RASHID AZIZ KHAN, J.- M.R. Azhar, Advocate, with Munawar Hussain and Ijaz Hussain (both brothers) was tried by Punjab Special Court No. IX, Gujranwala, for the murders of Inayat Ali and Ghazanfar Ali. The trial Court vide its judgment dated 11.1.1988, gave the benefit of doubt to M.R. Azhar and acquitted him of the charge. Munawar Hussain and Ijaz Hussain, appellants, were however, found guiIty under section 302/34 PPC and both of them were sentenced to death on two counts each and a fine of Rs.20,000/- each, or in defauIt two years R.I. Each on two counts each. It was further ordered that the fine, if recovered, be paid to the legal heirs of both the deceased as compensation. The convicts have appealed against their conviction and sentence. The State has filed an appeal challenging the acquittal of M.R. Azhar. The complainant has also filed a Revision.
All these matters will be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed in the FIR, lodged by Mst. Bashiran, is that on 19.8.1986 she along with her husband Inayat Ali, son Ghazanfar Ali, her brother-in-law Muhammad Ali and one Muhammad Shall, PW, went to the Sessions Court, Cujrat to attend the murder case of her son Akhtar Ali. There were going back to their village after attendig the Court and reached Shah Daula Road near Jadda Market at 11:15 a.m. Where they saw Ijaz Hussain and Munawar Hussain, appellants, armed with 12 bore guns, and M.R. Azhar armed with a carbine. M.R. Azhar raised a lalkara that Inayat and Ghazanfar should be taught a lesson for giving evidence and they should not escape, whereupon ljaz fired his gun hitting Inayat on the head, M.R. Azhar also fired hitting Inayat in the abdomen, whereupon he fell down. Munawar appellant fired his gun hitting Ghazanfar Ali near his shoulder, whereupon he fell down. The assailants ran away from the scene while firing in the air. Both the injured expired at the spot.
The motive as alleged is that about two years before the incident, Akhtar Ali son of the first informant, was murdered in which Inyat, husband of the first informant, was the complainant, and Ghazanfar Ali was a witness. In the said case, seven persons were challaned. Munawar Hussain and Ijaz Hussain appellants used to pressurize them not to give evidence against them and also used to threaten them with dire consequences.
3. Complaint Exh.PD was lodged by Mst. Bashiran Bibi on 19.8.1986 at 11:30 a.m. At Nawab Chowk. It was recorded by Muhammad Ashraf, Inspector/SHO, Police Station City, Gujrat, Formal FIR Exh. PD/1 was recorded by Usmatullah, ASI, PW-5.
After recording the complaint Exh. PD, Muhammad Ashraf, Inspector, visited the spot and prepared the injury statement Exh. PN and inquest report Exh. PO in respect of Ghazanfar Ali. He also prepared the injury statement Exh. PQ and inquest report Exh. PR in respect of Inayat Ali. Thereafter, he despatched the deadbodies for autopsy. He secured the bloodstained earth from two places of murder and took them into possession vide memos Exh. PH and Exh. PJ. He also recorded the statements of the witnesses under section 161 Cr. P.C. Munawar accused was arrested on 1.9.1986 by him. On 5.9.1986 Munawar Hussain led to the recovery of 12 bore gun P.13 from his house which was secured vide Memo Exh. PK. Thereafter, he handed over the investigation to Muhammad Riaz, Inspector/SHO, Police Station City, Gujrat.
Muhammad Riaz, Inspector PW-14, interrogated Ijaz Hussain on 13.02.1987 who led to the recovey of .12 bore gun P. 14 form his house which was secured vide memo Exh. PL. He recorded the statements of the recovery witnesses. After necessary investigation, he challanged the accused.
4. Dr. Riffat Amin Niazi, Medical Officer, Aziz Bhai Hospital, Gujrat, PW-8, conducted the postmortem examination on the dcadbody of Inayat Ali on 19.8.1986 at about 4 p.m. And found the following injuries:-
1. Fire-arm wound (lacerated wound) entry 25 cm long starting from the right eye brow extending to the left occipital region of skull. Wound extending in the middle downwards 7 c.m. Long, 4cm in front of left car with extensive fracture of vauIt of skull and facial bones. Brain matter not present in the skull cavity.
2. a) Fire arm wound of entry 4cm x 4cm on the left iliac foesa (omentum coming out). b) Two fire arm wounds of exit 1cm x 1cm on the Upper part of right hip (outer aspect)
In his opinion all the injuries were antemortem caused with firearm. The death had occurred due to injury No.1 and 2-(a) which were sufficient to cause death in the ordinary course of nature.
On the same day at about 5 p.m., he also conducted the postmortem examination on the deadbody of Ghazanfar Ali and found:-
1. A fire arm wound entry 4cm x 4cm on the right upper arm, front including portion of the interior exillary fold 8cm below the right shoulder.
In his opinion,the injury was sufficient to cause death in the ordinary course of nature.
5. The prosecution in support of its case has produced 15 witnesses in all. PW-1 Akhtar Naqash, Draftsman, prepared the site-plan Exh. PA and Exh. PA/1 of the place of occurrence. Muhammad Iqbal, PW-2 identified the deadbodies of Inayat and Ghazanfar, deceased. Usmatullah, ASI, PW-5 recorded the formal FIR on 19.8.1986. On 20.8.1986 he was given two sealed parcels for safe custody in the Malkhana, wheih he delivered to Muhammad Ilyas, PW-4 for onward transmission to the concerned offices. The postmortem examination as discussed earlier, was conducted by Dr. Riffat Amin Niazi, PW-8. Muhammad Aalam, Head Constable, PW-9, was entrusted with the warrants of arrest of Ijaz Hussain on 17.9.1986. Since Ijaz Hussain was not available, therefore, he reported to the Magistrate who issued proclamation Exh. PG in respect of Ijaz Hussain. He pasted a copy of the proclamation on the outer gate of the house of Ijaz Hussain and another copy outside the Court premises and gave his report Exh. PG/1 to that effect. Wakalat Hussain, PW-10 arrested Ijaz Hussain on 1.2.1987 from District Courts Gujrat. The eye-witness account has been furnished by Ali Muhammad and Mst. Bashiran, PWs-12 and 13, respectively. The case was investigated by Muhammad Riaz, Inspector, and Muhammad Ashraf,Inspector, PWs 14 and 15, respectively. The rest of the witnesses are of formal in nature, therefor, need not be discussed.
6. The learned prosecutor gave up Muhammad Shafi PW as having been won over, and Zafar Ali, Dr. Muhammad Nawaz and Ch. Abdul Hameed, DSP, as unnecessary. He tendered in evidence the report of the Chemical Examiner, Exh. PS, and of the Serologist Exh. PG and of the Forensic Science Laboratory Exh. PU and Exh. PV, and closed the case for the prosecution.
7. At the conclusion of the prosecution evidence, the appellants were examined under section 342 Cr. P.C. Wherein they refuted the prosecution allegations and pleaded innocence. M.R. Azhar, accused, also appeared on oath in his defence under section 340 Cr. P.C. And pleaded innocence.
8. It is contended by learned counsel for the appellants that the eye-witnesses are interested and inimical, therefore, no reliance can be placed upon them. Contends that since the eye-witnesses have not been injured, therfore, their presence at the spot is highly doubtful. Argues that the recovery of guns at the instance of the appellants cannot be used against them because no empty from the spot was recovered which could establish that the said guns had been used in the commission of the offence. It was further argued that the motive, as set up by the prosecution, cannot be used against the appellants because there were other persons with whom the deceased had enmity; therefore, it would be unsafe to rely upon the motive. The contentions of the learned counsel for the appellants have been controverted by the learned counsel for the State as well as by learned counsel for the complainant. It is argued by them that the presence of the witnesses is natural because they would be expected to attend the date of hearing of the murder case of their relation. They have contended that the involvement of M.R. Azhar is also proved beyond doubt as he had Hied a shot hitting in the abdomen of the deceased which is corroborated by the medical evidence.
The learned counsel for the respondent M.R. Azhar has submitted that the prosecution evidence qua the respondent is highly doubtful. Submits that the admitted position is that the deceased were fired at from a close range. In such circumstances, there was no occasion for the respondent to raise the lalkara. Contends that no recovey of carbine has been effected at the instance of the respondent. Argues that the motive, if any, is solely directed against Munawar Hussain and ljaz Hussain and the respondent is not connected with the motive.
9. We have heard the learned counsel for the parties at length and with their assistance gone through the evidence. The motive, as set up by the prosecution, is that a son of first informant was murdered in which Munawar Hussain and others were accused. They used to pressurize the eyewitnesses, i.e., both the deceased, to refrain from giving evidence against them, The pendency of murder ease und both the deceased being witnesses in the said murder case has not been challenged by the dele nee.Though the defence has cross-examined Mst. Bashiran and Ali Muhammad, yet nothing has come on the record to indicate that they were not slating the truth with regard to the threats extended by the appellants, In these circumstances, we are of the view that the prosecution has been able to prove the motive as set up by them except against M.R.
Azhar, because he was got discharged by the police during invcstingalion. It is not even alleged that he was a counsel in the said case. Therefore, we hold that the motive as set up, has not been proved against M.R. Azhar, respondent.
The recoveries of gun P. 13 at the instance of Munawar Hussain and 12 bore gun P. 14 at the instance of ljaz Hussain were secured vide memo Exh. PK and Exh. PL, respectively. Both the guns were got recovered by the police from their houses. Since no crime empty was recovered from the spot, therefore, the recovery of guns at the instance of the appellants will not be of much use to the prosecution. It cannot be said that the guns got recovered by the police were used in the commission of the murder, for which they were charged.
The eye-witness account has been furnished by Ali Muhammad and Mst. Bashiran PWs-12 and 13, respectively. Mst. Bashiran was wife of Inayat Ali and mother of Muzaffar Ali, deceased. Ali Muhammad was real brother of Inayat Ali and uncle of Ghazanfar Ali. Both of them have stated that on19.8.1986 it was the date of hearing of the trial of Akhiar Ali son of Inayat Ali's murder case in which Inayat Ali was complainant and Ghazanfar Ali was a witness. Since the accused persons used to threaten the witnesses to reside therefore both of them accompanied them to the Court.
The contention of the learned counsel for the appellant that Mst. Bashiran should not have accompanied the witnesses to the Court is without force. It is common knowledge that in murder cases the women folk who are colsely connected with either party, do come to the Courts, In the present case, since there was a danger to the life of Inayat Ali and Ghazanfar Ali and for that reason also the witnesses had accompanied them, In these circumstances, we have no hesitation to hold that both the eye-witnesses were present at the time of commission of the offence and they had witnesses the occurrence as well. Both the eye-witnesses have given a detailed account of the manner of the occurrence which inspires confidence. They were cross-examined at length but the defence has not been able to bring on record anything to indicate that the witnesses were not present or they have falsely involved the appellants. Both the eye-witnesses are further corroborated by the evidence of motive. The defence has not even challenged the motive as set up by the prosecution except for M.R. Azhar, respondent. The contention of the learned counsel for the appellants that the independent eye-witnesses were available yet they were not cited as such, therefore, the prosecution story is doubtful is also without force. It is common knowledge that in such cases independent persons arc always hesitant to come forth as eye-witnesses. Even otherwise also the prosecution is not bound to produce each and every person who has witnessed the occurrence.As far as the case of M.R. Azhar, respondent is concerned, it is certainly on a different footing. There is some force in the contention of the learned counsel that there was no occasion for M.R. Azhar to have raised a lalkara when both the deceased were in front of them and not more than a few yards away. Similarly, we sec no motive tin the part of M.R. Azhar respondent to have joined hands with the appellants for the commission of the offence. As held earlier, the motive was not directed against him. It has come in evidence that he was also nominated as one of the accused in the murder of Akhlar Ali son of the first informant, but was got discharged by the police. In these circumstances, we hold that the case of M.R. Azhar is certainly not free from doubt.
Therefore, giving him the benefit of doubt we dismiss the State appeal.
As far as the case of the appellants Munawar and Ijaz Hussain is concerned, we hold that the eye- witnesses were present at the spot and they had witnessed the occurrence. The eye-witnesses are also corroborated by the evidence of motive which has not been disputed by the defence either.
The eye-witnesses are also further corroborated by the fact that the FIR was recorded promptly.
Ijaz appellant was declared absconder. This fact also lends corroboration to the testimony of the eye-witnesses. We, therefore, hold that the prosecution has successfully proved its case beyond doubt against Munawar Hussain and Ijaz Hussain. ResuItantly the appeal fails which is, accordingly, dismissed. For the reasons discussed above, State appeal and the Revision of the complainant also fail which are dismissed.