' MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal No, 334 of 1984-, Murder Reference No, 154 of 1984 and the connected Criminal Revision No, 513 of 1984 by Ghulam Qadir complainant against acquittal of Bashir Ahmad and Muhammad Din co-accused, arise from the judgment of learned Additional Sessions Judge, Sargodha, whereby he on 3-7-1984, while acquitting Bashir Ahmad, Muhammad Din, Latif Ahmad, Muhammad Yaqoob, Muhammad Sadiq and Nisar Ahmad, convicted Rashid Ahmad appellant under section 302, P.P.C. For the murder of Talib Ali aged 70 years and sentenced him to death and a fine of Rs, 5,000 with the direction that the fine when recovered Rs, 3,000 be paid to the legal heirs of the deceased.
2. The occurrence took place on 6-8-1981 at 6-30 p.m. In the area of Chak No, 93/Janoobi, 6 miles away from Police Station Bhagtanwala, District Sargodha. The F.I.R. Is statement Exh. P.B. Of Ghulam Qadir (P.W.3), nephew of the deceased which was recorded at District Head Quarter, Hospital, Sargodha at 11-15 p.m. On the same day by Abid Hussain Shah, S.H.O. (P.W.7). Formal F.I.R. Exh. P.B.1 was drawn up at 12 0' Clock in the same night by Safdar Hussain Moharrir, Head Constable (P.W.4).
The case was registered under section 307, P.P.C. Talib All succumbed to the injuries in the aforesaid Hospital on 8-8-1981 at 10-00 p.m. So section 302, P.P.C. Was added in the F.I.R.
3. Rashid Ahmad, appellant, Bashir Ahmad, Muhammad Latif are real brothers. Yaqoob acquitted accused is their nephew. Nisar Ahmad acquitted co-accused is son of Muhammad Sadiq, acquitted accused. They are however, not related to the rest of the accused. Muhammad Din acquitted accused belong to the party of Rashid Ahmad appellant. Talib Ali deceased was the uncle of Ghulam Qadir complainant. Mumtaz and Arshad P.Ws. (not produced) are the sons of Talib Ali deceased. Khan Bahadur P.W. (not produced) is husband of the sister of Ghulam Qadir complainant. Aslam P.W. (not produced) is uncle of Imran Javaid P.W. (not produced). Nisar (P.W.6) and Sadiq. P.W. (not produced) are brothers inter se. Their sister is wife of Bashir P.W. (not produced).
4. The appellant and his, co-accused had no direct motive to kill the deceased. The background of the instant occurrence in which Tali Ali lost his life, as stated by the prosecution, was long standing criminal litigation between Bashir Ahmad acquitted accused etc. And Imran Javaid P.W. (not produced) in that, a number of criminal cases were pending between them before various Courts at the time of occurrence; that the parties had also been ,bound down for keeping peace under section 107/151, P.P.C. and that on 5-8-1981 i,e, a day before the occurrence, Bashir Ahmad acquitted accused and others gave beating to Imran Javaid and Irfan Javaid P.Ws. (both not produced) for which a case was registered at Police Station Bhagtanwala, hence this occurrence.
5. As for the main occurrence, it has been stated in the F.I.R. That at the eventful time, Ghulam Qadir (P.W.3) accompanied by Mumtaz and Imran Javaid P.Ws. Both (not produced) were coming from their Dera to their house situate in village Abadi of Chak No, 93/Janoobi. When they reached near the house of one Nazir Hussain, Rashid Ahmad appellant alongwith Bashir Ahmad and Miihammad Din acquitted accused appeared in front of them. Muhammad Din and Rashid Ahmed were armed with 12 bore guns, whereas Bashir Ahmad was empty handed. Bashir Ahmad threw challenge to .Ghulam Qadir complainant and his companions and also abused them. The alarm attracted Talib All deceased to the spot. He entreated Bashir Ahmad and his co-accused to resist from fighting lest their might be some loss but no heed was paid to his request. Muhammad Din, fired shot from his gun at the complainant party. They proved to be ineffective. Thereafter, Rashid Ahmad fired shot from his gun hitting Talib Ali on his chest who fell down. In order to save their lives, the complainant party also opened fire whereupon Rashid Ahmad appellant and his co-accused ran away alongwith their weapons. The occurrence was also seen by Muhammad Aslam (not produced) and Nasir Ahmad (P.W.6). Talib Ali was removed to District Head Quarter, Hospital, Sargodha. He was got medically examined. After obtaining the Medico-Legal Report with regard to the injuries to Talib Ali,, the complainant was about to leave for the Police Station when Abid Hussain Shah, S.I. (P.W.7) reached there and recorded statement Exh. P.B. Of Ghulam Qadir complainant.
6. On 6-8-1981 at 10-00 a.m. Dr. Muhammad Saeed (P. W.5) examined Talib Ali when he was alive.
He found a lacerated wound of fire-arm c.m. x 1/2 c.m. On front of right chest 7 c.m. Below and medial to nipple. Talib All was in condition of shock. His blood pressure and pulse was very low.
Wound was bleeding profusely. The injury was caused within five hours of the examination. Talib All expired in the Hospital on 8-8-1981 at 10-00 p.m. So the same Doctor conducted post-mortem examination on the dead body. He found the same injury on the dead body which he had found on 6-8-1981 at 10-00 p.m. When Talib Hussain was alive. He further found that bullet had passed through the skin between 9th and 10th ribs on right side of chest then through right lung slightly lower border passed through diaphragm, then it passed through small intestine. In small intestine there were perforation. Liver was also injured. Mesentry was also injured. Bullet lodged in posterior abdominal wall. Right of chest cavity was full of blood. The bullet was removed and handed over to the Police. In his opinion the death had occurred due to shock and haemorrhage caused by injury No,1 which was grievous, ante-mortem and sufficient to cause death in the ordinary course of nature. The probable time between the injury and death was 45/55 hours and between death and post-mortem about 12 hours. On query made by the police, the Doctor opined that the foreign body recovered from the dead body was a pellet and not a bullet.
' On 6-8-1981 at 8-30 p.m. The same Doctor had examined Latif Ahmad acquitted accused. He found the following injuries on his person:-
(1) Lacerated wound of fire-arm entry 1 c.m. x 1 c.m. On left side of head, 10 c.m. Above left ear.
(2) Lacerated wound exit of fire-arm 1 c.m. x 1 c.m. On the top of head 5 c.m. Above and medial to injury No,1.
' The injuries were caused by fire-arm and were simple in. Nature. On query by the Police, the Doctor opined that possibility that the injuries found on the person of Lath Ahmad were caused by friendly hands, could not be ruled out because there was no evidence of fire-arm injuries like blackening or charring on the injury found on him and that the skin between entry and exit wound was in tact and its direction was from below upward medially, '7. Rashid Ahmad, appellant, Bashir Ahmad' and Muhammad Din co-accused were arrested by Abid Hussain Shah, S.H.O. (P.W.7) on 11-8-1981. On the same day Muhammad Din produced his licensed gun Exh. P.3 along with his license which was taken into possession vide memo Exh. P.N.
Attested by Khan Bahadur and Muhammad Sadiq both (not produced). No recovery could be effected from Rashid Ahmad, appellant. It may be noted that no empty was recovered from the spot.
8. During investigation, it was found that the story given by Ghulam Qadir, complainant in the F.I.R.
Was not the correct version of the occurrence and that four others namely, Lath Ahmad, Muhammad Yaqoob, Muhammad Sadiq and Nisar Ahmad had also participated in the occurrence alongwith accused named in the F.I.R. On the day of occurrence at 10-00 p.m. Bashir Ahmad acquitted accused had also lodged counter report at Police Station Bhagtanwala against Ghulam Qadir complainant, Imran Javaid and Mumtaz P. Ws. He gave his own version of the occurrence.
During investigation the police found that F.I.R. Lodged by Bashir Ahmad was also not correct because 10 more persons had also participated alongwith Ghulam Qadir, Imran Javaid and Mumtaz named in this F.I.R. Consequently, police submitted challan against seven persons in the instant case and fourteen persons including Ghulam Qadir complainant, in the cross-case lodged by Bashir Ahmad accused.
9. To prove its case, prosecution examined ten witnesses. Ghulam Qadir (P.W.3) and Nisar Ahmad (P.W.6) have given the ocular account of the occurrence. Ghulam Qadir (P.W.3) stated that he alongwith Imran Javid and Mumtaz were coming from Dera towards their house when they reached near the house of Nazir Hussain Shah on Pacca Road, Rashid Ahmad appellant, Bashir Ahmad and Muhammad Din came in front of them. Rashid Ahmad and Muhammad Din were armed with 12 bore guns. Bashir Ahmad was empty handed. Bashir Ahmad challenged and also abused them so they stopped there. In the meantime Talib All deceased reached there. He went towards the appellant and his co-accused and entreated them to resist from abusing.
Muhammad Din fired at them but he did not hit anybody. Rashid Ahmad appellant then fired from his gun which hit Talib All deceased on the right side of his chest. As for the motive Ghulam Qadir stated that Imran Javaid P.W. And Bashir Ahmad accused etc. Had fights with each other and they were on- inimical terms. Even a day before the occurrence, there was a fight between the parties.
He also stated that in the year 1961, Nazir Ahmad brother of Rashid Ahmad appellant was murdered. He and his cousin Khan Bahadur were prosecuted for the murder of Nazir but were acquitted. Rashid Ahmad, Bashir Ahmad and Muhammad Din bore grudge against them for that reason. Nisar Ahmad (P.W.6) stated that at the eventful time he alongwith Aslam P.W. Were going from village to their Dera and when they reached near the house of Nazir Hussain Shah he saw Ghulam Qadir, Mumtaz and Imran Javaid P.W. Coming from their Dera towards the Chak. In the meantime, Rashid Ahmad appellant, Bashir Ahmad and Muhammad Din came there. Rashid Ahmad and Muhammad Din were armed with guns and Bashir Ahmad was empty handed. Bashir Ahmad challenged and abused Ghulam Qadir. At this Ghulam Qadir and others stopped on the road. Meanwhile Talib All came there. He went towards the appellant and others and stopped them from abusing. Muhammad Din fired a shot at Ghulam Qadir but the same missed. Rashid Ahmad appellant then fired shot which hit Talib All on his chest. The appellant and his co-accused then ran away. Dr.' Muhammad Saeed was produced to prove the medico-legal report and post-mortem report of. Talib All deceased. Abid Hussain Shah (P.W.7) had recorded the F.I.R. Exh. P.B. He arrested the appellant and acquitted accused and recovered gun P.3 from Muhammad Din. Chaudhry Muhammad Sadiq S.I. (P.W.8) and Riaz Ahmad, Inspector Crimes Branch (P.W.10) had partly investigated the case and made some queries from the Doctor. Rest of the evidence is more or less of formal nature.
10. When examined under section 342, Cr.P.C. The appellant denied all incriminating circumstances.
He raised plea of false implication on account of enmity. He did not produce any evidence in defence. Bashir Ahmad acquitted co-accused gave his own version of the occurrence. In reply to question No, 7 he stated:- "Yes. The fact of the matter is that at about 6-30 p.m. I was waiting for my brother Latif in the eastern corner of my orchard when 13 accused of cross-case under section 307, P.P.C. And one Mubarak, came there while they were armed with guns. We rushed and took shelter in the house of Sadiq accused. In the meantime Bashir son of Inayat Ali, Yousaf son of Allah DMA, Bashir son of Muhammad Shafi and Sadiq came there. Ghulam Qadir complainant raised Lalkara and they started firing at us. We had took shelter in the house of Sadiq accused. Imran Javid fired at Latif which hit him on head and Latif fell down. Thereafter, the accused (Ghulam Qadir, etc.) in order to ave themselves from case, injured Talib Ali deceased by firing him who died thereafter. Talib Ali deceased was our relative. We have not murdered him."
' In defence, he produced two witnesses. Riaz Hussain, Head Constable D.W.1 stated that in F.I.R. No, 227 dated 3-8-1972 under section 342/148/149, P.P.C. Of Police Station Bhagtanwala, Bashir Ahmad accused was the complainant.
Inayat Iqbel, Muhammad Ashraf, Sadiq and others were accused. They were acquitted on 19-12- 1977. He further stated that in F.I.R. No, 232 under ,section 379, P.P.C. Police Station Bhagtanwala, Faiz Ullah was the complainant. Bashir Ahmad accused and Rashid Ahmad appellant and others were accused. Nisar Ahmad (P.W.6) was witness in that case. The case was cancelled as being false. He proved report entered in the daily diary register dated 24-6-1981. Copy whereof is Exh. D.W.1/A.
Aurangzeb D.W.2 stated that in F.I.R. No, 180 dated 26-10-1964 of Police Station Saddar Sargodha, Inayat Waraich was complainant. Bashir, Aslam and Ghulam Qadir were accused in that case. The case was cancelled on 27-7-1967.
11. The trial Court gave benefit of doubt to Bashir Ahmad and Muhammad Din co-accused and while believing the alleged motive, eye-witnesses and the medical evidence has convicted and sentenced the appellant as stated above. It may be noted that the trial Court has observed that the recovery of gun from Muhammad Din was hardly of any substance for the simple reason that no empty cartridge was recovered from the spot. The trial Court has also observed that prosecution has not been able to make out any case against four persons namely, Nisar Ahmad, Lath Ahmad, Yaqoob and Sadiq who were involved by the police during the investigation.
12. The learned counsel for the appellant contended that prosecution has failed to prove its case against the appellant beyond reasonable doubt inasmuch as the two eye-witnesses produced by the prosecution are interested, related and inimical: that they have made contradictory statements and that there is no independent corroboration of their statements. Conversely, the learned counsel for the State has supported the judgment of the trial Court. The learned counsel for the complainant submitted that the prosecution had not only successfully proved its case against Rashid Ahmad but also against Muhammad Din and Bashir Ahmad and that trial Court has acquitted them without legal justification.
13. We have considered the submissions made by the learned counsel for the parties with care. We feel persuaded to agree with the learned counsel for the appellant. We find that important witnesses namely, Imran Javaid and Irfan Javaid of the alleged immediate cause of the occurrence in which Talib All lost life have not been produced. Rashid Ahmad appellant and his co- accused had no motive to kill the deceased. If there was any motive that was against Imran Javaid and Ghulam Qadir P.Ws. Who were not injured in the occurrence. As for the long standing criminal litigation between the parties, that is a double edged weapon and its benefit in the peculiar circumstance of the case cannot be given to the prosecution.
14. Coming to the crucial evidence i,e, ocular testimony, we find that Ghulam Qadir P.W.3 and Nisar Ahmad (P.W. 6) are interested and partisan witnesses. Talib All deceased was uncle of Ghulam Qadi (P.W.3). In the year 1961, Nazir Ahmad brother of Rashid Ahmad appellant, was murdered.
Ghulam Qadir (P.W.3) was challaned as an accused in that case. Ghulam Qadir has admitted in his evidence that although he was acquitted in the case relating to the murder of Nazi Ahmad yet the appellant and Bashir Ahmad bore grudge against him. Ghulam Qadir was also an accused in the counter-case and as such he was interested in the success of his case and in order to save his skin in the counter-case there was no option for him but to support the version of occurrence given by him in the F.I.R. Furthermore, when he lodged the F.I.R. Counter-case had already been registered against him by Bashir Ahmad acquitted accused. In the year 1979, he contested election for Union Council Seat against Bashir Ahmad accused but lost it. His evidence suffers from self-contradiction inasmuch as in the F.I.R. He stated that in order to save their lives the complainant party had fired shots at the accused party but in his statement before the Court he denied to have stated so. Nisar Ahmad (P.W.6) is also an interested witness. His brother Sadiq contested local Council Elections held in the year 1983 against Bashir Ahmad. His house is at a distance of three Killas from the place of occurrence. In his statement before the Court, he stated that at the time of occurrence he and Aslam P.W. Were coming from their village to their Dera whereas in his statement recorded under section 161, Cr.P.C. Exh. D.A. He had not stated so. His statement was recorded a day or two after the occurrence. He has also disowned part of statement recorded under section 161, Cr.P.C. When he had stated that the complainant party had also fired at the accused party in, its self-defence. His paternal uncle Faiz Ullah was an accused in the counter case lodged by Bashir Ahmad accused. It seems to us that has he given evidence with a motive other than that of telling the truth inasmuch as he denied his knowledge of the registration of the case F.I.R. No,180 under section 307, P.P.C. By his paternal uncle Inayat Ullah against Bashir Ahmad accused. He also stated that he did not know if Bashir Ahmad accused had got case F.I.R. No,227 under section 342/148/149, P.P.C, registered against his uncle Inayat Ullah whereas it stands proved beyond reasonable doubt by the statement of D.W. 1 that F.I.R. No,180 was lodged by Inayat Ullah against Bashir Ahmad appellant and that Bashir Ahmad had also filed a case F.I.R. No,227 against Inayat Ullah. In the ordinary course of events the witness was expected to know the registration of the aforesaid case. We further find that the two witnesses were not injured during the occurrence. Ghulam Qadir (P.W.3) himself had stated that the accused bore grudge against him on account of the murder of their brother Nazir. We are convinced that Ghulam Qadir was not present at the spot at the time of occurrence. Had he been present there, he would not have been spared by the appellant and his co-accused. The prosecution case that Imran Javaid was also present on the spot and had seen the occurrence also appears to be false. According to the prosecution case, the criminal litigation was between Imran Javaid and, Bashir Ahmad accused etc. So, had he been there, he would also have not escaped unhurt. Strangely enough, he has not even been produced as witness. The statements made by the eye-witnesses are not in consonance with the probabilities and do not fit in with the other evidence. There was only one pellet wound on the deceased and as such the number of injuries found on the person of deceased do not commensurate with number of accused named by them. For all these reasons, we hold that the eye-witnesses are wholly unreliable. In any case the rule of prudence requires independent corroboration of their statements qua each accused which we do not see in the case in hand.
15. For the foregoing reasons, we are of the view that prosecution has failed to prove its case against the appellant and co-accused beyond reasonable doubt. The appeal is, therefore, accepted. Rashid Ahmad appellant is acquitted of the charge. He shall be released forthwith if not required to be detained in any other case. Resultantly, the revision filed by the complainant is dismissed.