ASLAM RIAZ HUSSAIN, ACTG. C. J.-This judgment shall dispose of Criminal Appeal No. 60/81 filed by Khan Ahmad appellant, Criminal Petition No. 428/80 filed by Saleem, against their conviction, and Criminal Petition No. 474/80 filed by Ali Muhammad complainant, against the acquittal of the four co-accused and Saleem aforesaid, of the charge of offence under section 302/149, P. P. C. And for enhancement of sentence of the convicted accused.
2. The facts leading to the above-noted cases are briefly as follows:- Khan Ahniad and Saleem appellants were tried along with Abdul Majeed, Abdul Ghafoor, Nazir Ahmad and Ghias, under sections 148 and 302/307/ 326/149, P. P. C., for forming an unlawful assembly; causing the murder of Muhammad Iqbal; making a murderous attack on the life of Hassana (P. W. 8) and causing injuries to Abdullah (P. W. 11), Taj Khan (P. W. 12) and Muhammad Tufail (P. W. 13), in furtherance of the common object of the said unlawful assembly. The trial was conducted by S. Sibtain Raza Naqvi, Additional Sessiuns Judge, Lyallpur, (now Faisalabad); who acquitted all the accused. The State filed an appeal against their acquittal, under section 417, Cr. P.
C., which was heard by a Division Bench of the Lahore High Court. It accepted the appeal .Qua Khan Ahmad and convicted him under section 302, P. P. C. For which he was sentenced to imprisonment for life and a fine of Rs. 1,000, or in default to further one year's R.
1. He was also directed to pay a sum of Rs. 10,000 as compensation to the heirs of Iqbal deceased. The High Court also set aside the acquittal of Saleem and found him guilty of offence under section 307, P. P. C. For which he was sentenced to imprisonment for the period already undergone by him. It, however, dismissed the State Appeal with regard to the remaining four co-accused:
3. Aggrieved of this judgment Khan Ahmad filed Criminal Petition No., 429/80 in this Court which was converted into Appeal (Criminal Appeal No. 60/81). Saleem also filed a Criminal Petition (No. 428/80) against his conviction while Ali Muhammad complainant filed a petition (Criminal Petition No474/80), as mentioned above, against the acquittal of the four co-accused and for enhancement of sentence of Khan Ahmad appellant and Saleem petitioner.
The occurrence in question took place on the 26th of October, 1972, at Ishaawela in a street in Chak No. 208/R. B. District Lyallpur (now Faisalabad) in front of the havelis of the accused and the complainant which are adjacent to each other.
The prosecution version as stated in the F. I. R. Is briefly, that on the evening of the fateful day Ali Muhammad complainant was sitting in his house along with his son Muhammad Iqbal, when Hassana (P. W. 8), Ibrahim and Muhammad Ali (since given up as unnecessary) came to his house.
It was the month of Ramazan. They took their Iftaari there in the house of the complainant and after the Ishaa Azan, all of them started for the village mosque for offering their traveeh prayers. When they reached near the havell of Khan Ahmad accused (appellant) all the six accused emerged therefrom. Khan Ahmad, Abdul Ghafoor and Nazir, accused, were armed with '12 bore guns, Saleem was armed with a pistol while Ghias and Majeed, accused, were armed with takwas. Khan Ahmad appellant raised a lalkara that a lesson will be taught to the helpers of Rashid and his brothers.
Immediately thereafter Khan Ahmad appellant fired a shot hitting the deceased on his face.
Saleem petitioner followed by firing at Hassana hitting him on his left leg. On being hit both Iqbal (deceased) and Hassana (P. W. 8) fell down. .Apart from Ali Muhammad complainant and the persons accompanying him, the incident of firing was also seen by Bagb (P. W. 10) and Fazla (since given up as unnecessary), who were going to say their Traveehs at the same mosque which is situated near the place of occurrence, opposite to the havelis of the parties. On hearing the reports of the fire some other persons also came to the spot. Iqbal (deceased) succumbed to the injury and died at the spot. His father Ali Muhammad complainant, leaving the other P. Ws. To. Guard the dead body and attend to Hassana P. W. Rushed to the Police Station Sadar Lyallpur (now Faisalabad) to report the matter. He lodged the F. I. R. Giving the above-mentioned facts about the incident. It was recorded by Abdur Rashid, S. L/S. H. O, (P. W. 15)._
4. The motive, for the said occurrence is stated to be that 2/3 years earlier Khan Ahmad appellant was. Engaged to Mst. Rafiqan, the daughter of his uncle named Iqbal. About 5/6 months prior to the occurrence aforesaid Iqbal broke the engagement ,and married her to one Rashid, who is a brother of Taj Din (P. W. 12), Muhammad Tufail (P. W. 13) and uncle of Abdullah (P.. W. 11). This was deeply resented by Khan Abmad (appellant) who started harassing the relatives of Rashid. Iqbal (deceased) and Hassana (P. W. 8), took the side of Muhammad Tufail etc. In this matter and helped them.
5. It may be mentioned that according to the prosecution case, as put forward at the trial, soon after the above-noted incident of firing Gbias and Majeed co-accused who were armed with takwas entered the haveli of Muhammad Tufail etc. P. Ws. Where they inflicted blows on Tufail (P. W.
13) and Abdullah (P. W. 11). They caused them total of 10 injuries, out of which one on the head of Taj (P. W. 12) was an incised wound measuring 3' x 1/2' on the left side of the head, cutting the bone underneath. This injury was found by the doctor to be grievous in nature. The other injuries consisted of lacerated wounds and abrasions which were simple in nature. Some other person including Rustam Ali alias Rusti (P. W. 14), had also entered into the accused's haveli and haveli of Tufail etc. And witnessed this portion of the occurrence.
5. It is evident from what has been stated above that it was a single incident which consisted of two parts; one that of firing in the street and the other being the attack by Ghias and Majeed (acquitted accused) with takwas on Abdullab, Taj and Tufail P. Ws.
But the F. I. R. Lodged by Ali Muhammad complainant contains no mention of latter portion of the incident. According to him (i. e. the complainant) he had rushed to the police station immediately after the death of his son by firing and had come to know of the latter part of the occurrence after he had returned to the village with the Police.
6. During the investigation the accused were arrested, Gun (Exh. P. 1) and a Carbine (Exh. P. 3) recovered from Khan Ahmad and Saleem appellants, respectively, but since no empty cartridges were found at the place of occurrence the recovery of these weapons could not be used to advance the prosecution case.
7. At the trial the prosecution relied on the testimony of 7 eye-witnesses. Out of these 3, namely, Ali Muhammad (P. W. 7), Hassana (P. W. 8) and Bagh (P. W. LO) are witnesses of the earlier part of the incident relating to firing in the street, while the remaining 4 witnesses, namely, Abdullah (P. W. 11), Tai Khan (P. W 12), Muhammad Tufail (P. W. 13) (all of whom had been injured with takwas) and Rustam Ali (P. W. 14) had deposed with regard to the second portion of the incident.
The prosecution also relied on the evidence of motive and the medical evidence.
8. All the accused, however, denied their guilt and pleaded innocence. There of them namely, Abdul Majeed, Abdul Ghafoor and Saleem stated that they were not even present at the spot while the other three namely Khan Ahmad (appellant) Nazir and Ghias (acquitted accused) admitted their presence at the spot but gave a different version of the incident. It may be useful to produce here this version as stated by Khan Ahmad (appellant):- "Taj and Tufail P. Ws. Are also Bhatti Rajputs like me. Their paternal-- aunt Mst. Zeenat had a daughter Mst. Janate. Taj and Tufail married Mst. Janate with Rehmat Ali Khokhar Rajput of village Daulowal. Bhatti Rajputs, regard Khokhar Rajputs as low caste. On thisaccount we had differences with the family of Tufail and Taj. On the day of occurrence, Abdullah P W. Was beaten by Nazir accused on the dispute of his hens disturbing the cow-dung laid by them on the common wall of our haveli and their house, which fell in the mangersof ours, where our cattle were tethered On the night of occurrence, I along with my brothers Nazir and Ghias were going to our cattleshed (Haveli) to sleep there. We were holding Lathis. It was dark whenafter Tiraveeb prayer we passed in front of the house of Tai and Tufail P. Ws., we were attacked by Tufail, Taj and Abdullah. They gave us blows.
We also retaliated and caused injuries to Tufail, Tai and Abdullab. In the meantime, Tufail .P. W. Had exhorted his armed companion on his roof, who fired from the roof top injuring Iqbal deceased and Hassana . W. Who were passing through the street "
8-A. The learned Trial Court believed this version and held, inter alia, that Khan Ahmad, Nazir and Ghias had caused injuries to Muhammad Tufail etc. In the exercise of self-defence which they did not exceed and further that the prosecution had failed to prove that the accused had fired any shot whichresulted in the death of Iqbal and fire-arm injuries to . Hassana (P. W. 8). He, therefore, acquitted the other accused giving them the, benefit of doubt.
However, the High Court, on hearing the State Appeal, formed a different view and after discussing the evidence as well as the judgment of the learned Trial Judge in detail, held that the incident of firing in the street mentioned in the first information report in which Iqbal died and Hassana P. W. 8 was injured, stood proved. It, therefore, convicted Khan Ahmad appellant under section 302, P. P. C.
And sentenced him to imprisonment for life, but convicted Saleem petitioner only under section 307, P. P. C. For having fired and injured Hassana (P. W. 8) on the leg and keeping in view the provisions of section 380-B, Cr. P. C. Sentenced him to a period of imprisonment already undergone by him. It, however, dismissed the State Appeal with regard to the remaining four accused on the ground that the P. Ws. About the second portion of the incident had taken contradictory stand at various stages with regard to the said incident.
8-B Khan Ahmad appellant and Saleem petitioner are both represented by the same learned counsel. Since the appeal of Khan Ahmad appellant is as of right, the learned counsel took us through the entire evidence on the record 'as well as judgments of both the learned Courts below.
He, however, did not raise any question of law but urged that the learned Division Bench of the High Court had not correctly appreciated the evidence on the record and had not taken due notice of the contradictory stands taken from time, to time by the P. Ws. 11 to 14 with regard to the sequence of events in respect of the second incident. He, therefore, urged vehemently that the witnesses produced by the prosecution were not such on whose statements implicit reliance could be placed by the High Court for convicting the.. .,appellants in the absence of any independent corroboratory evidence.
9. Having gone through the statements of the four witnesses relating to the second portion of the occurrence namely, Abdullah (P. W. 11), Ta Khan (P. W. 12), Muhammad Tufail (P. W. 13) and Rustam Ali (P. W. 14) we feel that they have indeed made certain changes in the sequence o events, which casts doubt as to the real manner in which this portion of the incident took place. Although, in view of the fact, that Abdullah, Taj Kha and Tufail have sustained as many as 10 injuries, one of which on the head of Taj Khan (P. W. 12) was grievous, while on the accused's side only one person i. e. Nazir accused, received one minor blunt weapon injury it appears that Muhammad Tufail etc., had been attacked and injured where they (i. e. The said P. Ws.) were not armed with any weapons and could no retaliate. But in view of the abovementioned infirmities in their statement we feel that the learned Courts below were justified in giving benefit o doubt to the accused involved in the second portion of the incident, and acquitting them. As far as Nazir and Abdul Ghafoor (acquitted accused) are concerned we notice that no active role or injury is attributed to them. They too, therefore, were rightly acquitted by the High Court.
10. But as-far as the initial portion of the incident, relating to firing in the street is concerned, it is supported at the trial by Ali Muhammad (P. W. 7), Hassana (P. W. 8) -and Bagh (P. W.10). It may be mentioned that none of them is alleged to have had any serious hostility or enmity against Khan Ahmad and Saleem and they had, therefore, no motive to involve them falsely and substitute them for the real assailants who had actually fired at them. In this connection it may be mentioned that though the occurrence took place at Ishaawela there was sufficient electric light in the street.
These witnesses could, therefore, see the assailants and being residents of the same village, there could be no possibility of any mistake in the identity of the assailants. Evidently the presence of Hassana (P. W. 8), who was himself injured during the incident, cannot be denied. Bagh (P. W. 10) is entirely an independent and disinterested witness who is no connected with any of the parties and no such suggestion has been mad against him by the appellants during the cross-examination.
Therefore, their testimony is on somewhat better footing than those of the four eye-witnesses relating to second part of the incident. But even so, considering that the second portion of the incident finds no mention in the F. I. R., we do feel that their testimony requires some support or confirmation before it can be relied upon.
11. As mentioned earlier Khan Ahmad (appellant) had admitted his own presence as well as that of two other co-accused (Abdul Ghafoor and Ghias) and had also admitted his participation in the occurrence although he had given a different version of the same (which as mentioned above does not appear to us to be true). His admission that he was ,present at the spot and took part in the incident, is, in our view, a strong confirmatory circumstance as against him (Khan Ahmad) and supports the testimony of the P. Ws. Qua him. Therefore, we feel that the learned High Court rightly believed the testimony of Ali Muhammad complainant (P. W. 7), Hassana (P. W. 8) and Bagh (P. W.
10) against Khan Ahmad and was justified in setting aside his acquittal and convicting him for the charge of murder under section 302, P. P. C. As for the sentence, we feel that in view of the fact that the prosecu--tion appears to have suppressed the real origin of the incident the learned High Court rightly awarded him the lesser sentence. His appeal is, therefore, dismissed.
12. The case of Saleem petitioner (in Criminal Petition No. 428/80) is, however, distinguishable. As no such confirmatory circumstance is available to support the testimony of the eye-witnesses against him, we feel that their testimony should not have been relied upon for his conviction. Consequently, we convert his petition into appeal, accept it and acquit Saleem appellant of the offence under section 307, P. P. C.
13. For the reasons given in paras. Nos. 7 to 12 above, we feel that there is no force in the Criminal Petition No. 474/80 filed by Ali Muhammad complainant, against the acquittal and for enhancement of sentence of the convicted accused. We, therefore, dismiss the same.
This disposes of all the above-noted three matters.