' Muhammad Hayat son of Muhammad, aged 25, armed with gun, Farid, aged 35 and Shameer, aged 30, both sons of Salehoon, armed with guns, have been convicted under section 302/34, P.P.C.
For the murder of Manak, aged 25, and under section 307/34, P.P.C. For murderous assault on Sultan P.W.10, cousin of the deceased, and vide judgment, dated 11-8-1980 of the Additional Sessions Judge, Jhang, they were sentenced as follows: Muhammad Hayat convict was sentenced to death whereas Farid and Shameer convicts were sentenced to life imprisonment for the murder of Manak deceased. Each of them was fined Rs,2,000 or in default to undergo one year rigorous imprisonment with the direction that if the fine was realized from them, Rs,5,000 out of the same should be paid to the heirs of the deceased. They were sentenced to two years' rigorous imprisonment each plus fine of Rs,2,000 each or in default to undergo six months' rigorous imprisonment each for murderous assault on Sultan P.W. With the direction that if the fine was realized from them, out of the same Rs,1,000 be paid to Sultan P.W. As compensation.
' Muhammad Hayat convict has filed Criminal Appeal No,1008 of 1980 whereas Farid and Shameer convicts have filed Criminal Appeal No,1061 of 1980. These appeals are being taken up alongwith Murder Reference No,220 of 1980 for the confirmation of death sentence awarded to Muhammad Hayat convict as well as Criminal Revision No,524 of 1981 for enhancement of sentence awarded to the convicts and these are being disposed of by this judgment.
2. The occurrence took place on the mid-night between 3rd and 4th of July, 1977 in the courtyard of the Dera of the deceased situated in village Walle at a distance of 10 miles from Police Station Barhana, District Jhang. Statement Exh.P.E. Was made by Muhammad Arif P,W.9, brother of the deceased at 6-00 a.m. On 4th July, 1977, and it was recorded by Muhammad Hayat A.S.I., P.W.13 at Jassal Bridge, at a distance of 11/2 miles from the spot where he happened to be present for investigation of some other case and chanced to meet Muhammad Arif P.W. While he was on his way en route to the police station. On the basis of the aforesaid statement formal F.I.R. Exh.P.E/1 was registered at Police Station Barhana at 6-30 a.m. On the same day by Ghulam Farid M.H.C. P.W.5.
3. The motive for crime, as stated in the F.I.R., is that in 1973 one Mammi, maternal-uncle of Muhammad Hayat appellant, was murdered in an attempt of dacoity at the hands of the complainant-party and in order to avenge that murder the present occurrence had taken place.
The prosecution case is that Farid and Shameer appellants are brothers and Farid appellant is Behnoi of Muhammad Hayat appellant. But this has been denied by the appellants, who had stated that Muhammad Hayat appellant has no relationship with Farid and Shameer appellants.
4. The prosecution has produced three eye-witnesses of the occurrence, namely, Muhammad Arif P.W.9, brother of the deceased, Sultan P.W.10, injured cousin of the deceased, and Waryam P.W.12, injured brother of the deceased. Sharif and Malla were cited as eye-witnesses of the occurrence but were not produced.
5. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day which happened to be the 16th of the lunar month and, therefore, it was a moonlit night, at the Dera were asleep Manak deceased, Muhammad Arif, Sultan and Waryam P.Ws. When Muhammad Arif P.W. Was woken up at mid-night on hearing the noise of mares. In the moonlit night he saw the appellants, armed as described above. In the meantime Muhammad Hayat appellant raised a Lalkara to the effect that they had come to avenge the murder of his uncle i.e, Mammi. On this Sultan and Waryam P.Ws. Also woke up. While Manak deceased tried to get up from his cot, Muhammad Hayat appellant fired a shot at him through his gun which hit him on the left chest.
Second shot was fired by Farid appellant through his gun which hit Manak deceased on the wrist of right hand. Then Shameer appellant fired two shots one after the other through his gun -which hit Sultan P.W. On his left thigh. Then Fari appellant attempted to fire another shot while Waryam P.W.
Held his gun. The shot was fired by him but it did not hit anyone. Thereafter, Farid appellant is stated to have given a blow with the butt of the gun to Waryam ,P.W. Which fell on his mouth and upper lip. Manak ded on the spot. The occurrence was also witnessed by Sharif and Malla (both not produced) who were present in the nearby Dera and who were attracted to the spot, raised alarm and pleaded the accused-party to spare the complainant-side. Muhammad Arif P.W. Did not go near out of fear for his life. After murdering the deceased the appellants ran away on their mares.
Leaving behind Sharif and Malla to guard the dead body of Manak deceased, Muhammad Arif P.W.
Proceeded to lodge the report.
6. Farid and Shameer appellants were arrested by Raja Muzammil Hayat S.I. P.W.8 on 7-7-1977 whereas Muhammad Hayat appellant was arrested by him on 16-7-1977. From the spot were picked up four crime empties of .12-bore which were taken into possession vide memo. Exh.P.R.
Dated 4-7-1977. The attesting witnesses are Muhammad Yar P.W.11, Muhammad Hayat A .S.I. P,W.13 and Sultan son of Taj Muhammad (not produced). At the instance of Muhammad Hayat appellant was recovered unlincensed gun P.4 which was taken into possession vide memo. Exh.P.S. Dated 26- 7-1977. The attesting witnesses are Muhammad Nawaz (not produced), KhanMuhammad H.C. (not produced) and Ghazanfar Hayat S.I. P.W.15. Nbthing was recovered from the other two appellants.
The Firearms Expert's report Exh.P.V. Is at page 70 of the paper book and it is to the effect that crime empties picked up from the spot had not been fired through gun P.4. In that view of the matter, the trial Court has rightly observed in para. 17 of his judgment at page 40 of the paper book that these recoveries are of no value. Thus, the recovery evidence, in this case, is of no importance at all. The case of the prosecution is based entirely on the ocular testimony supported by the medical evidence and the motive version.
7. The appellants, in their statements before the trial Court, denied having participated in the occurrence. They stated that they had been falsely involved due to long-standing enmity between the parties. Muhammad Hayat appellant stated that it was correct that his uncle Mammi was murdered by the complainant-party in 1973 but he was not murdered in a dacoity but was murdered in a family feud. The said Mammi had brothers, sons as well as nephews and they lived in Chak No,49 which was at a considerable distance from the place of his residence. He further stated that he had no grudge against the complainant-party on that account. In reply to the question as to why this case had been made against him he stated that Malla had a grudge against him and he had involved him in this case falsely by becoming an eye-witness. Moreover, the complainant-party had also named him due to previous enmity and suspicion. He stated that he would produce defence evidence. Farid appellant stated that a case under section 366/376, P.P.C. Was got registered against both, him and his brother Shameer appellant, for the abduction of the brother's wife of Sultan P.W. And then raping her. This case was pending at the time of the occurrence and had been got registered at the instance of Sultan P.W. Sultan P.W. On account of this grudge had involved both the brothers falsely in this case while being in league with the complainant-party. The statement of Shameer appellant is to the same effect. They produced Muhammad Ashiq Deed-Writer as D.W.1 as well as Jalal Akbar Dab, Advocate as D.W.2. These two defence witnesses were produced in order to prove Exh.D.B. Which is at page 66 of the paper book.
It may be pointed out that Exh.D.B. Is an affidavit, alleged to have been made by Sultan P.W. On 17- 10-1979 in which he had stated that about 21 years ago he was asleep at the Behk of Muhammad Arif P.W. When at night time some thieves came there and attempted to take away the cattle. On his intervention one of the thieves fired at him and, therefore, he was injured. He also stated in the said affidavit that Muhammad Hayat appellant had not injured him but he had been mentioned as one of the accused-persons by Muhammad Arif P.W. Because of the background of previous enmity although he had not fired at Sultan P.W. He also stated that in the course of investigation he had made a similar statement before the police. The affidavit was scribed by Muhammad Ashiq D.W., Deed-Writer, and it contained a photograph of Sultan P.W. As well as his thumb-impression on the affidavit. Jalal Akbar Dab, Advocate D.W. Attested the same after satisfying that it was thumb- marked by Sultan P.W. As it has already been stated both these D.Ws. Were produced in order to prove Exh.D.B. And the thumb-impression as well as photograph of Sultan P.W. As Sultan P.W. Had denied having made the said affidavit at the trial stage. The thumb-impressions of Sultan P.W.
Were also taken by the trial Judge and handed over alongwith the thumb-impression on the affidavit to a Board of Experts and the opinion of the Experts is Exh.D.F. At page 69 of the paper book which is to the effect that on the affidavit as well as the Deed-Writer's entry register thumb- impressions are identical with left thumb-impression of Sultan P.W. On his sample paper. It may be pointed out at this stage that Raja Muzammil Hayat S.I. P.W.8, who partly investigated the case, stated in the cross-examination that Farid and Shameer appellants during the interrogation had put up the plea that they were innocent and that they had been falsely implicated b the complainant and Sultan P.W. They had also stated that they had abducted Mst. Fatima wife of Sultan P.W. And Mst. Noori wife of Amir brother of Sultan P.W. And that they were also challaned in a case under section 376, P.P.C. At Police Station, Silhanwali, District Sargodha at the instance of Sultan P.W. Both of them had taken up the plea before him during the investigation that they were present at their houses alongwith certain other persons when the alleged occurrent took place and that it was correct that a lot of people were produced by the accused-party in their defence during the investigation and the Investigating Officer had come to the conclusion that they were innocent But Raja Muzammil Hayat P.W. Only partly investigated the case, because the final challan was not filed by him as he was transferred meanwhile The rest of the investigation had been conducted by Ghazanfar Haya S.I. P.W.15, who put up the challan against all the appellants.
8. Dr. Hafeezur Rahman P.W.14 conducted post-mortem examinatior on the dead body of the deceased on 4-7-1977 and found on his person a firearm wound with edges blackened and inverted 31 c.m. x 31/2 c.m. On the front of the left side of the chest. Two bullets were recovered from the right chest and two bullets were also recovered from the right kidney. Another firearm wound 5 c.m. x 31 c.m. x bone deep with blackened edges was noted on the radial aspect of right forearm.
Four bullets were sealed and handed over to the police. In his opinion the cause of death was haemorrhage and shock as a result of the first injury which was grievous and sufficient to cause death in the ordinary course of nature. Second injury was simple in nature. But both the injuries were caused by firearm.
' Dr. Altaf Hussain P.W.2 medically examined Waryam P.W. At about 12-00 noon on 4-7-1977 and found on his person a contusion on the upper lip, left upper incisor was shaky, an abrasion on the back of right elbow and another abrasion on the outer side of right knee. All the injuries were caused with blunt weapon and were simple in nature. He stated in the cross-examination that injuries suffered by Waryam P.W. On the right elbow and right knee could be caused by a fall and similarly injury on the upper lip could be so caused.
' On the same day at 12-15 p.m. He medically examined Sutlan P.W. And found on his person seven wounds of entry 1/8" x 1/8" caused by firearm on the back and outer side of left thigh and a lacerated wound on the back of left thigh. There were holes on the Chadar corresponding to the injuries. The injuries had been caused with firearm and could be the result of the single shot.
9. We have heard learned counsel for the parties and carefully perused the record. As it has already been observed that the recovery evidence has been discarded in the instant case and the prosecution case is based mainly on the ocular testimony supported by the medical evidence and the motive version. First, we will discuss the motive version as set up by the prosecution and as given by the defence. The motive set up by the prosecution is that four years before the present occurrence maternal-uncle of Muhammad Hayat appellant was murdered at the hands of the complainant-party in a dacoity and it was in order to avenge that murder that Muhammad Hayat appellant alongwith other two appellants out of whom one happened to be Behnoi of Muhammad Hayat appellant launched the attack in the course of which Manak deceased was murdered. So far as the defence is concerned, it is denied by Muhammad Hayat appellant that one of the other two appellants happened to be his Behnoi and the other two appellants have likewise denied any relationship with Muhammad Hayat appellant. Muhammad Hayat appellant had further stated that his maternal-uncle, who was murdered at the hands of the complainant-party was notmurdered in a dacoity but in a family feud. He had further stated that his maternal-uncle had sons, brothers as well as nephew, who could have a grudge against the complainant-party and furthermore that they lived in a Chak at a considerable distance from the place of residence of Muhammad Hayat appellant. Muhammad Hayat appellant had no grudge against the deceased.
There is also the point to be considered as to why would he wait for a period of four years for taking the alleged revenge. So far as the other two appellants are concerned, they stated that they had been falsely implicated because a case was registered against them at the instance of Sultan P.W.
For having abducted and raped his brother's wife. This case was pending at the time of occurrence.
So, Farid and Shameer appellants' position is that they had been falsely implicated because of this enmity. The pendency of the abduction and rape case against Farid and Shameer appellants at the instance of Sultan P.W. Is not denied by the,prosecution. It is also borne out from the record that the complainant and the accused-parties are distantly related. Anyway, what is clearly established from A the record is that there is a background of previous enmity between the parties.
Now we come to the ocular evidence which is highly interested,' because it comes forth from Muhammad Aril' P.W., who is brother of the deceased and who has stated in the cross-examination that the accused-party was his enemy. The other eye-witness is Sultan P.W., who is injured in the course of occurrence and who is cousin of the deceased and then there is Waryam P.W. Who is also injured and happens to be the brother of the deceased. No independent witness had been produced. Out of these witnesses Sultan P.W. Is stated to have made affidavit Exh.D.B. Which he denied. But in the light of Exh.D.F. And the defence evidence it appears that the thumb-impression on the affidavit was the same as thumb-impressions which were taken of Sultan P.W. By the trial Court. In this affidavit Sultan P.W. Is alleged to have stated that some thieves came on that night while he was asleep in the Behk of Muhammad Arif P.W. And one of them fired a shot which had hit him and that he had not been hit by any shot fired by Muhammad Hayat appellant as Muhammad Hayat appellant had not fired at him. As it has been stated the ocular testimony, in the instant case, comes from highly interested witnesses and applying the principle of abundant caution their testimony cannot be accepted if it is not corroborated by evidence coming forth from an independent source. But it is not so in the present case. We have pointed out that it is difficult to accept even the motive version as set up by the prosecution.
Now we take as to what is indicated by the medical evidence in the instant case. The medical evidence shows that the injuries received by Waryam P.W. Could be the result of a fall. It further indicates that four bullets were recovered from the dead body of Manak deceased and the measurement of his firearm injuries was 31 c.m. x 31/2 c.m. And 5 c.m. x 31/2 c.m. Whereas the firearm injuries found on the person of Sultan P.W. Were seven wounds of entry 1/8" x 1/8" and a lacerated wound 11/2" x 1/2". Thus, from the medical evidence the possibility could not be ruled out that these injuries were sustained in the course of two separate shots. (We inspected the alleged bullets recovered from the dead body of Manak deceased. But in our opinion they are pellets of L.G.
Cartridge). In other words, strictly speaking, the ocular testimony is not being supported by the medical evidence. When the ocular testimony is not being supported by medical evidence or by motive version and by itself it is highly interested, it could be categorically stated that corroboration as required in a case of this nature is not coming forth. The two witnesses being injured, namely Sultan and Waryam P.Ws., only indicates that they were present at the time when the occurrence took place and they might have been injured in the course of the same. But it was a night time occurrence which took place in the middle of the night in the summer season when the members of the complainant-party were fast asleep. Even though it was stated to be a moonlit night, it is reasonably probable that the eye-witnesses, in the instant case, could not identify or see the assailants when the attack was launched. However, the appellants, in the instant case, were named as assailants possibly because there was background of previous enmity and an opportunity was available to implicate them. Be that as it may, in the light of what has been discussed above, we are convinced in our mind that the prosecution has not succeeded in establishing its case as against the appellants beyond any shadow of doubt. Consequently, the convictions as well as sentences awarded to them were not proper and these are accordingly being set aside. The result is that the appeals of the appellants are accepted and they are acquitted as we have given them the benefit of doubt. They shall be released from jail forthwith if not wanted in any other case.
' The death sentence awarded to Muhammad Hayat appellant is not confirmed.
' In the light of the above discussion we do not find any substance in Criminal Revision No,524 of 1981 which is accordingly dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.