' SARDAR MUHAMMAD DOGAR, J.-- Muhammad Ilyas, aged 21/22 years, his brother Muhammad Younas alias Billu, aged 21/22 years, Qaisar Aziz, aged 25 years, Jehangir alias Babbi, aged 25/26.
Years, were tried under sections 148 and 392/149 P.P.C. By the Punjab Special Court for Speedy Trials No,IX, Gujranwala, alongwith Javid alias Kala Daiwala, Muhammad Jamil alias Goggi and Muhatrimad Imtiaz alias Bholi, for having murdered Abdur Rashid alias Kala, aged 30 years, at 9-30 p.m. On 12-5-1987, on threshhold of his house, in Gali Maulvi Ibrahim, Old Mianapura,. Sialkot City.
The learned trial Judge, vide judgment dated 23-2-1988, convicted Muhammad Ilyas, Qaiser Aziz, Muhammad Younas and Jehangir, under section 302/34 P.P.C. And sentenced as under:- ' Muhammad Ilyas and Oaiser Aziz:- Death, plus to pay a fine of Rs,25,000 each. In default whereof to suffer R.I. For two years.
' Muhammad Younas and Jehangir:- Imprisonment for life, plus to pay a fine of Rs,25,000 in default whereof to undergo R.I. For two years.
' Half of the fine, on realization, has been ordered to be paid to the heirs of the deceased.
' Javid Iqbal alias Kala- Daiwala, Muhammad Imtiaz alias Bholi and Muhammad Jamil alias Goggi were acquitted vide the same judgment.
2. The convicts have filed appeal. Criminal Appeal No, 267 of 1988 filed by the State against the acquittal of Javid Iqbal, Muhammad Imtiaz and Muhammad Jamil and for enhancement of sentences of Muhammad Younas and Jehangir has been admitted insofar as it pertained to the enhancement of the sentences of Muhammad Younas and Jehangir. The same is also being taken up with the appeal filed by thecon-victsas it arises from the same judgment. (The appeal against the acquittal of Javid Iqbal, Muhammad Imtiaz and Muhammad Jamil was dismissed in limine.)
3. F.I.R. (Exh.P.L./1) was registered at Police Station Hajipura, Sialkot at 11 p.m. On 12-5-1987 by Bashir Ahmad, ASI (PW 15), on receipt of Exh.PL, statement of Muhammad Salecm (PW ), recorded by Muhammad Karim, A.S.I. (P.W. 18) at 10-30 p.m. At Civil Hospital, Sialkot.
' According to the F.I.R., the complainant alongwith his brothers Abdur Rashid alias Kala (deceased), Abdul Majid, Muhammad Munir and Muhammad Ashraf PWs was sitting in their house in Greenwood Street, which they had obtained on mortgage, few days before the occurrence, at 9-30 p.m. On 12-5-1987. At about the same time, appellants Ilyas armed with a sten gun, Qaiser Aziz armed with a Klashnikov, Muhammad Younas and Jehangir armed with a pistol each, accompanied by two unknown persons, aged 28/30 years, of medium height armed with pistols came there. They sat with the complainant and his companions. Ilyas inquired from Abdur Rashid deceased as to what had been done about their task. Abdur Rashid replied that he had done his best but he had not succeeded. After 10/15 minutes, all the six--went out. Ilyas then called out Abdur Rashid. The complainant and others also followed him to the door. Ilyas threatened the deceased saying that 'you did not .Get compromise effected intentionally, there is no hope of saving Bagga so you will also not remain alive. He then fired a burst from his sten gun on Abdur Rashid. Qaiser Aziz fired Klashnikov while Jehangir and Younas and the other two fired from their pistols. The bullets struck Abdur Rashid on the face, fore-head, abdomen and right and left thighs.
He fell down. The complainant and the other three witnesses saw the occurrence while taking shelter behind the door. Thereafter, the assailants fired for few minutes for creating fear and awe and then went away. A shortwhile thereafter, the witnesses examined Abdur Rashid. He was lying besmeared with blood. 'They removed him for taking to the hospital, but he died on way.
' Motive for the occurrence given in the F.I.R. Was that eight years prior to the occurrence, Bagga brother of Ilyas appellant had murdered one Muhammad Rashid resident of Greenwood Street, in which Bagga, Ilyas and eight others were challancd. Bagga was sentenced to death while others were acquitted. Ilyas etc. Were of the view that Abdur Rashid (deceased of this case) had not allowed the complainant party of the said Rashid's murder case to compromise with the accused, i,e, Ilyas appellant etc.
4. Muhammad Karim, ASI after despatching Exh.P.L. To the police station for registration of case, prepared injury statement (Exh.PO) and inquest report (Exh.PN) of the dead body of Abdur Rashid and entrusted the dead body for post-mortem to Aslam Ali Shah (PW.5) and Bashir Ahmad (PW.15), constables. He then recorded the statements of Abdul Majid and Muhammad Munir witnesses, who were also present in the hospital. Supplementary statement of Muhammad Saleem complainant was also recorded by him on the same day in the hospital. The spot was inspected by him in the morning at 5-30 a.m. Wherefrom he collected blood-stained earth vide memo. Exh.PC anr34 empties P.1/1-34 vide memo. Exh.PD. Seven bullets were also taken into possession by him vide memo. Exh.PE.
' Muhammad Younas, Ilyas and acquitted accused Imtiaz and Jamil were arrested by him on 1-6- 1987. Pistols recovered from Imtiaz and Jamil on their personal search were taken into possession.
' Ilyas led to the recovery of sten gun (P.15) alongwith magazines, one empty and seven live bullets on 5-6-1987, which were taken into possession vide memo. Exh.PA. He had also obtained bailable warrants of Qaisar A/iz and Jehangir on 2-6-1987.
' Jehangir while under custody of Ashiq Ali, SI led to the recovery of Pistol (P.13) and bullets (P.14/1-4) which were taken into possession vide memo Exh.PJ.
' Qaisar Aziz while under custody with Ashiq Ali, SI led to the recovery of Klashnikov (P.17) on 24-7- 1987, which was taken into possession vide memo Exh.P.M.
' Acquitted accused Javid Iqbal had also got recovered pistol (P.11) which was taken into possession vide memo. P.I. After completion of necessary investigation, challan was put to Court.
5. Statements of eighteen PWs were recorded at the trial.
' Dr. Sycd Sajjad Ali, who had performed the autopsy on the dead body of Abdur Rashid at 10 a.m.
On 13-5-1987 appeared as PW.1.He had noted the following injuries on the body of the deceased:-
(1) Circular wound of 1/2 inch diameter on right eye-brow, inverted margins, blackening and burning was present around the wound (entry wound).
(2) Circular wound of 1/2 inch diameter, everted margins on occipital region of head (exit wound).
(3) Lacerated wound, 1/2" x 1/2" on right side of nose with inverted margins,, blackening and burning was present around the wound.
(4) Lacerated wound, 1/2 " x 1/2" with everted margins on right parietal region of head.
(5) Circular wound of 1/4" diameter, inverted margins on front of right side of chest 2" above and lateral to the right nipple. Burning was present around the wound (entry wound).
(6) Circular wound of 1/2" diameter on front of right side of chest, upper part below the right clavicle with everted margins. (exit wound).
(7) Circular wound of 1/4" diameter inverted margins on right lower abdomen 2" below and lateral to the umbilicus (entry wound).
(8) Lacerated wound, 3/4" x 1/2" on outer and upper aspect of right hip. Inverted margins, blackening and burning was present around the wound (entry wound).
(9) Lacerated wound 1" x 1/2" on outer and lower aspect of right hip, everted margins (exit wound).
(10) Circular wound, 1/2" diameter on front of right thigh lower half with inverted margins, blackening and burning was present around the wound.
(11) Circular wound of 1/4" diameter on hack of left side of chest, upper part, blackening and burning was present around the wound, with inverted margins.
(12) Circular wound of 1/4" diameter on front of left side of chest, upper part inverted margins, burning present around the wound (entry wound).
(13) Circular wound of 1/2" diameter on front of lower and outer aspect of left side of chest with everted margins (exit wound).
(14) Circular wound of 1/4" diameter with inverted margins on outer and upper aspect of front of left thigh, burning was present (entry wound).
(15) Circular wound of 1/2" diameter on inner and upper aspect of left thigh with everted margins.
Death, according to his opinion, had resulted from injuries Nos.1, 2, 3, 4, 7, 11, 12 and 13. The said injuries were declared grievous and dangerous to life, while the rest were opined by him as simple.
6. The ocular account was deposed to by Muhammad Saleem complainant (P.W. 13) and Muhammad Ashraf (P.W.14).
' Muhammad Saleem complainant repeated the facts given by him in the F.I.R. With some changes and additions. One of the noticeable addition he made is that he named at the trial fmtiaz, Jamil and Javid alias Kala also to have taken part in the occurrence while armed with pistols. The particular variation he made at the trial is that while he had stated in the F.I.R. That deceased had failed to do the task in spite of efforts, he stated that he had not succeeded till then but it would be done. During cross-examination, he admitted that he had not named Imtiaz,Javid and Jamil in the FIR and instead had stated that two unknown persons had also fired. With regard to the taking of the house, where the occurrence had taken place, on mortgage, he stated that it belonged to one All Muhammad, who had died, and that they had obtained the house from one Ramzan Butt, who in turn had purchased the same from Ali Muhammad. In answer to another question, he admitted that Rashid deceased was neither the complainant nor PW in the murder case of Rashid driver.
(The case in which Bagga had been sentenced to death). He also conceded that the deceased of this case had not pursued that case against Bagga from the complainant side. He also disclosed that his brother had no relationship with Rashid driver and that he was a Mohalladar like Ilyas and Younas. He_ added that his brother had made honest efforts for compromise and was hopeful about the compromise on the night of occurrence. He also added that so long as the accused remained sitting in the room, there was no altercation among them on the compromise and that they had parted like friends. He denied the suggestion that his brother was a dealer of narcotics and had enmity with other persons and that he was murdered by some one of his enemies, witnessed by anyone.
' Muhammad Ashraf (PW .14) by and large corroborated the statement made by Muhammad Saleem complainant (PW.13). While narrating the answer, the deceased had given to Ilyas, about the task of compromise, he stated that deceased had told Ilyas that he was making efforts to compromise and was hoping that it will bear fruit within a month or so. During cross-examination he stated that he did not know the accused other than Jehangir, Ilyas, Young and Qaiser and that he had not named them before the police and that he had seen them for the first time at the time of occurrence. However, he was found to have named those accused in his statement (Exh.DB) that he made before the police. He corroborated the statement made by Muhammad Saleem complainant that no altercation had ensued between the deceased and the accused so long the accused remained mnin the room. In answer to another question, he stated that Ilyas had not fired a burst from his sten gun but had fired a single shot at the deceased. About Qaiser also he stated that he had fired a single shot and not the burst. He expressed inability to state about the seats of injuries suffered by the shots by each of the accused. He admitted that he was involved in some cases at Hasilpur, but he denied the suggestion that he used to sell heroin as an agent of the deceaset. He also denied the suggestion that he had not witnessed the occurrence and had made statement at the trial being partyman of the complainant.
' Baqir Ali, A.S.I. (P.W.16), Ashiq Ali, S.I. (P.W.17) deposed about the recovery of Klashnikov (P.17) at the instance of Qaiser Aziz, which was taken into possession vide memo. Exh.P.M.
' Evidence of recovery of pistol (P.13) from Jehangir was deposed to by the Ashiq Ali, S.I. (P.W.17) and Nazir Ahmad, A.S.I. (P.W.11). It was into possession vide memo. Exh.PJ.
' Evidence of recovery of sten gun (P.15) at the instance of Ilyas was deposed to by Muhammad Karim, A.S.I. (P.W.18) and Muhammad Islam (P.W.12) which was taken into possession vide memo.
Exh.P.K.
' Evidence of recovery of pistols from the acquitted: accused was also led at the trial.
' Positive reports (Exh.P.Q., P.R. And P.X.) from the offices of Chemical Examiner, Serologist and Forensic Science Laboratory were also tendered in evidence.
' The remaining witnesses, Muhammad Munir (eye-witness), Qamar Hasan, Muhammad Yusuf, Abdul Aziz, Muhammad Akram and Khadim Hussain were given up as having been won over.
' Abdul Majid (eye-witness), Rashid Khan constable, Gulzar Hussain, HC, Mukhtar Ahmad HC and Abdur Rashid, SI were given up as unnecessary.
7. The appellants during statements under section 342, Cr.P.C. Denied the prosecution case as a whole. They took up the plea of false involvement. They denied the recoveries of weapons of offence as well.
' Although they did not produce anyone in defence but they appeared as their own witnesses and made statement on oath.
' Muhammad Ilyas had produced copies of the Assessment Register of House No,31/511, which were exhibited as Exhs.D.D and D.E.
8. Learned counsel for the appellants contended that the prosecution had failed to prove motive, that the occurrence admittedly had taken place at dark hours of the early night, that as no source of light was mentioned--there is every possibility that the witnesses, if any, would not have recognized the culprits that the presence of the P.Ws. In the house where the occurrence had taken place does not appear to be probable, that medical evidence is contradictory to the ocular aolenunt, that all the police officers who had investigated the case had fabricated the evidence and have planted the recoveries, to make sure the conviction of the accused and the same stands proved from the evidence on record, and that the prosecution evidence read as a whole appears to be unreliable and shaky and so maintenance of convictions of the appellants would not be safe administration of justice.
9. Learned Assistant Advocate-General and the learned counsel appearing for the complainant have defended the judgment of the trial Court and have contended that there was no outstanding enmity between the eye-witnesses and the appellants and as such it cannot he presumed that they would have set up a false case against the appellants.
10. The learned trial Judge accepted the evidence of motive, believed the ocular account and held that the medical evidence was corroborative of the ocular account.
' The evidence of recoveries of weapons of offence from the appellants as well as from the acquitted accused including the alleged recovery of 34 empties from the spot was not believed by him. He also observed that the three lead bullets recovered from the body of the deceased were corroborative of the ocular account that three types of weapons were used for killing the deceased.
11. The statement made by Muhammad Karim, A.S.I. About the recovery of sten gun at the instance of Ilyas appellants finds corroboration only from the statement of Muhammad Islam (P.W.12), a real brother of the deceased and the complainant. No other witness in this regard was produced at the trial in spite of the fact that other persons were available to attest the recovery.
' The statement made by Ashiq Ali, S.I. About the recovery of Klashnikov (P.17) at the instance of Qaiser Aziz finds corroboration only from the statement made by Baqir Ali, A.S.I. (P.W.16). No other witness was produced in this regard.
' The statement made by Ashiq Ali, S.I. About the recovery of pistol at the instance of Jehangir finds corroboration from the statement made by Nazir Ahmad, A.S.I. (P.W.11). No other witness was produced in this regard.
' The evidence of recovery of crime empties from the spot has been deposed to by Muhammad Karim, A.S.I. And Muhammad Sarwar P.W.
12. We have examined the evidence of recoveries of the above articles by going through the statements made by the witnesses and the documents, some queer things have come to our notice.
Memo. Exh.P.J. Of pistol (P.13) recovered at the instance of Jehangir appellant while in custody of Ashiq Ali, S.I., was prepared by Baqir Hussain, A.S.I. He had not only written that memo. But had signed the same in the name of Ashiq Ali, Si. Memo. Exh.P.I. Which pertains to the taking into possession of pistol at the instance of Javid Iqbal (acquitted accused) while in the custody of Ashiq Ali, S.I. Was also prepared by Baqir Hussain, A.S.I. He had signed the same also in the name of Ashiq Ali, S.I. The explanation given by Baqir A.S.I., is that Ashiq Ali, S.I. Had an injured hand and so was not in a position to write or sign on that day. Site plan (Exh.P.J./1) of the place whercfrom pistol was recovered at the instance of Jehangir and Site plan (Exh.F'I/1) of the place from where pistol was recovered at the instance of Javid lqbal (acquitted accused)! Were prepared and signed by Ashiq Ali, SI on the same day. He contradicted thelli statement made by Baqir Hussain, ASI that he had an injured hand on that day and so was not in a position to write or sign.
' Baqir Hussain, ASI denied to have written the names of Khadim Hussain! And Muhammad Akram as attesting witnesses on Exh.PJ and PI. The! c explanation, he gave for that, is that he had to leave for some urgent work after, recording the body of Exh.PJ and so the names of these witnesses were written by someone else. Similar was his explanation about Exh.Pl. But his statement in this regard has been contradicted categorically by Ashiq Ali, SI, who stated that I) names of both these witnesses were written on both the Exhs.P.J. And P.I. By Baqir Hussain, ASI, but in different ink.
' It is worth mentioning that Baqir Hussain, ASI admitted that he'had not signed any of these recovery memos himself in any capacity, i,e, attesting witness etc. He also expressed ignorance as to whether Muhammad Akram and Khadimf. Hussain had thumb-marked or signed the memos, or not. His stance was thati they had not done so in his presence.
' Ashiq Ali, S.I. Himself has also not given any explanation as to why he F had not written or signed the memos. (Exh.P..l. And P.I.).
' Baqir Hussain, who had firstly denied during cross-examination to have witnessed the recovery proceedings of any weapon of offence except the recovery of Klashnikov (at the instance of Qaiser Aziz) later took up the stand that he was' present at the time of recovery of weapons of offence at the instance of Jehangir, appellant and Javid Iqbal (acquitted accused).
' Muhammad Karim, A.S.I., according to whom 34 empties were collected by him from the spot, denied the suggestion that he had earlier shown to have collected 9 empties from the spot and had later changed the figure to 34. He, however, admitted that nine empty cartridges have been mentioned to have been recovered from the spot in Exh.DC (copy of the spot inspection notes prepared by him supplied to the accused).
' In the rough site plan (Exh.PP) prepared by Muhammad Karim, ASI on 13-5-1988, seven empty cartridges arc mentioned to have been found at one place and two empty cartrdiges were mentioned to have been lifted from another place.
13. The contention of the learned counsel for the appellants that the evidence of recoveries in this case was worth nothing and apparently appears to have been manufactured and fabricated, possesses sufficient weight, in view of -what has been noted above. The police officers connected with the relevant recoveries prepared documents not only against law but also in a most slipshod manner. Learned Assistant Advocate-General appearing for the State in this case was specifically asked if he could counter the argument advanced by the learned counsel for the appellants, but he frankly expressed inability to do so. The learned trial Judge had also not placed reliance on the evidence of recoveries of 1 weapons of offence and the empties from the spot, and had rejected the same. The reasons given by him, in our view, possess weight.
' Apart from all what has been noted above, no witness from the publicli was produced at the trial in support of the recoveries.
' Khadim Hussain and Muhammad Akram named as attesting witnesses of recovery memos (Exh.PJ and PT) were residents of some places within the area of P.S. Tibbi, Lahore. The recoveries were effected from places in Sialkot. Both the witnesses were not produced even at the trial.
Although one public witness to prove the recovery of 34 empties was produced at the trial but he was an interested one and there are documents on record to show that initially nine empties were shown to have been recovered from the spot instead of 34 empties. Obviously no reliance can be placed on the evidence of recoveries of weapons of offence as well as the empties from the spot, for the reasons enumerated above. The same is, therefore, excluded from consideration.
' The evidence of opinion expressed by the Forensic Science Laboratory can have no bearing against the appellants as the evidence of recovery of weapons as well as that of recovery of empties has been disbelieved.
14. Only two persons including the complainant were examined in this case for ocular account.
The first version of the occurrence given in the FIR by Muhammad Saleem complainant (PW.13) is that four appellants accompanied by two unknown persons, also armed with fire arms, had come to their house and had launched attack. The second version about the number of assailants, which was put up by him before the police vide supplementary statement, on the same day, some time after recording of FIR, was that Imtiaz alias Bholi and Jamil alias Gogi, armed with pistols, had also entered their house alongwith the four appellants and that Javid alias Kala was--seen by him armed with a pistol standing in the street--and that he had also fired his weapon. The same story was given by him at the trial. The improvement and the change thus made in the FIR about the assailants was not only of having given the names of the unknown accused but he had also added one more to the number given in the F.I.R.
' Muhammad Ashraf (P.W.14) during cross-examination clearly stated that he had seen the accused other than Jchangir, Ilyas, Younas and Oaiser, for the first time on the day of occurrence and that he did not know their names and particulars and not was he in a position to give their particulars even at that time. In answer to another question, he categorically stated that he had not given the names of lmtiaz and Jamil in the statements made by him before the police. He specifically stated that his statement was recorded at the place of occurrence at about 9-10 a.m.
On 13-5-1987.
The testimonies of these witnesses shall have to he weighed and considered cautiously in view of the additions and alterations made by these witnesses about the number and names of the accused, without any identification parade of the persons named as unknown assailants.
' Muhammad Ashraf denied any relationship with the deceased or the complainant. Although he denied being their partisan, yet it has been admitted by him that it was usual for him to visit the deceased and complainant in the house, where the occurrence had taken place. Even if he be not deemed as a close friend of the family of the deceased, he had affinity with them as a social mate and Mohalladar. Had he been present at the spot and witnessed the occurrence, he would not have lagged behind to take the deceased to the hospital, who was then in a very critical condition.
The deceased was not removed by the complainant alone. Many other persons had helped him. If the persons who had not seen the deceased being attacked and injured could have taken him to the hospital, why should Ashraf not have gone? He frankly admitted that he had not gone to the hospital. He could not give any sound reason. The first time he appeared before the police in connection with this case was on the following day at 9-10 a.m. At the spot. By that time the deceased had died. Even news of death could not take him to the hospital.
' While giving account of the shots fired by the accused on the deceased, he had given a different picture, in that he stated that Klashnikov and the stem gun were not fired as automatic weapon in bursts but single shots were fired by each of them by the accused who were holding these weapons.
' This is contrary to the statement made by Muhammad Saleem whosei case is that burst was fired from the stcn-gun.
' The impression that one gathers from the account of the occurrence given by these two witnesses is that the accused had fired the shots intermittently, They were seven in number. Both these witnesses alongwith other persons were standing close by to the place where the deceased was shot and hit. The claim of the witnesses that they had seen the whole occurrence while taking shelter behind the door of the Deorhi leaves open two possibilities. One that they had closed the door behind the deceased and hid themselves. If that was so, they could not have seen each of the shots fired by the appellants and their co-accused and the parts of the body where the shots struck. If they were standing without closing the door, they would have certainly received some injuries from stray bullets because the deceased was between them and the assailants and so the direction of fire was towards them. Without entering into controversy whether the complainant and the deceased had obtained the house on mortgage as a result of verbal agreement, where the occurrence took place (although the point was urged by the learned counsel for the appellants), one thing significant which came to our notice is that other families were also residing in the portions of this house. Nothing has been said about any of them having witnessed any part of the occurrence nor anything came to light about them during investigation. Similarly, neither Ashraf nor the complainant himself stated as to where were the family members of the deceased and the complainant at the time of occurrence, if the house was in their occupation and they were residing there on account of being residents of that house. Someone would have come at least after the occurrence.
' The narration given by both these witnesses about the first part of the occurrence, i,e, the coming into room of the appellants accompanied by their co-accused and the dialogue they had with the deceased, their coming out of the room, calling out the deceased there and addressing him then, is contradictory to each other. The complainant's version is that Ilyas accused after entering the room had inquired from Rashid (deceased as to what he had done about his work and that he (deceased) had replied that he was trying to do that work but had not succeeded yet and that it would be done. While according to Ashraf, Ilyas had asked Rashid (deceased) as to what he had (folic about the compromise and the deceased had replied that he was making efforts and was hopeful that the efforts would bear fruit within a month or so. Muhammad Saleem while narrating the dialogue of Ilyas with Rashid (deceased), after the latter was called outside the room, stated that Ilyas had told the deceased that Mushtaq alias Bagga had been sentenced to death and there was no hope of his survival and so he would not be spared, while AshraPs version in this regard was that Ilyas, after calling out Rashid had raised a Lalkara that his brother was not being spared so he would not spare him. There are other inconsistencies too in the statements of these witnesses apart from what has been noted above. The statements made by these N two witnesses as a whole also do not inspire confidence. A reading of their statements lends an impression that they had not witnessed the occurrence by themselves.
15. The motive set up for the occurrence neither sounds well nor cogent. Rather the same appears to be farfetched.
' There is nothing on record to contend or argue that Rashid deceased of this case had any relationship with Abdur Rashid Taxiwala, deceased of the earlier murder case, in which Ilyas appellant and his brother Mushtaq alias Bagga along with others had been challenged. Ilyas and others were acquitted but Bagga was sentenced to death. There is no evidence that Rashid deceased of this case had any special connection with the complainants of that case. There is no evidence as to what influence he exerted over them. It is also not in evidence as to when Ilyas had approached Rashid deceased to have that case compromised. Was it before he was himself being tried or was that after he had been acquitted. There is no evidence showing that any appeal of Mushtaq alias Bagga was awaiting hearing at the time of this occurrence It is not the case of the p prosecution that the deceased had taken any benefit from Ilyas appellant for getting the compromise effected. In fact, there is no evidence that he had duped him for any gain. No allegation has been leveled that deceased of this case had pursued the case of Rashid Taxiwala against the accused as a partyman.
' In the circumstances, we feel it hard to believe that the appellants had any such motive against the deceased.
16. For all the reasons enumerated above, doubts have arisen in our mind about the prosecution case. This appeal is, therefore, allowed and the appellants are acquitted by way of grant of benefit of doubts.
17. Since Muhammad Younas and Jehangir, respondents in Criminal Appeal No, 267 of 1988 filed by the State for enhancement of their sentences, have been acquitted as a result of acceptance of their appeal, the question of enhancement of their sentences does not arise. The State appeal is, therefore, dismissed.
Accused acquitted.
1989 P Cr. L .1 236 [Lahore] Before Muhammad Rafiq Tarar, J KARAMATULLAH and another--Petitioners versus THE STATE--Respondent Criminal Miscellaneous No,1 of 1988 in Criminal Appeal No, 570 of 1988, decided on 23rd November, 1988.
Criminal Procedure Code (V of 1898)-- ---S. 426--Penal Code (XLV of 1860), S. 302--Sentence, suspension of-Petitioners not named in F.I.R.
And assailants stated to be some unknown culprits--Admittedly prosecution witnesses'cbuld not properly identify the assailants due to night--Feature of the assailants also not given in F.I.R. Yet the witnesses implicating the petitioners on the basis of being familiar with the features of assailants-- Petitioners allowed bail and their in circumstances. [p. 237] A Ali Ahmad Malik for Petitioners. A.H.
Masud for the State.
' This is a petition for the suspension of sentence on behalf of Karamat Ullah and Muhammad Arshad alias Achoo petitioners who have been convicted under section 302/34 P.P.C. And sentenced to imprisonment for life and a fine of Rs,15,000 each.
2. Learned counsel for the petitioners contends that the culprits were not named in the F.I.R. Nor their description was mentioned therein and the trial Judge had clearly held in the impugned judgment that due to darkness the eyewitnesses could not identify them, therefore, there was no justification to record a finding of conviction. The learned State counsel has opposed the prayer for suspension of sentence.
3. I have considered the submissions made by the learned counsel for the parties. In the impugned judgment the trial Judge has held that "due to night time, PWs could not properly identify the culprits. However, they became familiar with the size, height and features of the accused persons".
Perusal of the F.I.R. Reveals that there is no mention of the size, height and features of the accused persons therein. The trial Judge further held that "complainant was a truthful person, when he told the police that offenders were unknown." In the circumstances, I feel inclined to the view that it is a fit case for the suspension of sentence. Accordingly, the sentence of the petitioners is suspended subject to their furnishing security in the sum of Rs,2,00,000 (two lacs) with two sureties each in the like amount to the satisfaction of Assistant Commissioner., Gujrat.