LEHRASAP KH4N. J---The appellants (1) Niaz Hussain aged 25 years son of Muhammad Latif and
(2) Muzaffar Hussain aged 27 years son of Bahadur, both Kharal by caste and residents of Chak No. 425/GB, ' were tried by the learned Sessions Judge, Faisalabad, on a charge under section 302/34, P.P.C. For causing murder of Muhammad SaeeD deceased in furtherance of their common intention by firing at him with their respective guns on 11-9-1975 a little after sunrise within the area of Chak No. 425/GB, police Station, Bahlak. The learned trial Judge vide his judgment dated 24-11- 1979 convicted both of them on the said charge and has sentenced each one of them to suffer life imprisonment and also to pay a fine of Rs. 5,000. In default of payment of fine the defaulter has been ordered to suffer two years' R.I. It has also been directed that Rs. 3,000 out of the fine paid by each of the accused would be paid to the legal heirs of the deceased as compensation.
2. The appellants have challenged their conviction and sentence through the instant appeal.
3. The complainant has also filed Criminal Revision No. 176 of 1980 praying for enhancement of sentence of life imprisonment awarded to each of the respondent to death. The Criminal Revision stands admitted to regular hearing. The aforementioned appeal as well as Criminal Revision are being disposed of by this judgment.
4. Briefly stated the prosecution version as transpires from the contents of the First Information Report Exh. P. H. Is that on 11-9-1975 a little after sunrise Muhabbat Ali complainant, P. W. 10, accompanied by his nephew (sister's son Akbar) left his Behak (cattle-shed) for the village Abadi.
When they reached near sugarcane crop belonging to Muhammad Bashir Lambardar, they saw Muhammad SaeeD deceased, the brother of the complainant, coming on the Katcha Road leading from village Abadi to Chak No. 426/GB. He was being followed at some distance by Wilayat and Riaz Hussain P.Ws.-11 0and 12 respectively. When Muhammad SaeeD deceased passed by the maize crop belonging to Zulfiqar son of Kala, (1) Zulfiqar alias Zulfi (absconder), (2) Niaz appellant and (3) Muzaffar Hussain appellant who were laying ambush in the sugarcane crop belonging to Muhabbat complainant emerged at the scene. Zulfiqar alias Zulfi was armed with rifle while Niaz and Muzaffar appellants were armed with -12 bore gun each. They challenged Muhammad SaeeD deceased who tried to run away towards village Abadi but Muzaffar Hussain opened the fire with his gun which hit Muhammad SaeeD deceased at his neck on the left side. In the meantime, Niaz and Zulfiqar came closer to the deceased. They fired at him one after the other. The shot fired by Niaz hit Muhammad SaeeD deceased at his left arm and went deep into the chest while the bullet fired by Zulfiqar bit the deceased at his left ear and passed through the other side of the head. The deceased thereafter fell down and died instan--taneously. The complainant and others raised alarm whereupon the assailants made good their escape alongwith their weapons. As regards motive it is alleged that about a year and a half prior to this occurrence, one Taja son of Muhammad Aqil; an uncle of Zulfiqar,. Etc. The assailants, was, murdered. In that case Bhai Khan, son of the complainant, Ashraf and Shera sons of Ahmad, close relations of the complainant, were challaried. On account of that grudge, Zulfiqar (absconder) and the appellants are alleged to have murdered Muhammad SaeeD deceased. Muhab--bat Ali, complainants after the occurrence, left his companions on the spot to guard the dead body of Muhammad SaeeD deceased and himself went to Police Station, Bahlak and. Lodged the F. I. R. Exh. P. H. At 8.15 a.m. The F. I. R. Was recorded by Muhammad Elahee A. S. I., P. W. 13.
5. Muhammad Elahee A. S. I. After recording the F. I. R. Proceeded to the spot and reached there at about 10.00 a.m. He prepared Injury State--ment Exh. P.J. And Inquest Report- Exh. P. K. In, respect of the deceased. He despatched the dead body to the mortuary for post-mortem examination under the escort of Muhammad Sarwar Khan F. C. (P.W. 3). He collected blood-staind earth from the spot and made it into a sealed parcel vide memo. Exh. P. D: He also found an iron pot (Bathal) P. 5 lying near the dead body. He secured the same vide memo. Exh. P. E. Site plan Exh. P. B. And its duplicate Exh, P. B. /I were got prepared by this witness through Muhammad Ibrahim Patwari (P.W. 2). The marginal notes in red ink are in the hand of this witness.
6. Investigation of this case was partly carried out by Muhammad Taqi Shah S.I. Who died prior to the commencement of the trial. Muhammad Elahee A. S. I. Served with Muhammad Taqi Shah and, therefore, could identify his handwriting. He deposed that memo. Exh. P. C. Through which blood- stained clothes of the deceased and a sealed phial were taken into police possession was in the hand of Muhammad Taqi Shah. Similarly, recovery memos. Exhs. P. F. And P. G. In respect of recovery of guns from Muzaffar Hussain and Niaz appellants respectively have also been stated to be in the-hand of Muhammad Taqi Shah, the deceased S. I.
7. Autopsy on the dead body of Muhammad SaeeD deceased was carried out on 11-9-1975 at 5.40 p.m. By Dr. Muhammad Riaz Ali, P.W.1, the then Medical Officer, Civil Hospital, Samundri. He found the follow--ing injuries on the person of the deceased :-
(1) A lacerated wound 1" x 1/3" x deep on the tight mastoid region.
(2) A lacerated wound 2"x 1"x deep just below left ear. Area around was burnt.
(3) A lacerated wound 1/2" x 1/3" x muscle deep on the left side of the neck.
(4) Four lacerated wounds in the area of 2--" x 2" on left upper chest, outer to nipple.
(5) Four lacerated wounds in the area of 2--" x 1" on left upper arm.
(6) Two lacerated wounds 1/3" x 1/3" x deep each on right side of the back.
8. In the opinion of this witness injuries Nos. 2 and 4 were wounds of entrance while injuries Nos. 1 and 6 were exit wounds. He also opined that the possibility of injuries Nos. 2, 3,4 and 5 to have been inflicted by one fire could not be ruled out. Death in his opinion was due to haemorrh--age, shock and injuries to vital organs resulting from multiple injuries. Injuries Nos. 2, 4 and 6 in his opinion were sufficient to cause death in the ordinary course of nature. All the injuries are opined to have been caused by fire-arms. Exh. P. A. Is the carbon copy of the post-mortem report.
9. Muhabbat Ali complainant, P.W. 10, Wilayat, P.W. 11, and Riaz Hussain, P.W. 12, have been examined as eye-witnesses at the trial. They have supported the F.
1. R. Account of the prosecution version.
Their testimonies are of course not free from improvements qua their statements recorded under section 161, Cr. P.C. Muhabbat Ali, P.W. 10, is the real brother of the deceased while Riaz Hussain, P.W.
12, is the sister's son of the deceased. Wilayat P.W. 11, is the husband of Mst. Muradan, a sister of the deceased. These relationships have been disclosed by Amir P.W. 7, the father-in-law of the deceased. This witness had identified the dead body of the deceased at the time of post-mortem examination before the Medical Officer. It has been admitted by Amir that his son Mir Mohammad was murdered. In that murder case Muhammad Latif, Zulfiqar (absconder) Bahadur and Taja, etc. Were challaned but were acquitted by the Court of Sessions. Muzaffar and Niaz appellants are sons of the aforesaid Bahadur. Subsequently, Taja is stated to have been murdered. In his murder case, Bhai Khan, a son of Muhabbat Ali, complainant, Ashraf and Bashir, his nephews, were challaned.
Bhai Khan and Ashraf have been awarded death sentence. Thereafter, the present murder of Muhammad SaeeD deceased has taken place. The enmity between the two factions is thus deep rooted. The eye-witnesses are not only closely related to the deceased but are highly inimical towards the appellants. In case of interested witnesses of this type Courts have always insisted upon independent cor--roboration.
10. So far as the medical evidence is concerned, it is simply to the effect that six injuries (all lacerated wounds) were noticed on the person of the deceased at the time of autopsy. Injuries Nos.
2 and 4 were wounds of entrance while the rest were exit wounds. All the injuries were caused by fire-arms. It has been opined by the Medical Officer that pellets causing Injury No. 5 could cause injury No. 4 also. He further stated that pellets causing injuries No. 3, 4 and 5 caused holes in the shirt and that the possibi--lity of injuries Nos. 2, 3, 4 and 5 to have been inflicted by one fire could not be ruled out. The eye-witnesses have stated that the bullet fired by Zulfiqar (the absconder) hit the deceased at his left ear and passed through the head. The Medical Officer has opined that injury No. 2 which is below the left ear could be caused by a pellet of big size like L G or SG. Accord- -ing to medical evidence, therefore, no bullet injury has been noticed on the dead body of Muhammad SaeeD deceased. The testimonies of eye-witnesses to this extent do not find support from the medical evidence.
11. The alleged recovery of guns from the appellants does not furnish corroboration either to the ocular account because no crime empty has been recovered from the spot and, therefore, it could not be opined that these guns were fired at the time of occurrence. Recovery of guns is also not fully established. The guns are alleged to have been recovered from Muzaffar Hussain and Niaz appellants vide recovery memos Exh. P.F. And P.G. Respectively. Recovery memo. Exh. P.F. Has been witnessed by Afzal son of Hussain and Muhammad Din while recovery memo. Exh. P.G. Has been witnessed by Muhammad Afzal son of Muhabbat and Siddique son of Amir. The said Siddique, Muhammad Din, and Afzal son of Hussain have not been examined at the trial while Muhammad Afzal son of Muhabbat is the real nephew of the deceased and the son of the complainant. The Police Officer who effected these recoveries unfortunately died before the com--mencement of the trial.
12. Ordinarily, there was no occasion for the presence of Wilayat and Riaz Hussain P.Ws. 11 and 12 respectively on the spot at the time of occurrence. The prosecution has tried to show that they were asked by the deceased to go alongwith him as he was to spread manure (cow dung) in the field on that morning. Precisely, for the same reason the recovery of iron pot (Bathal) P. 5 has been introduced. The hollowness in this story, however, is evident from the fact that Wilayat and Riaz Hussain have not been able to tell as to in which field the manure was to be spread. Moreover, there is no mention about this spreading of manure and carrying of iron pot by the deceased at the time of occurrence in the F. I. R. Exh. P.H. Or in the Inquest Report Exh. P. K.
13. In the light of the foregoing observations, we find that the testimonies of eye-witnesses who are very closely related to the deceased and bitterly inimical towards the appellants absolutely lack any independent corroboration. The prosecution has, therefore, failed to bring home the guilt to the appellants beyond reasonable doubt, The findings of conviction recorded by the learned trial Judge, in the circumstances, are not justified and sustainable.
14. We accordingly allow the appeal, set aside the conviction an sentence of the appellants and acquit them. They shall be released forthwith if not required in any other case.
15. The Revision Petition automatically fails and is thus dismissed.