IJAZ NISAR, J.--Muhammad Yar (37), Ahmi (50), Bakhta (35), Allah Yar (48) and Khizra (28) were tried along with Zafar, Shana, Manzoor son of Noor, Manzoor son of Moonda, Shera, Tari and Muhammad Nawaz for the murders of Khan Muhammad (65) and his son Fazal Ahmad (36).
Learned Additional Sessions Judge vide his judgment, dated 1-10-1984 convicted Muhammad Yar, Ahmi, Bakhta, Khizra and Allah Yar under section 148/302/149, P.P.C. Muhammad Yar and Ahmi were sentenced to death plus fine of Rs.10,000 each or in default three years' R.I. On two counts while Bakhta, Khizra and Allah Yar were sentenced to imprisonment for life and a fine of Rs.10,000 each or in default to undergo three years' R.I. On two counts with benefit of section 382-B, Cr.P.C. Under section 148, P.P.C. All of them were convicted and sentenced to undergo one year's R.I. Each. The fine, if recovered, was ordered to be paid to the heirs of the deceased as compensation. Rest of the accused were acquitted. Barkha who was also a co-accused in the case was declared absconder and was not tried.
This judgment will dispose of reference for confirmation of the death sentences as well as the appeal filed by the convicted accused.
2. The prosecution case is that Hayat brother of Muhammad Yar appellant and Barkha absconder had been murdered for which Khan Muhammad and Fazal Ahmad deceased were challaned and were released on bail. On 4-4-1981 the two deceased had gone to village Lole to settle a dispute arising out of the theft of a buffalo and while returning from there the appellants and their companions attacked them with guns, hatchets and Dangs at Bus-stop Lole. Muhammad Yar and Ahmi appellants along with Barkha absconder are alleged to have caused gunshot injuries to the deceased persons while the other accused assaulted them with their respective weapons. Both the deceased died instantaneously.
The occurrence was witnessed by Ata Ullah P.W.13. Manzoor Ahmad P.W. 14 and Muhammad Shafi .P.W.15. Ata U11ah-P.W. 13 reported the matter to the police vide report Exh.P.E. On the same date at 2-30 p.m.
After recording the F.I.R. Muhammad Bashir Inspector P.W. 16 reached the spot and prepared the injury statements and inquest reports of the deceased persons and took into possession 5 cartridges Exh.P.22/1-5 from the place of occurrence and sealed them into a parcel through memo.
Exh.P.S. On 17-4-1981, he arrested Bakhta, Khizra, Allah Yar and Zafar accused. On 24- 4- 1981 Muhammad Yar and Ahmi appellants were arrested. On 21- 4- 1981 Bakhta led to the recovery of blood-stained hatchet P.9 through memo. Exh.P.J. Khizra appellant led to the recovery of blood- stained hatchet P.10 through memo. Exh.P.K. Allah Yar appellant got recovered blood-stained hatchet P.11 through memo. Exh.P.L. On 24-4-1981 Muhammad Yar appellant got recovered gun P.12 along with two live cartridges through memo. Exh.P.M. Ahmi appellant got recovered gun P.18 and three cartridges through memo. Exh.P.O. The recovery memos. Were attested by Ata Ullah P.W. 13, Irshad Ullah P.W.1 I and A.S.I. Muhammad Bashir P.W.
16. The hatchets P.9 and P.11 were found to be stained with human blood by the Serologist vide his report Exh.P.BB. The crime empties and the guns recovered from the appellants were sent to the Forensic Science Laboratory and according to the report Exh.P.CC of the Fire-arms Expert two empties each had been fired from the guns of Muhammad Yar and Ahmi and one from the gun of Barkha absconder.
3. Dr. Muhammad Abdullah Shah Hashmi, P.W. 1 performed the post--mortem examination on the dead body of Fazal Ahmad deceased on 4- 4- 1981 at 5 p.m. And found the following injuries thereon:-
(1) A gunshot wound 1" x 2" in circumference on the front of the left ear. The skin was bruised and blackened (wound of entrance).
(2) Seven gunshot wounds within the circumference of 4" on the back and upper part of the left thigh (wound of entrance).
(3) A gunshot wound with fracture into pieces of the skull bone above the right ear (wound of exit of injury No. 1).
(4) Six gunshot wounds within the circumference of 8" on the front of the left thigh with fracture of the left femer opposite to injury No. 2 (wound of exit).
(5) An incised wound 4" x 1" x 1" on the back of the neck.
(6) Gunshot wound behind the left forearm 4" above the wrist joint.
(7) A gunshot wound on the front of the left forearm 2"above the wrist joint with pellets.
(8) Six gunshot wounds on the left wrist joint.
(9) An incised wound 3-1/2" behind the right wrist joint (P.M.).
Injuries Nos. 1, 2, 3, 4, 6, 7 and 8 were inflicted by fire-arm while injuries Nos. 5 and 9 were caused with sharp-edged weapon. A cardboard and few pellets were recovered from his skull. The death occurred due to shock and haemorrhage as a result of injuries on the skull.
4. On the same day at 5-00 p.m. He conducted post-mortem examination on the dead body of Khan Muhammad and found the following injuries thereon:-
(1) A gunshot wound 2" circumference on the left side of the front of the skull passing, into the skull cavity (wound of entrance).
(2) A gunshot wound 4" circumference with fracture of the skull on the left side of the back of the skull (wound of exit).
(3) Six gunshot wounds with fracture of left side of the 7th and 8th ribs.
(4) A gunshot wound with bruised skin in the centre of the left hip with fracture of the pelvic.
(5) Incised wound 2" x 1" on the left side of the back of the shoulder.
(6) An incised wound 3" x 1" on the right side of the back of the neck cutting into the cervical vertebrae.
(7) An incised wound 4" x 2" x muscle deep on the back of the neck.
(8) An incised wound 7" x 1" x muscle deep just close to injury No. 7 (A.M.).
Injuries Nos. 5, 6, 7 and 8 were inflicted by sharp-edged weapon while injuries Nos. 1, 2, 3 and 4 were caused by fire-arms. The death was due to shock and haemorrhage as a result of fire-arm injuries.
5. The appellants pleaded not guilty to the charge and denied the prosecution allegations and attributed the case to enmity and suspicion. They did not call any evidence in defence.
6. The prosecution examined Ata Ullah P.W.13, Manzoor Ahmad P.W.14 and Muhammad Shafi P.W.15 to prove the ocular account. Bashir Ahmad P.W.12 was examined as Wajtakkar witness. Irshad Ullah P.W.11 and Muhammad Bashir S.I. P.W.16 were examined to prove the recoveries from the appellants while Ata Ullah P.W.13 and Muhammad Bashir S.I. P.W. 16 were examined to prove recoveries of crime empties from the spot.
7. Relying on the testimony of the eye-witnesses, the recovery witnesses and the motive the trial Court convicted and sentenced the appellants as described above. Bashir Ahmad P.W. 12 Wajtakkar witness was disbelieved.
Zafar, Shana, Manzoor Ahmad son of Noor, Manzoor son of Moonda, Shera, Tahri and Muhammad Nawaz were given the benefit of doubt and acquitted. It would not be out of place to mention here that Tahri, Shera and Manzoor Ahmad son of Noor were not mentioned in the F.I.R. And an identification parade was held in the judicial lock-up Chiniot. The trial Court did not rely on this piece of evidence as according to it the possibility of the accused having been shown to the P.Ws.
Before the identification parade could not be ruled out.
8. Learned counsel for the appellants contends that since all the three eve-witnesses examined by the prosecution had not supported the prosecution case there was no material justifying the conviction of the appellants. The trial Court erred in excluding the cross-examination part of their statements and giving preference to their statements made in the examination-in-chief, it is stated. According to him, the statements should have been taken as a whole irrespective of their being in examination-in-chief or cross-examination. He argues that if the ocular testimony is held to be untrustworthy, the recoveries alone would not prove the murder charge against the appellants.
9. All the three eye-witnesses examined by the prosecution were closely related to the deceased.
Ata Ullah P.W.13 is son of Khan Muhammad deceased and brother of Fazal Ahmad deceased.
Manzoor Ahmad P.W.14 is first cousin of Fazal Ahmad deceased and nephew of Khan Muhammad deceased while Muhammad Shafi P.W.15 is brother-in--law of Fazal Ahmad deceased. His sister was married to him (Fazal Ahmad). Ata Ullah P.W.13 stated in the cross-examination that all the accused had muffled up their faces and he could not identify them at the time of occurrence and it was after the occurrence that when they were sitting at the Dera of Fazal that the latter told him about the names of the accused persons and that he lodged the F.I.R. On the basis of the said information. It may be worthwhile to point out that Fazal afore--mentioned was not examined by the prosecution. Manzoor Ahmad P.W.14 and Muhammad Shafi P.W.15 did not support the prosecution and were declared hostile. They even denied their presence at the spot at the material time. According to them they did not see any of the accused causing injuries to the deceased persons.
10. It is a settled proposition of law that credibility of a prosecution witness making false concessions in favour of the accused is damaged and he is to be taken on his own words and if he softens down or speaks in two voices the obvious inference would be that he is not a witness of truth.
11. Irshad Ullah P.W.11 who was examined to prove the recoveries of weapons of offence from the appellants is also not a trustworthy witness for the reason that he did not belong to the same village but lived at a considerable distance. Furthermore, he is son-in-law of Khan Muhammad deceased and could not explain his presence at the time of recoveries. It has been rightly argued by the learned defence counsel that recoveries alone would not be sufficient to prove the murder charge against the appellants without any other direct or circumstantial evidence.
Taking into consideration the above circumstances, we are of the view that the prosecution has miserably failed to bring home guilt to the appellants and there was no material justifying their convictions on murder charges. Accordingly, we accept their appeal, set aside their convictions and sentences and acquit them of the charges. They shall be set at liberty forthwith if not required in any other case.
12. The death sentence of Muhammad Yar and Ahmi appellants is Not confirmed.