S.A.NUSRAT, J.--This order will dispose of Criminal Petitions for leave to Appeal No.280 of 1980 and 283 of 1980 which are directed against the common judgment of the Lahore High Court dated 9-4- 1980.
2. The petitioner was tried by the learned Sessions Judge, Sargodha alongwith four other co- accused namely, Muhammad Arif, Gut Anwar, Ghulam Fareed and Fayyaz Tariq for the murder of one Ali Ahmed and causing injuries to Fazal Ali (P.W.) under section 302 read with section 148/149, Cr .P.C. And section 307 of the Pakistan Penal Code. Learned trial Court by its judgment dated 24-5- 1978, acquitted Gut Anwar and Fayyaz Tariq whereas the petitioners, Muhammad Arif and Ghulam Fareed were convicted under section 302 of the Pakistan Penal Code read with section 34, P.P.C.
And sentenced to death and to pay fine of Rs.5,000 each as compensation to the heirs of the deceased or in default of payment thereof to undergo rigorous imprisonment for six months in case sentence of death was not confirmed. The petitioner and Muhammad Arif preferred Criminal Appeal No.595 of 1978 while Ghulam Fareed filed Criminal Appeal No.557 of 1978. Muhammad Bashir, uncle of the deceased moved a revision petition (Criminal Revision No.823 of 1978) against the acquittal of Gut Anwar and Fayyaz Tariq. The said appeals, murder reference and the revision petition were heard together and disposed of by the High Court as per impugned judgment dated 9-4-1980, whereby Muhammed Arif and Ghulam Fareed were acquitted of all the charges and the appeal of the petitioner Iftikhar Ahmed wf.s dismissed and his death sentence was confirmed.
3. The occurrence had took place in the area of Chak No.32/S.B., Police Station Bhagtanwala, Tehsil and District Sargodha, at the Tharra of the Baithak of Iftikhar Ahmed son of Sher Ali (P.W.17) on 1-12- 1975, at 2-00 p.m. In the incident Ali Ahmed died of fire-arm injuries while Fazal Ad (P.W.15) was injured. Muhammad Bashir, uncle of the deceased, which was recorded by Jalal Din, Sub-Inspector of Police (P.W.18), lodged F.I.R. On the same day at Police Station Bhagtanwala. The Investigating Officer (P.W.18) recovered four .12 crime empty cartridges, Exh.P-1 to Exh.P-4 from the spot, extracted six pieces of bullets (P-11/1-4 and P-12/1-2) found embedded in the wall of the verandah of Iftikhar Ahmed which were all sealed into parcels under duly prepared memos. The petitioners were arrested on 9-12-1975. A licensed gun Exh.P-5 was recovered at the instance of Iftikhar Ahmed petitioner, which belonged to his father. Further recoveries of one gun each were made at the instance of Ghulam Fareed and Gul Anwar and of a rifle, Exh. P-14, from Muhammad Arif. No recovery was, however, made from Fayyaz Tariq.
4. According to the F.I.R., prior to the occurrence, the same day i.e. 1-12-1975, at about 1-00 p.m. Ali Ahmed deceased, Mehndi Khan (P.W.13) and Iftikhar Ahmed son of Sher Ali (P.W.17) were present in the field of Muhammad Khan (P.W.) when the petitioner Iftikhar Ahmed and Zaffar Mochi passed through the land of Mehndi Khan to which the later objected. This led to an altereation, exchange of abuses and a fight in which Mehndi Khan and Iftikhar Ahmed gave beating to Zaffar Mochi with sticks and Ali Ahmed deceased gave fist blows to the petitioner Iftikhar Ahmed. Thereupon the petitioner and Zaffar Mochi left Chak threatening to avenge the insult. Ali Ahmed deceased, Mehndi Khan and Iftikhar Ahmed also left for their villages. At about 2,00 p.m. On the same day, Muhammad Bashir (P.W.), Fazal Ali (P.W.15), Iftikhar Ahmed (P.W.), Ali Ahmed (deceased) and Zafar Ali, elder brother of Mehndi Khan (not produced) were standing on the Tharra of the Baithak of Iftikhar Ahmed (P.W. 17), when the petitioner Iftikhar Ahmed armed with a gun, Muhammad Arif armed with a rifle, Ghulam Fateed, Gul Anwar and Fayyaz Tariq also armed with guns, appeared on the scene and gave a 'lalkara' that they had arrived to avenge the insult. The first shot was fired by Ghulam Fareed (acquitted accused) which hit the right upper arm of the deceased. The second shot was allegedly fired by Iftikhar Ahmed petitioner, which hit the chest, neck and left upper arm of the deceased. Fayyaz Tariq fired a shot, which hit Fazal Ali (P.W.) on the forehead. Muhammad Arif and Gul Anwar also fired from their respective weapons without hitting any one. The deceased fell down after having- been shot in the door of the Baithak and succumbed to the injuries. Mu hammad Bashir, Iftikhar Ahmed, Zafar Ali (P.Ws.) withdrew into the Baithak of Iftikhar Ahmed and the accused left the scene. Muhammad Bashir thereupon left for the Police Station and lodged the F.I.R. As above-mentioned. As regards relationship, Iftikhar Ahmed and Muhammad Arif are real brothers while Gul Anwar and Fayyaz Tariq are first cousins and. Gujar by caste. There is no inter se relation--ship between the above to set of relatives.
5. According to the medical report the deceased had suffered the following injuries;
(1) An abraided area on the front of right shoulder joint 1 -- "x --" .
(2) A wound of entry above right clavical 1" x --" margins irregular inverted.
(3) A wound of entry on the front of neck 1" x 1/8" margins irregular inverted: (4)An abraided area below right clavical 2 -- " x'1".
(5) A wound of entry on the outer aspect of left arm --" x --" margins irregular, left humerous broken.
According to the opinion of the Medical officer injuries Nos.2 and 3 were mainly responsible for death and injuries Nos.2, 3 and 5, which had been caused by fire-arm, were sufficient to cause death in the ordinary course of nature.
6. A second post-mortem examination was conducted Board of three doctors and on X-Ray examination Medical Board was able to extract a bullet from the dead body. In the X-Ray film a radio opaque body was seen on the lower third portion of the right scapular region and five irregular radio opaque patches scattered over an area of upper sternal and right clavical region were noticed. The radio opaque body seen in the film over the right scapular region was extracted out of the body and one of the five smaller pieces were recovered from the right sternal region.
According to the Board's examination death had been caused by fire-arm injuries.
Fazal Ali (P.W.5) was examined on the 2nd of December, 1975 at 11.40 a.m., and the Medical Officer found a lacerated wound 1/8" x 1/8" skin deep on the left side of the forehead, 11" above the outer end of left eyebrow.
The injury was caused with a blunt weapon within 12 to 24 hours and was simple in nature.
7. Fazal Ali (P.W.15) was examined second the by Dr. Muhammad Alam Qureshi, Medical Superintendent, District Headquarters Hospital, Sargodha, on the 29th of April, 1976. Two scars of the following description were noticed on his forehead:
(i) There was a faint scar 1/8" x 1/8" on the forehead vertically 1 -- " above the outer angle of the left eyebrow; and
(ii) Another faint scar 1/8" x 1/8" in front of the hair line 1l" from the outer angle of the left eyebrow and 1" behind scar No.1.
X-Ray examination revealed presence of rounded metallic foreign body in front-temporal region.
The metallic foreign body was removed, placed in a phial which was sealed. Dr. Muhammad Alam Qureshi advised that the foreign body should be examined by the Weapon Expert to find out the nature of the body. He could not give any opinion as to the duration of the presence of the foreign body in the body of Fazal Ali.
8. The four crime empties secured from the spot were examined by the Fire-Arm Expert and in his opinion one of them matched with the gun, Exh.P-5, allegedly used by the petitioner and to matched with the gun Exh.P-6 of Ghulam Fareed.
9. The petitioner Iftikhar and his co-accused in their statements made under section 342, Cr.P.C.
Denied their participation in the commission of the alleged crime and pleaded false implication due to enmity of the P.Ws. They disowned the recoveries of the fire-arms. The petitioner Iftikhar Ahmed and Ghulam Fareed further stated that the police had fabricated the crime empties to match with their guns. Fayyaz Tariq advanced the plea of alibi and produced evidence which was accepted by the trial Court.
10. Gul Anwar was acquitted by the learned trial Court on the ground that none of the crime empties picked up from the spot matched with his gun and the injury attributed to him was also not supported by the medical evidence. Fayyaa Tariq was acquitted as his plea of alibi was accepted.
11. The learned High Court acquitted Ghulam Fareed on the ground that - the ocular evidence was belied by the medical evidence, as there was no injury on the right upper arm of the deceased whereas according to the eye-witnesses the shot fired by him had hit the deceased on his right upper arm. As regards Muhammad Arif it was observed that since he had allegedly fired from his rifle, but no injury on the deceased was attributed to him or to any one else and the rifle recovered from him was not got matched with the bullet extracted from the dead body of the deceased. He was, therefore, given the benefit of doubt and acquitted.
12. In proceeding to decide the appeal it was observed by the learned High Court at the very out set that in view of the previous enmity between the parties and the interested nature of the testimony of the prosecution witnesses, the entire evidence was to be scrutinised with caution and it was necessary to look for corroboration of the ocular evidence in respect of each of the petitioner. As respects the case of the petitioner Iftikhar Ahmed, learned High Court found that he had al direct motive to assassinate the deceased because an hour before the occurrence the latter had beaten him and insulted. According to Bashir Ahmed, Fazal Ali and Iftikhar Ahmed (P.Ws.) the shot fired by him hit the deceased in the chest, neck and the left upper arm. The injuries Nos.3 and 5 found in the post-mortem examination report were the result of shot fired by the petitioner Iftikhar Ahmed. The gun Exh.5 which he got recovered was licensed in the name of his father and was found to be lying in his house. Further, one of the crime empties picked up from the spot duly matched with his gun.
In these circumstances the learned High Court found that there was sufficient corroboration of the ocular testimony available in the case so far as the petitioner Iftikhar Ahmed was concerned. He was, therefore, fixed with the responsibility of causing the death of the deceased and his appeal, was therefore, dismissed.
13. The above findings of the learned High Court were challenged by the learned counsel for the petitioner. It was contended that injuries Nos.l and 4, which were abraided areas on the front of right shoulder and below right clavical, were the blunt weapon injuries. None of the eye-witnesses deposed that any of the assailants was armed with any blunt weapon or had caused any blunt weapon injury to the deceased. It was, therefore, contended that the ocular testimony was clearly in conflict with the medical evidence and this aspect .Of the case was not taken into consideration.
It was further contended that injury No.2, which was a wound of entry was a bullet injury as found on the second post-mortem examination report. According to the ocular testimony Muhammad Arif, acquitted by the High Court was armed with a rifle but his fire did not hit the deceased. The other remaining accused were armed with the guns and the injury No.2 was attributed to Ghulam Fareed. This to, according to the learned counsel was clearly in conflict with the medical evidence and the ocular testimony. It was further contended that keeping in view the entire evidence in the case, it was clear that the injury No.2, which is a bullet injury, proved to be fatal. Learned counsel took exception to the genuineness of the recovery of the crime empties from the spot and the gun at the instance of the petitioner Iftikhar Ahmed. According to the learned counsel their prosecution had failed to make compliance of the provisions of section 103, Cr.P.C. Inasmuch as to respectable and independent inhabitants of the locality were not associated with the recovery proceedings gnu the recovery witnesses, namely, Abdullah (P.W.11) and Sher Ali (P.W.12) were interested as they were admittedly related to the complainant party.
14. After hearing the learned counsel we consider that reappraisal of the evidence in the case seems necessary in the interest of safe dispensation of criminal justice. Leave is accordingly granted in both the petitions. Bailable warrants to issue against the respondents Nos .l to 4 in Criminal Petition No.283 of 1980 brought by Muhammad Bashir, in the sum of Rs.10,000 each with to sureties in the like amount to the satisfaction of the District Magistrate, Sargodha.