' Nusrat son of Ghulam Muhammad, aged 50 years, Ramzan son of Nusrat aged about 24 years, Bashir son of Nusrat aged about 27 years, Irshad alias Shada son of Haji Mohabbat aged about 35 years, all Khokhar by caste residents of Chah Jalwala, Mauza Bastewala, Tehsil Kabirwala District Khanewal, Muhammad Rafiq son of Akbar Khan caste Awan, aged about 40, resident of Mauza Narhal, Tehsil Kabirwala, and Ali Nawaz alias Alia son of Allah Yar caste Aujla aged about 35 years, resident of Chah Bastiwala Dakhli Mauza Aujla, Tehsil Kabirwala, district Khanewal, have been tried by this Court under sections 148, 365, 326, 307 and 323, P.P.C. Read with section 49 of the same Code, allegedly for having resorted to rioting, abduction, causing grevious hurt, making murderous assault and voluntarily causing injuries to Shamsher Ali and Mushtaq Ahmad P.Ws on 21-8-1985, at about 9/10 a.m. In the area of Mauza Bahadurwhla, .Chah Jalwala P.S. Kabirwala, District Khanewal.
2. The facts of the case as laid down by Mushtaq Ahmad complainant (P.W.4) in the complaint Ex.PB are as follows: Toba Tek Singh, who had come to Shamsher Ali (P.W.5) at his Chah Karariwala in Mauza Bahadurwala in the area of police station Kabirwala, 3/4 days before the occurrence.
Mushtaq Ahmad is the husband of Shamsher's wife's real sister. Qaswar Abbas (P.W.6) who is the nephew of Shamsher P.W. Fell ill and, therefore, Mushtaq Ahmad and Shamsher Ali P.Ws. As well as Qaswa r Abbas P.W. Started on the motorcycle of Shamsher Ali (P.W.5) from Chah Karariwala for going to Kundanpur in order to fetch medicine for Qaswar Abbas (P.W.6) from the doctor, on 21-8- 1985 at about 8.30 a.m. They were going on the Katcha path and when they reached near the Bhaini of Nusrat accused, all the accused namely Ali Nawaz alias Alia accused, Ramzan accused, Bashir accused, Irshad accused, Rafiq accused and Nusrat accused came there. Nusrat, Ali Nawaz, Ramzan and Rafiq were armed with Sotas while Bashir accused was having .12 bore gun and Irshad alias Shada accused was armed with .12 bore pistol. All the accused came on Katcha path and blocked the same as a result of which Shamsher P.W. Had to stop his motorcycle. At this the accused gave a push to the motorcycle with the result that all the three, namely Mushtaq Ahmad, Shamsher Ali and Qaswa r Abbas P.Ws. Fell from the motorcycle in the cotton field which was having some irrigation water at that time. The accused grappled with them (Mushtaq and Shamsher P.Ws.) and in the meantime Qaswar PW. a boy of 7/8 years managed to run away from the field. Nusrat accused exhorted his companions that they should tie their hands at their backs and be taken to his Dera. The accused then tied the hands of Shamsher All as well as Mushtaq Ahmad P.Ws. At their backs by means of the Safa and forcibly abducted both of them to the Dera of Nusrat accused and took them inside the room of the Dera. Thereafter Ramzan accused gave a Sota blow on the left arm of Mushtaq Ahmad complainant while Rafiq accused gave Sota blow on his right %nee. The complainant, on receipt of these injuries, fell on the ground. In the meantime, Ali Nawaz alias Alia accused with the help of Ramzan, Rafiq and Nusrat co-accused, felled Shamsher Ali P.W. On the ground inside the Kotha and Ali Nawaz sat on the chest of Shamsher Ali P.W. And gave injuries on both of his eyes with a brick P.2.
' While this occurrence was taking place, Bashir and Irshad accused while standing outside the room, in the courtyard of the Haveli, resorted to firing with their respective weapons. The accused then ran away from the spot alongwith their respective weapons..
3. The motive for the offence given in the complaint Ex.P.B. Was that Muhammad Shafi brother of Ali Nawaz accused had been murdered 9/10 years before the occurrence for which Shamsher Ali P.W.
Was challaned but was acquitted. In addition to this, litigation was going on between Shamsher on the one hand and Nusrat accused on the other hand and hence this offence.
4. Shamim Hussain A.S.I. (P.W.7) who was present At Mauza Sher Garh in connection with patrol duty, on hearing about the occurrence, came to Chah Jalwala at the Dera of Nusrat accused. He entered the Haveli of Nusrat accused at Chah Jalwala and found that Mushtaq Ahmad P.W. And Shamsher Ali -P.W. Were present inside the Kotha of Nusrat accused. Shamsher All (P.W.5) was lying on the , ground with injuries on both the eyes, bleeding profusely and was unconscious.
Shamim Hussain A.S.I. (P.W.7) therefore, recorded the statement Ex.P.B. Of Mushtaq (P.W.4) at 11.30 a.m. Who thumb-marked the same after admitting it as correct. He sent the complaint Ex.P.B. To the police station Kabirwala through'Khan Muhammad Constable for formal registration of the case where formal complaint Ex.P.B./1 was drafted by Rustam Ali Moharrir Head Constable (P.W.2) at 12.30 noon on the same day. The distance between the spot and the Police Station Kabirwala was about seven miles.
5. Since Mushtaq Ahmad and Shamsher P.Ws. Were having injuries on their person, Shamim Hussain A.S.I. (PW.7) therefore, prepared injury statement Ex.P.G. Of Mushtaq P.W. And also of Shamsher Ali P.W. (Injury statement of Shamsher Ali P.W. Is not available on the file). He, therefore, sent both the injured to Civil Hospital, Kabirwala alongwith Abrar Hussain Constable. Shamim Hussain A.S.I. (P.W.7) then inspected the spot and took into possession blood-stained earth from inside the room and made it into a sealed parcel vide Memo. Ex.P.C. Blood-stained piece of brick P.2 was lying at the spot inside the room which he took into possession and made the same into sealed parcel vide Memo. Ex.P.E. One piece of Chappel P.1 (bloodstained) was lying at the spot which was secured by the A.S.I. Vide Memo. Ex.P.D. A.S.I. Also secured six crime empties P.4/1-6 from the courtyard of the Haveli vide Memo. Ex.P.G. (But he did not made them into sealed parcel).
Similarly he also secured motorcycle P.3 of Shamsher Ali P.W. From the spot vide Memo. Ex.P.F. He also prepared rough sketch P.U. Of the place of occurrence on the same day. He recorded statements of Muhammad Nawaz, Muhammad Ashraf and Qaswar Abbas P.Ws. On 21-8-1985.
None of the accused, according to him, were present at that time at the Dera of Nusrat accused.
6. Shamim Hussain A.S.I. (P.W.7), thereafter, went to Civil Hospital Kabirwala at 2.30 p.m. Or 3.00 p.m.
The distance between the spot and hospital was about 7 miles. Shamsher Ali P.W. And Mushtaq Ahmad P.W. Were present in the hospital at that time. Shamsher Ali PW. By that time had gained consciousness in the hospital. He, therefore, recorded his statement u/s. 161 Cr.P.C. Muhammad Nawaz Chandia (not produced) produced before him blood and mud-stained clothes, i,e, Chadar P.7, Kurta P.6 and Safa P.5 of Shamsher P.W. Which were taken into possession by the A.S.I. Shamim Hussain vide Memo. Ex.P.H. Similarly he took into possession Kurta P.8, Chadar P.9 and Bunyan P.10 of Mushtaq P.W. All stained with blood and mud vide Memo.. Ex.P.J. These clothes were also produced by Muhammad Nawaz.
7. Shamsher Ali PW.5 was medically examined by Dr. Allah Nawaz (PW.1) on 21-8-1985 at 3.00 P.M.
And he found the following injuries on his person:-
(1) A lacerated wound on outer surface of left eye-brow going deep into the eye-ball damaging the left eye.
(2) A lacerated wound on mid of left upper lid going deep into the eye-ball damaging the left. Eye.
(3) Swelling of right eye lids, eye was flushed.
' There was complaint of pain in the chest. In the opinion of the doctor, injuries No,1 and 2 were grievious in nature while injury No,3 was kept under observation. All the injuries were caused with blunt weapon within the duration of 4 to 6 hours. Ex.P.A is the correct carbon copy of the meico- legal report prepared and signed by the doctor. Shamsher Ali (PW.5) was referred to Nishter Hospital Multan where he was admitted as Indoor patient and was kept under treatment. After receipt of report from Nishter Hospital the doctor later on declared injury No,3 as grievous.
8. Dr. Allah Nawaz (PW.1) medically examined Mushtaq Ahmad PW at 3.25 P.M. On the same day and found the following injuries on his person:
(1) An abrasion 2 c.m.x. 2 c.m. On right knee joint.
(2) Swelling 7 c.m.x. 3 c.m, on lower one-third of left fore-arm medially.
' The injured Mushtaq Ahmad complained of pain on the right side of his chest.
' Both the injuries were simple in nature, caused by blunt weapon within the duration of 4 to 6 hours.
Ex.P.S. Is the correct carbon copy of the MLR of Mushtaq PW. Which is signed by him.
9. Dr. Ashraf All P.W. 8, Medical Officer Lahore who was posted as Additional Registrar Nishter Hospital Multan admitted Shamsher Ali PW in the Nishter Hospital on 22-8-1985 and he was discharged from the hospital on 26-9-1985. He stated that when Shamsher Ali P.W. Was brought to Nishter Hospital, the both eye-balls had been damaged. Ike stated that he had observed the following injuries on his person:-
(1) A wound 3 c.m. In length above the route of the left upper eye lid.
(2) A wound about 3 c.m. In length just below the route of the lower lid.
(3) Vertically curved weapon about 21 c.m. At the 1 lateral Canthus of the left eye.
(4) A vertical wound on the side of the nose about 1 c.m. In length on the inner canthus (between the nose and the left eye).
' According to him eye-balls of the right eye was also completely damaged and both the eyes of the injured had become unrepairable. He further stated he could not rule out the possibility that the injuries on the left eye could be caused by blunt weapon having some edge. He also declared injury No,3 of Shamsher Ali P.W. As grievous vide report Ex.P.V. /1.
10. Shamim Hussain A.S.I. (PW.7) went in search of the accused on 22-8-1985 but none of them could be traced. He received information through an informer about the presence of the accused and, therefore, he went to the Dera of Ghulam Qasim Sial in Mauza Narhal in Tehsil Kabirwala on 23-8-1985 and found Nusrat accused, Bashir accused, Ramzan accused, Rafiq accused and Irshad accused present there. He interrogated them and arrested them in this case.
11. Ali Nawaz accused was arrested on 25-8-1985 by the A.S.I. (P.W.7) from his house situated in Mauza Bahadurwala. (The place of residence of Ali Nawaz also known as Chah Aliwala).
12. Nusrat accused while in police custody led the police party to his Baithak at Chah Jalwala on 28-8-1985 and got recovered Sota {{PAGE CUT}} P.16 from the ceiling of his Kotha which was taken into possessior vide Memo. Ex.P.O Ex.P.O/1 is the sketch of the place of recovers of Sota P.16. All Nawaz while in police custody got recovered Sott P.17 from the Baithak of Nusrat accused which was secured vide Memo. Ex.P.Q. Ex.P.Q. /1 is the sketch of the place of recovery o1 Sota P.17. Ramzan accused while in police custody led to the recovers of Sota P.15 from inside the garden of Irshad accused, which wa: taken into possession vide Memo.
Ex.P.N. Ex.P.N/1 is the sketch oi the place of recovery of Sota P.15. Muhammad Rafiq accused while it police custody led the police party to the eastern room of the Der: of Nusrat and got recovered Sota P.14 therefrom. Which was taker into possession vide Memo. Ex.P.M. Ex.P.M/1 is the sketch of the place of recovery of Sota. Bashir Ahmad accused while in police custody led the police party to the garden of Irshad accused al Chah. Jalwala and got recovered gun P.11, and four live cartridge( P.12/1-4 from inside the garden of Irshad accused. The same were taken into possession by the A.S.I.
Vide Memo Ex.P.K./1 is the sketch -of the place of recovery of gun. Since Bashir accused coulc not produce any licence of the gun, therefore, the A.S.I. Registerec a case under the Arms Ordinance against Bashir accused. Irshac accused while in police custody led the police' party to Chah Jalwale and got recovered pistol P".13 from underneath the stack of chaff. The stack of chaff was lying' in the field of Nusrat accused adjaceti to his Dera. It was taken into possession vide Memo. Ex.PL/1. E3-11 P.L/1 is the sketch of the place of recovery of pistol P.13. Sinct Irshad accused could not produce licence to keep the pistol, therefore, the A.S.I. Registered a case under the Arms Ordinance against him. All these recoveries were effected on 28-8-1985.
' The A.S.I. (P.W.7) then completed the investigation and goi the accused challaned. He handed over sealed parcels of blood-stained earth and blood-stained piece of brick to Rustam All Moharrir Head Constable Police Station Kabirwala on 21-8-1985. He also handed over clothes of thd injured witnesses, motorcycle P.3, one sh-oe-13.7 tc Rustam Ali Moharrir at the same time. Sotas, gun and pistol recovered at the instance of the accused were also handed over to Khan Muhammad Moharrir (not cited) on 28-8-1985. It may be mentioned here that he did not send any of these parcels to the Chemical Examiner for Chemical Analysis and did not prepare sealed parcels of crime empties, gun and pistol recovered at the instance of the accused. According to the statement of Shamim Hussain (PW.7) the place, where Shamsher Ali and Mushtaq P.Ws. Had been thrown in the field was three (3) killos away from the spot (Dera of Nusrat accused) and about sir furlongs away from Chah Karariwala (the residence of Shamsherrikli PW). Basti Kundanpur at a distance of three miles from Chah Karariwala. According to Shamim Hussain A.S.I.(P.W.7) if one had to go from Chah Karariwala to Kundanpur on motorcycle, field of cotton, where the witnesses were thrown, fell in the way.
13. The accused were charged under section 148/307/326/365/149 P.P.C. They pleaded not guilty to the charges and claimed to bE tried.
14. Prosecution examined as many as 8 witnesses in all in support of its case.
15. (P.W.1) Dr. Allah Nawaz had medically -examined Shamsher PW and. Mushtaq PW. (PW.2) Rustam Ali A.S.I. Had drafted the formal F.I.R. Ex.P.B/1 on the receipt of complaint Ex.P.B. At 12.30 Noon on 28-8-1985. (PW.3) Muhammad Ashraf had gone to the Dera of Nusrat accused during the occurrence, after having heard about the occurrence from Qaswar (PW.6). He also witnessed the recoveries and signed all the recovery Memos. (PW.4) Mushtaq Ahmad and (PW.5) Shamsher Ali are the injured witnesses while (PW.6) Qaswar Abbas is the eye- witness of the first part of the occurrence. (PW.7) Shamim Hussain A.S.I. Is the Investigating Officer while (PW.8) Dr. Ashraf Ali Tayyab Additional Registrar treated Shamsher Ali injured in Nishter Hospital Multan.
16. As already stated the ocular account is furnished by Mushtaq Ahmad PW.4 and Shamsher PW.5.
Substance of the evidence of Mushtaq Ahmad complainant (PW.4) is almost the same which has been given by him in the complaint Ex.P.B. He has fully supported the prosecution case and stated that he was going alongwith Shamsher Ali (P.W.5) and Qaswar Abbas (PW.6) for getting medicine when on the way all the accused detained them, threw them in the field and after tying their hands, forcibly took them to the Dera of Nusrat accused. He also stated that he was caused injuries with Sota by Ramzan and Rafiq and that Ali Nawaz as well as Ramzan, Rafiq and Nusrat felled Shamsher Ali PW on the ground whereupon Ali Nawaz accused sat on the chest and caused injuries on his eyes with brick P.2. The police came to the spot and since Shamsher All (PW.5) was unconscious, the A.S.I. Recorded his statement Ex.P.B. At the spot.
17. Shamsher Ali (PW.5) made the following statement: ' Mushtaq (PW.4) had come to see him two or three days before the present occurrence from his house in Peer Mahal District Toba Tek Singh and was staying-with Min. On the day of occurrence, he, Mushtaq (PW.4) and Qaswa r Abbas (P.W.6) a boy of 7/8 years old (his nephew) were going on his motorcycle from Chah Karariwala to Kundanpur to get medicine for Qaswar (P.W.6). When they had reached near the Dera of Nusrat accused and were going on Katcha path at about 8.30 A.M./9.00 A.M. All the accused namely Ali Nawaz, Bashir, Ramzan, Rafiq, Irshad and Nusrat accused while armed with deadly weapons like Dangs, gun and pistol came on the Katcha path and blocked the road. Nusrat accused, Ali Nawaz accused, Rafiq accused, Ramzan accused having Sotas with them while Bashir accused was armed with gun and Irshad accused was having a pistol. Nusrat accused, Ali Nawaz accused and Ramzan accused pushed them as a result of which all the three namely Shamsher All PW, Mushtaq Ahmad PW and Qaswar Abbas PW had fallen on the left side of the Katcha road in the field, while the other three accused were also standing by their side. The accused then gave fist blows to them and in the meantime Qaswar Abbas (P.W.6) managed to run away from there. Nusrat accused exhorted his companions that their hands should be tied on their backs. Nusrat accused then tied the hands of Shamsher Ali PW on his back by mean of Safa while Ali Nawaz accused tied the hands of Mushtaq PW on his back. The accused then forcibly took them to the Dera of Nusrat accused which was at a distance of about one acre from the said field and both the P.Ws. Were taken inside the western room of the Dera with tied hands. Ramzam accused and Rafiq accused then inflicted Danda blows on Mushtaq PW while Ali Nawaz accused, Nusrat accused, Ramzan accused and Rafiq accused ell him on the ground. Ali Nawaz accused sat on his chest while Nusrat accused held him by his hair and Ramzan accused and Rafiq accused held him by his legs. Ali Nawaz accused then gave injuries on his both eyes with brick as a result of which he lost both eyes and became blind. Before receiving injuries on his eyes he had also seen Irshad and Bashir accused firing with their respective weapons in the courtyard of the Dera. After receiving the injuries he fell unconscious and regained consciousness in the hospital on the same day. He was medically examined by Dr. Allah Nawaz Khan, M.O. Kabirwala (PW.1) and thereafter was referred to Nishter Hospital Multan where he remained for about 20/25 days.
18. Motive for the offence as given by him was that Shafi brother of Ali Nawaz accused was murdered about ten years before the present occurrence in which he (Shamsher Ali PW) alongwith his relatives were challenged but were acquitted from the Court of Sessions Judge, Multan. Prior to this the mother of Ali Nawaz accused was murdered and father of Shamsher Ali PW alongwith his three brothers were challaned. His father and uncle were convicted and sentenced to five years' R.I.
In 1959-60.
' The land of Nusrat accused as well as Shamsher Ali PW were irrigated from the same watercourse and they had developed strained relations on the turn of water. Nusrat accused had diverted the water of Shamsher All PW due to which Nusrat accused was given beatings by them and as a result of that Nusrat had lodged a case u/s 452/506 P.P.C. Against Shamsher Ali PW and others and the case was still pending at the time of the occurrence.
19. Shamsher Ali (PW.5) has given the relationship of all accused inter se. Ramzan accused and Bashir accused are the sons of Nusrat accused while Rafiq accused is brother-in-law of Nusrat and Irshad accused is nephew of Nusrat accused. All Nawaz accused is friend of Nusrat accused.
' He stated that the path from where they were going to Kundanpur was the only way from going Chah Karariwala. He admitted that three or four cases were registered against them but volunteered that these cases were registered at the instance of Qasim Sial and were found false.
He also admitted that a case under Section 325 PPC was registered against him and Ashraf (PW.3) and the same was still pending. He also admitted that All Nawaz accused had three grown up brothers and they all resided at Chah Bastiwala. He denied the suggestion that he had abducted his wife Mst. Sakina before his marriage and stated that his Nikah was performed about three years' back with Mst. Sakina. He denied the suggestion that near relations of Mst. Sakina had insured him due to the fact that he had abducted her. He volunteered that it was absolutely incorrect that he had abducted Mst. Sakina and stated that her relations had given her in his Nikah.
He also denied the suggestion that he had falsely involved the accused due to enmity.
20. Qaswa r Abbas (PW.6) was about 8 years old and he was put questions by me to ascertain whether he was intelligent enough and competent to give evidence. On being satisfied that he was sufficiently mature and intelligent to give evidence, I recorded his statement on solemn affirmation.
He also supported the prosecution case and stated that when all the three P.Ws were going to Kundanpur all the accused encountered them on the Katcha road and threw them on the ground and in the meantime he had slipped away and had come to Chah Karariwala.
21. P.W.3 Mohammad Ashraf stated that he had heard about the occurrence from Qaswar Abbas and therefore, had gone to the Dera of the accused; where Bashir and Irshad accused persons were firing shots with their respective weapons and when the police came there, the accused ran away. He then went inside the Haveli and saw Mushtaq Ahmad and Shamir P.Ws lying injured.
Shamir PW was having injuries on his eyes and was lying unconscious. Mohammad Ashraf PW is also a witness of recoveries of blood-stained earth, blood-stained brick P.2, and other articles recovered from the spot. He also witnessed the recoveries of weapons of offence, recovered at the instance of the accused. The learned Public Prosecutor gave up Mohammad Nawaz Chandia and Rab Nawaz P.Ws as unnecessary and closed the prosecution case.
22. The accused when examined. u/s 342 Cr.P.C. Denied the occurrence and stated that they had been involved due to enmity. Nusrat accused, Rafiq accused, Ramzan, Irshad and Bashir accused persons admitted their relationship inter se but did not admit that Ali Nawaz accused was friend of Nusrat accused. They also admitted that there were some minor disputes between Shamsher All PW and ,Nusrat accused and that Nusrat accused had lodged a case under Section 452/506 PPC against Shamsher Ali PW. They also admitted that this case was pending during the days of occurrence stated that Shamsher Ali PW had nourished grudge against them due to this reason.
They showed their ignorance about the murder of Shafi the brother of co-accused Ali Nawaz.
23. Ali Nawaz accused denied to have any knowledge about the case registered at the instance of Nusrat accused against Shamsher All PW but admitted that his mother had been murdered in which the father of Shamsher Ali PW was challaned and sentenced to five years' R.I. He also admitted that his brother Shafi was murdered for which Shamsher All PW and others were challaned but were acquitted before the present occurrence.
' All the accused however, stated that they had been falsely involved in this case and all the accused denied the recoveries.
24. All Nawaz accused took up the specific plea that the eye-balls of Shamsher PW had been gouged by the near relation of Mst. Sakina, his wife, as he had abducted her before his marriage. All the acccused declined to appear on oath in disproof of the charges levelled against them as provided under Section 340 (2) Cr.P.C. They also declined to produce any evidence in their defence.
25. I have heard the learned counsel for the accused as well as the learned Public Prosecutor and have also gone through the evidence thoroughly. Nusrat, Rafiq, Irshad, Bashir and Ramzan accused admitted that there was altercation between them and Shamsher All PW over the turn of water and that a case registered at the instance of Nusrat accused against Shamsher All PW was pending during the days of occurrence.
Similarly, Ali Nawaz accused also admitted that Shamsher l PW was challaned for the murder of his brother Shafi and was acquitted. The cause of enmity, therefore, stated by Shamsher Ali PW, as a motive for the offence is admitted by accused. Shamshe Ali P.W., therefore, had long-standing enmity with the accused which according to the prosecution was the motive of the occurrence whereas the accused alleged it to be the cause of false implication. The face remains that the motive as alleged by prosecution is proved on the record.
26. The central evidence against the accused consists of Mushtaq PW 4 and Shamsher PW 5. It is true that Shamsher PW 5 has enmity with the accused and Mushtaq PW 4 is related to Shamsher P.W. And, therefore, has interest with Shamsher P.W. It is well-settled that evidence of such witness is to be scrutinized with care but cannot be rejected merely on the ground of being a partisan evidence. I have perused their evidence with great care. The presence of Mushtaq PW finds ample support from the circumstances as well. The Investigating Officer who had gone to the spot (the Dera of Nusra' accused) found Mushtaq PW with tied hands and injuries on his person. So much so that the complaint Ex.PB was recorded on this statement because Shamsher PW was unconscious.
The medical examination also supports the presence of Mushtaq during the occurrence. Mushtaq PW had no direct enmity with the accused. The F.I.R. Was also lodged very promptly excluding any chance of deliberations an. Consultations. The evidence of Mushtaq, therefore, is creditworthy.
Shamsher PW has lost his both eyes. Medical evidence supports that the lost his eyes as a result of violence. He has categorically and unambiguously stated that the four accused namely Nusrat, Rafiq, Ramzan and Ali Nawaz were responsible for causing injuries to hi as well as the complainant.
The evidence of this witness cannot, therefore, be discarded even though inimically disposed towards the accused. For these reasons I find that the evidence of these tw. Witnesses has a ring of truth. Their evidence is further corroborated by the statement of Qaswar Abbas PW 6 who is the witness of the first part of the occurrence. There is also the evidence of Mohammad Ashraf PW3 who had gone to the spot after hearing about thoccurrence from Qaswar Abbas.
' It is true that Qaswa r Abbas PW has not stated in Court that he had told the details of the occurrence to Mohammad Ashraf PW and as such that part of the statement of Mohd. Ashraf PW 3 would be inadmissible but the fact remains that he has stated to have seen the both the injured at the spot when the police arrived there. He also witnessed the recovery memos which establishes his presence at c the spot. His evidence, therefore, further corroborates the ocular account. The manner of abduction of the P.Ws and the injuries on Shamsher PW fully make it plausible that all the six accused had taken part in the occurrence. It may also be mentioned that the eye-witnesses were subjected to searching and lengthy cross-examination yet nothing of importance was elicited from their evidence in order to shake their testimony.
27. The defence version that Shamsher Ali PW had falsely implicated them due to enmity and the version of Ali. Nawaz accused that the near relations of wife of Shamsher All PW had gouged his eyes for the reasons that he had abducted Mst. Sakina his wife has hardly anything to commend itself.
28. Not only the defence involves substitution which plea has no basis in fact but also it implies that Shamsher Ali PW had allowed his real culprit to go scot-free and in their place had named the accused. The substitution for real culprit is rare phenomenon which might take place in exceptional circumstances, where real culprits are not known.
29. Be that as it may it is humanely impossible and beyond comprehension that a young man deprived of his both eyes for his entire life will let loose the real culprit and implicate innocent persons, how staunch enemy he might be, in such a heinous and barbarous crime.
30. The learned counsel for the accused had argued that the story of the prosecution was highly doubtful because the P.Ws should have shown some resistence when they were confronted in the fields and shotld not have allowed them to be tied down so easily.
31. The facts on record when considered thoroughly would make it amply clear that the victim of assault were taken unaware while going on a motorcycle empty handed by six accused armed with deadly weapons, and two of them were armed with fire-arms. They would not leave any chance for them to offer any resistence or attempt to escape. Any such effort could have cost them their lives. TheirIbehaviour under the circumstances was most natural and appropriate.
32. The learned counsel for the accused has further argued that the statement of the injured P.Ws were discrepant and both the eye-witnesses had made material improvements and, therefore, they should not be believed. The Learned defence counsel has pointed out that Shamsher Ali PW had stated before the police in his statement u/s 161 Cr.P.C. That the accused had laid him on the ground inside the Kotha whereupon Ali Nawaz accused had given him injuries on his eyes while sitting on his chest. But during the trial he had given specific role to Nusrat accused by saying that he had caught him by his hair while Rafiq and Ramzan accused had caught him b his legs when the injuries were given by Ali Nawaz accused. The D improvements as well as the other minor contradictions pointed ou by the learned defence counsel do not cast any shadow of doubt on the prosecution evidence. Shamsher Ali PW had made his statement before .The police at a time when he had lost his both eyes and had just regained consciousness but not yet recovered from the immense. Shock he had .Received, he would, therefore, certainly miss some datails_it recorded in natural manner and if not tutored or manipulated. Minor discrepancies or improvements are apt to appear when evidence is recorded after a long time and will not reflect on the credibility o such witnesses.
33. The evidence of recoveries of crime empties, the gun and the pistol at the instance of Bashir and Irshad accused is of no avail to the prosecution, because neither the crime empties recovered from the spot were made into a sealed parcel; nor the pistol and the gun and, therefore, the same were not sent to the Forensic Science Laboratory, Lahore. This piece of evidence, therefore, does no advance the prosecution case.
34. The result is that the prosecution has successfully proved its case beyond reasonable doubt; and the plea of the accused is suchwhich could not be reasonably true. All the accused namely, Nusrat, Bashir, Muhammad Ramzan, Irshad alias Shada, Muhammad Rafiq and Ali Nawaz are convicted u/s 148 P.P.C. For committing rioting andsentenced to 2 years R.I. Each.
35. All the accused are also convicted u/s 365 P.P.C. Read with section 149 P.P:C. For abducting Shamsher PW in order to confine him secretly and wrongfully, in prosecution of their common object of the said unlawful assembly and are sentenced to 5 years' R.I. And a fine of Rs,2,000 each and in default of payment of thereof to undergo R.I. For a further period of 6 months.
36. All the accused are also convicted u/s 365 P.P.C. Read with section 149 P.P.C. For abducting Mushtaq Ahmad PW in order to confine him secretly and wrongfully in prosecution of their common object of the said unlawful assembly and are sentenced to 5 years' R.I. And a fine of Rs,2,000 each and in default of payment of thereof to undergo R.I. For a further period of 6 months.
37. According to the prosecution evidence Bashir and Irshad had fired in the air. The facts and circumstances, therefore, clearly show that there was no intention on the part of the accused to murder anybody while firing. All the accused are, therefore, acquitted from the charge u/s 307 P.P.C. Read with Section 149 P.P.C.
38. It is clear from the medical evidence that Shamsher PW was given grievous hurt. The only question is whether Section 325 P.P.C. Is applicable or section 326 P.P.C. The injuries were given by brick P.2 (which is 4" x 4" x 2-3/4" in size) with rough and uneven edges. I am quite satisfied that it will come under: "instrument which used as a weapon of offence; is likely t. Cause the death."
Hence, it is clear that the injuries caused to Shamsher PW are grievou which offence falls under the ambit of Section 326 P.P.C. Read with section 149 P.P.C. All the accused are, therefore, convicted u/s 326/149 P.P.C. For voluntary causing grievous injuries to Shamshe Ali PW in prosecution of the common object of the said unlawful assembly. As far as the question of sentence is concerned Ali Nawaz accused committed the brutal act in a grim and gruesome manner and Nusrat, Rafiq, and Ramzan accused facilitated the act of Ali Nawaz accused by taking active part. All the 4 accused are, therefore, sentenced to imprisonment for life and a fine of Rs,5,000 each and in default of _payment thereof to undergo R.I. For a further period of one year u/s 326/149 P.P.C. The other two accused namely, Bashir and Irshad did not take active part in causing the grievous injuries. But their joint liability cannot be lost sight of altogether. They are therefore, sentenced to R.I. For a period of 10 years and a fine of Rs,5,000 each under section 326/149 P.P.C. In default of payment of fine they shall suffer R.I. For a further period of one year each. All the accused are also convicted u/s 323 P.P.C. Read with section 149 P.P.C. For causing simple injuries to Mushtaq Ahmad PW. They are, sentenced to 6 months' R.I. Each. The sentences to run concurrently. They shall however, not be titled to the benefit of section 382-B Cr.P.C.
39. Since Shamsher has lost his both eyes and has become blind permanently, all the accused, are.
Therefore, ordered to pay Rs,25,000each to Shamsher PW as compensation u/s 544-A Cr.P.C. And in default of payment thereof they shall undergo R.I. For a period of 6 months each.
40. The accused are on bail. They be taken into custody forthwith and sent to the jail to serve out the sentences passed against them. The motorcycle shall be restored to the owner after the period of appeal if any. The empty cartridges shall be destroyed after the result of appeal if any.
' The gun and pistol shall be confiscated to the State after the result of appeal if any.