1. A case under section 302/307/148/149, P.P.C. Was registered against Azizullah Khan (25), Najibullah Khan (20), Sikandar Khan (26), Saleem Akhtar Khan (24), Khalid Khan (30), Saeed Akhtar Khan (30), Anayatullah Khan (70) and Javed Khan (26) with Police Station Sadar, Mianwali, for the murder of Saifullah Khan son of Muhammad Khan and murderous assault on Saifullah Khan, Muhammad Ramzan, Gul Khan and Ghulam Sarwar P.Ws. After due investigation the case came up for trial before the Additional Sessions Judge, Mianwali; who vide his judgment dated 17-3-1988 convicted Azizullah Khan, Najibullah Khan and Sikandar Khan and sentenced each of them. To imprisonment for life and a fine of Rs.25,000 each under section 302/34, P.P.C. For the murder of Saifullah Khan, or in default in payment of fine further R.I. For one year each. They were also convicted under section 307/34, P.P.C. And sentenced to five years' R.I. Each and a fine of Rs.2,000 each, or in default further R.I. For three months each, for the murderous assault on the witnesses. The amount of fine awarded under section 302/34, P.P.C., if recovered, was directed to be paid to the legal heirs of the deceased.
2. The sentences were ordered to run concurrently. The learned trial Court found accused Khalid Khan, Anayatullah Khan, Saleem Akhtar, Saeed Akhtar and Javed Khan innocent and acquitted them of the charges.
3. The convicts Azizullah Khan, Najibullah Khan and Sikandar Khan have appealed to this Court against their convictions and sentences. Complainant Saifullah Khan son of Muhammad Khan has also filed a revision seeking enhancement of sentences of the convicts as well as challenging the acquittal of the five respondents. Both the matters will be disposed of by this judgment.
2. The prosecution story, as disclosed by the first informant in the F.I.R., is that on 7-7-1982 at about 9 p.m. The first informant alongwith Saifullah Khan, Ghulam Sarwar Khan, Muhammad Ramzan Khan and Gul Khan, all residents of Gudi Khelanwala, P.S. Sadar Mianwali were coming back towards their village after pursuing a case registered against Khalid Khan, Azizullah the accused in the present case. They were coming in a rickshaw. Saifullah was driving the rickshaw. When they came near the Primary School Sohrabwala, suddenly Anayatullah Khan appeared from the corner of the school and raised a Lalkara to his men who were hiding behind the boundary wall of the school, saying that the enemy had come and they should not escape. Whereupon, Khalid Khan, Azizullah Khan, Javed Khan, Saeed Khan, Saleem Akhtar Khan, Najibullah Khan and Sikandar Khan, armed with fire-arms, came in front of them. The accused were identified by the witnesses in the moonlight, the light of the rickshaw and the electric light. All of them raised Lalkaras and Khalid Khan fired with his gun hitting Saifullah Khan, driver of the rickshaw, on the front of his neck.
4. Thereafter all the accused started firing at them resulting in injuries to Ghulam Sarwar Khan, Muhammad Ramzan Khan, Saifullah Khan and the first informant. The rickshaw also had many fire- arm marks on it. Thereafter all the accused left the scene of occurrence while raising Lalkaras and firing. Saifullah Khan injured was put on a cart while being taken to the hospital, he expired in the way, therefore, the first informant alongwith the other injured persons took his dead body to the police station. The motive as given in the F.I.R. Is that Gul Khan, P.W., uncle of the deceased had got a case registered against Azizullah Khan and Khalid Khan on the Mme day for an offence under section 308/342, P.P.C. The accused persons in retaliation had committed the offence.
5. F.I.R. Exh.P.J. Was lodged by Saifullah Khan son of Muhammad Khan on 7-7-1982 at Police Station Sadar, District Mianwali at 10 p.m. It was recorded by Ghulam Rasool, S.I. P.W.14. The distance between the place of occurrence and the police station was two miles.
6. Ghulam Rasool, S.I. After the registration of the case prepared injuries statement in respect of Muhammad Ramzan Khan, Ghulam Sarwar and Saifullah Khan, P.Ws. Which are Exh.P.W., Exh.P.X.
7. And Exh.P.Y., respectively. He prepared inquest report Exh.P.Z. And injury statement Exh.P.AA. In respect of Saifullah Khan, deceased. Thereafter he sent the dead body to the mortuary for post- mortem examination. He also recorded the statements of the witnesses at the police station. On the following day, i.e. 8-7-1982 he inspected the spot and secured blood-stained earth vide memo.
8. Exh.P.P. He took into possession from the spot four pellets P.16/1-4 vide memo. Exh.P.Q. Four crime empties P.17/1-4 vide memo. Exh.P.R. Pieces of broken glass were secured vide memo. Exh.P.S. And the rickshaw was taken into possession vide memo. Exh.P.D. The said memos were attested by the witnesses as well. On 28-7-1982, Azizullah, Najeebullah Khan and Sikandar accused were arrested by him. Najbeeullah while in custody got recovered unlicenced .12 bore gun P.9 from his residential Kotha which was secured vide memo. Exh.P.K. Sikandar accused on 6-8-1982 pot recovered unlicenced gun P.14 from his residential Kotha which was secured vide memo. Exh.P.U. On 7-81982 Azizullah got recovered gun P.15 from his residential Kotha vide memo. Exh.P.V. Since the above said three accused could not produce any licence for the guns, therefore, he registered a case under the Arms Ordinance against each of them.
9. The case was also partly investigated by Nisar A.I Shah, Inspector/S.H.O., P.S. Sadar, P.15. He arrested Javaid Khan, Khalid Khan, Saleem Akhtar and Saeed Akhtar accused on 29-1-1983. On 12-2-1983 Javid Khan led to the recovery of .12 bore gun P.10 from a graveyard which was secured vide memo.
10. Exh.P.L. On the same day Saeed Akhtar also got recovered gun P.12 which was secured vide memo.
11. Exh.P.N. Khalid Khan accused also got recovered gun P.11 which was secured vide memo.Exh.P.M. On 13-2-1983 Raleem Akhtar accused led to the recovery of .12 bore gun P.13 from the chaff lying in the house of Najeeb Ullah, accused, which was secured vide memo. Exh.P.O. After due investigation he challaned all the accused except Anayatullah Khan who was placed in column No.2.
12. Dr. Muhammad Hussain Malik (P.W.3), Senior Medical Officer, DHQ Hospital. Mianwali, examined Ghulam Sarwar P.W., on 8-7-1982 and found two injuries. He stated that injury No.1 was caused by fire-arm, and injury No.2 by a blunt weapon; after X-Ray, injury No.1 was declared simple whereas injury No.2 was declared grievous.
13. On the same day he examined Muhammad Ramzan P.W.9 and found three injuries on his person.
14. He declared all the injuries simple. On 8-7-1982 he also examined Saifullah Khan (P.W.) and noted one simple injury on his person.
15. Dr. Muhammad Anwar Khan Medical Officer, DHQ Hospital, Mianwali, on 8-7-1982 conducted the post-mortem examination on the dead body of Saifullah Khan son of Muhammad Khan. He found the following injuries:- (1)Seven wounds of entry of fire-arm in an area of 5-1/2 x 5 c.m. On the back of neck at the level of C 5/6/7 and D-1 vertebra (nape of neck), slightly to the left of mid line. The wounds size ranged from 1/2 x 1/4 c.m. To 1 x 1/2 c.m.
16. (2)There were wounds of exit on front of the neck as follows:- (a)2-1/2 x 1 c.m. In size, 4 c.m. Above the clavicle and 2-1/2 c.m. From mid line.
17. (b)1 c.m. x 1/2 c.m. In size, 1-1/2 c.m. From mid line and 2-1/2 c.m. Above injury No. (a).
18. (c)2-1/2 c.m. x 1 c.m. In size and 1 c.m. Above injury No.(b).
19. (d)1 x 1/2 c.m. In size in the mid line, half c.m. Above injury No. (b).
20. (e)1 c.m. x 1/2 c.m, in size at the level of thyroid cartilage 1-1/2 c.m. To right of mid line.
21. (f)1 x 1/4 c.m. In size, 2-1/2 c.m. To right of mid line and 3 c.m. Below the angle of the jaw.
22. (g)1 x 1-1/2 c.m. In size, on the right mandible 7 c.m. To the right of chin.
23. (3)5 bruises of 1/2 x 1/8 c.m. To 1-1/2 x 1/4 c.m. In size, on the forehead.
24. The prosecution in support of its case produced sixteen witnesses in all. Mirza Zaheer-ud-Din, P.W.2, prepared site plan Exh.P.C. And Exh.P.C./1 of the place of occurrence on the pointation of the witnesses. Ghulam Abbas, P.W.4 took the photographs of the rickshaw standing at the place of occurrence from different angles which are Exh.P.7/1-14. Dr. Muhammad Hussain Malik (P.W.3), M.O., DHQ Hospital, Mianwali on 8-7-1982 at 5-30 a.m. Had examined the injured witnesses. Dr. Muhammad Anwar Khan, P.W.5 on 8-7-1982 conducted the post-mortem examination on the dead body of the deceased. Ghulam Yasin, H.C., P.W.7 received some sealed parcels on 8-7-1982 for safe custody in Malkhana. The eye-witnesses account has been furnished by Saifullah Khan, Muhammad Ramzan Khan and Gul Khan, P.Ws. 8, 9 and 10, respectively. Saifullah Khan P.W.12 witnessed the recovery of four crime empties from the spot as well as other articles and attested all the memos. Amir Khan, P.W.13 witnessed the recovery of the guns at the instance of the appellants. He attested all the memos. Ghulam Rasool S.I. P.W.14, investigated the case and arrested the accused. Nisar A.I Shah, Inspector, P.W.15, also verified the investigation and arrested Javed Khan, Khalid Khan, Saleem Akhtar and Saeed Akhtar, accused persons and partly investigated the case. Thereafter, he challaned the appellants. Ghulam Yasm, H.C., P.W. 16, produced the original record of F.I.R. Dated 7-7-1982 registered under section 308/342, P.P.C.
25. At the conclusion of the prosecution evidence, the accused persons were examined under section 342, Cr.P.C. Wherein all of them denied every incriminating evidence against them and pleaded innocence. They further stated that they had been involved in the case due to enmity with the P.Ws.
26. And because of the fact that they had made statements against the complainant side with regard to the murder of one Maryam. Apart from producing some documents, they did not choose to appear as witnesses in defence.
27. It is contended by learned counsel for the appellants that the case against the appellants is highly doubtful because it was virtually impossible for the witnesses to have identified the assailants.
28. Submits that the eye-witnesses have already been disbelieved by the trial Court with regard to the involvement of five accused out of eight, therefore, no reliance may be placed on their statements.
29. Submits that evidence of the witnesses suffers from serious defects as they have made improvements to the extent that almost a new case was set up at the trial stage. Contends that Khalid Khan, acquitted accused, was ascribed the first shot which is alleged to have hit the deceased, but he has been acquitted, therefore, the witnesses may not be relied upon qua the appellants. Submits that the motive in the instant case cannot be used as corroboration because it is established that there was a long-standing enmity, between the parties. The contentions of the learned counsel for the appellant have been controverted by learned counsel for the State as well as for the complainant, who submit that the F.I.R. Was lodged promptly, therefore, there could not be any chance of false involvement. Contends that the parties were known to each other and therefore, the witnesses could, in such circumstances, easily identify the assailants in the light of the rickshaw as well as electric light. Submits that the complainant side had got a case registered against the accused on the same day, therefore, the motive for the commission of the offence has sufficiently been established.
30. I have heard the learned counsel for the parties at length and gone through the evidence with their, assistance. The motive as set up by the prosecution is that Azizullah appellant and Khalid Khan, acquitted accused, snatched money and confined Gul Khan P.W. In their house. He was later on released with a threat that if he reported the matter to the police, he would be killed. Girl Khan, however, got a case registered against Azizullah Khan and Khalid Khan on the day of incident.
31. While they were coming back from the police station they were surprised by the appellants alongwith their acquitted co-accused and Saifullah Khan was done to death. As far as the registration of a case against Azizullah and Khalid Khan is concerned, there is evidence to the effect that a case was got registered by Gul Khan P.W. Against the two accused: It has also come in evidence that the complainant side was also interrogated in a murder case of one Mst. Maryam on the statement of the accused persons. There is also evidence on the file indicating long-standing enmity between the parties. In these circumstances, I hold that the learned trial Court has rightly held that the motive as set up by the prosecution cannot be used as corroboration.
32. Najeebullah on 5-8-1982 got recovered gun P.9 and the guns P.14 and Exh.P.15 were recovered at the instance of Sikandar and Azizullah Khan appellants on 6-8-1982. The said guns were sent to the office of Forensic Science Laboratory for comparison and, according to the report Exh.P.P. Of the Forensic Science Laboratory, two crime empties matched with the gun of Azizufah Khan, appellant and one crime empty matched with the gun of Najeebullah Khan. The expert could not give any opinion with regard to the fourth crime empty. The learned trial Court has disbelieved the recovery of the guns at the instance of the appellants on the ground that no independent witness was associated in the recovery proceedings. The guns recovered at the instance of Azizullah Khan and Sikandar appellant was witnessed by Amir Khan P.W.13, as well as Ghulam Rasool S.I., P.W.14. The gun recovered at the instance of Najeebullah was witnessed by Saifullah Khan, P.W.8 as well as Ghulam Rasool P.W.14. It is m evidence that the at places from where the guns were recovered, there were many independent persons available yet nobody was made to witness the recovery.
33. The g places from where the guns were recovered were not in the exclusive possession of the appellants. The recovery witnesses did not belong to the places from where the guns were recovered. Therefore, I hold that the learned trial Court had rightly held that the recovery of guns at the instance of the appellants is not proved because the same was not witnessed by any person of the locality and the enmity of the recovery witnesses with the appellants has been established.
34. The ocular account in the instant case has been furnished by Saifullah Khan, Muhammad Ramzan and Gul Khan, P.Ws. 8, 9 and 10, respectively. They have given a detailed account of the occurrence.
35. However, they have made material improvements from their statements made before the police.
36. Except for Girl Khan the other two had received fire-arm injuries. Their presence at the spot is established, but in cross-examination, a deep-rooted enmity between the witnesses and the appellants has come on the record. Saifullah P.W. Had asserted that he was able to identify the culprits in the moonlight as well. This was not stated in the F.I.R. Similarly, in the F.I.R. He had stated that the deceased received the gunshot fire on the front of the chest; but in Court he stated that the injury was caused on the back of the deceased. He stated that he received fire--arm injury on his arm, but, according to the medical evidence, the said injury was an incised wound. Careful perusl of the statement of Saifullah Khan leads to the irresistible conclusion that he is not a truthful witness. His statement has been belied by the medical evidence. In order to bring his statement in line with the post-mortem report, he made an improvement to the extent that the deceased received fire-arm injury on the back, while in the F.I.R. His consistent story was that the deceased was fired at from the front. As far as Muhammad Ramzan P.W. Is concerned, he was also injured. He had received injuries on his back. In his statement before the police he had stated that the deceased was fired at from the front and thereafter all the accused resorted to indiscriminate firing. If the accused persons had resorted to indiscriminate firing, he should have received more fire-arm injuries. He has been contradicted by the medical evidence according to which the deceased had received injuries on the back of his neck. As far as Gul Khan, P.W. Is concerned, the motive as set up by the prosecution is that he had got a case registered against some of the accused on the day of incident, therefore, the occurrence took place in retaliation of the said case.
37. If this was so, he should have been the first target of the assailants. Surprisingly he was travelling in the rickshaw alongwith other witnesses, yet he escaped unhurt in spite of the assertion that all the accused resorted to indiscriminate firing. In D these circumstances, I hold that his presence at the spot is doubtful. Even otherwise also, his statement has been contradicted by the medical evidence. It is established that the deceased had received fire-arm injury on the back of his neck when he was driving the rickshaw which would mean that the assailant fired from behind, therefore, m such circumstances, it could not be possible for the P.Ws. To identify the culprits.
38. For what has been discussed above, I hold that it would not be safe to rely upon the uncorroborated testimony of the witnesses who had made material improvements. It has also come on the record that all the eye-witnesses were highly interested and inimical. They could be relied upon only if their statements were corroborated by some independent evidence which is not available in the instant case.
39. For what has been discussed above, I accept the appeal and set aside the convictions. The appellants shall be released from custody forthwith, if not required in any other case. For the same reasons, the revision filed by the, complainant fails which is, accordingly dismissed.