' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,865 of 1998 filed by Munawar Hussain and Najaf Ali son of Jahangir and Criminal Appeal No,892 of 1998 filed by Najaf Ali alias Najju son of Sultan, Muhammad Ashraf and Ahmad Khan, who were convicted and sentenced by the learned Additional Sessions Judge, Hafizabad, vide his judgment, dated 8-10- 1998 as under:--
(i) Najaf Ali son of Jahangir and Munawar Hussain Death each with compensation of Rs,25,000 each under sections 302(b)/149, P.P.C.
(ii) Najaf Ali son of Sultan, Muhammad Ashraf and Ahmad Khan Five years imprisonment each with fine of Rs,10,000 each in default of payment thereof three months' S.I. Each for offences under sections 324/149, P.P.C.
(iii) All the accused/appellants were convicted for offence under section 148, P.P.C. And sentenced to three years' R.I. Each with fine of Rs,10,000 each in default of payment thereof three months' S.I.
' Murder Reference No,271 of 1998 for confirmation or otherwise of death sentence awarded to Munawar Hussain and Najaf Ali son of Jahangir-appellants and Criminal Appeal No,1313 of 2000 filed by Mehar Noor Muhammad seeking enhancement of sentence of the respondent shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated by Mehar Noor Muhammad/ complainant in the F.I.R. Exh.P.H.
Are that the complainant was resident of village Mustafabad. He along with his real nephew namely Aftab Alam (deceased), Sultan son of Ali Muhammad and Khadim Hussain son of Muhammad (P.Ws.) were at Pindi Bhattian in connection with personal affair, in a Car No,4434/VRA and, when the business was over, they were returning from Pindi Bhattian. At about 6-00 p.m. When they reached near the Saw Machine of Haji Ahmad Ali, Muhammad Ashraf and Ahmad Khan both armed with rifles, Najaf Ali son of Jahangir and Munawar Hussain both armed with .12 bore guns, while Najaf Ali alias Najju armed with .12 bore carbine, immediately appeared and intercepted the car. Muhammad Ashraf said that Aftab Alam (deceased) would not be allowed to go alive. Upon which Najaf Ali fired with his gun at Aftab Alam, which hit upon his right side of temporal region. The car was off roaded and stopped on the left side of the road. Thereafter Munawar Hussain fired with his gun at Aftab Alam, which also hit on the right side of his head at temporal region. The complainant and Sultan P.W., who were sitting on the rear seat of car, after raising hue and cry started running. Muhammad Ashraf, Ahmad Khan and Najaf Ali alias Najju accused opened firing with their respective weapons upon them but they were saved. On their hue and cry all the accused while resorting to aerial firing ran away. The P.Ws. Reached near the car and saw that Aftab Alam was succumbed to the injuries while sitting on the seat of the car.
' The motive behind the occurrence was that in 1964 one Sardara son of Qadri Deendar etc. Had committed murder of the father of Muhammad Ashraf, wherein the complainant and Mehar Maula Dad were also challaned and were placed in Column No,2 of report under section 173, Cr.P.C.
Thereafter they were acquitted. For that grudge the accused with their common intention committed the murder of Aftab Alam.
3. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Iqbal S.-I./P.W.9. He proceeded to the place of occurrence, took over the dead body, prepared injury statement Exh.P.L. And inquest report Exh.P.K. He took into possession blood from inside the car vide memo. Exh.P.M. On 24-9-1996 Muhammad Tariq, Inspector/S.H.O./P.W.13 arrested Munawar Hussain, Najaf Ali alias Najju and Najaf Ali son of Jahangir. On the same day, Munawar Hussain, Najaf Ali son of Jahangir led to the recovery of .12 bore guns P.4 and P.6, while Najaf Ali alias Najju led to the recovery of .12 bore carbine P.5, separately, the articles were taken into possession vide memo. Exh.
P. C. , Exh. P. E. And Exh. P. D. Respectively. Muhammad Ashraf and Ahmad Khan accused could not be arrested and were got declared proclaimed offenders. After completion of investigation, the accused were sent up to face trial,
4. At the trial, the prosecution in order to prove its case produced 16 witnesses in all. Mehar Noor Muhammad P.W.5 and Sultan Ahmad P.W.6 furnished the ocular account, while Dr. Shaukat Ali Wahla P.W.7, who conducted the post-mortem upon the dead body of Aftab Alam, furnished the medical evidence. He observed the following injuries on the person of the deceased:--
(i) Fire-arm wound of entry 9 c.m. x 13 c.m. On right cheek and temporal region 3 c.m. Above right ear, tattooing was present, margins burnt, edges inverted.
(ii) Fire-arm wound of entry 6 c.m. x 10 c.m. On right cheek, margins burnt and edges inverted.
(iii) Fire-arm wound of exit for injuries Nos.1 and 2, 15 c.m. x 30 c.m. x 13 c.m. On forehead, nose and left cheek.
(iv) Fire-arm wound of entry 1-1/2 c.m. x 1-1/2 c.m. x 15 c.m. On front of left half of chest, 3 c.m. Medial to left nipple in fourth intercostals space. Tattooing present, margins burnt, edges inverted.
(v) Fire-arm wound of entry 2-1/2 c.m. x 2-1/2 c.m. x 16 c.m. On front of left chest, 3 c.m. From midline in third intercostals space. It was entry of two pellets.
(vi) Fire-arm wound of entry 1 c.m. x 1 c.m. x 6 c.m. On front of left chest below left nipple.
(vii) Fire-arm wound of entry 2 c.m. x 2 c.m. x 1/2 c.m. On front of left half of chest over left second intercostals space, margins burnt.
(viii) Swelling with palpable foreign body 2 c.m. x 2 c.m. On left side of chest on dissection 1 pellet recovered.
(ix) Fire-arm wound of entry 1-1/2 c.m. x 1-1/2 c.m. x 12 c.m. On front of right shoulder, margins burnt edges inverted.
(x) Multiple fire-arm burnt area about thirteen in numbers measuring 1/4 c.m. x 1/4 c.m. On front of right arm.
(xi) Fire-arm wound of entry 1-1/2 c.m. x 1/1-2 c.m. On front of upper 1/3 of left thigh.
' The rest of the witnesses are formal in nature and need not be discussed. The prosecution after tendering in evidence the reports of Forensic Science Laboratory Exh.P.P. And Exh.P.Q., Chemical Examiner Exh.P.R. And that of Serologist Exh.P.S. Closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellants were convicted and sentenced as stated above.
5. After having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record, the learned counsel for the appellants in Criminal Appeal No,865 of 1999 Khawaja Sultan Ahmad, Advocate, in support of his appeal submits that it was an unwitnessed occurrence; that both the eye-witnesses were inimical towards the accused; that their presence at the spot is eliminated by the medical evidence, which is directly in conflict with their testimony; that the occurrence has not taken place in the car and not in the manner as described by the prosecution; that the accused, who were five in number and were armed with deadly weapons, did not cause any injury to Noor Muhammad, with whom they had direct enmity; and that the prosecution case is replete with doubts. Sardar Muhammad Latif Khan Khosa, the learned counsel for appellants in connected Criminal Appeal No,892 of 1998, has added that the ocular account is not corroborated either by the circumstances of the case or by any independent direct evidence; that in case the witnesses were in the car then they must have received injuries; and that it is not believable that according to prosecution three of the accused fired at the P.Ws. But none of them received any injury.
6. On the other hand, the learned counsel for the complainant has argued that the matter was reported to the police without any loss of time, which rules out the possibility of fabrication; that no question of identification or non-identification was involved in this case, as the complainant and the accused knew each other very well and the occurrence took place when the light was available; that the injuries attributed to Munawar Hussain and Najaf Ali son of Jahangir are supported by the medical evidence and fatal; that the argument of the defence that the occurrence did not take place in the car was devoid of any force, as the blood was lifted from inside the car coupled with the fact that registration number of the car was mentioned in the F.I.R.
And the car was also found parked at the spot; that the car has been shown in the rough site plan and the site plan prepared later on by the expert; that the motive stands fully proved in this case; that taking revenge does not faint due to passage of time and it is taken when the opportunity available and the moment the accused got an opportunity to take revenge they do not waste it; that after killing Aftab there was no need for the accused to take life of anyone else; that the P.Ws.
Have given most natural account of happening and have not exaggerated at all; that the witnesses have given a very truthful account as they could involve more persons very easily in the light of injuries; that Najaf Ali alias Najju, Muhammad Ashraf and Ahmad Khan were wrongly acquitted of the charge of murder as the learned trial Court itself held the case of unlawful assembly and convicted all the accused for offence under section 148, P.P.C. That very strong evidence is available in the shape of abscondence against Muhammad Ashraf and Ahmad Khan respondents; that it is a case where grain has been shifted from chaff and it is not a case of substitution; and that no mitigating circumstance exists in favor of Munawar Hussain and Najaf Ali son of Jahangir appellants.
7. The learned counsel appearing on behalf of the State has adopted the line of arguments advanced by the learned counsel for the complainant.
8. We have heard the learned counsel for the parties at length and gone through the entire record minutely. Previous enmity and rivalry over election matters between the complainant party and the accused A stand established. It reveals from the evidence that Mehar Noor Muhammad P.W.5, who is maternal-uncle of the deceased, admitted that Jahangir father of Najaf Ali appellant and Dost Muhammad, uncle of father of Munawar Hussain appellant had given him beating before this occurrence. He lodged report against them and they were challaned and were convicted for one years' R.I. Similarly Sultan Ahmad P.W.6 admitted that Luqman was his real brother against whom Ghulam father of Munawar Hussain appellant had got registered a case of theft of mare at Police Station Pindi Bhattian, which was pending. In the above noted background of existing hostility between the parties, the statements ofl eye-witnesses need deeper scrutiny.
9. According to F.I.R., at the time of occurrence while the deceased and P.Ws. Were going back to their village in a car, they were confronted by the accused/appellants. The car was being driven by Aftab Alam deceased while the P.Ws. Noor Muhammad, Sultan Ahmad and Khadim Hussain (who was not produced) were sitting on the rear seat. It is pertinent to note that no one was sitting on the front seat adjacent to the driver. Allegedly Najaf Ali appellant fired with a gun, which hit on the right side near temporal region of Aftab Alam. The car stopped on the left side of the road.
Thereafter, Munawar Hussain fired with his gun, which also hit on the right side of temporal region of Aftab Alam. Both the P.Ws. Along with Khadim Hussain raised alarm and started running after coming out of the car and were fired upon by Muhammad Ashraf, Ahmad Khan and Najaf Ali alias Najju accused. However, the fires did not hit any of the P.Ws. The accused while firing aimlessly left the scene of occurrence. Thereafter the P.Ws. Attended to Aftab Alam, who had lost his life while sitting on the seat of the car. Dr. Shaukat Ali Wahla P.W.7, who had conducted the pot-mortem examination on the dead body of Aftab Alam, observed 11 injuries on the person of the deceased, details whereof have been given in para.4 of the judgment. According to Doctor, injuries Nos.1 and 2, which were on the temporal region and were caused from very close range could be the result of one shot. He also opined that injuries Nos.4, 5, 6 and 7, which were on the left side of the chest might have been caused from the front side. However, perusal of the post-mortem report reveals that injury No,4 was on front of left half of chest 3 c.m. Medial to left nipple of fourth intercostals space. It was caused from a very close range as tattooing was present and margins were burnt.
Injury No,5 was also on front of left chest 3 c.m. From midline in third intercostals space. Injury No,6 was on front of the left side of chest below the left nipple, while injury No,7, which was also, caused from a very close range on the left half of chest over left second intercostals space. Injuries Nos.9 and 10 both were caused from a very close range on the front of right shoulder. Injury No,11 was caused on the front of upper 1/3 of left thigh. Doctor conceded that injury No,11 was not possible to the deceased from his right side. The details of the injuries clearly denote that all the injuries were not the result of two fires caused on the temporal region of the deceased as narrated in the F.I.R.
The P.Ws. Tried to reconcile the number of injuries with the narration given in the F.I.R. By making improvements and we would like to reproduce the relevant portions of their evidence. Mehar Noor Muhammad/P.W.5 stated that "the deceased fell on the steering upon receiving the fire shot injury; he had the front side of his chest which banged against the steering. The neck and face of the deceased fell a bit ahead of the steering. There was nobody sitting on the front seat of the car besides the deceased at the time of occurrence. All the pellets of the first fire shot hit against the right side of the head of the deceased. No pellet hit against the body of the car or us. No blood of the deceased fell either ahead of the steering or on the floor of the car it only fell on the seat where he was sitting. The second fire was immediately made at the deceased. The pellets of the first fire shot hit on the right side of the head and extended upon to the right side of the neck of the deceased. I did not count the number of the pellet injuries sustained by the deceased. I cannot deny whether they were twenty in numbers or not, however, they were innumerable. The second fire shot was also fired from the same distance. The second fire shot hit the deceased on his head, armpit and thigh. The deceased had received innumerable pellet injuries on the various parts of his body as a result of the second fire shot. While according to Sultan Ahmad/P.W.6, "Najaf accused fired at the deceased while placing the barrel through window on his temporal region. Munawar accused also fired from the same style and range at the deceased. Both the fires hit the deceased on his right temporal region. No fire was shot at the deceased from front side, his face remained in the same position towards the same side on receipt of both the shots. Both the shots hit the deceased at the same place. Some pellets might have been hit the screen of the car and other window pan but I did not notice anyone".
10. Evidently, statements of both the witnesses vis-a-vis injuries do not tally, and P.W.6 has not mentioned the injury on thigh at all. The doctor has ruled out that injury could be the result of shot fired at the temporal region. As already noted above the deceased had also received injuries on his chest, which were caused from front side but the same are not explained by the eye-witnesses at all. P.W.9 Muhammad Iqbal, S.-I., who had investigated the case soon after occurrence, stated that no empty cartridge was found near the site of occurrence and that car P.4 did not contain any sign of fire-arm or any pellet/bullet marks. No pellet or bullet was found inside the car or on its floor or seats.
11. It is also pertinent to note that prima facie the injuries on the chest of the deceased, which were caused from front side, should have broken the windscreen of the car at least. It was alleged that three of the accused, who were armed with rifles and carbines fired towards the P.Ws. But luckily P.Ws. Escaped. However, according to evidence, the accused had direct enmity with Mehar Noor Muhammad, who was one of the accused who had allegedly murdered father of Muhammad Ashraf accused in 1964. In that case it does not appeal to reason that the accused, who were five in number and were equipped with deadly weapons, would let go Mehar Noor Muhammad alive and instead take life of Aftab Alam, who was about eight years at the time of murder of father of Muhammad Ashraf accused. It is also pertinent to note that despite the allegation of repeated firing by the accused no crime-empty was recovered from the spot. It cannot be said that the accused removed the empties from the spot, as according to F.I.R. The complainant had gone to the police station while leaving Sultan Ahmad and Khadim' Hussain at the spot, who remained sitting there till arrival of the Investigating Officer. It has also been noticed by us that number of F.I.R.
Was not mentioned in the inquest report Exh.P.K.
12. The prosecution also chose to set motive in the F.I.R. By stating that in year 1964 Sardara and others had murdered Ali father of Muhammad Ashraf accused. In that case Mehar Noor Muhammad complainant and Mehar Moula Dad father of Aftab Alam were also implicated.
However, they were placed in column No,2 of the challan and were acquitted; thus, Muhammad Ashraf and other accused nursed a grudge in their hearts. According to medical evidence, Aftab Alam deceased was of 40 years at the time of post-mortem examination and was, therefore, about eight years old at the time of murder of Ali father of Muhammad Ashraf. As already noted above Mehr Noor Muhammad, who was directly involved in that case, was available, the accused would not have spared him. In the F.I.R., the complainant said about the motive, which was 32 years old, while during trial he had to admit before the Court that he was given beating by father of Najaf Ali and uncle of Munawar Hussain, appellants, and both of them were convicted and sentenced for one year's R.I. It further strengthens our opinion that in case Mehar Noor Muhammad would have been present on the spot; the accused would not spare him.
13. As far as the recoveries of weapons are concerned, they hardly advance the case of the prosecution, as no empty was recovered from the spot and it could not be said with authenticity that the recovered weapons were the same, which were used at the time of the occurrence.
14. The learned counsel for the complainant has laid much stress on the factum of abscondence of Muhammad Ashraf and Ahmad Khan. The argument of the learned counsel is devoid of any force, as abscondence, even if established, was only confirmatory evidence and conviction could not be based on abscondence alone.
15. The upshot of the whole discussion is that we have concluded that the P. Ws. Was not present at the time of occurrence and the case of the prosecution was not free from doubt. Thus, while extending the benefit of doubt, we allow both the appeals (Criminal Appeals Nos.865 and 892 of 1998) and the impugned judgment is set aside. The appellants are acquitted of all the charges.
Munawar Hussain and Najaf Ali son of Jahangir would be released from jail forthwith, if not required in any other case. The rest of the appellants are on bail. Their bail bonds are cancelled and the sureties are hereby discharged. Murder Reference is answered in the negative. Death sentence is not confirmed.
16. For reasons recorded above, we find no merit in Criminal Appeal No,1313 of 2000 and dismiss the same.