ASLAM RIAZ HUSSAIN, J.-This order will dispose of Cr. P. S. L. A. No. 276 of 1978 filed by Muhammad Ishaq, complainant, against the acquittal of Nur Ahmad, Zahur Ahmad, Shah Behram, co-accused as also for the enhancement of fine under section 544-A, Cr. P. C. Against Nek Muhammad, and Cr.
P. S. L. A. No. 289 of 1978 filed by the Nek Muhammad against his conviction and sentence under section 302, P. P. C.
2. The facts leading to the present petition are briefly that Nek Muhammad, Zahur, Noor, Shah Behram and Ali Sher were tried by the Additional Sessions Judge (IV) Sahiwal for the murder of Abdul Razzaq who was a Naib Tehsildar. Actual murder was attributed to Nek Muhammad. Zahur and Nur while Ali Sher and Shah Behramwere alleged only to have instigated the murder.
3. Ali Sher died during the trial, Shah Behram was acquitted by the learned Sessions Judge vide judgment dated 17-6-1976 while the 3 remaining accused Nek Muhammad, Zahur and Nur were convicted under section 302/34, P. P. C. Nek Muhammad was sentenced to death and a fine of Rs.
1,000, and further 2 months S. I. In case of default in the payment of fine. For the same offence Zahur and Nur were sentenced to imprisonment for life plus the same fine as imposed on Nek Muhammad.
4. Zahur, Nur and Nek Muhammad filed appeals in the High Court against their conviction and sentence while Muhammad Ishaq, first informant, the brother of Abdul Razzaq, deceased, filed an application for permission to appeal against the acquittal of Shah Behram and a Criminal Revision for the enhancement of the sentence of Zahur and Nur. The learned High Court accepted the appeal of Zahur and Nur and acquitted them but dismissed the appeal of Nek Muhammad and upheld the conviction and sentence. It also dismissed the Revision petition and the application filed by Ishaq, complainant against the acquittal of Shah Behram accused hence the present petition by Nek Muhammad against the acquittal of the 3 co-accused, of Nek Muhammad and against the compensation payable by Nek Muhammad.
5. The motive for the offence ii stated to be that about two months prior to the occurrence, Shah Behram, had abducted Mst. Sughran widow of Dilawar, P. W. 9 a tenant of Ishaq, complainant, She was, however, got recovered from Shah Behram, Ali Sher, Nur and Zahur, accused through the efforts of Abdul Razzaq, Naib Tehsildar (deceased), who also insulted the aforementioned accused in the process. It is alleged that Zahur and Nur, etc. Extended threats of revenge for this insult.
6. The occurrence took place during the night between 7/8-4-1974, which was the 15th of lunar month, when Abdul Razzaq, deceased, who had come to visit his brother Muhammad Ishaq in Chak No. 106/D in the area of P. S. Maika Hans, District Sahiwal. According to F. I. R. On the fateful night Abdul Razzaq, deceased, was bleeping alongwith his brother Muhammad Ishaq, nephew Muhammad Akram P. W. 7 and another nephew Muhammad Afzal and his maternal uncle Shams Din in the open outside the house of Ishaq, complainant. At about 4 a. m. Ishaq, P. W. Woke up and saw that Nek Muhammad, Nur Ahmad and Zahur Ahmad, accused, were standing near the cot of Abdul Razzaq, deceased. It being a moon-lit night, he could identify them. He asked them as to why they had come there but all of them threatened him to keep quiet. Nek Muhammad was armed with a '32 bore pistol while Nur and Zahur, respondents were armed with sticks. Nek Muhammad fired with his pistol at Abdul Razzaq hitting him on the right side of his neck, as a result of which the latter died on the spot. Muhammad Akram, P. W. 7 and other two persons sleeping there, got up also on hearing the report of the pistol and all of them saw the accused. The accused, however, made good their escape and ran away along-with their weapons. Leaving the dead body with the relatives, Muhammad Ishaq,-P., W. 5, went to the P. S. Malka Hans and lodged F. I. R.
7. As already mentioned above, Shah Behrain and Ali Sher were only accused of having instigated the murder. It may be mentioned that all the accused except Nek Muhammad are real brothers inter se.
8. Faiz Muhammad, A. S. I., P. W. 11, recovered an empty '32 bore shell P-7 from the spot. Nek Muhammad was arrested and led to the recovery of a '32 bore pistol Exh. P-9. A sota was recovered from Nur but nothing was recovered from Zahur. The pistol as well as the empty shell were sent to Sh. Abdul Rashid, ballistic expert P. W. 6 who found that the empty matched the pistol recovered from Nek Muhammad.
9. At the trial the prosecution relied on the ocular testimony of Muhammad Ishaq, P. W. 5 brother of the deceased and Muhammad Akram nephew of the deceased. Reliance was also placed on the aforementioned recoveries as well as the evidence of motive and the medical evidence.
10. Ali Sher, accused, had died during the trial. Finding no evidence against Shah Behram, who was accused only of conspiracy the learned trial Court acquitted him. It, however, convicted Nek Muhammad, Zahur and Nur. But as already mentioned the High Court, on appeal, also acquitted Zahur and Nur vide the impugned judgment dated 5-6-78 but up held the conviction and sentence of Nek Muhammad. Hence the present petition.
11. We have heard the learned counsel for the petitioners in both the petitions as well as the learned State counsel. The learned counsel for Nek Muhammad submitted that he (Nek Muhammad) had no motive to kill the deceased; that the eye-witnesses are closely related to the deceased and should not, therefore, have been relied upon. He submitted further that the evidence of recovery is doubtful and should not be relied upon.
12. We have carefully considered the evidence on the record as well as the impugned judgment in the light of these contentions but we are no impressed by the arguments of the learned counsel.
Although the eye-witnesses are closely related to the deceased but admittedly they had no previ- -ous enmity with Nek Muhammad and had no reason whatsoever to involve him falsely in the case.
We find no flaw with the evidence of recovery of the incriminating weapons from the accused.
Abdul Razzaq, deceased, who was a Naib Tehsildar and had corn to visit his brother Muhammad Ishaq, P. W. Is not likely to have been sleeping alone and, therefore, the presence of his brother Muhammad Ishaq, P. W. 5 and his nephew, P. W. 7 at the place of occurrence at night as quite natural. Their testimony is corroborated qua Nek Muhammad by the recovery from him of '32 bore pistol, which was found by the fire-arm expert to match with the empty shell recovered from the spot.
13. We are, therefore, inclined to agree with the High Court that the prosecution case against Nek Muhammad stands proved. Cr. P. S. L. A. No. 289 of 1978 is, therefore, dismissed, as being without merit.
14. As for. As Cr. P. S. L. A. No. 276/1978 filed by Muhammad Ishaq, against the acquittal of Behram, Nur and Zahur, respondents, it is the prosecution own case that there was previous hostility between them and the eye-witnesses as a result of the abduction of Asst. Sughran. Consequently the High Court was justified in not relying on the ocular testimony against them without independent corroboration. As already mentioned above there is no corroboration on the record qua Nur and Zabur respondents. They were, therefore, rightly acquitted by the High Court. This petition too, is, therefore, dismissed as being without merit.