This Criminal Appeal arises from the judgment of learned Sessions Judge, whereby he on 30-4- 1980 while acquitting Ali Asghar Shah, Allah Bakhsh, Sarfaraz and Abdullah co-accused, convicted Ejaz and Ghulam Rasool appellants under section .102/34, P.P.C. Causing the death of Abdul Rehman's and sentenced them to imprisonment for life and a fine of Rs.5,000 each, in default thereof 2 years' R.I each with the direction that the fine when recovered, half of the same be paid to the legal heirs of the deceased.
2. The occurrence took place at midnight of 28-2-1978/1-3-1978 in the house of Sher Muhammad situated in village Dhokar of Police Station Qadirpur. The distance between place of occurrence and the police station is 12 miles. The F.I.R. Exh.P.D. Was lodged by Muhammad Ramzan P.W. 12, the brother of the deceased on 1-3-1978 at 8-30 a.m. And was recorded by Lal Khan, Moharrir Head Constable P.W.5.
3. The motive as alleged by the prosecution was the deep-rooted enmity and old litigation between the complainant party and Asghar Ali Shah acquitted accused over a piece of land.
4. As far the main occurrence, it has been stated that Muhammad Ramzan P.W.12 and Abdul Rehman's-deceased were the tenants of Sher Muhammad. They used to cultivate his land situated in village Dhokar. On the eventful day they irrigated the land till 'Sotaywela'. Thereafter, they came to the house of Sher Muhammad in village Dhokar. They took their evening meals and went to sleep in the Baithak of Sher Muhammad At about mid night the door of the Baithak was knocked at. On peeping through the planks of the door they saw Ejaz appellant Ali Asghar, Sarfaraz and Abdullah acquitted accused armed with guns, Ghulam Rasool appellant carrying a hatchet and Allah Bakhsh having a Deng were present there. The appellants and the co-accused asked the complainant and the deceased to open the door. Since the door was not opened the accused fired it the air. Ghulam Shabbir P.W. 1 and his father Sher Muhammad, who were in the house were attracted to the spot. They requested the appellants and co-accused not to harm their guests. Ali Asghar Shah acquitted accused instigated Ghulam Rasool appellant to break open the door.
Ghulam Rasool gave hatchet blows to the door but could not break it. All Asghar Shah acquitted accused then asked Ejaz appellant, Abdullah and Sarfaraz acquitted accused to over the roof who not only climbed over the roof but also made, hole Herein. The accused then fired in the Baithak through that hole The roof was then set o;n fire which subsided after some time Ali Asghar Shah fired at the door from outside the shot hit a 'DhareK Tree' standing nearby. Ali Asghar Shah declared that probabty someone inside the Baithal. Had been hit whereupon the accused who were on the roof came down. Shortly, thereafter, Ali Asghar Shah shouted that Abdul Rehman's had slipped away from the Baithak. The appellants and the co-accused then followed him. On the other side Muhammad Ramzan P.W.12. Sher Muhammad and Ghulam Shabbir P.W. 11 also came out of the house and followed the appellants and the acquitted accused. The accused fired at Abdul Rehman's who on receiving fire-arm injury fell are the courtyard of Maulvi Muhammad Ramzan.
Reaching near Ali Asghar: Shah and Ejaz fired at Abdul Rehman's hitting on his head. Abdullah acquitted accused also fired a shot which hit Abdul Rehman's in his abdomen. Allah Bakhsh gave Lathi blows to the deceased. Ghulam Rasool appellant continued raising Lalkaras. The appellants and the co-accused then ran away towards Dhok Usman while raising Lalkaras and firing in the air.
Abdul Rehman's succumbed to the injuries on the spot. Information of the murder of Abdul Rehman's was conveyed to the members of the deceased. Muhammad Hayat P.W.5, the brother of the deceased reached the spot before morning prayer time. Leaving him with the dead body, Muhammad Ramzan left for the police station after sunrise to lodge the report.
5. Dr. Munawar Hussain Chaudhary, P.W. 1 conducted post-mortem examination on the dead body of Abdul Rehman's on 2-3-1978 at 12-00 noon. He found following injuries on his person:- (1)A fire-arm wound of enterance. 8 x 3 c.m. x part of bone absent and a portion of brain in the wound, blackened on its margins, directed backward on the forehead.
(2)Two wounds of exit, 6 x 4 and 7 x 4 c.m., on the left side of head, 4 c.m. Above and behind the left ear. The brain matter was corning out of the wound and fracture of the skull.
(3)Two oval-shaped fire-arm wounds of enterance, 3 x 1 c.m. And 2 x 1 c.m. And penetrating into the skull. The margins sere inverted and black.
(4)Oval-shaped fire-arm wound of enterance. 2 x 2 c.m. x penetra--ting into the abdominal cavity.
Margins were inverted and black, 2.5 c.m. Above and left to the umblicus.
(5)Oval-shaped fire-arm wound of entrance. 4 x 5 c.m. x penetrating pinto the abdominal cavity.
Margins inverted and black. It was 5 c.m. Above and outer to injury No.4.
(6)Oval-shaped fire-arm wound of enterance, 1.5 c.m. x 1 c.m x penetrating into the abdominal cavity, 5 c.m. Below and outer to injury No.5. Margins were inverted and black.
(7)Oval-shaped fire-arm wound of enterance, 1.4 x 8 x 5 c.m. On the right leg, 10 c.m. Below the right knee joint. One pellet brought out from this wound.
(8)An abrasion 2 x 1 c.m. On the inner side of left leg, 8 c.m. Below injury No. 7.
(9)An abrasion 3 x 1 c.m. On the back of right leg, in middle part.
(10)An abrasion 1 x 1 c.m. On the left knee.
(11)An abrasion 1 x 1 c.m. On the left leg, 5 c.m. Below the left knee.
(12)An abrasion 6 x 1 c.m. On the middle of left leg in front.
(13)Four wounds of exit oval in shape, measuring 2 x 1, 5 c.m., to 1.5 x 1 c.m. In an area 6 x 5.c.m. On the back of left side of abdomen, 12 c.m. Outer and left to the vertebral column. Margins were everted.
(14)An abrasion 3 x 1 c.m. On the left outer side of abdomen.
(15)An abrasion 3 x 5 c.m. On the left outer side of abdomen, 7 c.m. Above injury No.14.
(16)An abrasion 4 x 1.5 c.m. On the back of left buttock in oblique direction.
(17)Lacerated wound 6 x .5 c.m. x muscle deep on the inner side of the left thigh in upper one-third Direction was oblique. Margins were black.
6. Copy of the F.I.R. Was sent to Fazal Muhammad, S.H.O., P.W.15, Who was present in Thatha Jabana, a village six miles away from the Police Station. He reached the spot at 2-00 p.m. And from there took into possession two crime empties Exh. P.5/1-2, vide memo. Exh. P.G. He recovered 66 pieces of card boards from Baithak, vide memo. Exh. P. H. The two planks of the door were taken into possession vide memo. Exh P.A. The clothes and other articles of the deceased Exhs. P.8 to P.11 which were lying inside the Baithak were also taken into possession," vide memo. Exh. P.L. Twenty-two pellets after being extracted from the wall of the Raithak were taken into possession, vide memo.
Exh, P.J. And burnt 'Sarkandas: were taken into possession, vide memo. Exh: P M. Five more pellets P.12 to P. 16 were extracted from the wall of residential house of one Rustam and taken into possession, vide memo. Exh. P.N. Three more pellets Exhs. P .17 to P.19 were removed from the trunk of 'Dharek Tree' and were taken into possession, vide memo. Exh.P.O. Five pellets Exhs . P .20 to P .24 after having been extracted from the wall of Baithak of Muhammad Bakhsh P.W. Taken into possession, vide memo. Exh.P.Q. The recovery memorandas were attested by Muhammad Bakhsh P.W.6 and Zille Muhammad (not produced).
7. The S.H.O. Arrested Allah Bakhsh, Sarfaraz and Abdullah acquitted accused on 10-3-1978, 11-3- 1978 and 15-3-1978, respectively. Abdullah co-accused got recovered gun Exh. P.25 and cartridges Exhs. 26/1 to 3 which were taken into possession, vide memo. Exh. P.R. Sarfaraz acquitted accused also got recovered gun Exh. P.26 and cartridges Exh. P.28/1-2 from his cattle shed which were taken into possession, vide memo. Exh. P.H. Ali Asghar Shah acquitted accused, Ejaz and Ghulam Rasool.
Appellants were declared absconders It may be noticed that nothing incriminating was recovered from the appellants. The case was investigated by different police officers. Ali Asghar Shah co- accused was found innocent during the investigation.
8. To prove its case prosecution produced 16 witnesses. Ghulam Shabbir P.W.11 and Muhammad Ramzan P.W.12 have given the ocular account of the occurrence. They claim to have seen Ali Asghar Shah, Ejaz and Abdullah firing shots which hit the deceased on his head and abdomen.
They also claim to have seen Allah Bakhsh giving Lathi blow to the deceased and Ghulam Rasool appellant raising Lalkaras at the time of occurrence. Muhammad Bakhsh P.W.
6. Jeewan P.W.7 and Fazal Muhammad, S.H.O. P.W. 15 were produced to prove the recoveries of the articles from the spot and recoveries of guns and cartridges from Abdullah and Sarfaraz acquitted accused. Dr. Munawar Hussain Choudhary had conducted the post-mortem examination on the dead body.
The rest of the evidence is more or less of formal nature. Mirza Abdul Jaleel, D.S.P., who had also investigated the case was examined as Court Witness. He stated that the F.I.R. Was lodged by the complainant party after consultation with Sultan Mehmood Gadi and Ali Asghar Shah was found innocent.
9. When examined under section 342. Cr.P.C. The appellants denied all the incriminating circumstances. They raised the plea of false implication on account of enmity. In defence no witness was produced.
10. Learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants, that the eye-witnesses having been disbelieved by the trial Court to the extent of the acquitted accused the appellants could not have been convicted on the statement of the eye-witnesses without independent corroboration, and that the judgment of the learned trial Court is based on surmises and conjectures. Conversely, the learned counsel for the State has supported the judgment of the trial Court
11. I have considered the arguments advanced by the learned counsel for the parties with core. I find that there was a deep-rooted enmity and long litigation between the parties Ghulam Shabbir P.W.11 and Muhammad Ramzan P.W.12 are the most interested persons. Although they claim to have seen Abdullah and Ali Asghar Shah firing shots' from their guns hitting the deceased on head and abdomen yet trial Court has acquitted them and that too for good reasons. The motive to kill the deceased was with Ali Asghar Shah who has already been acquitted by the trial Court. The fire- arm injuries found on the head of the deceased having been attributed to Ali Asghar Shah and Ejaz appellant, the case of Ejaz is not distinguishable from that of Ali Asghar, who has been acquitted by the trial Court. Admittedly the eye-witnesses are interested and partisan. They have already been disbelieved to the extent of Ali Asghar Shah and three other co-accused to whom active role had been assigned by them therefore, the rule of prudence requires independent corroboration of their statement qua Ejaz and Ghulam Rasool appellant which I do not see in the case in hand. Strangely enough, the prosecution case is that Ghulam Rasool appellant was carrying a hatchet and he did not cause any injury to the deceased yet the trial Court has held that Ghulam Rasool and none else had given Danda blows to the deceased. For all these reasons, I am of the view that the prosecution has not been able to prove its case beyond reasonable doubts against the appellants.
12. The upshot of the above discussion is that there being not satisfactory basis to uphold the conviction and while giving the benefit of doubt, the appellants are acquitted of the charge. They stand discharged of bail bonds.