' Javed, Ashfaq, Muhammad Iqbal, Muhammad Anwar and Muhammad Khalid were tried by a learned Additional Sessions Judge of Gujranwala under section 302/307/148/149, P.P.C. For the murder of Asmat Ullah, deceased, attempt on the life of Bashir Ahmad P.W. And for rioting. The learned Trial Judge, by his judgment, dated 3-5-1984, convicted Javed and Ashfaq, under section 302/34, P.P.C. And sentenced them to imprisonment for life each and to pay a fine of Rs,5,000 each or in default thereof to undergo further R.I. For three years each and under section 324/34, P.P.C. To R.I. For two years each. Muhammad Iqbal, Muhammad Anwar and Muhammad Khalid were given the benefit of doubt and acquitted. The appeal (Criminal Appeal No,411 of 1984) preferred by. Javed and Ashfaq, convicts, against their conviction and sentences and the private Revision (Criminal Revision No,678 of 1984), filed by the State for the enhancement of the sentence of the said two convicts, both are now before me for disposal.
2. The brief facts of the case are that on 22-7-1982 at about 8-30 a.m. Munir Ahmad complainant P.W.2 along with Bashir Ahmad, Asmat Ullah, deceased, Arshad and Sana Ullah, after saying Eid prayers, were proceeding to offer Fateha on the grave of Mst. Iqbal Begum, the aunt of the complainant, which was towards the north of the village. When they reached near, the Dera of Iqbal, accused, Asmat Ullah deceased was slightly ahead of them. All the accused were present in the Dera of Iqbal, accused. All the accused emerged out of the Dera. Ashfaq, accused, was holding a revolver, Khalid, accused, was also armed with a revolver, Javed accused, was holding a dagger.
Anwar, accused, was armed with a Sota and Iqbal, accused, was empty handed. Iqbal, accused, raised Lalkara that Asmat Ullah had come and he should not be spared. Upon this Ashfaq, accused, fired at Asmat Ullah, deceased, with his revolver, which shot hit him on the left side of his ribs. Then Javed, accused, gave a dagger blow, which landed on the right wrist of Asmat Ullah, deceased, who fell down. When the witnesses tried to intervene, Anwar, accused, who was armed with a Sota and Khalid, accused who was armed with a revolver, threatened them not to proceed further. Javed, accused, tried to inflict another dagger blow, to Asmat Ullah deceased, but Muhammad Bashir P.W., father of the deceased, who was close to him tried to save him, as a result of which he received an injury on his right palm. As a result of the alarm, many persons from the village were attracted to the spot. All the accused made good their escape from the spot. Asmat Ullah, deceased, succumbed to his injuries.
3. The motive behind the murder was that Javed and Ashfaq, accused, who were cousins, suspected that Asmat Ullah, deceased, had illicit relations with Bushra, sister of Javed, about 1+ years prior to the occurrence. One year prior to the occurrence, Javed and Ashfaq, accused, inflicted dagger blows on the person of Asmat Ullah on that very suspicion. The report was not lodged, due to the intervention of the respectable of the village, as it was assured by the villagers that Javed and Ashfaq, accused, would leave the village. Khalid, Iqbal and Anwar, accused, did not allow Javed and Ashfaq, accused to leave the village and protected them. Javed and Ashfaq, accused, had previous grudge, so they, with the partnership of the other co-accused, committed the murder of Asmat Ullah, deceased.
4. Bashir Ahmad, complainant, P.W.3, then proceeded to the Police Station Ahmad Nagar, where he lodged the F.I.R. Exh.P.B. At 9-30, a.m., which was recorded by Muhammad Siddique A.S.I. P.W.B.
5. The Investigating Officer then proceeded to the spot, where, after preparing the necessary papers, he sent the dead body of Asmat Ullah, deceased, for post-mortem examination. He also collected blood-stained earth from the spot, which he took into possession vide memo. Exh.P.C.
6. On 23-7-1982 at 8-45 a.m. Dr. Imtiaz Ali Cheema P.W.5 medically examined Bashir Ahmad P.W.3 and found an oblique incised wound 8 c. m. x 1.5 c. m. x muscle deep on the outer aspect of right hand, which simple injury was declared to have been inflicted within a duration of 24 hours. The same day, Dr. Imtiaz all Cheema P.W.5 conducted the post-mortem examination on the dead body of Asmat Ullah, deceased, and found a lacerated fire-arm wound of entry 2 c.m. x 1 c.m. Going deep into the left side of the chest and an incised wound 2.5 c.m. x 3 c.m. x skin deep on the outer middle side of the right wrist joint. The walls of the thorax under the injury on the chest was found injured and the pleura and the lower lobe of the left lung were found punctured. The injury on the chest was declared to be dangerous and sufficient to cause death in the ordinary course of nature.
The probable time between injury and death was immediate and that death and post-mortem examination about 24 hours.
7. On 11-8-1982, all the five accused were arrested by Naseem Ahmad Bhatti S.I. P.W.9.
8. On 15-8-1982, Javed, accused, led to the recovery of a blood-stained dagger P.9 and Ashfaq, accused, led to the recovery of a revolver P.7 with a fired empty cartridge P.8 in its chamber, both of which weapons were taken into possession by the police vide memos. Exh.P.E. And P.D. Respectively in the presence of Sana Ullah P.W.4, Naseem Ahmad Bhatti S.I. P.W.9 and Zaka Ullah (given up P.W).
The blood on the dagger was found to be of human origin.
9. At the trial the prosecution produced Munir Ahmad P.W.2 to prove the motive, the said witness and Bashir Ahmad P.W.3 and Sana Ullah P.W.4 in proof of the ocular account, Naseem Ahmad Bhatti S.I. P.W.9 and Sana Ullah P.W.4 in support of the recoveries and Dr. Imtiaz Ali Cheema P.W.5 in corroboration of the medical testimony.
10. The accused persons, when examined under section 342, Cr.P.C., denied the allegations of the prosecution. Javed and Ashfaq, accused denied the recoveries of revolver P.7 and.. Dagger P.9 from them, and in reply to the question as to why the case had been instituted against them, they stated that it was on account of enmity with the complainant party and party faction and suspicion; Iqbal and Anwar, accused, in reply to the question why the case had been instituted against them, stated that litigation in respect of common land was pending between them and the complainant party, that there was a dispute over the construction of a Haveli between them and the complainant party, that they had obtained stay order from the Court that their brother Hayat had a dispute over the possession of land with Zaka Ullah P.W., cousin of the deceased, and therefore, they had been falsely implicated in the case on account of enmity and suspicion. Khalid, accused in reply to the question why the case had been instituted against him, replied that Nisar and Iftikhar Ahmad P.W. Sold the land to Ham Din and he filed a pre-emption suit against that sale and due to this suit he had been falsely implicated in the case.
11. The learned trial Judge, relying upon the motive, the ocular account, the recoveries and the medical evidence, convicted and sentenced Javed and Ashfaq, accused acquitted the rest, as stated in para.1 above.
12. I have heard the arguments of the learned counsel for the appellants and the State and perused the record. The evidence as regards the motive is furnished by Munir Ahmad P.W.2. His testimony in this respect is the same as has been mentioned in the narrative given in para.2 above and, therefore, need not be repeated. In cross- examination Munir Ahmad admitted that Javed and Ashfaq, appellants, were not related to Muhammad Iqbal, Muhammad Anwar and Muhammad Khalid, acquitted accused, ,but they were their partymen. He also admitted that they had strained relations with Javed and Ashfaq, appellants, about 1(1/2) years prior to the occurrence and that the two appellants became partymen of the three acquitted accused and that party became inimical towards their party Sana Ullah P.W.4 admitted in cross-examination that Muhammad Khalid, acquitted accused, had sold 4 Kanals of his land to Walayat Hussain in Alipur and that his nephews Nisar Ahmad and others and Mukhtar an uncle of Muhammad Khalid, acquitted accused, had filed a suit for pre-emption before the present occurrence. He also admitted in cross-examination that 7-8 months before the occurrence, Muhammad Iqbal, acquitted accused, obtained a stay order against him in respect of the Khajoorwali land. He also admitted that his relations became strained with Muhammad Iqbal and Muhammad Anwar, acquitted accused, when he became a witness in this case and that he and his nephew constituted one party in the village and the accused in the case belonged to the other party. Almost all these admissions appear to have been made on the statements put by the counsel for the accused in the case. In these circumstances, the motive as set up by the prosecution stands proved.
13. The ocular account in this case is furnished by Munir Ahmad P.W.2 Bashir Ahmed P.W.3 and Sana Ullah P.W.4. Munir Ahmad P.W.2 is the brother of the deceased, Bashir Ahmad P.W.3 is the father of the deceased and Sanaullah P.W.4 is the uncle of the deceased and brother of Bashir Ahmad P.W.3.
All the three witnesses are closely related. Their narrative of the occurrence stands already reproduced in para.2 above and need not be repeated. Bashir Ahmad P.W.3 has admitted that they had strained relations with Javed and Ashfaq appellants, 1(1/2) years prior to the occurrence, as they became party men of the three acquitted accused and the said party happened to be inimical towards their party. Sanaullah P.W.4 also admitted that he and his nephew constituted one party in the village and the accused belonged to the other party. In these circumstances corroboration of their testimony would be required before any of the appellants can be convicted.
14. Corroboration in the instant case is offered by the recovery of weapons of offence at the instance of the two appellants. Sanaullah P.W.4 and Naseem Ali Bhatti S.I. P.W.9 are the recovery witnesses in respect of the said recoveries. Sanaullah. P.W.4 is an eye-witness and, as stated earlier, has animosity with the appellants. Since his own testimony requires corroboration, he cannot be safely accepted as recovery witness. Naseem Ahmad Bhatti S.I. P.W.9 is the other recovery witness. According to his testimony, Sanaullah P.W.4, Zakaullah (given up P.W.) and the police party proceeded in the same vehicle to the place of recovery, whereas according to Sanaullah P.W.4, he and Zakaullah came on a motor-cycle and the police party came separately.
According to Naseem Ahmad Bhatti S.I. P.W.9, he did not go to the village on 16-8-1982 and that the recoveries were effected on .15-8-1982. The recovery memos. P.E. And P.D. however, show that the recoveries were effected on 16-8-1985. Strangely, the two recovery memos, have not been prepared by Naseem Ahmad Bhatti S.I. P.W.9, but by Muhammad Siddique P.W.8, who stated that he has prepared the same on the dictation of Naseem Ahmad Bhatti S.I. P.W.9. The contradiction in the testimony of Sanaullah P.W.4 and Naseem Ahmad Bhatti S.I. P.W.9 and the slipshod manner 'in which the recovery memos. Exh.P.E. And P.D. Appear to have been prepared, place these recoveries under a cloud doubt and the testimony of these recoveries witnesses, therefore, cannot be accepted with any decree of safety. Even otherwise, the recovery of the revolver P-7 at the instance of Ashfaq, appellant, by itself does not offer good corroboration, in the absence of any matching empty recovered from the spot.
15. The medical testimony furnished by Dr. Imtiaz Ali Cheema P.W.5 does show that Asmatullah, deceased, suffered fire-arm wound on the chest and incised wound on the outer side of his right wrist joint and that Bashir Ahmad P.W.3 suffered and incised wound on the outer aspect of his right hand, but these injuries by themselves do not unequivocally show which person inflicted which injury.
16. The upshot of the above discussion is that though the motive stands proved and that the ocular account requires corroboration, there is no corroboration against the two appellants, from which it can safely be inferred that they participated in the offence. The appellants are, therefore, entitled to the benefit of doubt.
17. For the foregoing reasons, this appeal is accepted and the conviction and sentences of Javed and Ashfaq appellants, are set aside. They shall be set at liberty forthwith, if not required in any other case. The finds, if recovered from them, shall be refunded to them.
18. There being no merit in the revision (Criminal Revision No,678 of 1984) filed by the State, the same is dismissed in limine.