1. JAVID IQBAL, J.----Muhammad Nawaz petitioner and seven other accused, namely, Muhammad Iqbal, Ghaus Muhammad, Zamir Hussain, Feroz, Dost Muhammad, Hayat and Abdullah were tried under section 302/307/149/148, P.P.C. For the murder of Muhammad Khan deceased and murderous assault on Khanjar Khan P.W.9. Vide Judgment, dated 20th July, 1980 of the Additional Sessions Judge Sargodha, Muhammad Nawaz petitioner was sentenced to death plus fine under section 302/149, P.P.C., whereas Muhammad Iqbal, Ghaus Muhammad, Zamir Hussain and Feroz were sentenced to life imprisonment plus fine under section 302/149, P.P.C. All the five of them were sentenced to 3 years' R.I. Plus fine under section 307/149, P.P.C. And they were sentenced to 2 years'
2. R.I. Under section 148, P.P.C. Dost Muhammad, Hayat and Abdullah were however acquitted by the trial Court. The Lahore High Court, Lahore in appeal upheld the convictions and sentences awarded to Muhammad Nawaz petitioner and confirmed the death sentence awarded to him whereas Muhammad Iqbal, Ghaus Muhammad, Zamir Hussain and Feroz were given the benefit of doubt and acquitted.
3. The occurrence took place at 10 a. m. On 11th September, 1979 in Chak No.17 East, District Sargodha.
4. The F.I.R. Was lodged at Police Station Bhalwal at 11-30 a.m. On the same day by Sarwar Khan P.W.8 brother of the deceased. The petitioner was arrested on 18th September 1979. The other members of the accused party were arrested on different dates. From the spot besides blood-stained earth, crime empty P.10 was picked up and taken into possession vide memo. Exh.P.L. ,dated 11th September 1979 attested by Muhammad Khan P.W.10, Bhai Khan (not produced) and Masood Aziz S.I. P.W.11. On 18th September, 1979 when Muhammad Nawaz petitioner was arrested, on the same day from him was recovered gun P.8 and four cartridges which were taken into possession vide memo Exh.P.J. The recovery was attested by Sarwar Khan and Muhammad Khan P.S.Vs. Besides investigating officer Masood Aziz S.I. P.W. Recoveries of guns were also effected from Feroz and Ghaus Muhammad acquited co-accused but these were not sent to forensic science laboratory.
5. Gun P.8. Recovered from Muhammad Nawaz petitioner matched with crime empty P.10 picked up from the spot. The motive for the crime is that the accused party wanted to take forcible possession of the disputed land which was in possession of Muhammad Khan deceased, Khanjar Khan injured P. W. Etc. The prosecution has produced three eye-witnesses of the occurrence namely Sarwar Khan P.W.8 brother of the deceased, Khanjar Khan P.W.9 father-in-law of the deceased as well as his uncle and that of Sarwar Khan P.W., and Muhammad Khan P.W.10 uncle of the deceased, as his sister's daughter was married to the deceased. He is brother-in-law of Khanjar Khan P.W. Dr Muhammad Rahim Piracha P.W.1 conducted post-mortem examination on the dead body of the deceased and found on his person one fire-arm wound on the left chest.
6. According to the medical evidence Khanjar Khan P.W. Had also one fire-arm injury on the left side of lower abdomen. According to the prosecution version as given in the F.I.R. On the fateful day Sarwar Khan P.W. Alongwith Khanjar Khan P.W. And the deceased were coming towards the Dera when the petitioner alongwith Muhammad Iqbal, Feroz and Ghaus Muhammad all armed with guns while Dost Muhammad empty handed were present there. Muhammad Nawaz petitioner and Dost Mohammad raised a Lalkara that they should not proceed to the Dera as the accused party had taken possession of the land. The deceased and Khanjar Khan P.W. Were walking ahead and as soon as they reached near the Dera the petitioner fired a shot which hit the deceased on his chest. The second shot was fired by Muhammad Iqbal which hit Khanjar Khan P. W. On the belly.
7. Both of them fell down. Thereafter Zamir Hussain, Feroz and Ghaus Mohammad fired from their guns one after the other. On hearing the gun shots and alarm of the eye-witnesses some other persons were attracted and witnessed the occurrence but they had not been produced. The deceased died on the spot and Khanjar Khan P.W. Was injured.
8. Muhammad Nawaz petitioner has filed Petition for Leave to Appeal No.131 of 1983 against his convictions and sentences which had been upheld by the Lahore High Court, Lahore. On the other hand Sarwar Khan complainant has filed Petition for Leave to Appeal No. 128 of 1983 against the acquittal of Muhammad Iqbal, Zamir Hussain, Ghaus Muhammad, Feroz, Dost Muhammad, Hayat and Abdullah. Since both these matters are connected, these are being heard and disposed of together.
9. It was submitted by Mr Ijaz Hussain Batalvi, learned counsel for Muhammad Nawaz petitioner that the ocular testimony in the instant case against the petitioner and others came from interested witnesses who were closely related to the deceased. He argued that admitteldy there was background of enmity between the parties, and a litigation was going on about the possession of disputed land. It was submitted that the ocular testimony has not been relied upon by the trial Court in respect of three co-accused who were acquitted by it. Thereafter, it has also not been relied upon by the appellate Court which subsequently acquitted four of the co-accused. It was submitted that the conviction of the present petitioner under section 302, P.P.C. And the sentence of death plus fine had been upheld in his case by the Lahore High Court Lahore mainly for the reason that the corroboration of the ocular testimony was forthcoming through the recovery evidence. He submitted that the corroboration in the instant case was not sufficient to sustain conviction for the, reason that according to the testimony of Masood Aziz S.I. P.W. Gun P.8 was licensed in the name of Hayat and that it was recovered from the Haveli which was occupied both by the present petitioner and Hayat. It was next submitted that although Hayat had been acquitted by the trial Court, he is also stated by the eye-witnesses to have fired. The reasoning of the learned counsel is that in that view of the matter the recovery evidence in the case of the present petitioner was not reliable and since uncorroborated ocular testimony was interested, case was made out for the grant of leave so far as Muhammad Nawaz petitioner was concerned.
10. Mr Badiuzzaman, learned counsel for the complainant-petitioner Sarwar Khan took us through the judgments of the Courts below to show that both the Courts below had held the ocular testimony as reliable as it came from independent witnesses who had no motive to falsely implicate the accused side. He argued that corroboration was not required of the ocular testimony in the instant case because the eye-witnesses were considered as independent and natural witnesses of the occurrence. In that view of the matter, according to the learned counsel, companions of Muhammad Nawaz petitioner should have not been acquitted and that case was made out for the grant of leave to appeal as against their acquittal.
11. We have heard learned counsel for both the sides. The ocular testimony has been relied upon in respect of the petitioner because gun P.8 recovered from his possession matched with crime empty P.10 picked up from the spot. The ocular testimony is to the effect that it was the present petitioner who had fired a shot through his gun which had hit on the chest of the deceased. All the three eye-witnesses are quite consistent on this point and there is no contradiction in their testimony. According to the medical evidence the deceased had one fire-arm injury on his chest which had been attributed to the petitioner. Thus, the ocular testimony which was supports; by the medical evidence had been corroborated by the recovery evidence because of the matching of the gun with the crime empty. The argument of the learned counsel to the effect that the said gun was licensed in the name of Hayat or Hayat and the petitioner shared the same Haveli from where the gun was recovered has no persuasive value. According to the evidence on record gun P.8 was recovered from the possession of the petitioner. Therefore, it did not matter if it was licensed in the name of Hayat or if Hayat and the petitioner lived in the same Haveli. Even if we could say that relevant recoveries were attested by eye-witnesses interested witnesses, these have also been attested by Masood Aziz S.I. P.W. About whom there is no allegation that he had conducted investigation in a dishonest manner. In that view of the matter, in our considered opinion, the impugned judgment of the Lahore High Court, Lahore is unassailable and calls for no interference.
12. So far as Petition for Leave to Appeal No.128 of 1983 is concerned, the companions of the petitioner were acquitted by the courts below mainly for the reason that no corroboration was forthcoming of the ocular testimony in respect of the part ascribed to them. Even Khanjar Khan P.W. Who had sustained a fire-arm injury was not considered consistent in his statement as to who had caused injury to him. In the F.I.R. It was stated that Muahammad Iqbal had fired at Khanjar Khan P.W.
13. Causing a grievous injury in his abdomen. No fire-arm had been recovered from Mohammad Iqbal.
14. On the other hand Sarwar Khan P.W. Had stated that the present petitioner and Hayat had challenged Muhammad Khan deceased and Khanjar Khan P.W. As they had taken forcible possession of the land. Thus, he had named Hayat as the assailant of Khanjar Khan P.W. Instead of Mohammad Iqbal. Then Khanjar Khan P.W. Himself in his examination-in-chief had stated that it was Mohammad Iqbal who had fired a shot hitting him in the belly. But in the cross-examination he stated that Mohammad Nawaz petitioner and Havat had fired at both of them 1.e Mohammad Khan deceased and Khanjar Khan P.W., once each. Thus there was inconsistency in the testimony of the eye-witnesses and for that reason the courts below gave the benefit of doubt and acquitted the co-accused.
15. After carefully examining the arguments of the learned counsel for the complainant-petitioner, in our view, no case is made out for the grant of leave to him against the acquittal of the acquitted co-accused.