MIAN BURHANUDDIN KHAN, J.-The three appellants, along-with five others, were tried by the Additional Sessions Judge (I) Sahiwal under section 302 read with section 149, on two counts and section 148, P. P. C. For committing the murders of Muhammad Din Shah and his son Mukkammal Hussain Shah by firing at them on 29-10-1972 at about Aserwela in the area of Chak No. 169-9-L.
The learned trial Judge, vide his judgment dated 23-12-1976, acquitted Jaffer, Tasgheer and Javedur Rehman, and convicted Abdul Aziz, Abdul Rashid, Misbahuddin and Makkhan, accused, to life imprisonment on two counts and a fine of Rs. 200 each, and, in default of the payment of fine, to suffer further R. I. For six months on each count. The sentences of imprisonment were to run concurrently. Zaman, accused, died during the pendency of the trial.
2. The accused appellants filed appeal in the Lahore High Court against their conviction and sentences. The learned High Court Judge vide his judgment dated 30-10-1978, accepted the appeal of Makkhan and released him, but dismissed the appeal of Abdul Aziz, Abdul Rashid and Misbahuddin. Present petitioners appellants filed petition for leave to appeal against the judgment of the High Court and leave was granted by this Court vide order 1 dated 2-12-1980 on the ground that as enmity existed between the complainant and accused parties over the possession of land, therefore, the eye-witnesses were inimical and hostile to the accused, and were closely connected with the deceased. Amir A.I, P. W. 9 being brother of Mukammal Hussain (deceased) and son of Muhammad Din (deceased) Mirza P. W. 10, though not related but was the tenant of the deceased during the time of occurrence and was also a Mureed of Muhammad Din deceased, therefore, strong corroborative evidence was- required of the ocular testimony of these two witnesses before they could be relied upon. Moreover, fire-arms were recoveredfrom the accused namely Abdul Rashid, Makkhan and Zaman, out of whom, Makkhan was acquitted by the High Court, while Zaman died during the trial. Moreover, fire-arms recovered from the appellants did notmatch with the crime empties, recovered from the scene of occurrence. As regards the motive, it was observed by this Court that Tasgheer and Javedur Rahmanshared the motive with the appellants, yet they were acquitted notwithstanding the fact that they were mentioned as having taken part in the commission of the double murder. It was also observed that Makkhan and Zaman were mentioned in the F.I. R. By Amir A.I, P. W. But Makkhan had been acquitted while Zaman died during the trial.
3. The prosecution case against the appellants, as stated at the trial is that on the fateful day at about Asar weld on 29-10-1972, a jeep No. LEB-5186, driven by the accused, came to Chak No. 162- 9-L where Amir A.I, P. W. Along-with his deceased father and deceased brother was living. A tube- well was installed there by Muhammad Din (deceased) and Ismail jointly. The latter had left abroad in connection with his service and left the land which was leased in his (Ismail's) name with Muhammad Din but tire accused, who were related to Ismail, were not happy with it and wanted to take forcible possession of the land from Muhammad Din deceased. Mirza; P. W. 10 and Muhammad Iqbal, who are Mureedi of Muhammad Din deceased were also living in the same house in Chak No. 163-9-L, along-with the deceased.
4. On hearing the noise of the jeep the two deceased, along with Amir A.I, Mirza and Muhammad Iqbal came out of the house. Zaman (since dead) and Makkhan, who were previously known to Amir A.I, P. W. (complainant) came out of the jeep, along-with some other persons who could not be identifi--ed by Amir A.I. They were armed with rifles and guns and started king at the complainant party. Muhammad Din and Mukkammal were hit with these shots and both of them died on the spot. Mirza and Iqbal, out of fear, ran back inside the house, Mirza started firing with his licensed gun at the accused. Party, which continued for some time and then the accused ran away, leaving their jeep LEB-5186 behind. Report Exh. P. M. To this effect was lodged. By Amir A.I, P. W.
At 6-30 p. m. On 29-10-1972 which was recordedby Farooq Ahmad S. H. O. (P. W. 11) Ghazi Abad. The Investigating Officer visited the spot. He found the two deceased lying dead, prepared their inquest reports Exh. P. O. And Exh. P. Q. And sent the dead bodies to Chichawatni for post-mortem examination on 29-10-1972: Then he inspected the spot on the following day, took 5 crime empties of '12 bore, 5 empties of S. G. And 5 empty cartridges of L. G: and 8 empty cartridges of '303 clibre, into possession vide Memo. Exh. P. 16/1-23. He also took into possession fire-arms magazine Exh. P.
4, as well as Jeep LEB-5186 vide Memo. Exh. P. F. On 31-10-1972 he got prepared site plans Exh. P. H./1 through the Patwari drawing foot notes correctly.
5. Dr. Muhammad Iqbal (P. W. 1) performed the post-mortem examina--petition on 31-10-1972 at about 11 a.m. In Civil Hospital, Chichawatni. He found five fire-arm lacerated wounds on the body of Muhammad Din deceased. The same day Dr. Iqbal performed the post-mortem examination on the dead body of Mukammal Hussain deceased and found six fire-arm lacerated wounds on it. In both the cases, the death, in the opinion of doctor, was due to shock and haemorrhage. The doctor stated before the C. M. That the dead bodies of the two deceased were delivered at the mortuary on 31-10-1972. His statement was transferred to the Sessions f le under section 512, Cr. P. C. And wad read as evidence,
6. The two eye-witnesses namely Amir A.I P. W. 9 and Mirza P. W. 10 were examined at the trial. They gave relationship of the accused inter se and also furnished motive for the crime. Amir A.I stated that his father, Muhammad Din deceased was Peer by profession and Ismail was his Mureed who had obtained some Government land on 20 years' lease under the Tube-well Scheme: Muhammad Din deceased with the help of Mirza, P. W. 10 and Iqbal reclaimed this land spending huge amount.
Ismail, two months prior to the occurrence, left Pakistan in connection with his service and the land remained in possession of Muhammad Din, deceased. About 15 days prior to the occurrence Abdul Aziz, Abdul Rashid and other accused demanded possession of the land from Muhammad Din deceased who refused to part with his possession en the ground that he had invested money and had improved the land. On the day of occurrence the accused came in jeep where he along-with the two deceased (Muhammad Din and Mukammal) Mirza and Iqbal P. Ws., was present. The accused started firing and killed the two deceased. Mirza ran inside the haveli, picked up his licensed gun and fired in the air whereupon the accused retreated. He himself proceeded to the police station when the firing ceased, and lodged the report Exh. P. M.
7. In cross-examination Amir A.I, P. W. 9 admitted that he knew the accused before the occurrence and had mentioned names of Rashid, Aziz, Misbah, Tasgheer and Javedur Rahman. He was confronted and it was observed by the trial Judge that the names of these accused were not men- -tioned in the F. I. R.
8. Mirza, P. W. 10 was also examined and he gave ocular account of the occurrence and stated that he was present with Muhammad Din and Mukammal (the two deceased) in the haveli along with Amir A.I and Iqbal when a jeep came there, driven by the accused. Makhan, Jafar, Zaman, Aziz, Rashid, Misbah, Tasgheer and Javed, accused, came out of the jeep, armed with guns and rifles.
They fired at them and the two deceased were hit and fell on the ground. He went inside the haveli, took up his licensed gun and fired in the air 3 or 4 shots in order to keep the accused at bay. He then climbed the roof of haveli and fired at the jeep and the accused. Thereafter the accused decamped. He got down from the roof and torn the tyres of the jeep so that it may not be taken away by the accused. This witness, when cross-examined denied his involvement in a criminal case against him at the instance of Abdul Aziz accused for committing theft of cotton crop. He denied that the police had once raided the haveli for his arrest but had stated so in his statements made before the police as well as the C. M:
9. This being the prosecution case we are constrained to hold that in the F. I. R. Names of the accused excepting two namely Makkhan and Zaman were not mentioned by Amir A.I. May be that he mentioned these names but somehow or the other the F. I. R. Had not been recorded faithfully or else there could be no reason for the omission of the names of all those accused who were known to Mirza and Mirza himself claims to be an eye witness of the occurrence. Had it been so, he would have informed Amir A.I of the names of all the accused or would have proceeded himself to lodge the F. I. R. Instead of leaving the matter to a boy of 16-17 years of age. Mirza himself is of doubtful character as he bad not produced the gun which according to the evidence on record, he had used to defend himself against the accused at the time of occurrence. He also tried to deny the registration of criminal case against him under section 379 for stealing cotton of Aziz.
10. Conduct of the Investigating Officer would also show that then were lapses in the investigation otherwise there would not have been so man; glaring irregularities i. e. Time of recording the report and sending of the dear bodies to the mortuary because it has already been mentioned that post- mortem examination on the dead bodies was conducted on 31-10-1972 at 11 a. m by the doctor. The Investigating Officer stated at the trial that he had sent the dead bodies in custody of Constable Khuda Bakhsh the same day i. e 29-10-1972. Khuda Bakhsh stated that he took the dead bodies to the mortuary but the doctor was not available and he handed over the dear bodies to the doctor on 31-10-1972. This is just unbelievable that doctor: would be absent unless there was his substitute.
The doctor, when examines by the C. M. Stated that he had no record with him that would certify hi absence from the hospital on 30-10-1972 but this statement appears to b aimed at covering up the time lag in the receipt of dead bodies and the post-mortem examination.
11. The Investigating Officer, in his examination, was asked that in the statement of Amir A.I he had written the word kal (yesterday) then changes it to aaj (today) by tampering at portion marked `A' to `A' by the trial Court in Report Exh. P. M. And at portion marked `A' to `A' of the original F. I. R Exh. P.
M./1. Again, he admitted that in the inquest report of Muhammad Din attached with the police file the word kal (yesterday) was written in the first instance and then by cutting the same with pen, he wrote the word as (today). Similarly he had cut the word kal (yesterday) and wrote aaj (today and initialed it in the original inquest report Exh. P. O.
12. In cross-examination the Investigating Officer came out with the statement that in the original F.
I. R. Exh. P. M./l the word kal (yesterday in portion `A' to `A' has been changed to aaj (today) but this change was not done by him but by someone else and in the F. I. R. Exh. P. M. The wore kal (yesterday) in portion marked `D' `D' has been changed into aaj (today and this was done by him ; he had inadvertently written the word ka (yesterday) and had made a wrong statement due to misunderstanding.
13. The next question which has been considered in the Leave Granting Order is that the gun used in the commission of offence belonged to the acquitted accused whereas against the present appellants there was no evidence to corroborate the testimony of Amir A.I and Mirza P. Ws. The two accuses who were connected with the crime by virtue of the statement of the Arm Expert and recovery of gun, have been let off by the trial Court and the learned High Court Judge. Thus the present appellants could not be saddles with the responsibility of committing the double murder.
This appeal is accepted and the three appellants acquitted of the charge, of murders. The; should be set free, if not required in any other case.