' IJAZ NISAR, J.-Peera (28) his brother Nazar Hussain (20) sons of Mathela, their paternal cousin Muhammad Afzal (20) son of Muhammad Ameer and their friend Mulazam Hussain (20) son of Bawa Asghar have been convicted by the learned Sessions Judge, Sheikhupura, on 17th February, 1980 under section 302134, P. P. C. For having in furtherance of their common intention committed the murders of Riasat Ali and Zulfiqar deceased with guns, on 28th April, 1979 at about 8-30 a. m., on a Katcha path leading to Adda Mangtanwala in the area of village Murtaza, P. S. Mangtanwala, Tehsil Nankana Sahib, District Sheikhupura.
2. They have been sentenced as under :- ' Peera to suffer death and to pay a tine of Rs, 2,000 on two counts, or in default to undergo R. I. For one year, ' Nazar Hussain, Muhammad Afzal and Mulazam Hussain, appellants, to undergo life imprisonment and a fine of Rs, 2,000 each on two counts, or in default to undergo R. I. For one year. The fine if realized was ordered to be paid to the heirs of the two deceased in equal shares.
' Peera, Muhammad Afzal and Mulazam Hussain were also convicted under section 13 (20) of the Arms Ordinance, 1965, and sentenced to one year's R. I. Each.
3. The reference, the appeals filed by the appellants against their conviction under section 302/34, P. P. C. And the appeals field by Peera, Muhammad Afzal and Mulazam Hussain against their convictions under the Arms Ordinance as also the revision filed by Wazir Ali complainant for the enhancement of the sentence of Muhammad Afzal, Mulazam Hussain and Nazar Hussain from life imprisonment to death shall be disposed of by this order.
4. The prosecution case in brief is that about 5/6 years before the occurrence Mst. Rabia Bibi niece of Zulfiqar deceased and sister-in-law of Wazir All (P. W. 8) was engaged with Peera appellant.
Zulfiqar deceased broke oJ that engagement and gave her in marriage to Riasat Ali deceased brother of Wazir Ali (P. W. 8). The appellants were said to be annoyed with the two deceased on that score.
5. On the day of occurrence Wazir Ali (P. W. 8) accompanied by his brother Riasat Ali and maternal uncles Zulfiqar deceased and Mansab Ali (P. W. 9) was proceeding to the cattle fair held at Mor Khunda for selling their cattle. Shamir P. W. Who was proceeding to village Salimpura Katcha joined them on the way. When they reached near village Kutti, the appellants suddenly came there on horse backs and challenged them from behind. Peera appellant raised a lalkara that the two deceased be taught a lesson for breaking the engagement of Mst. Rabia Bibi with him. Muhammad Afzal appellant fired a gun-shot hitting Riasat Ali deceased on his right thigh. Peera appellant fired from his gun hitting Riasat Ali on the back of the head. Nazar Hussain also fired at Riasat Ali deceased hitting him near the left arm-pit. He fired another shot hitting Zulfiqar deceased on his left arm. Mulazam Hussain appellant fired from his gun hitting Zulfiqar deceased on his left shoulder and wrist. Riasat Ali and Zulfiqar died on the spot. The appellants fled away on their horses. The occurrence was witnessed by Wazir Ali (P. W. 8) Mansab Ali (P. W. 9) and Shamir (P. W.
11).
6. Wazir Ali P. W. Reported the matter to the police by lodging the F.
1. R. Exh. P. L. On the same day at 9-05 a. m. At P. S. Mangtanwala, the distance between the spot and the Police Station being 1 furlong. After recording the F. I. R., Muhammad Siddique A. S.-I. (P. W.
13) left for the spot and on reaching there prepared the injury statement Exh. P. R. And the inquest report Exh. P. R. 1 of Riasat Ali deceased. He also prepared the injury statement Exh. . S. And inquest report Exh. P. S. 1 of Zulfiqar deceased and sent both the dead bodies to the mortuary for the post- mortem examination. Later at about 11-45 a. m. Muhammad Aslam Bhatti, S.-I. (P. W. 14) reached the spot and took over the investigation from Muhammad Siddique A. S. I. He took into possession bloodstained earth from the place where the dead bodies of the two deceased were lying through memos. Exhs. P. M. And P. N. He also took into possession four empties Exhs. P. 13/1-4 from the spot and sealed them into parcel vide Exh. P.
0.
7. On 5th May, 1979 he arrested Peera, Mulazam Hussain and Afzal appellants while Nazar Hussain appellant was arrested on 12th May, 1979.
' On 9th May, 1979 Peera appellant led to the recovery of .12 bore gun Exh. P. 10 from an iron-box lying in his residential room through memo. Exh. P. H. Attested by Ghulam Farid (P. W. 6) and Ahmad Ali (given up). On the same date Mulazam Hussain led to the recovery of 12 bore gun P. 11 from underneath the tree branches lying in a khola belonging to Peera appellant. The gun was taken into possession through memo. Exh. P. J. Attested by the abovementioned P. Ws. On 19th May, 1979 Muhammad Afzal appellant led to the recovery of gun P. 12 from an iron-box lying in his residential room through memo. Exh. P. K. Attested by Alla Ditta (P. W. 7) and Zubair (given up). Al! The guns were made into separate sealed parcels.
8. On 16th May, 1979 Noor Ahmad produced before the Sub-Inspector, his licence Exh. P. 2 relating to gun Exh. P.
10. On 17th May, 1979 Khurshid son of Daim produced his licence Exh. P. 1 relating to gun Exh. P. 11 before the S.-I.
9. On 29th April, 1979 Dr. Muhammad Akhtar Hussain Chatha (P W. 5) conducted autopsy on the dead body of Riasat Ali deceased aged 30 years and found the following injuries thereon :---
(1) A zigzag punctured wound 1-3/4" x 1-3/4" bone deep on the back of skull bone underneath fractured.
(2) A zigzag punctured wound 2' x 2' on the left scapular rigion. The bone underneath fractured.
(3) A zigzag punctured wound 2' x 2" bone deep on the centre and medial side of right thigh Bone (femur) underneath fractured. (Gun powder smelling and charring was present all over the wound).
(4) A zigzag wound 2" x 2i" on the lateral side of thigh. This was wound of exit.
' Membrane and brain were damaged at the site of injury No, I. The stomach contained 8 ozs. Of semi-solid food. Faecal matter was also present in large and small intestines. Bladder contained 3 ozs. Of urine. Injuries Nos. 1, 2 and 3 were caused by fire-arm from a very close distance within 4 feet because gun powder smelling was present, card board was taken out from brain. All the injuries were grievous. Injuries Nos. 1 and 3 were fatal and were individually sufficient to cause death. Eight pellets and two card boards were taken out from injury No, 1 and two pellets and two card boards were taken from brain. Time between injuries and death was instantaneous and that between death and post-mortem about 21 hours. Exh. P. F. Is the post-mortem report and Exh. P. F./1 is the diagram of the injuries.
' On the same date the doctor conducted autopsy on the dead body of Zulfqiar aged 50 years and noticed the following injuries thereon :- (1)A round punctured wound 1/4" x 1/4" on the left deltoid region.
(2) A round punctured wound 1/4' x 1/4" on the left elbow joint.
(3) An abrasion x 1/4" on the left forearm just above wrist joint.
(4) A round punctured wound 1/4" x 1/2" x 3' above left nipple.
(5)A round punctured wound 1/4" x 1/4" x 3" below the left nipple.
(6)A round punctured wound 1/4" x 1/4" on the lateral side of left chest 7" lateral to left nipple.
(7)A round punctured wound 1/4" x 1/4" on the left lateral side of chest 3" medial to No, 7.
(8)A round punctured wound 1/4" x 1/4" x 3" medial to right nipple.
(9)A round punctured wound 1/4" x 1/4" just above right nipple.
(10) A round punctured wound 1/4" x 1/4" x 7" lateral to right nipple.
(wound of exit caused by injuries Nos. 6 and 7).
7th rib on the right side and 8th rib on the left side were fractured. Both the lungs were punctured.
The stomach contained about 6 ozs. Of semi-solid food. Faecal matter was present in large and small intestines. Bladder was empty. All the injuries, except injury No, 3 were caused by fire-arms and were ante-mortem. Injury No, 3 was caused by a blunt weapon. Injury No, 1 was grievous.
Injuries Nos. 6 and 7 were individually sufficient to cause death. Exh. P. G. Is the post-mortem report while Exh. P. G./1 is diagram of the injuries.
12. The guns recovered from the appellants and the crime empties were sent to the Forensic Science Laboratory and it was reported that three crime empties had been fired from gun Exh. P. 10 (recovered from Peera appellant), the fourth crime empty was found to have been fired from gun Exh. P. 11 (recovered from Mulazam Hussain appellant).
13. The appellants pleaded not guilty to the charge and denied the prosecution allegations. Peera appellant made the following statement :"On 9th June, 1975 I divorced Mst. Bakhtan Bibi a cousin of deceased Zulfiqar and real sister of Zulfiqar P. W. On this account the complainant party became inimical towards me. I was never engaged with Mst. Rabia. On 17th July, 1975 I had married Mu.
Murad Bibi daughter of Muhammad Ali of Thatha Lehna who is still living with me. I produce the following documents in defence :-
(I) Nikahnama dated 17th July, 1975 pertaining to Mst. Murad Bibi Exh. D. E.
(2) Copy of Khasra Girdawari of Mouza Saleempura Katcha EA, D. F.
(3) Copy of Khasra Girdawari of village Baloki E. D. G.
(4) Copy of Order, dated 29th January, 1980 passed by District Magistrate, Sheikhupura Exh. D. H."
' As regards the recovery of gun P. 10, he stated that the gun was planted on him by the complainant party in collusion with the police. It was a licensed gun of Noor Ahmad a relative of the complainant and was already with the police when he was arrested.
' Explaining his involvement Muhammad Afzal appellant stated that his father Muhammad Ameer had divorced Mst. Ghulam Fatima sister of Mansab All P. W. And on that account the complainant party bore a grudge against him. He produced photo copy of Receipt No, 35 Exh. D. K. Dated 28th April, 1979 of Mor Khunda Cattle Fair Committee to show that on the day of occurrence Wazir All (P.
W. 8) had gone to the cattle fair and thus could not be present at the spot.
' Mulazam Hussain appellant also denied the prosecution allegations. Explaining the recovery of the gun and its matching with the crime empty he stated that the gun Exh. P. 11 was licensed in the name of Khurshid son of Daim a relative of the complainant party and bad been obtained from him before his arrest.
' No oral evidence was led by the appellants in their defence.
14. Wazir Ali (P. W. 8), Safdar Ali (P. W. 9) and Shamir Ali (r` W. 11) furnished the ocular account.
Hussain (P. W. 12) is a wajtakkar witness. He stated to have seen the appellants armed with guns proceeding towards village That ta Lehna from village Katti on horse backs. Wazir Ali (P. W. 8), Mansab Ali (P. W. 9) and S.-I. Muhammad Aslam (P W. 14) testified to the recoveries of crime empties P. 13/1-4 from the pot. Ghu!Am Farid (P. W. 6) proved the recoveries of guns P. 10 and P. I at the instance of Pira and Mulazam Hussain appellants, respectively. Allah Ditta (P. W. 7) and S.I.
Muhammad Aslam (P. W. 14) proved the recovery of gun P. 12 at the instance of Muhammad Afzal, S.I. Mularr-nad Aslam (P. W. 14) deposed about the taking into possession of' the gun licences P. 1 and P. 2 which were produced before him by Nur Ahmad and Khurshid, respectively pertaining to the guns P. 10 and P. 11 recovered at the instance of Pira and Mulazam Hussain appellants.
15. The trial Court came to the conclusion that the version of the eye-witnesses was credible because it stood corroborated by the medical evidence and the recoveries of the suns from Pecra, Mulazam Hussain and Muhammad Afzal appellants particularly, when the guns of Peera and Mulazam appellants had matched with the crime empties recovered from the spot. The motive was found to have been proved against Peera appellant only on account of the breaking of his engagement with Mst. Rabia who was later on married to Riasat Ali deceased. The testimony of Hussain (P. W. 12) who gave wajtakkar account was not accepted by the trial Court because of the omission of his name from the F. I. R.
16. Learned counsel for the appellants has argued that the eyewitnesses are not only closely related to the deceased but are also inimical towards the appellants and being interested witnesses should not have been relied upon without independent corroboration. He contended that the delay in conducting the post-mortem examination of dead bodies showed that lot of consultations bad taken place before the F. I. R. Was recorded. The fact that there was no mention of the crime empties in the F. I. R. And the inquest reports indicates that they were planted-later-on.
It is further argued that the empties were prepared from the guns of Khurshid and Nur Ahmad relatives of the complainant party and then foisted on the appellants. It was further argued that Zulfiqar deceased had other enemies because of his involvement in a tripple murder case.
17. The motive set up by the prosecution is not convincing. No independent evidence has been examined by the prosecution to prove the engagement of Mst. Rabia with Peera appellant. On the contrary, copy of nikahnama Exh. D. E. Shows that Peera was married to Mst. Murad Bibi, daughter of Muhammad Ali, on 17th July, 1975. According to the prosecution Mst. Rabia was married to Riasat Ali deceased 3/4 years prior to the occurrence. Pecra appellant who is a married person having issues from Mst. Murad Bibi could not be expected, to bear any grudge on account of the marriage of Mst.
Rabia. Furthermore, the fact that no untoward indcident took place during the long intervening period of the marriage of list. Rabia makes the story of the motive to be highly improbable.
' It is proved from the record that all the three eye-witnesses are no, only closely related to the deceased but are also inimical towards the appellants. Wa.Zir All (P. W. 8), is real brother of Riasat deceased and .a nephew of Mansab All P. W. And Zulfiqar deceased. Mansab All P. W. Is brother of Zulfiqar deceased while Shamir P. W. Is maternal-uncle of Zulfiqar deceased. The enmity of the P.
Ws. With Peera appellant stands established by the fact that before contracting the second marriage with Mst. Murad Bibi, he had divorced Mst. Bakhtan Bibi a relation of the complainant party. Furthermore, father of Afzal appellant had divorced Mst. Ghulam Fatima, sister of Mansab Ali P. W. It further stands established from the record that there were other enemies of the deceased, particularly of Zulfiqar deceased because he alongwith others had been challaned for the murders of Ghulam, Hussain and Amir, sons of Shahra. He was acquitted but his co-accused were sentenced to life imprisonment. The presence of Wazir Ali P. W. At the spot at the relevant time appears to be doubtful because of the attestation of the receipt by him of the sale of cattle in the Cattle Fair held at More K.Huda on the day of occurrence. Likewise, the presence of Shamir (P. W. 11), at the spot also appears to be improbable. According to him he was proceeding to Salimpur Katcha to see his crops but the record shows that he had no cultivation there. Besides being - related to the deceased he is a chance witness and lived at a considerable distance from the place of occurrence. He was examined by the police on the following day of the occurrence for which no reasonable explanation has been advanced by the prosecution. The eye-witnesses have given a full sequence of the shots fired by each appellant as well as the parts of the bodies of the victims where they hit. For instance, they stated that the fire of Afzal appellant landed at the right thigh of Riasat deceased followed by gun shot of Peera appellant hitting the back of the C head of Riasat Ali deceased whereafter Nazra appellant fired the gun shot hitting the right shoulder of Riasat Ali deceased. Peera appellant then fired the second shot landing at the chest of Zulfiqar deceased, the shot of Mulazam appellant hit the right shoulder and wrist of Zulfiqar deceased. In the emotionally shocking situation it appears to be unnatural for the witnesses who themselves may be apprehending harm in the face of successive shots to clearly observe the sequence with which the shots landed on the bodies of the deceased persons.
18. As regards the recoveries of the crime empties from the spot there is absolutely no mention of their presence eitheir in the F. I. R. Or in the inquest reports. No plausible reason has been advanced by the complainant or the police for this omission. The recoveries of the guns from the possession of the appellants are also not proved by any independent evidence. Ghulam Farid (P. W. 6) who testified to the recoveries at the instance of Peera and Mulazam appellants is a nephew of Zulfiqar deceased and a cousin of Riasat decased. Ahmad Ali the other recovery witness was not produced by the prosecution. Allah Ditta (P. W. 7) who proved the recovery of gun P. 12 from Afzal appellant is also inimical to the appellants. He admitted that about 10/12 years ago Peera appellant had abducted his sister, Mst. Sahib Bibi. Zubair the other recovery witness was not examined by the prosecution. Another strong reason for disbelieving the recoveries is that guns P. 10 and P. 11 are licenced in the names of Nur Ahmad and Khurshid sons of Balm. The relationship of Khurshid son of Daim with the complainant party is admitted by Mansab Ali P. W. The prosecution has failed to show as to how the 1icenced guns of Khurshid and Nur Ahmad came into the hands of Peera and Mulazam Hussain appellants. The gun recovered at the instance of Muhammad Afzal appellant does not stand connected with the offence. Nothing incriminating had been recovered from Nazra appellant.
19. On the overall appreciation of the prosecution evidence, we are of the opinion that the prosecution has failed to establish the case agains the appellants beyond all reasonable doubt.
Consequently, we accept E their appeals, set aside the convictions and sentences of the appellants and acquit them of the charges by giving them the benefit of doubt. They shall be set at liberty forthwith if not required in any other case.