' KAMAL MUSTAFA BOKHARI, J.-- Imdad Hussain, aged 35 years, son of Fateh Din, Bashir Ahmad son of Said Muhammad, Abdul Majid, Rashid Ahmad sons of Khurshid, and Nazir Ahmad son of Noor Muhammad were tried for the murder of Ashfaq Hussain and for murderous assault on Baqir Hussain P.W. In prosecution of their common object after forming themselves into an unlawful assembly. The Sessions Judge, Vehari, on 15-2-1982, acquitted Abdul Majid, Rashid Ahmad and Nazir Ahmad. Bashir Ahmad was also acquitted of the charge of murder but was convicted for simple injury to Baqir Hussain P.W. Under section 323, P.P.C. And was sentenced to undergo rigorous imprisonment for one year. Imdad Hussain was convicted under section 302, P.P.C. And was sentenced to death subject to confirmation by this Court. A fine of R8.5,000 was also imposed on him and in default of its payment he was ordered to undergo rigorous imprisonment for two years.
If realised, whole of the fine was to be paid to the heirs of deceased as compensation. Imdad Hussain and Bashir Ahmad have filed appeal against their conviction and sentence and the trial Court has sent reference for confirmation of death sentence of Imdad Hussain. This judgment will dispose of both the matters.
2. On 24-7-1980 at about 9-00 a.m. P.W. Abdul Razzaq, first informant, his brothers Baqir Hussain injured P.W. And Ashfaq Hussain deceased were working in their field in Killa No, 8 of square No, 47 in Chak No, 125/W.B. When all the accused residents of the same Chak reached there armed and attacked them. Imdad Hussain appellant had a .12-bore gun, Nazir Ahmad and Abdul Majid, acquitted accused, also carried a .12-bore gun each while Bashir Ahmad appellant and Rashid Ahmad, acquitted accused, had a Sota each. After raising Lalkara they started firing at the party of first informant who ran for life towards their Bheni. The accused pursued and fired at them. Imdad Hussain appellant fired a gunshot at the deceased while he was in Kills No, 2 of the same square upon which the deceased fell down and died. Bashir Ahmad appellant caused injury to Baqir Hussain P.W. On head with Sota. The accused left firing. The occurrence was also witnessed by Muhammad Umar and his guest Ghulam Haider P.W. Muhammad Umar was given up as unnecessary.
' About one and a half acres of agricultural land from the share of Nazir Ahmad, acquitted accused had fallen to the share of mother of the deceased. Abdul Majid and Rashid Ahmad, acquitted accused, were annoyed because the deceased and Muhammad Tufail etc. Had caused injuries to Ghulam Muhammad, maternal uncle of Abdul Majid and Rashid Ahmad, acquitted accused, who had been challaned in Court. On the information supplied by the first informant a case for possession of unlicensed .12-bore gun was registered against lmdad Hussain appellant under the Arms Ordinance in which Imdad Hussain had been challaned in Court. As a result thereof five accused including the two appellants had caused murder of Ashfaq Hussain and had injured his brother, Baqir Hussain P.W.
3. Abdul Razzaq P.W. Got recorded his statement at Police Station Mitro, at a distance of four miles, on which formal F.I.R. Was registered on 24-7-1980 at 10-15 a.m. P.W. Muhammad Sharif, S.H.O. Went to the spot on the same day and despatched the dead body for autopsy after completing the formalities. He secured blood-stained earth from the spot and also took into possession three empty cartridges from there. He got Baqir Hussain P.W. Medically examined. He arrested four accused including the appellants on 26-7-1980. Nazir Ahmad, acquitted accused, was arrested by him on 27-7-1980. Imdad Hussain appellant, on 30-7-1980, led him to the recovery of P.6 which was secured vide memo. Exh. P.G. On the same day Abdul Majid, acquitted accused, led him to the recovery of gun P.7 which was taken into possession vide memo. Exh. P.H. Bashir Ahmad appellant and Rashid Ahmad, acquitted accused, also led him to the reovery of their Sotas P.8 and P.9 respectively, which were secured vide memo. Exh. P.I. And P.J. Separate cases under the Arms Ordinance in respect of guns recovered from Imdad Hussain appellant and Abdul Majid accused, were registered against them. After his arrest, on 27-7-1980, Nazir Ahmad, acquitted accused, led the Investigating Officer in custody, on 10-8-1980, and got recovered gun P.10 which was taken into posession vide memo. Exh.P.K. A separate case under the Arms Ordinance for possession of the gun without licence was also registered against Nazir Ahmad, acquitted accused. The gun P.6 recovered from Imdad Hussain appellant was licensed in the name of Khurshid against whom a case under section 16 of the Arms Ordinance was registered but Khurshid died thereafter. The gun P.6 recovered from Imdad Hussain appellant matched with two of the three empty cartridges recovered from the spot vide report Exh.P.E. Of Forensic Science Laboratory as also deposed by Gul Sher Malik P.W.
4. Dr. Muhammad Iqbal P.W. Conducted post-mortem examination on the dead body of Ashfaq Hussain, aged 38/39 years, on 25-7-1980 at 8-30 a.m. And found the following four fire-arm injuries:-
(1) Fire-arm lacerated wound 41 c.m. x 21/2 c.m. On the right lumbar region, near the vertebral column. There was no charring of the edges of the wound and the margins of the wound were invertea and this was the wound of entry.
(2) Fire-arm lacerated wound 1 c.m. x 1 c.m. On the left side of the abdomen, 7 c.m. Below and left side of the umblicus. The margins of the wounds were everted. This was the wound of exit.
(3) Fire-arm lacerated wound 1 c.m. x1/2 c.m. On the left side of the abdomen 71/2 c.m. Away from injury No,2, on the left side. The margins of the wound were everted. This was the wound of exit.
(4) Fire-arm lacerated wound 1 c.m. x 1 c.m. On the left side of the abdomen, 11/2 c.m. Away and left side of injury No,3. The margins of the wound were everted. This was wound of exit.
' Injury No, 1 was a wound of entry and the rest were wounds of exit. The stomach and small intestines of the deceased were slightly decomposed and empty while his large intestines were slightly decomposed. The bladder was also slightly decomposed and empty. In the opinion of doctor Ashfaq Hussain died of shock and haemorrhage as a result of injuries to the intestines and injury No,1 was reported sufficient to cause death in the ordinary course of nature. The doctor gave probable time between injuries and death within few minutes and that between death and post- mortem was about 24 hours.
' The same doctor, on 24-7-1980 at 6-45 p.m. Medically examined Baqir Hussain P.W. Aged 40 years, and found one lacerated wound 2 c.m. x 1/4 c.m. x scalp deep on the right side of the head. It had been caused by blunt weapon within the duration of 12 hours.
' In cross-examination the doctor deposed that Exh.D.D. Was attested copy of the medico-legal report of Nazir Ahmed, acquitted accused, who was produced by the police and was examined by him on 24-7-1980 at 9-00 p.m. When he found the following two injuries on his person:-
(1) Gunshot lacerated wound 1 c.m. x 1 c.m. On the front of upper part of left arc and the depth of the wound was kept under observation. There was no charring of the edges of the wound and the margins of the wound were inverted and this was the wound of entry.
(2) Two small lacerated wounds 1 c.m. x 1/4 c.m. Each on the left exilla. There was no shirt worn by him and only one vest was worn by him which was blood-stained. These two injuries were kept under observation and the injuries were caused by fire-arm fired at a distance of more than four feet, about the duration of 12 hours.
' In further cross-examination the doctor deposed that the distance from which the deceased and Nazir Ahmad, acquitted accused, were fired at was almost the same being more than four feet in each case but he could not give the distance from which the shots had actually been fired at.
' In further cross-examination the doctor deposed that Lady Doctor Shehnaz Akhtar has been working with him as Women Assistant Medical Officer at Mails'. He proved her handwriting and signatures on medico-legal reports of Mst. Saliman Bibi, aged 12 years. This was objected to by the defence as secondary evidence without proving the non-availability of the lady doctor.
5. At the trial prosecution examined Abdul Razzaq, first informant P.W.6, Baqir Hussain, injured P.W.7 and"Ghulam Haider P.W.8 as eye-witnesses of occurrence. The motive was given by the first informant. The recoveries of gun from Imdad Hussain appellant and of Sota from Bashir Ahmad appellant were proved by Muhammad Amin P.W.11 and the Investigating Officer Muhammad Sharif P.W.13 who also proved recoveries of gun from Abdul Majid and of Sota from Rashid Ahmad, acquitted accused, while recovery of gun P.10 from Nazir Ahmad was proved by Muhammad AU P.W.12 and the same Investigating Officer. The recovery of empty cartridges from spot was proved by Ata Muhammad P.W.4 and the same Investigating Officer. Gul Sher Malik P.W.5 Ballistic Expert, proved his report Exh.P.E. And deposed that the two empties picked from the spot matched with gun of Imdad Hussain appellant.
6. The appellants and the acquitted accused pleaded not guilty to the charge. They all denied the recoveries. Imdad Hussain appellant stated that prosecution witnesses were related inter se, criminal and civil litigation was going on between the deceased party and Nazir Ahmad, acquitted accused, in which Imdad Hussain appellant sided with Nazir Ahmad, acquitted accused, and had been falsely implicated for that reason. Bashir Ahmad appellant stated similary and added that he was falsely implicated being related to Nazir Ahmad, acquitted accused and for baying morally supported him. Abdul Majid and Rashid Ahmad, acquitted accused, also made similar statements in their defence and stated to have been falsely implicated because their father used to favour Nazir Ahmad, acquitted accused. Nazir Ahmad, acquitted accused, stated that none of his co- accused including the appellants were present at the time occurrence took place. He gave his own version which is reproduced below:- "The fact of the matter is that the complainant party wanted to take over possession of 14 acres of land which had been mutated in the name of Mst. Raj Bibi, mother of Ashfaq deceased, to which I did not agree and rsisted despite pressure from the complainant side. On the day of occurrence Ashfaq deceased, his brother Muhammad Malik alias Malik, Baqir P.W. Brother of the deceased, Taj another brother of the deceased, Tufail son of Malik nephew of the deceased, Rafiq son of Sattar, Mansha son of Taj, a nephew of the deceased having armed themselves with guns and .Lathis came to secure forcible possession of the aforesaid land. Mst. Karm Bhari, Mst. Selman and Mst.
Sheemo who were also present there resisted whereupon the above-named persons started belabouring them. I was ploughing nearby and was attracted to the spot on the hue and cry of the women-folk named above and used the stick which I was carrying for driving the bullocks whereupon Malik Muhammad alias Malik fired with his gun at me but the same hit Ashfaq deceased who had come in between during the course of altercation. Having seen Ashfaq fallen, aforesaid Malik again fired and caused fire-arm injuries to myself and Mst. Saliman Bibi, my sister; Razzaq, Ghulam Haider and Umar P.Ws. Were never present there. Likewise co-accused Imdad, Majid, Rashid and Bashir were also not present. The Investigating Officer assured us that he would do justice and register the case according to the true facts but he favoured the complainant party and registered a false case against myself and my co-accused by distorting and twisting the true facts. In fact the complainant party was the aggressor and I was the victim of assault. I produce the carbon copies of the medico-legal reports of Mst. Saliman Bibi Exh.D.D. That of Mst. Karam Bhari Exh.D.E., Mst. Sheemo Exh. D.F. Respectively, which were removed from the police file with the permission of the Court and were placed on the judicial file. I also produce copy of Khasra Girdawari Exh.D.F. Another copy of Khasra Girdawari Exh.D.G. And a certified copy of the order of A.C./ Collector, Hasilpur, Exh.D.H."
' In reply to further question he stated as under:- "I have never resented to the mutation in favour of Mst. Raj Bibi. In fact the dispute was over possession and the complainant party wanted to take over forcible possession of the land to which I did not agree to surrender because my land in Hasilpur Sub-Division was under the possession of the complainant party which they sold to fictitious persons and I secured an order from the A.C., Hasilpur for relgistration of a case against Ashfaq deceased and other members of the complainant party."
7. The trial Court believed ocular evidence in the testimony of Abdul Razzaq, Baqir Hussain and Ghulam Haider P.Ws. And also believed recovery of gun from Imdad Hussain appellant and testimony as well as report of the Ballistic Expert and it matched with two out of the empty cartridges secured from the spot. The motive alleged by the prosecution was also believed. Four accused including Bashir Ahmad appellant were acquitted on the charge of murder by giving benefit of doubt because they did not share the common intention as they did not fire at nor caused any injury to the deceased. Bashir Ahmad appellant was convicted and sentenced for simple injury to Baqir Hussain P.W.
8. It was argued on behalf of the appellants that the eye-witnesses could not observe whose fire had hit the deceased because all of them including the deceased were in running position pursued by the five accused. It was further submitted that injuries to Nazir Ahmad, acquitted accused, and three women of his family were not explained by the prosecution and the medico- legal reports of Nazir Ahmad, acquitted accused, and Mst. Saliman Bibi and two other ladies showed that they had suffered injuries at the time deceased was killed. It was also submitted that the trial Court failed to determine who was the aggressor. It was urged that the incriminating recoveries were fake and had been planted and defence version had been ignored. Learned counsel for the State submitted that medical reports of Nazir Ahmad, acquitted accused, and his injured women had not been proved, that place of occurrence was Kills No,2 of the first informant and that injury No,1 on the deceased being on his back it could not be suffered as stated by Nazir Ahmed, acquitted accused, in his defence. It was submitted that conviction and sentence of the appellants be maintained.
9. Abdul Razzaq and Baqir Hussain P.Ws. Are real brothers of Ashfaq Hussain deceased and Ghulam Haider P.W. Is married to their niece. It is not disputed that enmity existed between the parties who were litigating with each other in the criminal and civil Courts. Therefore all the three eye-witnesses are not only related with the deceased but are inimically disposed towards the accused due to which their testimony cannot be relied upon without independent corroboration. Abdul Razzaq and Baqir Hussain P.Ws. Alongwith their real brother Ashfaq Hussain deceased were being pursued by the five accused and three of them were firing from their guns when shot fired from gun of Imdad Hussain appellant allegedly hit the deceased. Both the eye-witnesses were not capable of observing in that position as to whose shot had hit the deceased Because according to them not only Imdad Hussain appellant but the two acquitted accused, Nazir Ahmed and Abdul Majid, also carried a gun each and were pursuing the deceased and the witnesses. Ghulam Haider P.W. Is a chance witness. He is resident of a different village called Mauza Bahu Saru of District Bahawalnagar. He claimed that he arrived at the house of Umar (given up) two days before the day of occurrence in order to take away his wife. He made conflicting statement before the Magistrate and the police. He did not see the accused going towards the place of occurrence and explained that the accused passed behind his back. According to the prosecution Imdad Hussain appellant fired one shot from his gun and did not repeat it. Therefore, we find that the eye- witnesses did not see that the shot fired by Imdad Hussain appellant from his gun hit the deceased. The F.I.R. Was registered after the eye-witnesses had seen the seat of injury. Medical evidence, therefore, does not support the ocular evidence.
10. The recoveries from the appellants did not corroborate the ocular evidence. Atta Muhammad P.W. Was examined to prove that on the day of occurrence blood-stained earth and three empty cartridges were secured from the spot. He is a Lambardar of the Chak. He lived two miles away from the place of occurrence and was called to the spot by the first informant. The first informant as well as the accused had Bhenis near the place of occurrence. The Labardar witness reached the spot before the arrival of the police He deposed that the eye-witnesses were present. Ghulam Haider eye-witness deposed in cross-examination that he did not find any empty cartridge lying at the spot after the occurrence. The recovery of gun P.6 from the appellant, Imdad Hussain, was proved by Muhammad Amin P.W. Who was grand son of the deceased and the first informant. He was a young boy of about 18/20 years. He cannot be believed being close relation and inimically disposed towards the appellants. The gun P.6 recovered at the instance of Imdad Hussain appellant was licensed gun of Khurshid, father of the acquitted accused, Abdul Majid and Rashid Ahmad. It was so recovered after five days of the arrest of Imdad Hussain appellant. He has not been relied upon for recoveries from the acquitted accused. The statement of P.W. Ghulam Mustafa, Muharrir Head Constable, who carried parcel containing empty cartridges and deposited it at police station, on 24-7-1980 and also carried it, on 28-7-1980, to the Forensic Science Laboratory was not recorded by the Investigating Officer on both occasions. P.W. Nazir Ahmad, Foot Constable, was unable to say when his statement was recorded by the investigating Officer. The perusal of evidence on record has led us to the conclusion that the recoveries of the empties from the spot and of the gun from Imdad Hussain appellant are fake. The reovery of Sota from Bashir Ahmad appellant was also proved by the same P.W. Muhammad Amin and the investigating Officer, Muhammad Sharif, S.H.O. P.W. We are unable to place any reliance on these recoveries.
11. The motive alleged by the prosecution was also not proved. The undisputed position is that dispute existed about 14 acres of land between the parties. The possession of that disputed land was with Nazir Ahmad, acquitted accused and earlier with his father before his death and mutation of that 14 acres of land had been sanctioned in favour of mother of the deceased about six months before present occurrence. On that evidence it was the complainant party which had a motive against the accused party. Imdad Hussain appellant was a supporter of Nazir Ahmad, acquitted accused and his cousin Bashir Ahmad appellant was also a supporter and a relation of Nazir Ahmad, acquitted accused, by brotherhood. Imdad Hussain appellant was stated to have motive because he had been involved in an Arms Ordinance case on the information given by Abdul Razzaq P.W. To the police. If that is accepted as true then there can be no doubt that Imdad Hussain appellant would have fired and killed Abdul Razzaq P.W. Instead of the deceased. We are satisfied that the motive alleged by the prosecution has not been proved. No other independent corroboration of the ocular testimony is forthcoming on record.
12. The defence version given by the acquitted acused, Nazir Ahmad, is plausible. He as well as three of his womenfolk suffered fire-arm injuries at the same time and place. At least two of the prosecution witnesses admitted this position. P.W. Atta Muhammad Lambardar deposed that Nazir Ahmad, acquitted accused and three of his women-folk were lying at the .Spot in an injured condition. The investigating Officer, P.W. Muhammad sharif similarly deposed to have found aforementioned persons lying injured at the spot on his arrival and he got all the four of them medically examined for fire-arm injuries. The possession of 14 acres of land was with Nazir Ahmad, acquitted accused, due to which the party of deceased had a motive to dispossess them.
According to the defence version the appellants were not present at the spot at the time of occurrence.
' For the above reasons the appeal is accepted, conviction and sentences of the appellants are set aside and they are acquitted of the charge. Bashir Ahmad appellant is on bail. His bail bounds are discharged.
' The death sentence of Imdad Hussain appellnat is not confirmed.
Appeal accepted