' ASLAM RIAZ HUSSAIN, J.-This judgment will dispose of Criminal Appeal No, 156 of 1983 filed by Muhammad Raza against the acquittal of respondents 1 to 4, of the offence under sections 302, 304/149, P. P. C. And Criminal Appeal No, 157 of 1983 filed by Sher Bahadur against his conviction and sentence as both are directed against the same judgment of the Lahore High Court dated 2- 5-1982.
2. The facts of the case are, briefly, that Sher Bahadur (appellant in Criminal Appeal No, 157 of 1983) was tried alongwith (1) Khan Muhammad, (2) Muhammad Afzal, (3) Inamur Rehman and (4) Sher Muhammad, for the murder of Muhammad Aslam and assaulting Gul Jehan and Muhammad Ali P.
W. 10, by the learned Additional Sessions Judge, Sargodha. By his judgment dated 9-2-1980, the learned trial Judge convicted Sher Bahadur (appellant in Criminal A. 157 of 1983) and two others, namely, Khan Muhammad and Muhammad Afzal, under sections 302/34 and 323/34, P. P. C. For the offence of murder he sentenced Sher Bahadur to death and Khan Muhammad and Muhammad Afzal to imprisonment for life each, with a fine of Rs, 2,000 each or to undergo further R. I. For 6 months each in case of default of payment of fine. Under section 323/34, P.P.C. He sentenced them to 6 months' R. I. Each. But he acquitted Sher Muhammad and Inamur Rehman co-accused.
3. The three convicted accused filed an appeal before the High Court. The appeal of Sner Bahadur was dismissed and his death sentence was confirmed by the High Court vide its judgment dated 2-5-1982. But it acquitted Khan Muhammad of the charge under section 302, P.P.C, and reduced his sentence under section 323, P. P. C. To that already undergone. Muhammad Afzal was, however, acquitted of both the charges.
3-A. Feeling aggrieved Sher Bahadur appellant filed a petition for leave to appeal and leave was granted to consider whether evidence on the record nad been properly appreciated by the learned Courts below and whether the evidence was sufficient to sustain the conviction and sentence of Sner Bahadur. Muhammad Raza complainant had also filed a petition for Leave to Appeal against the acquittal of the 4 co-accused and Leave was also granted to him. Hence the two appeals, before us.
4. The motive for the occurrence is stated to be that 10 years earlier one Ataullah contractor had taken one acre of land from Gul Jehan for a period of 8 years to make and run a brick-kiln thereon.
Subsequently Sher Bahadur accused-appellant became partner with Ataullah in this business.
Sometime afterwards Ataullah left his share in favour of Sher Bahadur and gave up the business.
After the end of the period of lease Gul Jehan started running the brick-kiln himself. Sher Bahadur wanted to retain his share in the same but Gul Jehan refused to do so. This was deeply resented by Sher Bahadur.
5. The facts of the prosecution case, briefly, are that on 5-1-1979 at about noon-time Muhammad Raza was going alongwith his cousin Muhammad Asalm (deceased), to Mitha Tiwana, for saying Juma prayer. When they reached near the brick-kiln of Gul Jehan, they saw Gul Jehan, Muhammad Ali and Ata Muhammad sitting there, smoking huqqa. They also sat with them. A short while later, Sher Bahadur armed with a rifle and Sher Muhammad, Khan Muhammad, Muhammad Afzal and Inamur Rehman armed with guns, came there. Sher Bahadur caught hold of Gul Jehan and started dragging him. He told him that he would be taught a lesson for not making him a share-holder in the brick-kiln. The persons present there tried to intervene and rescue Gul Jehan. But Khan Muhammad co-accused gave a butt blow to Muhammad Ali, P.W. On his face who fell down.
Muhammad Afzal co-accused also caused an injury with the butt of rifle to Gul Jehan on his left eye, who fell down. Muhammad Aslam deceased stepped forward to catch hold of Sher Bahadur who stepped back and fired a shot with his rifle at Muhammad Aslam deceased, hitting him on the forehead. As a result Muhammad Aslam (deceased) also fell down. The assailants then left the place of occurrence raising Lalkaras' and firing in the air. The complainant and other persons removed the injured persons to the Civil Dispensary Mitha Tiwana, where they were medically examined. Muhammad Aslam, injured, died in the dispensary.
6. On receiving information of the incident Zulfiqar All S. I., P.W. 12, reached the Civil Dispensary and recorded the statement of Muhammad Raza (P.W. 9) at 1-45 p.m. On the same day. The formal F.I.R.
(P. G.) was based on the statement of Muhammad Raza complainant and a case was registered at the Police Station Mitha Tiwana the same day.
7. The dead body was sent for post-mortem examination. All the accused persons were arrested on various dates. Khan Muhammad led to the recovery of a gun (P. 4) and 2 live cartridges, Sher Muhammad (acquitted co-accused) also led to the recovery of a gun (P. 6) and 2 live cartridges and his licence (P. 8). Nothing incriminating was, however, recovered from Sher Bahadur.
8. At the trial the prosecution relied mainly on the ocular testimony of Muhammad Raza (complainant) and Muhammad Ali (P.W. 10) who was injured during the incident. Gul Jehan and his son Ata Muhammad were however given up. It also relied on the recovery of guns from Khan Muhammhd and Sher Muhammad co-accused ; motive and the medical evidence.
9. The learned trial Court believed the prosecution evidence with respect to Sher Bahadur accused-appellant, Khan Muhammad and Muhammad Afzal, co-accused, but acquitted Sher Muhammad and Inamur Rehman. On appeal, however, the High Court acquitted Muhammad Afzal altogether and acquitted Khan Muhammad co-accused of the charge under section 302, P. P. C.
And reduced his sentence under section 323, P. P. C. To that, already undergone by him.
10. Before us the learned counsel for the accused-appellant pointed out that the only evidence available on the record against Sher Bahadur is the ocular testimony of the two eye-witnesses i. e.
Muhammad Raza (P.W. 9), a cousin of the deceased and Muhammad Ali (P.W. 10); and the medical evidence. He vehemently urged that the testimony of the two eye-witnesses is not so reliable that it should be made the sole basis for the conviction of the appellant. He urged that Muhammad Raza (P.W. 9), being cousin of the deceased and there being friction between the parties, was an interested witness and that his testimony could not be corroborated by that of Muhammad All (P.W. 10) who himself was an untruthful witness because it would be evidence from a reading of his statement that he was capable of telling lies on material points.
' After reading out the F.I.R. The council took us through the entire testimony of these two witnesses and attempted to show that their testimony contained contradictions and was, therefore, not reliable.
' The council also attempted to argue that the injury on the forehead of the deceased contradicted the testimony of the witnesses.
' He also pointed out that although P.W. 9 denied the presence of Hakam Khan Advocate of Jauharabad at the dispensary till after the recording of the statement (Exh. EB/1), of Muhammad Raza complainant but Zulfiqar All S. I. (P.W. 12) stated that Hakam Khan Advocate was present iZn the dispensary when he reached there.
11. We have given or anxious consideration to the above-noted contentions relating to the testimony of these two witnesses but are not persuaded to agree with the learned counsel for the accused-appellant that they are unreliable and that the appellant's conviction cannot be based on C their uncorroborated testimony. Although they are related to the deceased yet they had no direct hostility with Sher Bahadur, appellant, which can be said to have induced them to exonerate the real culprit and attribute, the fatal shot to him.
' We have gone through the relevant portions of the judgment of the High Court and feel that it has recorded cogent reasons for believing them. We do not agree that the medical evidence i. e. The fire-arm injury on the forehead of the deceased, in any way. Contradicts the prosecution version and are, of the considered view that the testimony of these two witnesses could certainly be relied upon, without further consideration, to sustain the conviction of Sher Bahadur appellant. We however, feel that there are sufficient indications on the record, in the admissions made by Nazir Ahmad S. I. (P.W. 11) during his cross-examination, coupled with the application (Exh. D.W. 1/A) made by Sher Bahadur appellant to the Chairman `Islahi Committee,' Mitha Tiwana on 4-12-1978, i. e. Prior to the incident, that the accused party was preventing him from removing his property from the brick-kiln. We are of the view that this constitutes a mitigating circumstance entitling the appellant to the lesser penalty. We, therefore, partly allow the appeal, to the extent that while maintaining the appellant's conviction under section 302, P. P. C. We reduce his sentence from death to imprisonment for life.
13. As for the appeal (No, 156 of 1983) filed by Muhammad Raza complainant against the acquittal of the for respondents of the charge under section 302/149, P. P. C. The learned counsel for Muhammad Raza could not urge any cogent reasons for the acceptance thereof. After having gone through all the relevant portions of the evidence on the record we are of the view that they were rightly acquitted of the charge against them. This appeal is, therefore, dismissed.
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