ASLAM RIAZ HUSSAIN, J.-This order shall dispose of (1) Cr. P. No. 313 of 1980 filed by Sultan against his conviction under section 302. P. P. C. For the murder of Sardara (deceased) ; (2) Cr. P. 329 of 1980 filed by Saleh Muhammad (P. W. 18) against the acquittal of Muhammad Hussain by the High Court of the charge of murder of Zafar Iqbal (deceased) and (3) Crl. P. No. 343 of 1980 filed by Saleh Muhammad (P. W. 18) against the acquittal of ten c9-aqcu$ed named therein as respondents by the learned Sessions Judge and the dismissal of his revision by the High Court vide order, dated 6- 4-1980.
2. The facts briefly are that Sultan and Muhammad Hussain were tried along-with 10 others (respondents in Crl. P. No. 343 of 1980) for the murder of Muhammad Hayat, Sardara and War Iqbal.
3. The motive is stated to be that about 5 years earlier, Saleh Muhammad had abducted Mst.
Sattan daughter of Shera and sister of Sultan accused. After the abduction of Mst. Sattan, Saleh Muhammad took her to the house of one Hayat who played a dirty trick on him and got him arrested for an offence under the Arms Ordinance and kept the girl himself, whom he subsequently married. It is alleged that the accused had nursed grievance against Saleh Muhammad and wanted to punish him.
3-A. The occurrence is divided in two parts.
The first occurrence took place at the Behak of Muhammad Hayat (deceased). According to the prosecution Muhammad Hussain (accused) armed with 12 bore gun, went to the Behak of Muhammad Hayat (deceased) and fired a shot at him, as a result of which he fell down.
Muhammad Hussain thereupon raised a lalkara that he had done the job. On this Sultan, Muhammad A.I, Shera, Fatta and Muhammad Yar co-accused also came there armed with guns- and rifles and started firing. Muhammad Sher (the first informant) and Ahmad Jan who were present there lay down on the ground to save themselves. Thereafter all the accused started for the house of Saleh Muhammad (P. W. 18), when the second part of the occurrence took place. The aforementioned P. Ws. Also followed them. The accused entered the house of Saleh Muhammad, but fortunately he was not present there. Muhammad A.I accused fired a shot at his son Zafar Iqbal (deceased) aged about 8 years, who was lying on a cot. On hearing the report Sardara (deceased) the father of Saleh Muhammad P. W. Got up but Sultan accused (petitioner in Criminal Petition No. 313 of 1980) fired a shot with his '12 bore gun hitting him in the chest, whereupon Sardara fell down and died. The latter's wife Mst. Allan (P. W; 16) also got up whereupon Muhammad Yar (acquitted accused) fired at her whereby she was injured but survived.
The occurrence was seen amongst others by Muhammad Sher complainant (P. W. 14), Dost Muhammad (P. W. 15), . Mst. Allan (P. W. 16) and Mst. Ghulam Bibi (P. W. 17).
The F. I. R. Was lodged by Muhammad Sher (P. W. 14) on 30-3-1971 at 10.30 p. m. Which was recorded by Raja Muhammad Muzaffar Khan (P. W. 23). After recording the F. I. R. The S. I. Went to the spot and recovered three '12 bore empty cartridges from the behak where Muhammad Hayat was murdered and seven '12 bore empties from the house of Sardara (deceased) where the second incident took place. The accused were arrested a few days later and the Investigating Officer recovered gun (P. 19) from Muhammad Hussain, gun (P. 20) from Sultan. These were sent to the Forensic Expert who found that the gun (P. 19) recovered from Muhammad Hussain did not match with any of the cartridges and gun (P. 20) recovered from Sultan matched with 7 of the 10 empty cartridges, including the 3 empties recovered from the behak where Muhammad Hayat was murdered.
4. The prosecution case rested on the ocular testimony of the afore--mentioned 4 eye-witnesses; the recoveries of gun P. 20 and empty cartridges; the medical evidence and the motive.
Two of the said eye-witnesses, i. e. Muhammad Sher (P. W. 14) and Dost Muhammad (P. W. 15) were disbelieved by both the Courts below. The motive set by the prosecution was also disbelieved. The learned trial Court acquitted the ten co-accused (respondents in Cr. P. 343 of 1980) and only convicted Sultan and Muhammad Hussain under section 302, P. P. C. And sentenced them to death.
Both of them filed appeal before the High Court which acquitted Muhammad Hussain but maintained the conviction and sentence of Sultan.
Hence the present three petitions, one by Sultan against his conviction, and the other two by Saleh Muhammad (P. W. 18) against the acquittal of respondents in each petition.
5. The learned counsel for Sultan petitioner pointed out that out of 12 accused 11 have been acquitted; ten by the trial Court and on (Muhammad Hussain) by the High Court, and only the conviction o Sultan has been maintained. The distinction in his case and that of the others lies only in the fact that the gun (P. 20) recovered from him matched with 3 empties recovered from the behak where Hayat was murdered and 5 empty cartridges recovered from the house of Sardara (deceased) (while two empty cartridges recovered from the house did not match with an of these guns). He submitted that this piece of prosecution evidence is most unreliable because according to the F. I. R. Itself only Muhammad Hussain (acquitted accused) had fired one solitary shot at MuhammadHayat (deceased) but strangely enough 3 empty. Cartidges were found from the spot.
What is still more surprising that all 3 of them matched with the gun recovered from Sultan who had not fire any shot the deceased.
Similarly he pointed out that although according to the F. I. R. Sultan is stated to have fired only one shot during the incident at the house of Sardara, yet 5 out of the 7 empty cartridges from the house are said to have matched with the gun recovered from him. He therefore submitted that the opinion of the Forensic Expert is contrary to the facts of the prosecution case as stated in the F. I. R.
As also at the trial.
There appears to be considerable force in this contention because the report of the Forensic Expert is only extra piece of evidence against Sultan. Had this been not there, he too was entitled to acquittal like the other 11 co-accused.
6. As against this the counsel for Saleh Muhammad (P. W. 18) submitted that although some of the persons fired at died but Mst. Allan survived the attack and lived to tell the tale; the injuries sustained by her show that she was present at the spot. Even the other inmates of the house including Ghulam Bi (P. W. 17) were the natural witnesses and must nave seen the occurrence.
There is therefore, no reason to have disbelieved them at least against the persons who are alleged to have fired during the incident.
7. The contentions raised by both the learned counsel for the parties have weight and need further consideration to determine whether the learned Courts below had appraised the evidence in consonance with the well-established principles applicable to appraisal of evidence in criminal cases.
Leave is, therefore, granted for the said purpose in all the 3 petitions.