' IJAZ NISAR, J.--Abdul Razzaq son of Abdul Latif alias Labba (27), Munawar Hussain son of Muhammad Shafi (29) and Muhammad Saleem son of Fateh Muhammad (29/30) were tried for the murders of Hashmat Ali (40/45) and Muhammad Sharif (35). By judgment, dated 13-5-1984, learned Additional Sessions Judge, Sialkot convicted Abdul Razzaq under section 302, P.P.C. And sentenced him to death and to pay a fine of Rs,10,000 or in default to undergo 2 years'. S.I. The fine was ordered to be paid to the legal heirs of both the deceased. Munawar and Saleem were given the benefit of doubt and acquitted.
' Abdul Razzaq has filed appeal while the learned trial Court has made a reference under section 374, Cr.P.C. For confirmation of his death sentence. Allah Ditta complainant has filed revision challenging the acquittal of Munawar Hussain. All the matters shall be disposed of by this judgment.
2. The prosecution case is that Muhammad Sharif deceased was contesting the local council election against one Habib Ullah Rajput. On 28-9-1983 at about 4-30 p.m. a dispute took place over the casting of one vote between Muhammad Sharif deceased on one side and three accused persons on the other but they were separated by the people present there. The accused went towards Dch Abadi and after sometime again came there. Abdul Razzaq and Munawar Hussain were armed with guns while Muhammad Saleem carried a Sota. Muhammad Saleem inflicted a Sota blow on the head of Muhammad. Sharif deceased while Munawar Hussain fired gun shots at him on chest and neck. Abdul Razzaq appellant fired at Bashir Ahmad brother of Muhammad Sharif deceased who sat down and the fire hit Hashmat Ali deceased. The accused had also injured Shaukat son of Meraj Din (not produced) nephew of Muhammad Sharif. Zafar Iqbal gave a Chhuri blow to Bashir son of Rasool Khan (not produced). The complainant party in their self- defence injured Abdul Razzaq appellant and Muhammad Saleem alias Seema accused. Allah Ditta P.W. 11 and Arshad P.W.13 snatched gun P.1 from Abdul Razzaq appellant and after the occurrence produced it before Muhammad Akram S.I. P.W.14. Both the deceased died at the spot Allah Ditta P.W. Left for the police station but came across Muhammad Akram S.I. P.W. 14 in village Galotian Kalan where his statement Exh.P.C. Was recorded at about 6 p.m. The statement Exh.P.C. Was sent to P.S. Daska where Muhammad Younis Moharrir Head Constable recorded formal F,I.R. Exh.P.C./1 on the same day at about 7 p.m. Allah Ditta P.W. Produced .12 bore gun P.1 before the S.I. Who took the same into possession through memo. Exh.P.D. And made it into a sealed parcel. Thereafter, the S.I.
Reached the spot and prepared the inquest report Exh.P.K. And injury statement Exh.P.Q. Of Muhammad Sharif deceased and inquest report Exh.P.L. And injury statement Exh.P.R. Of Hashmat Ali deceased. On 14-10-1983 Muhammad Saleem accused led to the recovery of Sota P.8 from his house through memo. Exh.P.J. Gun P.1 was sent to the Forensic Science Laboratory and the Director of the said Laboratory, vide report Exh.P.S. Stated that since no fouling was recovered from the barrel of the gun, therefore, it could not be said as to when it was last fired.
3. Dr. Gul Nawaz P.W.1 conducted post-mortem examination on the dead body of Muhammad Sharif (35) on 29-9-1983 at 11-15 a.m. And found the following injuries thereon:-
(1) Lacerated wound 2 x 1 c.m. Into chest cavity deep on the front of right chest, 6 c.m. Below the medial part of right clavicle. Burning present on the margin. Margins were inverted.
(2) Lacerated wound 1 x 1 c.m. Muscle deep on the front of outer aspect of right chest 3 c.m. Margins were inverted.
(3)
Lacerated wound 1 x 1 c.m. Muscle deep on the outer aspect of right chest, just below axilla Margins were inverted. This is exit wound of injury No,2.
(4) Lacerated wound 1 x 1 c.m. Muscle deep on the front and lower part of right shoulder. Margins were inverted and black.
(5)
Lacerated wound 1 x 1 c.m. x muscle deep on the front and medial aspect of right upper arm, just close axilla. Margins were inverted and black.
(6) Lacerated wound 1 x 1/2 c.m. x muscle deep on the back and upper half of right arm. Margins are everted. This is exit wound of injury No,5.
(7) Lacerated wound 1 x 3/4 c.m. x skin deep on the left side of neck. Burning present on the margins.
(8) Lacerated wound 1/1-2 x 1 c.m. And chest cavity deep on the back and outer aspect of right chest just below the shoulder blade. ' Margins are everted. This is the exit wound of injury No,1.
' Death was due to injury No,1. The other injuries were simple and were caused by gun shots. On the same day at 10-15 a.m. He conducted the post-mortem examination on the dead body of Hashmat Ali deceased (40/45) and noticed the following injuries thereon:-
(1) Lacerated wound 1 x 3/4 c.m. x skin deep on the front and left side of neck in middle. Burning present on the margins.
(2) Lacerated wound 1 x 1/2 c.m. Skin deep, on the left side of neck. Margins were black.
(3) Lacerated wound 1 x 3/4 c.m. x chest cavity deep on the front of left shoulder just above the axilla. Burning present on the margins.
(4) Abrasion 2-1/2 x 1/2 c.m. On the outer aspect of right clavicle. Abrasion black coloured.
(5) Lacerated wound 1/4 x 1/4 c.m. x skin deep on the front and middle of right shoulder. Margins were black and inverted.
(6) Lacerated wound 1 x 1 c.m. Skin deep on the back and top of right shoulder. Margins everted.
This was exit wound of injury No,5.
' Death was due to shock and haemorrhage by injury No,3. All the other injuries were simple in nature. The injuries were caused by gun shots.
' The same doctor also examined Muhammad Shafi son of Rasool Bakhsh and found the following injury on his person:- ' An incised wound 3 x 1/2 c.m. x bone deep on the left side of head posteriorly 6 c.m. From the left ear in transverse direction.
' The injury was simple in nature caused by sharp-edged weapon within the duration of 24 hours.
' On the same day at 12-15 p.m. The same doctor examined Chanan Khan son of Barkat Ali (60) and found the following injuries on his person:-
(1) Contusion 4 x 1 c.m. On the back of left ear in oblique direction and advised X-Ray of skull.
(2) Contusion 2 x 1 c.m. On the top of the right shoulder.
(3) An abrasion 3 x 1 c.m. On the back of left upper arm.
(4) Contusion 4 x 1 c.m. On the back of left forearm in lower part. The underlying bones were fractured.
(5) A contusion 8 x 3 c.m. On the outer aspect of right upper thigh.
' Injury No, 4 was grievous while the rest were simple. All the injuries were caused by blunt weapon within the duration of 24 hours.
' Dr. Muhammad Saleem D.W.1 examined Abdul Razzaq appellant on 11W-1983 at 1-45 p.m. And found the following injuries on his person:-
(1) A stitched wound lacerated 4 c.m. x 1 c.m. x depth unidentifiable obliquely on the top of head just near the mid line.
(2) A stitched wound lacerated 2 c.m. x 1 c.m. x depth unidentifiable obliquely on the top of left side of head, just lateral to injury No,1.
(3) A stitched wound lacerated 3 c.m. x 1 c.m. x depth unidentifiable obliquely on the back of left side of head.
(4) A lacerated wound in process of healing 3 c.m. x 1/2 c.m. x depth unidentifiable vertical on the back of head in middle.
(5) Complained of pain over lambo-sacral region.
' The injuries were caused with blunt weapon and were simple in nature.
4. The prosecution examined 14 witnesses in proof of its case. Muzaffar Ali P.W.10, Allah Ditta P.W.11, Jaffar Hussain P.W.12 and Irshad Ahmad P.W.13 furnished the ocular account. Shaukat (injured) and Bashir Ahmad mentioned as eye-witnesses in the F.I.R. Were not produced.
5. The accused denied the prosecution allegations.
' Abdul Razzaq appellant admitted that on the day of occurrence elections of local council were being held but denied that he was siding with Habib Ullah because a close relative of Habib Ullah was contesting against his real brother Gul Nawaz. He also denied to have picked up a quarrel over the casting of a vote stating that he had no concern with the voters of the said ward. He also denied the main occurrence stating that he had no dispute or against any of the two deceased.
According to him the real position was that the complainant party attacked him, his brother Mushtaq and Channa and gave them serious injuries without any provocation on their part.
According to him, the prosecution witnesses were from one family and were interested. Explaining the occurrence he made the following statement:- "I am innocent. I and my family were severely beaten and have been falsely involved. The complainant party was losing election of Muhammad Sharif deceased. They had planned to create situation forcing the polling to stop, they tried to snatch the ballot-paper of Bashir son of Rasool Khan, a relative of Habib Ullah, the opposing candidate and when they were unable to do so Shaukat Ali P.W. Made a murderous assault on Bashir, stabbed him in the abdomen and caused him grievous injury for which Shaukat and Allah Ditta complainant are facing the charge under section 307, P.P.C. Shaukat is still under arrest. Muhammad Shafi the brother of Bashir came to his rescue. He was given hatchet blow by Bashir P.W. On his head, then Sharif, the complainant and his 4 brothers, his brother-in-law, his nephew Shaukat and their party men armed with Chhuris, hatchet and Dangs made a concerted attack on us and caused grievous and serious injuries to me and my family members. I fell unconscious."
' Muhammad Saleem accused denied his presence at the spot and attributed his involvement to previous enmity with the complainant party.
' Munawar Hussain accused also denied his presence at the spot at the material time and stated to have been falsely involved on account of enmity. He made a detailed statement in this behalf which is to the following effect:- "I proclaim absolute innocence in the matter and assign my false implication in the present case, to definite, serious and longstanding animosity possessed by the complainant side against my family. I am M.BA. And am employed as P.R.O. In Punjab Sports Board, Lahore, in the B.P.S. No,
17. The complainant's father and others were tried for criminal charges against them and were convicted by the learned trial Court. My father was the complainant in one of those cases. The complainant side had brought a criminal complaint against my father and others. It was found to be false and as such ended in acquittal of all the persons charged. The complainant had served out different terms of sentences in all those cases along with his father and his co-accused. Since my father is a man of 75 years of age and a physical wreck the complainant and others in order to wreak vengeance thought it better to implicate me and my younger brother, so that the family may be ruined altogether. I had narrated the story of my suffering and false involving in the case before the concerned officers/authorities in the case who conducted the inquiries and investigations at the spot in the presence of both the sides and after their satisfaction declared me innocent in the matter. My brother too was also exonerated of the false accusation of causing grievous injuries to Bashir son of Rasool Bakhsh. I was present in the house of Iqbal son of Sultan at the relevant time of occurrence had deposed about my innocence. Muhammad Iqbal son of Sultan had gone to the incident and bringing his seven sons in the open meeting and made an oath on the Holy Qur'an about my innocence. The complainant side was asked to make an oath about my guilt in the mosque, but they ran away on each occasion. The complainant side had taken revenge from us by implicating me in this case. I have been placed in column No, 2 of the challan sheet."
5. The accused examined 5 D.Ws. In their defence.
' Dr. Muhammad Saleem D.W.1 had medically examined Abdul Razzaq appellant on 11-10-1983 at the instance of the police and found 5 injuries on his person of the duration of 15 days.
' Mushtaq D.W. 2 is real brother of Abdul Razzaq appellant. He is licensee of gun P.1. According to him, on the day of occurrence at about 3-45 p.m. He had left for his house and after about an hour and 45 minutes a boy came running to him and told hint that a fight had ensued in the school and his father, brothers and uncle were being injured whereupon he rushed to the school carrying his licensed rifle. He had not reached the school premises when 7/8 persons attacked him and that he could recognize Amin, Ilyas and Iqbal etc. His collar bone was fractured and his rifle fell down and that he became unconscious.
' Abdul Latif alias Labba D.W.3 father of Abdul Razzaq appellant stated that a dispute arose over a vote in Ward No,2 resulting in general free fight. 7/8 persons attacked him. His elder brother Channan Khan rushed forward to rescue Abdul Razzaq but he was also injured by the assailants.
He tried to save his brother but he was also injured and received a large number of injuries as a result of which he fell unconscious.
' Mehr Ahmad Khan D.S.P. (Retd.) D.W.4 stated that he had investigated the case and did not find any incriminating evidence against Munawar accused. Dr. Arshad Ali D.W. 5 examined Muhammad Bashir son of Rasool Khan and found an incised wound on right side of his abdomen.
6. Relying on the ocular testimony, recovery of gun P.1 and the motive the trial Court convicted Abdul Razzaq appellant as described above. Munawar Hussain and Muhammad Saleem were, however, given the benefit of doubt and acquitted. Para. 17 of the judgment regarding Munawar accused is as under:- 'This Court is of the considered view that the prosecution could not make out a case against the involvement of Munawar accused beyond any reasonable doubt. It is just possible that Sharif deceased might have been killed by indiscriminate use of gun P.1 by Abdul Razzaq accused and the prosecution probably took advantage of the two deaths and involved an accused each for these deaths. For this reason the prosecution stuck to its stand of the involvement of Munawar accused with the death of Sharif and of Abdul Razzaq accused to with death of Hashmat Ali.
Similarly, the defence maintained its stand about the firing of the guns of Ijaz and Liaqat mentioned above. It appears that on the enmity on account of the previous criminal cases this accused was involved in this case."
' Saleem accused was acquitted on the ground that the wound by a Sota allegedly caused by him on the head of Muhammad Sharif deceased was not found in the medical examination. It was further observed that there was a possibility of his false involvement on account of dispute regarding ownership of the tractor.
7. Criticising the judgment, learned counsel for the appellant has argued that the prosecution witnesses were inimically disposed towards the appellant and having been disbelieved qua Munawar Hussain and Muhammad Saleem co-accused they could not have been relied upon in respect of the appellant without any independent corroboration. The gun P.1 allegedly recovered from him does not furnish the required corroboration being unconnected. A cross-case was registered against Allah Ditta P.W.11 complainant in the case for causing injuries to Muhammad Bashir son of Rasool Khan a relative of Munawar Hussain accused. The injuries of Abdul Razzaq appellant are not explained in the F.I.R. Tha ocular evidence is said to be in conflict with the medical evidence.
8. Allah Ditta P.W.11 admitted that he along with his father, Bagh AIL his cousins Sattar and Nawab were tried under section 148/324/325/149, P.P.C. For having caused grievous injuries to Habib Ullah and were convicted and sentenced to two and a half years' R.I. Each. He further admitted that he was convicted and sentenced to 9 months' R.I. For causing injuries to Sardar brother-in-law of Habib Ullah but acquitted on appeal. Allah Ditta P.W.11 is a brother of Muhammad Sharif deceased.
Arshad Ahmad P.W.13 is brother-hi-law of Muhammad Sharif deceased while Jaffar Hussain was from their Bradari. Muzaffar All P.W.10 was a contesting candidate in the election. He admitted in the cross-examination that all the contesting candidates were present in the school premises at the time of occurrence and that the police had first of all recorded the statements of Allah Ditta and Irshad respectively at the spot. He purposely denied knowledge of injuries suffered by Bashir son of Rasool Khan. His statement at the trial is full of material contradictions with the one made by him before the police. He stands belied by the medical evidence because no blunt weapon injury was found on the head of Muhammad Sharif deceased as alleged by him. According to him, Muhammad Saleem accused had inflicted a Sota blow on his head.
9. The prosecution has failed to show any connection between the accused which could prompt them to stand shoulder to shoulder with one another. The story set up by the prosecution bristles with material contradictions. According to A Allah Ditta P.W. Who lodged the F.I.R. He and Irshad Ahmad P.W.13 had snatched gun P.1 from Abdul Razzaq appellant but Irshad Ahmad P.W. Made a totally different statement in this respect. According to him, Abdul Razzaq appellant left behind his gun after he was given a Sota blow by them which was picked up by Allah Ditta P.W. The eye- witnesses stand contradicted by the medical evidence. According to Irshad Ahmad P.W.13 Munawar Husain accused B had fired at Muhammad Sharif deceased from a distance of 25 feet, but the presence of burning around the wound belies him. Dr. Gul Nawaz P.W.1 who had conducted the post-mortem examination on the dead body of Sharif had found burning and blackening on the margins of the wounds. There is another circumstance which belies the prosecution version.
According to the eyewitnesses the gun used by Abdul Razzaq appellant was snatched by Allah Ditta and Irshad Ahmad P.Ws. And produced before the police immediately on their arrival at the spot and was made into a sealed parcel. If that was so some fouling or marks showing that it had been recently fired must have been found in the barrel but the report of fire-arm expert is in the negative. No person from the polling staff was examined to throw light on the occurrence. The accused party including Abdul Razzaq appellant was also injured in the occurrence and in the F.I.R.
There was absolutely no explanation of the injuries suffered by Abdul Razzaq appellant. The complainant party was also challaned under section 307, P.P.C. And we are told that they have been acquitted in the said case. The rule of propriety demanded that the said case should have also been tried and disposed of simultaneously with the present case but it is not clear why that case was tried separately. Contradictory versions were given by Allah Ditta P.W.11 with regard to the injuries suffered by the accused side. In the F.I.R. He stated that they had D also caused injuries to Labba and Channa in their self-defense but at the trial he gave an altogether different version. At page 29 of the printed book he stated that Bashir from the accused side shouted that he should be injured in order to make defence against the deceased side whereupon Zafar Iqbal injured him with Chhuri. Labba and Channa etc. Had injured Shaukat from their side and that he, Irshad Ahmad and Ilyas in their defence injured Labba and Channa with Sota blows. In the F.I.R. There is absolutely no mention of the presence of Bashir from the accused side nor of asking his companions to injure him for setting up the defence plea or who had injured him. This was an afterthought to explain the injury of Muhammad Bashir son of Rasool Khan who was examined by Dr. Arshad Ali D.W.5 and an incised wound was found on the right side of his abdomen. The real cause of the occurrence is also not known. Contradictory versions have been given in this behalf by Allah Ditta P.W. At one place he E attributes the case of election dispute and at another to Gul Nawaz brother of Razzaq appellant owing Rs,50,000 to Sharif deceased but none of the accused was directly concerned with the said matters.
10. Jafar Hussain P.W.15 at page 36 of the printed paper book stated that all the three accused persons on one side, Sharif deceased and Allah Ditta complainant on the other were fighting with each other. At page 37 he stated that a large number of persons were beating each other. Keeping this statement in juxtaposition with the version given by Abdul Razzaq appellant we have no manner of doubt that there was in fact a mutual fight resulting in injuries to some members of both the parties. There is nothing whatever to show which of the two parties had initiated the attack and for what reason. Both parties have not come out with the true story and have tried to minimise their own part in the incident. The prosecution witnesses being inimically disposed towards the accused cannot be relied upon without independent corroboration. The eye-witnesses have suppressed the injuries suffered by Abdul Razzaq appellant and Muhammad Bashir a relative of Munawar Hussain accused. Munawar Hussain accused who is said to have killed Muhammad Sharif deceased was found innocent in the investigation. The acquittal of Muhammad Saleem who is alleged to have opened attack on Muhammad Sharif deceased by giving a stick blow has not been challenged in revision. In the face of these circumstances we do not think that the prosecution has been able to prove its case against the accused beyond all reasonable doubt. Accordingly, we accept the appeal of Abdul Razzaq appellant and acquit him of the charge by giving him the benefit of doubt.
He shall be released forthwith, if not required in any other case.
' The death sentence of Abdul Razzaq is not confirmed.
11. For the reasons discussed above the revision challenging the acquittal of Munawar Hussain accused fails and is dismissed accordingly.