Sh. Nawab Din (PW-14) alongwith Muhammad Younas.
The complainant stated that he alongwith Maqsood Ahmad and Muhammad Younas was sitting in the Khokha of Sh. Nawab Din when the appellants raised a Lalkara and fired at Maqsood Ahmad.
Maqsood Ahmad (PW-13) and Sh. Nawab Din (PW-14) have contradicted the complainant regarding the place where the witnesses were present.. According to Maqsood Ahmad (PW-13) and Sh. Nawab Din (PW14), Maqood Ahmad wanted to purchase the cigarette and was standing outside the Khokha when the appellants raised an alarm and fired at him. Abdul Malik (PW-9) and Sh. Nawab Din (PW-14) both stated that the appellants had raised alarm and fired at Maqsood Ahmad but did not look whether he was alive or not and started running towards the house of the complainant, who were also followed by the witnesses without looking into the condition of Maqsood Ahmad who had received fire-arm injuries. According to PW-14 Sh. Nawab Din he came to know afterwards that Maqsood Ahmad was still alive it is strange that when the appellants had not uttered any word to disclose their intention for going to the house of the complainant for committing some occurrence, how the witnesses instead of looking after Maqsood Ahmad who had received serious fire-arm injuries had chased the appellants. It is also change that the PWs. had chased the appellants, but they, according to both the witnesses, had not looked towards any side. It was admitted by these PWs that had the accused looked back, they would have seen the witnesses. According to the PWs they had seen the occurrence from the door at a distance of about 10 karams from the appellants, but the latter had not looked at them. The version of the complainant (PW-9) and Sh. Nawab Din (PW-14) is not probable as the appellants had already fired at Maqsood Ahmad and were allegedly looking after the complainant for commission of his murder but ignored the complainant while sitting along-with Maqsood Ahmad in the Khokha and without verifying the result of the injuries received by Maqsood Ahmad leaving him alive had left the place of occurrence and went to the house of the complainant without looking to any of the side. The seeing of the occurrence by the complainant and other witnesses regarding commission of murder of Sarfraz is also doubtful. It is strange that the occurrence had allegedly taken place over registration of a case against the appellants two years earlier at the instance of the complainant, but he was not taken to task. Had the complainant been present on both the places of occurrence, the appellants would also have murdered or injured him. The complainant in the FIR (Ex. P.L.) alleged that they were threatened by the appellants with dire consequences but he change his version at the trial by stating that the appellants had not seen him and the other witnesses. The complainant (PW9) cannot be termed as a truthful witness as during the cross- examination the firstly stated that there was no allegation against him for receiving the amount of Rs, 10,000/- in the name of the DSP, but then admitted registration of case against him in this regard, although he has given explanation that one Rana Munawar DSP had received Rs, 7,000/- as bribe and raid was conducted by Rana Ayyub Magistrate, who was related to the complainant hence false case was registered against the complainant by said DSP. The complainant also stated that he was complainant in the case registered on the contribution of the mosque about two years ago but he firstly showed his ignorance about the names of the witnesses of that case and then stated that he (PW-9), Sarfraz and Maqsood were injured witnesses of that case. The said case remained pending in the Court for one year, but PW-9 again showed his ignorance if compromise was effected in that case or that the accused of that case were acquitted. According to PW-9, he appeared as a witness in that case, but failed to state if he had supported the contents of the FIR while appearing as a witness in the Court. PW-13 Maqsood Ahmad, however, came forward with the better sense and admitted that a compromise was effected in the case of fight on Eid day. He also admitted that no dispute took place between the appellants and themselves after the compromise and before the present occurrence. PW 9 also stated that he did not enter into civil and criminal litigation with any person in his Ilaqa but then admitted that he had a case of Lambardari with Sher Muhammad Gujjar. Certain other contradictions and concealments of certain facts are also there in the statement of PW-9 which are sufficient to prove that he is not a truthful witness and cannot be relied upon for conviction in a case of capital charge. The conduct of PW-9 as also improbable as Maqsood Ahmad his real brother had received serious injuries with fire-arm but instead of looking after him he had chased the appellants without any intimation that they were going towards his house. Fore these reasons, I am of the opinion that PW-9 was not present at the spot and had not seen the occurrence.
12.Sh. Nawab Din PW-14 apparently seems to be an independent witness but he stated that his brother had been residing in the said Abadi 20 years back before the present occurrence. The allegation against PW-14 was that he was personal servant of the complainant and was settled in the chak by the complainant party. When the complainant (PW-9) has been belied to be present at the place of occurrence and having seen the occurrence, there was no occasion for him (PW-14) to follow the appellants and witness the occurrence of commission of murder of Sarfraz. It is also not believable that PW-14 instead of looking after Maqsood injured had chased the appellants who had shown no intention to go to the house of the complainant. Certain contradictions and concealments of facts are also there in the statement of PW 14. Thus his statement is also not worthy of reliance.
13.The ocular account to the extent of murder of Sarfraz deceased only consisted of the statements of complainant (PW-9) and Sh. Nawab Din (PW-14) whereas Maqsood (PW-13) had not witnessed the said occurrence. Both PW-9 and PW-14, as discussed above, are not worthy of reliance and their presence at the spot has become doubtful. The prosecution also failed to prove the motive as in the earlier case compromise was admittedly effected between the parties and none of the incident had taken place thereafter. As far as reports of Technical Services (Ex. P-CC) and DD) are concerned, although the same are positive, but it is an admitted fact that empties and weapons were sent together for comparison, hence no sanctity is attached to these reports, which cannot be relied upon to provide independent corroboration to the ocular account. As such the prosecution having failed to prove the charge of murder of Sarfraz deceased against the appellants beyond any shadow of doubt, the impugned judgment to the extent of their conviction and sentence u/S. 304 Part-I/34 PPC is set aside and they are acquitted of the said charge by extending them the benefit of doubt. This Crl. A. No, 231-1992 is partly accepted in this respect.
14.As far as the receiving of injuries by Maqsood PW 13 is concerned, he himself appeared and supported this fact. His statement is corroborated by the medical evidence. He received fire-arm injuries. The appellants failed to show that how PW-13 Maqsood Ahmad had falsely involved them for causing injuries to him by lotting off the real culprits, when even according to the appellants themselves, there was no enmity left' between the parties as compromise was affected in the earlier case. Therefore, conviction and sentence of the appellant u/S. 308 Part-II read with Section 34 PPC is maintained and to this extent Crl. A. No, 231-1992 is partly dismissed. Benefit of Section 382-B Cr.P.C. shall be extended to the appellants. The appellants are presently on bail as operation of their sentence was suspended by this Court vide order dated 23.7.1994. The learned trial Court shall ensure that if the appellants have not undergone the whole sentence in this case earlier they shall be sent to jail to serve the remaining sentence, if any including the fine.
15. As far as Crl. A. No, 22-1993 filed.by the State and Crl. Rev. No, 186-1992 filed by the complainant against acquittal of the appellants from the charges u/S. 302/307/452/380/34 PPC are concerned, the appellants have been acquitted by this Court even from the charge u/S. 304 Part-I/34 PPC, hence they cannot be convicted u/S. 302/34 PPC. The prosecution own case was that the appellants had not repeated the fire on Maqsood Ahmad PW-13. They also did not wait after causing injuries to know the result of the same, whether Maqsood Ahmad was till alive or done to death. The motive also could not be proved. What happened immediately before the occurrence for committing the same has not come on record. As such conviction and sentence awarded to the appeals u/S. 308 Part-II/34 PPC recorded by the learned trial Court is justified. Charge u/S. 307/34 PPC does not prove from the record. As the ocular account regarding the second occurrence of commission of murder of Sarfraz has been disbelieved, therefore no question arises of the conviction of the appellants u/S. 452 and 380 PPC. Both Crl. A. No, 22/1993 and Crl. Rev. No, 186-1992 being devoid of any merit are dismissed.