' SYED HUSSAIN MAZHAR KALEEM, J.--- Above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction, Mirpur, dated 29-6-2007, whereby Tasawwar Hussain, Mukhtar Hussain and Waqar Hussain were convicted under sections 302, 341, 324, 337, A.P.C. And 13/20/65, Arms Act while Sardar Ali and Asif Ali were acquitted of the charge.
2. Necessary facts for disposal of the appeals and the reference are that a case under sections 302, 324, 341, 506, 337/34, A.P.C. And 13/20,'65, Arms Act was registered against the appellants and others at Police Station, Dadyal on the complaint of Sagheer Ahmed. It was reported that on 29-2- 2004 the complainant along with his brother Zaheer Ahmed was coming from Chattroh to Saikh in Pajero Jeep No,303-AJKE. He was driving while his brother was sitting in front seat. At about 5-45, p.m. When they arrived near house of Ch. La! Hussain, the road was blocked. As they stopped the jeep, Mukhtar Hussain, Waqar Hussain and Tasawwar Hussain came out of Suzuki Pick-up No,3937- RPT standing in the road, they raised Lalkara and dragged them out of the jeep. Mukhtar Hussain fired with .30 bore pistol at the complainant which hit at index finger of his right hand. Tasawwar Hussain armed with .30 bore pistol fired at Zaheer Ahmed and caused injury at forehead which resulted into his death while Waqar Hussain, appellant was alleged for pelting stones at the complainant. A Crolla Car No,3743-ID was also parked behind the Suzuki in which Sardar Ali and Arshad Hussain were sitting and were raising Lalkaras to kill the complainant and his brother. The complainant made hue and cry. Mukhtar Hussain, Tasawwar Hussain and Waqar Hussain left the Suzuki at the spot and ran away on a motorcycle driven by Muhammad Asif. Sardar Ali and Arshad Hussain also left the place in their car. The occurrence was stated to be witnessed by Muhammad Ayyub and Hakam Dad. Motive behind the occurrence was old enmity and litigation between the parties. It was also alleged that five days prior to the occurrence the accused person stopped the complainant in Saikh Bazaar and abused him.
3. Arshad Hussain accused absconded after commission of the offence and was proceeded under section 512, Cr.P.C., however, the challan was submitted before District Court 'of Criminal Jurisdiction, Mirpur against the convict-appellants and acquitted respondents. On conclusion of the trial, the Court convicted the appellants, Tasawwar Hussain appellant was sentenced to death as Ta'zir under section 302, A.P.C. And one year's R.I. With Rs,5,000 fine under the Arms Act, Mukhtar Hussain appellant was awarded one year's R.I. With Rs,10,000 Daman under section 337-F(1), A.P.C.
And one year's R.I. With Rs,5,000 fine under the Arms Act, Waqar Hussain appellant was sentenced to 5 years' R.I. With Rs,10,000 fine under section 324, A.P.C. While Sardar Ali and Muhammad Asif were acquitted of the charge through the impugned judgment. Hence these appeals and the reference.
4. It was argued on behalf of the convict-appellants and acquitted respondents that the prosecution failed to prove its case beyond doubt. Eye-account given by interested and inter se related witnesses was not confidence-inspiring. The deposition suffered from inherent improbabilities, inconsistencies and contradictions. F.I.R. Was lodged after preliminary investigation. The parties were inimical towards each other and the story was concocted to rope the convict-appellants and acquitted respondents in a false case. Incredible and artificial ocular version was not supported by any corroborative evidence. Only independent eye-witness of the occurrence namely Hakam Dad was not produced during trial. Interested witnesses were examined in order to strengthen the concocted story. It was evident from the record that the occurrence was not premeditated or pre-planned. The claimed time and place of occurrence were not established. In fact incident took place in dark hours of the night, identification of the accused persons was highly doubtful, place of occurrence was also changed and no evidence to prove that the convict-appellants and acquitted respondents barricaded the road to stop the jeep of the complainant was brought on record. Manner of occurrence alleged by the prosecution was not supported by post-mortem report and medical report pertaining to the complainant. Recovery of weapons of offence was highly doubtful and was of no help to the prosecution case. True facts were suppressed and in absence of independent corroborative material, ocular version given by interested witnesses was not safe to be believed. The trial Court, misconstrued, misread and misinterpreted the evidence against the appellants, the impugned judgment suffered inherent legal and factual defects as such was liable to be set aside, therefore, by accepting the appeals filed by the convicts they may be acquitted of the charges and appeals filed by the complainant and legal heirs of the deceased may please be dismissed.
5. On the other hand it was argued that the occurrence took place during broad-daylight.
Identification of the convict--appellants and acquitted respondents was not in doubt. They were nominated in promptly lodged F.I.R., time and place of occurrence along with names of the eye- witnesses were also mentioned, role played by each of the accused persons was described by the complainant. Every content of the F.I.R. Was proved during trial. The convict-appellants were alleged for killing the deceased and causing fire-arm injury to the complainant. Eye-account was supported by post-mortem report Exh.P.O. And medical report Exh.P.Q. Account given by the eye- witnesses was natural and confidence-inspiring and was corroborated by recovery of weapons of offence at instance of Tasawwar Hussain and Mukhtar Hussain appellants, crime-empties seized from the place of occurrence and other material such as post-mortem report, medical report etc. Including motive was proved. Presence of Sardar Ali and Muhammad Asif at the place of occurrence at relevant time was established, they were abettor and there was no justification to acquit them. The prosecution proved that the convict-appellants and acquitted respondents committed the offence in furtherance of common intention and all of them being responsible for committing the murder were liable to be convicted under section 302 read with section 34, A.P.C.
The prosecution produced two eye-witnesses in support of the case and required standard of evidence for sentence of "Qisas" was available, thus, there was no legal justification to award death sentence as Ta'zir to Tasawwar Hussain appellant, therefore, by accepting the appeals he may be sentenced to "Qisas" and others may also be convicted in accordance with law.
6. Learned Additional Advocate-General supported the arguments advanced by the learned counsel for the complainant.
7. Since all appeals and the reference arise out of same order of the trial Court, therefore, these shall be disposed of through this common judgment.
8. I have heard the learned counsel for the parties and perused the record of the case.
9. Story narrated by the eye-witnesses that on 29-2-2004 the complainant and his brother were coming back to home from Chattroh in Pajero Jeep No,303-AJKE, at about 5-45 p.m. They reached near the house of Ch. Lal Hussain, the road was blocked, Suzuki Pick-up No,3937-RPT and Car No,2743-IDC were parked there, as the complainant and deceased stopped the jeep, Mukhtar Hussain, Waqar Hussain and Tasawwar Hussain raised Lalkara and appeared at the scene, they dragged the victims out, Mukhtar Hussain convict-appellant fired with .30 bore pistol which hit the complainant at index finger of his right hand, fire made by Tasawwar Hussain convict-appellant hit Zaheer Ahmed at his forehead. He fell down and succumbed to the injury, Waqar Hussain pelted stones at the complainant while Sardar Ali and Arshad Hussain raised Lalkaras and instigated the appellants to kill the deceased and the complainant. In the meantime Muhammad Asif came there on Honda Motorcycle No,5963-AJKF, Waqar Hussain, Tasawwar Hussain and Mukhtar riding on it went towards Potha Sher. Sardar Ali and Arshad Hussain also left the place of occurrence in their car.
10. In support of the ocular version material such as two crime-empties of .30 bore pistols seized from the place of occurrence, vehicle used for commission of the offence, crime bullet recovered from the dead body, .30 bore pistols seized at the instance of Mukhtar Hussain and Tasawwar Hussain, stones seized from the place of occurrence at pointation of Waqar Hussain convict- appellant, post-mortem report, medical report pertaining to the complainant, site plan etc. Was produced in the evidence. The trial Court relied upon the prosecution evidence to the extent of convict-appellants while Sardar Ali respondent was given benefit of doubt and Muhammad Asif respondent was acquitted for want of proof.
11. The above mentioned facts show that the prosecution claimed that due to enmity the convict- appellants and acquitted respondents hatched a conspiracy, blocked the road and committed the offence in furtherance of common intention. Sardar Ali and Arshad Hussain raised Lalkaras, Tasawwar Hussain, Mukhtar Hussain and Waqar Hussain dragged the victims out of their jeep and committed murder of Zaheer Ahmed. Muhammad Asif accused-respondent facilitated the offender to escape from the place of occurrence on his motorcycle.
12. It may be stated here that accusation of abetment must be proved by producing evidence showing prior meeting of minds or act done by an accused during the occurrence. Mere allegation of raising Lalkara is not sufficient to convict an accused for abetment particularly when all the accused persons belong to same family, such type of allegations always need serious consideration and some material to establish participation of an accused in the occurrence is required. In the present case two real brothers and their sons were alleged for committing the offence in furtherance of common intention.
13. The evidence shows that Sardar Ali was not ascribed any overt act towards deceased or the prosecution witnesses, no material to prove his involvement in the occurrence was brought on record, allegation of conspiracy and facilitating the offenders to escape from the place of occurrence against Muhammad Asif was also doubtful as in presence of a car and pick-up there was no justification for the convict-appellants to use the motorcycle. Similarly no evidence regarding hatching conspiracy or premeditation against the respondents was brought on record, thus, they were rightly acquitted by the trial Court.
14. Mukhtar Hussain convict-appellant was alleged for firing with 30 bore pistol and causing injury at index finger of right hand of the complainant while Waqar Hussain was ascribed role of pelting stones at him. A .30 bore pistol was shown to have been recovered at instance of Mukhtar Hussain while two stones were claimed to have been recovered at pointation of Waqar Hussain. From perusal of the record it appears that the pistol was seized from an open place where it was lying in bushes. Letter No,3742-43, dated 31-3-2004 present at page 40 of the trial Court's file written by Director Forensic science Laboratory, Lahore shows that the weapon along with two crirre-empties of .30 bore seized from the place of occurrence and jacketed bullet recovered from the dead body were sent for Expert opinion but surprisingly the report was not brought on record., thus, the recovery of weapon was of no help to the prosecution case. It may be added further that medical report Exh.P.Q. Pertaining to Sagheer Ahmed complainant shows that he suffered blunt injury at index finger of his right hand, during investigation the police wrote letter Exh.P.S. To P.W. Doctor for clarification regarding weapon used for causing the injury and he opined that it might have been caused by fire-arm weapon, this shows that the P.W. Was not sure about the kind of weapon, thus, it cannot be ruled out that the claim of the fire-arm injury mentioned in Exh.P.Q. Was an exaggeration at the part of the eye-witnesses in order to strengthen the prosecution story. Similarly Waqar Hussain was alleged for pelting stones at the complainant but no injury other than the one mentioned above was found at his person, therefore, in my view the allegations against Mukhtar Hussain and Waqar Hussain were not proved beyond doubt.
15. Sagheer Ahmed complainant and P.W. Muhammad Ayyub were examined as eye-witnesses.
They alleged Tasawwar Hussain for firing and causing death of Zaheer Ahmed with .30 bore pistol.
Post-mortem report Exh.P.O. And weapon of offence allegedly recovered at the instance of Tasawwar Hussain convict-appellant were produced in support of the eye-account. It may be mentioned here that the deceased, complainant and prosecution witnesses were closely related to each other, enmity between the parties was admitted and the eye-witnesses were inimical towards the convict-appellants and acquitted respondents. P.W. Hakamdad who could have given true account of the occurrence was not examined. Though his examination-in-chief was recorded by the trial Court, but later on it was observed that the witness being sick w.s not capable of facing the test of cross-examination. Pervaiz Iqbal whose presence at the place of occurrence was not disputed was supposed to be an independent eye-witness but he was not produced. Allegedly a .30 bore pistol was recovered at instance of Tasawwar Hussain from Chergala where it was hidden in a house. The weapon was sent to Forensic Science Laboratory and the report available at page 99 of the trial Court's file shows that it was not in working condition. Beside two crime-empties seized from the place of occurrence and jacketed bullet recovered the dead body were not sent for Expert opinion along with pistol recovered from the principal offender thus without considering the merits of the seizing process it can be inferred that the recovery of weapon of offence from Tasawwar Hussain convict-appellant lends no support to the ocular version.
16. The trial- Court failed to appreciate that the prosecution story was based upon uncorroborative deposition of two inimical witnesses, the ocular version to the extent of Sardar Ali and Muhammad Asif was not confidence-inspiring, allegation of blocking the road was not proved, the claim of the eye-witnesses regarding fire-arm injury at the person of the complainant was doubtful. A lacerated wound and an abrasion found at the person of deceased were not explained by the eye- witnesses, recovery of incriminating articles was of no help to the prosecution case, thus, strong mitigating circumstances in favour of Tasawwar Hussain was present on record and in this view of the matter, death sentence was not warranted in this situation.
17. It may be stated here that the authorities cited by learned counsel representing the parties are not relevant for its distinct facts as such are not required to be discussed.
18. Upshot of the above discussion is that by accepting the appeal filed by Mukhtar Hussain and Waqar Hussain they are acquitted of the charge while the appeal filed by Tasawwar Hussain is partly accepted and by modifying the impugned judgment death sentence awarded to him by the trial Court is altered into life imprisonment. Benefit of section 382-B, Cr.P.C. Is also extended to the convict, resultantly appeals filed by the complainant and legal heirs of the deceased are hereby dismissed and the reference is refused.