1. ' BASHIR A. MUJAHID, J.--- This judgment shall dispose of Criminal Appeal No.1732 of 2001 (Muhammad Shabbir v. The State), Criminal Appeal No.362-J of 2001 (Master Khurshid Ahmed v.
2. The State) and Criminal Revision No.869 of 2001 (Rana Khalil Ahmed v. Master Khurshid Ahmed) as all the three are outcome of the same judgment.
3. ' Muhammad Shabbir son of Abdul Shakoor and Master Khursheed Ahmed son of Muhammad Shafi have challenged judgment, dated 13-10-2001 passed by learned Judge, Special Court, Kasur whereby they were convicted under section 302(b) read with section 149, P.P.C. For causing murder of Muhammad Yasin and Muhammad Wakeel and sentenced to imprisonment for life. They were also ordered to pay compensation of Rs.50,000 each under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default of payment they were ordered to undergo four months R.I. Benefit of section 382-B, Cr.P.C. Was, however, extended in their favour.
4. ' The brief facts of the case are that F.I.R. No. 442 of 1996 Exh.P.W.15/1 was registered at Police Station Phoolnagar under sections 302/148/149, P.P.C. On the statement of Rana Khalil Ahmed, P.W.12 on 13- 7-1996 at 2-30 a.m. Recorded by Ghulam Qasim P.W., stating therein that he was resident of Nathay Jagir and was cultivator. About 4/5 years ago he was married with Mst. Nusrat Bibi and his sister- in-law Mst. Shakeela was already married with Master Khursheed Ahmed, appellant about 1/2 year ago. Master Khursheed obtained Rs.5,000 as a loan but on demand was not returned. A day before the occurrence at 11-00 a.m. The complainant again demanded the loan and there was altercation between him and Master Khursheed. Ahmed. Thereafter, Master Khursheed Ahmed, his sons and brother-in-law came to his house and had a quarrel with the complainant but the matter was patched up due to intervention of the respectables of the village. During the night the complainant along with family members was sleeping in the Haveli while his brother Wakil Ahmed and his father Yasin and one Qari Aslam were sleeping in the Baithak. When at about 1 a.m. Mst. Haneefan, wife of Shakoor, Shakeela wife of Khurshed Ahmed knocked at the door of the Haveli and asked to open the door. The complainant opened the door and saw Master Khursheed Ahmed empty-handed, Muhammad Wakil son of Abdul Shakoor armed with rifle .222, Zulfiqar and Muhammad Shabbir armed with mauzers, Hamad Mehmood and Sajad Mehmood armed with dangs were standing.
5. Master Khursheed Ahmed raised Lalkara to teach lesson to Khalil Ahmed for demanding loan and for disgracing him. He also raised Lalkara to kill him. On which, the co-accused stepped forward.
6. The complainant ran away in the street. The accused chased him and he raised hue and cry which attracted his brother Wakil Ahmed, father Muhammel Yasin and Qari Aslam and they also started running after him and requested the accused to forgive the complainant. The accused caught hold of Muhammad Yasin, father of the complainant and his brother Muhammad Wakil near the mosque and started beating them. Meanwhile, Ali Bahadar and Muhammad Ayub, P. Ws also came at the spot. Muhammad Wakil, Zulfiqar and Muhammad Shabbir sons of Abdul Shakoor started firing at the complainant party. Muhammad Yasin and Muhammad Wakil received the fire-arm injuries at the hands of the accused and they died at the spot. The accused ran away from the spot. The occurrence was witnessed by Ali Bahadar, P.W.11 and Rana Dilshad, P.W.10.
7. ' The investigation was undertaken by Ghulam Qasim, S.-I. Who after recording the statement of the complainant arrived at the spot and took the dead bodies into possession. Thereafter, he took 'four empties of rifles P.1 to P.4 and two empties of pistol into possession through Exh.P.5/1. He also collected the blood-stained earth from the place where Muhammad Wakil and Muhammad Yasin were murdered. He could not be produced having been murdered and his signatures etc. Were verified by Khalil Ahmed, P.W.15. The accused were arrested and recovery of weapon of offence was effected by P.W.13 Syed Amjid Ali Shah. After completion of the investigation challan against the accused was submitted.
8. ' The trial Court framed the charge which was denied by them and they claimed trial.
9. ' During the trial the prosecution examined as many as 15 witnesses to prove the guilt of the accused.
10. ' The medical evidence was furnished by Dr. Afzal Bashir, P.W.2 who on 13-7-1996 conducted the post-mortem examination on the dead body of Muhammad Yaseen son of Khawaja and found the following injuries on his person:--
(1) A lacerated wound of 1 x 1 c.m. In diameter deep to abdominal cavity in the left hypoclion drium just below about 2 to 3 c.m. The above left costal margin. The wound was surrounded by blackish spot about 6 x 6 c.m. In diameter wound was directed to the right side. Margins were inverted.
(2) A lacerated wound of 3 x 1 1/2 c.m. Margins everted directed inside toward the abdominal cavity over the outer aspect of right buttock about 3 to 4 c.m. Below the right iliac crest. Injuries.
11. ' On the same day, the said witnesses also conducted the post-mortem examination on the dead body of Wakeel Ahmad son of Muhammad Yaseen and found the following injuries on his person:--
(1) A lacerated wound of size 6 x, 5 c.m. Margins inverted blackish in colour.
(2) A lacerated wound of size 1 x 1 c.m. In diameter margins inverted, blackish in colour on the back of it on right half just below the ribs over the back of the trunk.
12. ' The ocular account was furnished by Rana Khalif Ahmed, P.W.12 who supported the version of the F.I.R. And narrated the motive of the occurrence. Ali Bahadur, P.W.11 was also an eye-witness of the occurrence. His statement is in the line with that of Rana Khalil Ahmed, P.W.12. Rana Dilshad, P.W.10 was the witness of `Wajtakar' and stated that he saw the accused running away from the place of occurrence soon after the occurrence. Nazir Ahmed, draftsman prepared the site-plan of the place of occurrence. Abdur Rehman, P.W.4 identified the dead bodies at the time of post-mortem examination. Nisar Ahmed, P.W.14 deposed that in his presence Muhammad Wakeel got recovered rifle 222 P.3 from the house of Master Khurshid along with six bullets P.4/1-6 which was taken into possession through memo Exh.P.W.14/2. Khalil Ahmed, A.S.-I. P.W.15 verified the investigation conducted by Ghulam Qasim, S.-I. Who was murdered. The remaining witnesses are of formal nature and need not to be discussed.
13. ' The prosecution evidence was closed by tendering in evidence reports of Serologist Exh.PS and Exh. PJ and that of Chemical Examiner Exh. PU and Exh.PV.
14. ' The statements of the accused/appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. In reply to question as to why this case against them and why the P.Ws. Deposed against them, they stated as under:-- "It is a false case. The P.Ws. Have deposed against us and our co-accused. In fact the sister of Zulfiqar accused was married with Khalil Ahmed complainant and he tortured her and did not allow her to meet her parents. Zulfiqar our co-accused since dead went to see her sister. Hot words were exchanged with Zulfiqar and complainant party. Zulfiqar accused flared up and on the same night, he murdered Wakil and Yaseen. Zulfiqar accused was related to us so the complainant ropped us and our co-accused in this false case. Thereafter taking revenge of the said murders, the complainant Khalil made a plan to murder Zulfiqar accused. Consequently his nephew and brother-in-law murdered Zulfiqar my co-accused as case under section 302, P.P.C. Was registered at Police Station City Kanewal."
15. ' The trial culminated into conviction and sentence of the appellants as mentioned above. Hence these appeals and Criminal Revision. Criminal Appeal against acquitted co-accused was consigned to record vide order, dated 5-3-2002 of Division Bench.
16. ' Learned counsel for Muhammad Shabbir, appellant has argued that Muhammad Shabbir was less than 15 years at the time of occurrence and during the trial after enforcement of Juvenile Justice System Ordinance, 2000, his case should have been tried under the special law by the Special Court, therefore, his trial by the ordinary Court is illegal. It is further argued that the complainant Rana Khalil Ahmed, P.W.12 himself admitted in cross-examination that fire made by Muhammad Shabbir, appellant did not hit anybody and he could not have been convicted for his mere presence at the spot. It is further argued that the motive is also not attributed to Muhammad Shabbir accused but was with Zulfiqar co-accused who was responsible for commission of crime and during the trial was done to death by the complainant party and the said case has been patched up between both the parties while Muhammad Wakil, co-accused is still proclaimed offender and the case of Muhammad Shabbir, appellant is at par with his co-accused who have already been acquitted by the trial Court and appeal against their acquittal was consigned to record.
17. ' Learned defence counsel for Master Khurshid Ahmed has argued that he was admittedly empty- handed present at the spot and only Lalkara has been attributed to him that too to murder the complainant and there is no motive against him for murder of Yaseen and Wakil. He is an old man aged 80 years, therefore, the case of the prosecution against him is doubtful and his appeal be allowed and he be acquitted of the charge' by extending benefit of doubt.
18. ' Learned counsel for the complainant in support of the revision petition has not turned up for the last many dates, therefore, the revision petition is dismissed for non-prosecution.
19. ' However, learned counsel for the State has opposed the appeals and supported the impugned judgment.
20. ' I have given due consideration to the contentions raised at the bar and also examined the record.
21. ' Admittedly, Muhammad Shabbir appellant was stated to be 15 years of age when his statement under section 342, Cr.P.C. Was recorded on 29-9-2001 and he was also injured and examined by the doctor on the said date and in the medical certificate he is stated to be of 14 years. It can safely be held that he was child aged less than 18 years when the alleged occurrence took place.
22. Furthermore, in the F.I.R. There is allegation of general firing against all the accused. The complainant when examined as P. W.12 in the trial Court clearly admitted in his cross-examination that fire made by Shabbir, appellant did not hit anybody. The motive is also not against him.
23. Similarly, Ali Bandur, P.W.11 in his cross-examination admitted that nobody was hit by the fire made by Muhammad Shabbir appellant. In the F.I.R. He was stated to be armed with Mauzer, but pistol was recovered from him during the investigation and that pistol was also not sent to the Forensic Science Laboratory for its comparison with the empties taken into possession from the spot, therefore, it cannot be stated that he used the pistol during the occurrence. The co-accused have already been acquitted who were not attributed any specific injury. Muhammad A Shabbir, appellant is also minor and his case falls under section 8 of ATA, 1997 and his conviction under section 302(b), P.P.C. Is not legal. Although he himself received the injury but mere presence at the spot does not prove that he actively participated in the occurrence, therefore, benefit of doubt is extended in his favour.
24. As far as case of Master Khursheed Ahmed, appellant is concerned, although motive has been attributed to him that the complainant demanded Rs.5,000 given to him as a loan which was the bone of contention for the occurrence but admittedly, he was empty-handed at the spot. Only Lalkara has been attributed to him that too against the complainant. He is closely related to the complainant. The co-accused who had not actively participated in the occurrence have been given benefit of doubt and have been acquitted by the trial Court. Master Khursheed Ahmed, is an old man. Had he shared the common intention with his co-accused to commit murder, he would have himself come at the spot armed. Neither he nor his sons were armed with deadly weapon, therefore, mere on the ground of motive it is not safe to maintain his conviction particularly when the co-accused with similar role have been acquitted by the trial Court by giving benefit of doubt, therefore, benefit of doubt is also extended his favour.
25. ' Resultantly, both the appeals are allowed and the appellants are acquitted of the charge. Their conviction and sentence is set aside. They are ordered to be released forthwith if not required to be detained in any other case.