LEHRASAP KHAN, J.--Naseem Mahmood (32) and Arfan (22) have been convicted by the learned Sessions Judge, Attock, on 16-2-1985, under section 302/34, P.P.C. For causing the murder of their co-villager Muhammad Ajmal, a middle-aged person, and both of them have been sentenced to death and a fine of Rs.10,000 each or in' default two years' R.I. It has also been directed that half of the fine, if and when realized, would be paid to the heirs of the deceased as compensation.
2. The aforementioned convicts have challenged their convictions and sentences through the present Appeal viz. Criminal Appeal No.136 of 1985, while the matter also stands referred to us under section 374 of the Code of Criminal Procedure, seeking confirmation of death sentence awarded to the appellants, vide Murder Reference No.59 of 1985. Both these matters shall be disposed of by this judgment.
3. The occurrence in this case took place pn 18-6-1984 at 8 p.m. in front of Kakakhel hotel situate on G.T. Road near village Mullan Mansoor at a distance of 18 kilometers from Police Station Saddar Attock.
4.Originally the case was registered under section 307/34, P.P.C. On the same day through statement' (Exh.P.F./1) of Muhammad Rasheed (P.W.8) made by him at 9 30 p.m. At District Headquarters Hospital, Attock, before Abdul Khaliq (P.W.10) Inspector, S.H.O.
Formal F,I.R.. (Exh.P.F) was recorded at 9-45 p.m on the same day by Muhamamd. Afzal (P.W.5), Muharrir Head Constable.
Muhammad Ajmal died on 25-6-1984 and, therefore, the offence was amended as under section 302/34, P.P.C.
5. Regarding motive, it has been alleged that about 21" years prior to the present occurrence, there had been a dispute between Muhammad Ajmal deceased and Naseem Mahmood in which Muhammad Ajmal gave beating to Naseem Mahmood appellant and in respect of that occurrence a case was got registered under section 307, P.P.C. Against Muhammad Ajmal byKaram Blahi, the father of Naseem Mahmood, but subsequently a compromise was reached and thus the case came to an end. Naseem Mahmood, however, nourished grudge and hence this occurrence.
6. About the main occurrence it has been stated that at the eventful time the deceased, P.W.8 Muhammad Rasheed and P.W.9 Muhammad Aslam were sitting together in front of Kakakhel Hotel taking tea. A Suzuki Van arrived there and the appellants alighted therefrom. Arfan appellant raised 'Ialkara' addressing Muhammad Ajmal deceased to get ready as thp, had come to teach him a lesson for giving beating to Naseem Mahmood. By reaching in front of Muhammad Ajmal deceased, Arfan gave slaps on his face. Naseem Mahmood who was present behind Muhammad Ajmal was armed with a revolver. He fired foilr shots with his revolver, one after the other hitting the deceased in his back. After receiving fire-arm injuires at the hand of Naseem Mahmood, the deceased fell down. Muhammad Rasheed and Muhammad Aslam raised alarm and tried to rescue Muhammad Ajmal deceased but, in the meantime, Arfan and Naseem Mahmood made good their escape from the scene of occurrence alongwith the revolver. The deceased in injured condition was removed to the hospital by Muhammad Rasheed and Muhammad Aslam.
7. Muhammad Ajmal while in injured condition was medically examined by Dr. Sultan Mahmood (P.W.11), the then Medical Officer, D.H.Q. Hospital, Attock, on 18-6-1984 who noticed four circular wounds of entry on the back of Muhammad Ajmal. One was on the left side of posterior chest lower aspect; the second was on the right lower chest posteriorly; the third was on the right lower chest about 3" away from the vertebral column while the fourth was on the right lower chest 21" away from the vertebral column. The injured complained severe pain in the abdomen. He was in shock and his blood pressure was 50/Nil. All the injuries were kept under observation, but it was declared that these injuries were caused by fire-arm.
8. After the death of Muhammad Ajmal, the autopsy on his dead bOdy.Was performed on 25-6-1984 at 8 a.m. By P.W.1 Dr. S.M. Hussain Naqvi, the then Medical Officer, D,H.Q. Hospital, Attock. In addition to.The afore-mentioned fire-arm wounds of entry, Dr. Naqvi also noticed five incised and stitched operational wounds on the body 'of the deceased. He opined that the death of the deceased occurred due to shock as a result of haemorrhage of liver kidney, stomach and lungs. The injuries caused by fire-arm to the der,m,ed were declared sufficient to cause death in the ordinary course of nature.
9. Both the appellants were arrested on 20-6-1984 by Abdul Khaliq Inspector (P.W.10).
Naseem Mahmood appellant on 24-6-1984 led to the recovery of revolver (P.3) 'Which contained two live cartridges (P.4/1-2) and four empties (P.5/1-4) in the chamber, from a field near' a well.
These were secured vide memo. Exh. P.G., attested by/P.W.7 Meer Afsar,/P.W.10 Abdul Khaliq Inspector and Banaras (not produced).
10. As per Forensic Science Laboratory's report (Exh.P.N), the empties allegedly recovered. From the chamber of the revolver said to have been recovered) at the behest of Naseem Mahmood appellant, did not bear such points of identification on the basis of which opinion could be given as to whether these empties were. In fact, fired from this revolver or not. .Thus, virtually the report is in negative. In view of the contents of the report of the ballistic expert, the alleged recovery, of revolver and empties from Naseem Mahmood appellant is of no consequence as it has not been connected with the crime.
11. Muhammad Rasheed (P.W.8) and Muhammad A'slam (P .W.9) testified at the trial as eye- witnesses and by and large supported the prosecution version as contained in the F.I.R. (Exh.P.F).
12. Both the appellants, however, pleaded not guilty and claimed to have been falsely involved in the case due to enmity and election rivalries between two factions of the residents of village.
Mullan Mansoor.
13. The appellants examined in defence D.W.1 Sahib Draz. The proprietor of Kakakhel Hotel and Gui Rehman (D.W.2), the employee of that hotel charged with- the duty to bake "chapaties" at the oven.
14. As already observed, in the circumstances of this case the alleged recovery of revolver and empties from Naseem Mahmood appellant is of no consequence as this recovery could not be connected with the crime. There is no other corroboratory evidence and thus the prosecution case solely hinges on the ocular evidence based on the testimonies of P.W.8 Muhammad Rasheed and P.W.9 Muhammad Aslam.
15. The learned counsel for the State while supporting the judgment under Appeal maintained that these two eye-witnesz.Es were quite disinterested and independent. They had no close relationship with the deceased nor they had any motive for the false involvement against the appellants and, therefore, their testimonies deserved ful; credence.
16. On the other hand it has been pleaded on behalf of the appellants that as admitted by both the eye-witnesses as also by other P.Ws there were two factions of residents of village Mullen Mansoor; one was that of Malyars and the other of Awans. The deceased as also the eye-witnesses were Malyars by caste while the appellants were Awans. It has come on the record that Muhammad.Aslam (P.W.9) is the real maternal uncle of Muhammad Rasheed (P.W.8). Both these eye-witnesses were close relations of Ghulam Haider Malyar who contested the local council election against Abdul Jaleel a close relation of Arfan and Naseem Mahmood appellants. It has further been averred on behalf of the appellants that D.W.1 Sahib Draz was admittedly the proprietor of the hotel at which the occurrence allegedly took place and it was also not denied that Gul Rehman was an employee of the said hotel. The.Presence of these two witnesses was quite natural and probable at the time of occurrence. Both of them have expressly stated that the deceased was not injured in front of the hotel at the hand of the appellants.
17. The contentions raised on behalf of both the parties have been considered and fully analysed by us. We have also taken into consideration the evidence led in defence. Sahib .Draz (D.W.1) claimed that he originally hated from Ziarat Kaka Sahib situate in North-Western Frontier Province. He was running Kakakhel Hotel on G.T.
Road near village Mullan Mansoor. He stated that at the eventful time while he was sitting in the veranda of his hotel; Muhammad Ajmal deceased came running in injured condition in front of the hotel from the adjoining street of the village and fell down near the oven of the hotel in the veranda. He was already injured and bleeding when he reached in front of the hotel. Both the appellants were not seen there. One Mobeen took Muhammad Ajmal in a bus to the hospital. Gul Rehman (D.W.2) deposed that he was employed at the hotel to bake "chapaties". At the eventful time he was present performing his duty at the oven of the hotel. The deceased came there in injured condition and fell down in front of the oven. Many persons collected there and the deceased was removed in injured condition to the hospital in a bus. This witness belonged to Pabbi in N.-W.F.P. Both these D.Ws. Have been cross-examined at some length by the learned District Attorney but nothing i useful for the purpose of prosecution could be elicited from them. Wel find that this is a case involving oath versus oath. The prosecution version is based on the testimonies of two eye-witnesses while th defence of the appellant is also comprised of the statements on oath o two D.Ws. The eye-witneSses, as already observed, belong to a faction opposed to that of the appellants. They are from the brother-hood o the deceased. Conversely, the two D.Ws. Are independent persons hailin from a different provinCe. One of them is the proprietor of the hotel while the other is an employee of the hotel at which the occurrenc admittedly took place.
The presence of both these D.Ws. At the time o occurrence is quite natural and probable. Their testimonies cannot, therefore, be brushed aside and in the light of the statements of these two D.Ws, it cannot be legally held that on the basis of the testimonie of two eye witnesses, namely, Muhammad Rasheed and Muhammd Aslam, the prosecution has been able to bring home the guilt to the appellant beyond reasonable doubt.
18. In this view of the matter, we conclude that the charge could not be established against the appellants and thus we allow their Appeal, set aside their convictions and sentences and acquit them. They shall be released forthwith, if not required to be detained in another case. The death sentence is not confirmed.