' MUHAMMAD MUNIR KHAN, J.-- The two Criminal Appeals No, 103/83 by Allah Ditta and No, 314/84 by Maratab All and Murder Reference No, 41 of 1984 arise from the judgment of the learned Additional Sessions Judge, Lahore whereby he on 27-2-1984 while acquitting Sardar Khalid Umar, Zulfiqar, Rashid alias Gogee co-accused, convicted Maratab All and Allah Ditta appellants under section 302/34, P.P.C. For the murder of Akbar Shah and sentenced them as under:-
(i) Maratab All to death and a fine of Rs,5,000 in default thereof two years' R.I.;
(ii) Allah Ditta to imprisonment for life and a fine of Rs, 1,000 in default thereof two years' R.I.
' It was directed that fine when recovered be paid to the legal heirs of the deceased. The appellants were also charged under section 307/34, P.P.C. For murderous assault upon Ghulam Siddique P.W. 9 but they were acquitted of the charge. It may be noted here that Farzand All co-accused had died on 17-1-1983 during the trial and Shahid alias Riaz having been declared a proclaimed offender was proceeded against under section 512, Cr.P.C.
2. The occurrence took place on 4-1-1982 at 8-30 a.m. In a bus in chowk Manga Mandi one kilometre from Police Station Manga Mandi, district Lahore. Statement Exh. P.E. Of Sadiq All Shah P.W.
23, the brother of the deceased was recorded at the spot by Muhammad Aslam 3.1. P.W. 24 at 8.55 a.m. On the same day. Formal F.I.R. Exh.P.E./1 was drawn up at 9.10 a.m. Same day by Khadim Hussain Head-constable ? P.W .2 .
3. The motive as alleged by the prosecution was that five months before the occurrence Muhammad Shah father of the deceased was murdered by Rashid alias Gogee co-accused and others. So a case F.I.R. No, 116/81 was registered at police station Manga Mandi under section 302/307/149/148, P.P.C. On 7-5-1981 against them. In that case Azim Shah P.W. 12 was complainant.
Akbar Shah deceased was an eye-witness and Sadiq All Shah P.W. 23 was a recovery witness. In that case, Rashid alias Gogee, Liaquat, Riasat and Ameen were on bail. Rashid alias Gogee, his brother Zulfiqar, his father Farzand Ali (since deceased) and Sardar Khalid Umar, the employer of Farzand All conspired with Maratab Ali and Allah Ditta who agreed to murder Akbar Shah deceased.
4. As for the main occurrence, it has been stated that on the day of occurrence, the bail application of Naseer Ahmed and Nasrullah accused in the murder case of Muhammad Shah was fixed before the learned Sessions Judge, Lahore. Azeem Shah P.W. 22, Sadiq All Shah P.W. 23 and Akbar Shah deceased boarded Bus No,MNF from Ada Asadullah Khan for going to Lahore to contest the bail application. Sadiq All Shah P.W. 23 and the deceased seated themselves alongwith Ghulam Siddique P.W. 9 whereas Azeem Shah P.W. 22 took another seat near the window. At 8.30 a.m., the Bus stopped at Ada Manga Mandi. The passengers started boarding and deboarding. In the meantime Maratab All appellant alongwith two co-accused entered the bus. Maratab All pointed out Akbar Shah deceased to his companions inciting them to shoot him. Maratab Ali then drew out a carbine from underneath the Chaddar worn by him. He fired shot hitting Akbar Shah. One of his companion fired a shot from carbine bringing out the same from underneath his Chaddar hitting Ghulam Siddiq P.W.
9. The third companion remained standing with pistol in the Bus. While leaving the Bus, the third companion had also fired ineffective shot. Akbar Shah died on the spot. Muhammad Siddiq P.W. 9 was removed to the hospital in injured condition.
5. Dr. Muhammad Tahir Anees P.W. 10 conducted post-mortem examination on the dead body of Akbar Ali Shah deceased on 4-1-1982 at 2-30 p.m. And found following injuries on his person:- "1-A. Penetrating lacerated wound 3.5 x 3 c.m over lower part of left Pinna through and through its depth with missing lobule, the wound was penetrating deep in the neck through the lower front part of left mastoid bone and the margins were inverted.
1-B Penetrating lacerated wound 5 x 5 c.m. Over lower back right part of neck with everted margins.
1-C Penetrating lacerated wound 5 x 5 c.m. Over right back mid part of neck with everted margins.
1-D. Penetrating lacerated wound 5 x .5 c.m over right mid part of neck with everted margins."
' In his opinion, the death was due to shock and haemorrhage as a result of injury No, 1-A caused by fire-arm which was sufficient to cause death in the ordinary course of nature. The time between the injury and the death was a few minutes and between death and postmortem was about six hours.
' On 3-2-1982 at 11.55 a.m. Dr. Muhammad Anees Sheikh examined Ghulam Siddiq P.W. He found healed scar 5 c.m x 1 c.m. On the back upper left forearm with denuded area of 0.5 at the upper part of the scar. This denuded area was covered with healthy reddish granulation tissue. The injury was simple in nature and was more than three weeks old. The Doctor could not ascertain the kind of weapon with which the injury was caused.
6. Maratab Ali appellant was arrested on 23-1-1985 by Muhammad Aslam S.I. P.W.
24. At the time of arrest, he was carrying carbine P.7 and three live cartridges which were taken into possession by Muhammad Aslam S.I. P.W.
24. Allah Ditta appellant was arrested on 3-1-1982 by Gul Akhtar S.I. P.W.
25. On 3-2-1983 he got recovered carbine P.11 from garden. Since no empty was recovered from the bus, the carbine was not sent to the forensic science laboratory for examination.
7. Parade for the identification of Allah Ditta appellant was conducted by Ch. Muhammad Bashir M.I.C. On 1-2-1982 wherein Ghulam Siddique P.W. 9 Azeem Shah P.W. 22 and Sadiq All Shah P.W. 23 had identified him. The report of the identification parade is Exh. P.F/1.
8. To prove its case, the prosecution produced 25 witnesses, out of whom Ghulam Siddiq P.W. 9, Azim Shah P.W. 22 and Sadiq Ali Shah P.W. 23 gave the ocular account of the occurrence. Ghulam Siddiq P.W. 9 who was injured witness did not support the prosecution case. Azim Shah P.W. 22 and Sadiq Ali Shah P.W. 23 claimed to have seen the appellants and one other causing death of Akbar Ali Shah and injuries to Ghulam Siddiq P.W. Khurshid Shah P.W. 15, Rehmat Ali P.W. 16, Muhammad Aslam S.I. P.W. 24 were produced to prove the recoveries of carbine P. 7 and P. 11 from Maratab Ali and Allah Ditta appellants. Khurshid Shah P.W. 15 and Rehmat Ali P.W. 16 did not support the recoveries. Ch. Muhammad Bashir M.I.C. P.W. 3 conducted identification parade wherein the eye- witnesses identified the appellants. Nasarullah P.W. 12, Muhammad Sarwar P.W. 13 and Nawaz Shah P.W. 17 were the witnesses of the conspiracy. Nasrullah and Muhammad Sarwar did not support the prosecution. The rest of the evidence is not of much importance.
9. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. They raised plea of false implication by Muhammad Aslam S.I. No witness was produced in defence.
10. The learned counsel for the apellants contended that the appellants had no motive to murder the deceased; the ocular evidence being related and inimical is not reliable; that there is no corroboration of the ocular testimony and as such, the prosecution has failed to prove its case beyond reasonable doubt. Conversely, the learned counsel for the State supported the judgment of the trial Court.
11. We have considered the arguments advanced by the learned counsel for the parties with care.
We find that the appellants had no direct enmity with the deceased. The prosecution case was that the appellants had murdered the deceased at the instance of Sardar Khalid Umar, Zulfiqar, Rashid alias Gogee and Farzand Ali but the trial Court having not believed the conspiracy or instigation, has acquitted them. Adverting to the ocular evidence, we find that out of the three eyewitnesses Ghulam Siddiq P.W. 9 being an injured witnesses was very much present in the bus at the time of occurrence. He has categorically stated that Maratab Ali and Allah Ditta appellants were not offenders. No doubt, the witness was allowed to be cross-examined by the prosecutor but nothing advantageous to the prosecution could be elicited. Ghulam Siddiq P.W. 9 was a quite independent witness. We do not see any reasons to disbelieve him. The mere fact that he was declared hostile would not make him a false witness. As for Azim Shah and Sadiq All Shah P.W., we find that they are closely related to the deceased. Azim Shah is the brother-in-law of the deceased as well as his first cousin. Sadiq Ali Shah P.W.23 is the real brother of the deceased. They were complainant and eye- witnesses respectively in the murder case of Muhammad Shah father of the deceased against Rashid alias Gogee co-accused, the cousin of Maratab Ali appellant. Although so many independent witnesses were available yet none was produced by the prosecution. So far as identification parade is concerned, it was held after 27 days of the occurrence. The appellants had raised objection at that time that they were shown by the police to the witnesses. Ghulam Siddiq P.W. 9 the injured witness has admitted that the police had shown the appellants to the eye- witnesses before the identification parade. For all these reasons we are of the view that it would be highly unsafe to sustain conviction on the uncorroborated testimony of interested and partisan witnesses, Azim Shah P.W. 22 and Sadiq All Shah P.W.
23. Since there is no independent corroboration of the statement of these witnesses, therefore, it would be in accordance with the safe administration of justice in criminal cases to accept the appeal and acquit the appellants of the charge.
12. For what has been stated above, there being no satisfactory basis to uphold the conviction of the appellants, while giving them the benefit of doubt, they are acquitted of the charge. They shall be released forthwith if not required to be detained in some other case.
' The death sentence is not confirmed.