Riaz (24), Zafar Iqbal (29) his brother Mubashir absconder are accused of the murder of Asghar Ali son of Nawab Khan. On 8-4-1985 both Riaz and Zafar Iqbal were convicted by Additional Sessions Judge, Gujrat, under section 302, P.P.C., and sentenced to imprisonment for life with a fine of Rs.5,000 each in default to undergo three months' R.I. Further. Fine if realised was ordered to be paid as compensation to the heirs of the deceased. Convicts' appeal is before me.
2. Occurrence in this case took place over a previous murder between the families of Nawab (informant) and Mubashir absconder. According to the prosecution at 5-00 p.m. On 22-1-1983, Asghar Ali deceased alongwith P.Ws. Pervez Ahmad, Rohil Nasim and Muhammad Yaqoob since dead, after having had their meal at the house of Asghar son of Lai Khan were on their way to bus stand Sheikhupura for going to Jalalpur Jattan, when they reached near the village school, Mubashir absconder armed with a carbine appeared there. He fired at Asghar Ali from behind hitting him in the back of his neck. Asghar fell down. P.Ws. Pervez, Rohil Nasim and Yaqoob tried to apprehend Mubashir. They followed him. Just then Zafar appellant fired his Carbine at them, but hit none. Out of fear the witnesses went into a nearby mosque. Mubashir absconder fired two shots more hitting Asghar in, the chest and the right upper arm. In the meanwhile Riaz accused appeared with a Chhuri in his hand raising a Lalkara that anyone who interfered would be done to death. Asghar died at the spot and the accused fled away. Parvez Ahmad P.W. Informed Nawab, father of Asghar deceased in village Sharaqpur where Nawab had gone with his brother Yaqoob to meet his mother. Nawab proceeded towards the police station, on the way he met P.W.8 Muhammad Malik A.S.I. At village Gillanwali and made statement Exh.P.B. To him at 10.00 p.m. On the basis of which formal F.I.R. Exh .P.B./1 was registered at the police station at 10.30 p.m. The same evening. The A.S.I. Went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination.
3. P.W.4 Dr. Syed Talaat Iqbal, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat, held the autopsy on the dead body of Asghar Ali on the following day and found the following three injuries on it:--- (1)Fire-arm wound of entry 6 c.m. In diameter on front of middle of left chest, below left nipple Blackening present around the wound.
(2)Four fire-arm wounds of entries each 0.5 c.m. x 0.5 c.m. In an area of 8 c. m. On back of neck.
(3)Fire-arm wound of entry 0.5 c.m. x 0.5 c.m. On back of right shoulder.
Under injury No.1, 6th, 7th and 8th ribs had been fractured. The heart and the right lung were also lacerated. Five bullets were found in the left chest cavity. Stomach contained semi-fluid material.
There was faecal matter in the large intestine and the bladder was full of urine. Death in the opinion of the doctor was due to shock and haemorrhage caused by injury No.1, which was sufficient to cause death in the ordinary course of nature. Injuries 2 and 3 had also contributed. P.W.9 Ijaz Ahmad, Inspector S.H.O., Police Station Saddar Gujrat, arrested both Riaz and Zafar accused at Gillanwali bridge in Naka Bandi on 18-7-1983. After completing the investigation the accused were sent up for trial.
4. In their statement both accused denied guilt. Explaining the case against him Zafar Iqbal made the following statement:- "Asghar brother of Zafar accused was murdered by one Ghulam Nabi of Gillanwala. Nawab complainant was his Munshi at the brickkiln. Because of enmity Ghulam Nabi got the case registered against me. Parvez and Rohil Nasim deal in business of narcotics and Asghar deceased was body guard of Parvez. P.W. Parvez had given land to complainant for residence, I opposed Parvez in B.D. Elections. Because of this P.Ws were inimical towards me."
Riaz accused supported the statement of Zafar. Both accused led no evidence in defence.
5. Trial Court relied on the statement of the eye-witnesses and came to the conclusion that Zafar Iqbal and Riaz shared the common intention with the absconder and found them guilty. Criticising the finding the learned counsel for the appellants contended that there were circumstances appearing in the evidence of this case which indicated that the F.I.R. Was recorded after due deliberations. In support of the submission learned counsel referred to the statement of the Investigating Officer who admitted under cross-examination that he did not mention the names of Zafar Iqbal and Riaz in his inspection note. In support of this submission, it was further argued that informant Nawab father of the deceased at the trial did not mention about the part played by Zafar Iqbal and Riaz. Further contended that in his supplementary statement Exh.D.A. Before the police Nawab informant had admitted that on the day of occurrence he was in village Jalalpur Jattan which was about 12 miles from the place of occurrence and he was sent for from there. But according to the statement of the eye witnesses Nawab had come with his brother Yaqoob to visit his mother in village Shaikhpur. At this stage reference be made to the statement of P.W. 10 Muhammad Siddiq another brother of Nawab informant who was produced by the prosecution for the identification of the dead body but was declared hostile by the Public Prosecutor and was cross-- examined by him. According to this witness Nawab, his were and son Arshad had arrived from Jalalpur to village Shaikhpur after two hours of the murder. There is no reason why informant's real brother should make a false statement. Moreover there also appeared to be no reason for declaring this witness hostile because he was only a witness for the identification of the dead body.
Statement of P.W.10 Muhammad Siddiq supports the submission made by the learned counsel for the appellants that the F.I.R. Was delayed. It may also be added here that the F.I.R. Was not made at the Police Station. This was another circumstance in support of the delay in making the report.
6. In so far as the evidence of two eye-witnesses was concerned they belonged to Jalalpur Jattan which was about 12 miles away from the place of occurrence. The reason for their presence there is not supported by evidence, which the Investigating Officer could have produced for instance according to them they had come with the deceased to the village of occurrence to get a sum of Rs.2,000 from Qasim Teli to whom a mare had been sold earlier. Further as they came to village Shaikhpur they discovered that Qasim Teli had gone to Karachi, therefore, they spent an hour in the village in the house of Asghar son of Lal Khan had their meal there. Further according to them the deceased did not have the meal but had only a cup of tea and biscuits. This improvement appears to have been made to bring their statements in line with the post-mortem report because the doctor found no solid food in his stomach but detected semi-liquid food only. Investigating Officer was questioned whether he examined Asghar Son of Lal and Qasim Teli. According to him despite his best efforts to trace them they were not available. I do not consider his explanation satisfactory.
Undoubtedly the eye-witnesses were chance witnesses who have not been able to satisfactorily explain their presence in village Shaikhpur. Last but not the least the story put up by them implicating the two appellants did not appeal to reason because Mubashir was said to be armed with a fire-arm and was said to have fired at the deceased who fell down. After this it was improbable that the witnesses who were unarmed chased Mubashir, who had a fire-arm. It appears that the story of chase was introduced to put up the version that Zafar Iqbal fired at them to stop them. On the other hand, Zafar Iqbal who was not far away from the witnesses was said to have fired at them from a distance of 10-12 yards. From this distance he could not have missed hitting any one of the eye-witnesses.
7. For the forgoing reasons the role attributed to Zafar Iqbal was highly improbable story which did not appeal to reason. In so far as Riaz was concerned, it was still worst because he was said to be armed with a Chhuri only whereas fire-arms had been used. It .Did not appeal to reason that he would come out' brandishing a knife. No weapon has been recovered from the appellants. Their participation was a highly doubtful matter, I, therefore, give them the benefit of doubt and acquit them, of the charge. They shall be released forthwith if not required in any other case.
8. The record of this case be sent back to the District Authority for the trial of the absconder Mubashir.