' SAAD SAOOD JAN, J.--The appellants in this appeal by special leave, namely, Ghulam Muhammad, Nazar Abbas and Mahar Hussain (real brothers) and Rajab Ali and Zafar alongwith Muhammad Nawaz were convicted by the Special Court for Speedy Trials, Multan, of offences under sections 302, 307 (two counts), 323 and 452, read with section 149 and section 148 of the Pakistan Penal Code. For the offences under section 302, Ghulam Muhammad and Muhammad Nawaz were sentenced to death while the others were directed to suffer imprisonment for life, in addition to payment of fines. For the other offences they were sentenced to various terms of imprisonment and fines. The convicts filed an appeal before the High Court. The High Court upheld their convictions and sentences on all the charges except in the case of Muhammad Nawaz where the sentence of death was reduced to imprisonment for life. All the convicts except Muhammad Nawaz have come in appeal to this Court.
2. The occurrence took place on 9-4-1986 at 4 p.m. In village Murad Maan within the jurisdiction of Police Station Sarai Sadhoo. It was alleged by the prosecution that the appellants formed an unlawful assembly and trespassed into the house of Muhammad Hayat (PW 9). Rajab All was carrying a rifle and Zafar had a pistol with him. The others were carrying shot guns. Muhammad Hayat (PW 9), his wife Mst.Ghulam Fatima (PW 10), his minor son Liaqat, his brother Sikandar and Muhammad Nawaz (PW 11) were, present in the courtyard of the house. On seeing the intruders Muhammad Hayat (PW 9) hid himself behind a wheat bin. Sikandar took shelter in a room.
Mst.Ghulam Fatima and her son Liaqat ran towards another room. Ghulam Muhammad fired at them. Liaqat Hussain who was only about 9 years of age was hit and he died at the spot.
Mst.Ghulam Fatima turned back and begged the assailants to go away. Muhammad Nawaz fired at her. The pet dog of Muhammad Hayat (PW 9) started barking. Iftekhar Hussain fired at it with his gun. Nazar Hussain and Rajab tried to break open the door of the room where Sikandar had taken shelter but could not succeed. Nazar Hussain then fired at the door. When Muhammad Nawaz (PW 11) intervened, he was given butt blows by Ghulam Muhammad. The appellants after firing in the air left the scene of occurrence. Immediately thereafter Muhammad Hayat (PW 9) went to Police Station Sarai Sadhoo which was 13 miles away and lodged the F.I.R. At 5-30 p.m.
3. According to the prosecution, there was a dispute between Muhammad Hayat (PW 9) and his brother Sikandar on the one hand and Ghulam Muhammad and Muhammad Nawaz on the other over the plying of wagons. A few days prior to the occurrence a fight took place during the course of which Muhammad Hayat (PW 9) and Sikandar abused Ghulam Muhammad and Muhammad Nawaz. Before leaving the scene of brawl, Ghulam Muhammad and Muhammad Nawaz threatened to take revenge for their humiliation.
4. The post-mortem examination of Liaqat Hayat was performed by Dr.Shabir Suleman (PW 4). He had 70 multiple small scattered fire-arm lacerated wounds in the front part of the chest, abdomen, shoulders, neck, face and right thigh. According to the doctor, these injuries were sufficient in the ordinary course of nature to cause death. Mst.Ghulam Fatima (PW 10) was examined by Dr.Mrs.Naseeb Akhtar. According to her, she had gunshot wounds on the chin, right ear, left shoulder, right side of neck, right arm, right side of chest and abdomen. All the injuries were found to be simple in nature. Muhammad Nawaz (PW 11) was examined by Dr.Khalid Mahmood Tariq. He had contused marks on both eyes and left ear. He also complained of pain in the left shoulder and right side of the back of the chest.
5. The appellants pleaded not guilty at the trial and alleged that they had been falsely implicated.
Their version was that they and the complainant party belonged to opposite political factions and for that reason their relations inter se were strained. On the day of occurrence, Muhammad Nawaz (PW 11) alongwith Muhammad Hayat (PW 9) and one Maja Sheikh hurled stones at the jeep driven by the father of Ghulam Muhammad appellant. This led to a commotion and a large number of persons gathered at the house of Muhammad Hayat (PW 9). In the melee someone in the crowd fired shots which hit Liaqat Hayat and Mst.Ghulam Fatima. The appellants did not produce any witness in their defence.
6. At the trial the case of the prosecution rested entirely upon the ocular testimony furnished by Muhammad Hayat (PW 9), Mst.Ghulam Fatima (PW 10) and Muhammad Nawaz (PW 11). Both the trial Court as well as the High Court found their statements credible and sufficient enough to support the convictions of the appellants for the offences with which they were charged.
7. Leave to appeal was granted to the appellants to examine whether there had not been an inclusion of larger number of persons than those who actually took part in the crime. To examine this aspect of the matter, we have with the help of the learned counsel gone through the record.
8. With regard to motive the only evidence produced by the prosecution comprises the testimony of Muhammad Hayat (PW 9). He stated that he used to ply a wagon between Baati Bungalow and Kabirwala. Ghulam Muhammad appellant wanted this route exclusively for one of his cousins. This strained the relations between them and five or seven days before the occurrence an altercation took place between him and his brother Sikandar on the one hand and Ghulam Muhammad appellant and the co-accused Muhammad Nawaz on the other. Now this witness does not have a wagon or a route permit. He stated at the trial that he had taken the wagon on instalments. During the course of investigation he was required to show any document or cite a witness who would support his assertion in this regard, but he was unable to do so. At the trial the prosecution did not produce any evidence to give credibility to his assertion. It is also to be noticed that the cousin of Ghulam Muhammad appellant on whose behalf he was said to have taken up Cudgels, does not figure at all either in the earlier quarrel or in the actual occurrence. It is therefore difficult to accept this part of the prosecution case.
9. In the F.I.R., five persons were mentioned as eye-witnesses of the occurrence. They were Muhammad Hayat (PW 9), Mst.Ghulam Fatima (PW 10), Muhammad Nawaz (PW 11), Sikandar and Sultan. Sultan died before the trial could begin. Sikandar was given up as unnecessary even though one of the charges framed against the appellants related to a murderous assault upon him.
10. According to the prosecution itself, the assailants had trespassed into the courtyard of the house of Muhammad Hayat (PW 9) consequent upon a quarrel which he had with them a few days earlier. Therefore, the animus of the assailants must have been directed against him and not against his wife or son. If he was present in his courtyard at the relevant time, the assailants who were all carrying firearms would not have spared him. But we find that he remained entirely unharmed during the course of occurrence. His explanation that he took shelter behind a wheat bin and thus saved himself is unconvincing. The wheat bin shown in the site plan was entirely inadequate to keep him hidden from the notice of a large number of assailants who had entered his house when the light must have been very good. In the circumstances, we would exclude his statement from consideration.
11. Muhammad Nawaz (PW 11) was a servant of Muhammad Hayat (P.W.9). He was found to be bearing only four visible injuries on his body. According to him, he received these injuries when he was struck by the butt of a gun by Ghulan Muhammad appellant. It is surprising that though there were contused marks on both the eyes yet there was no mark of injury in the intervening space. It makes his statement with regard to the manner he received his injuries somewhat suspect.
According to the doctor, the injuries on the eyes could also be caused by fist blows. It is to be noticed that he was examined by the doctor on the fifth day after the occurrence, even though the dispensary where the examination took place was contiguous to the police station. There is no record also that immediately after the occurrence the Investigating Officer examined his injuries, for, the explanation offered in this respect by the said officer is unsatisfactory. In the circumstances, we have doubts with regard to his presence also at the spot. We would therefore exclude his evidence also from consideration.
12. This leaves us now only with the statement of Mst.Ghulam Fatima (P.W.10). There can be no doubt with regard to her presence at her house at the relevant time. She was a natural witness and was found to be bearing firearm injuries on her person. According to her, she was fired at by Muhammad Nawaz while her son was shot at by Ghulam Muhammad appellant. There is no reason why her statement with regard to the persons who fired at her and her son should be disbelieved. In fact the learned counsel for the appellants did not challenge this part of her statement. We should therefore think that the participation of Ghulam Muhammad and Muhammad Nawaz in the occurrence leaves little room for doubt. We may however add that as Muhammad Nawaz is not before us, any observation made in this judgment with regard to him will not stand in his way in the event he is allowed to prefer an appeal to this Court.
13. As regards the other appellants, that is, Nazar Abbas, Iftekhar Hussain, Rajah Ali and Zafar, their participation in the occurrence does not appear to be free from doubt. Although according to the prosecution all the assailants who trespassed into the house of Muhammad Hayat (PW 9) were carrying firearms, yet only three shots appear to have been fired during the course of occurrence.
Two of them hit Liaqat Hayat deceased and his mother, Mst.Ghulam Fatima (PW 10) and the third was directed at the door of a room. There was no satisfactory evidence that the dog had received its injuries from gunfire. The Veterinary Officer who examined it merely stated that its injuries could have been caused by any hard substance of any nature. The prosecution did not care to ask him to be more specific about the nature of the 'hard substance'. The motive for the occurrence suggested by the prosecution has not been established. In the circumstances, the case of the defence that the present occurrence was the result of the local party faction cannot be ruled out of hand. In any event, the motive indicated by the prosecution does not appear to be strong enough for a large body of persons to arm themselves with guns and to invade the house of the complainant. In the circumstances, leaving aside Ghulam Muhammad appellant and Muhammad Nawaz, it will not be safe to entirely rely upon the statement of Mst.Ghulam Fatima (PW 10) in respect of the persons who took part in the occurrence. We would therefore give the benefit of doubt to Nazar Abbas, Iftekhar Hussain, Rajab Ali and Zafar, set aside their convictions and sentences and acquit them of all the charges against them. By a short order of this Court, a direction for their release has already been made.
14. For the reasons stated above we uphold the convictions and sentences of Ghulam Muhammad appellant on the charge under section 302 of the Pakistan Penal Code for causing the death of Liaqat Hayat deceased, on the charge under section 307, read with section 34 of the same Code for making a murderous assault upon Mst. Ghulam Fatima (PW 10) and on the charge under section 452 of the same Code for committing house trespass into the house of Muhammad Hayat (PW 9). We set aside his convictions under section 148 and under section 307 in respect of the murderous assault upon Sikandar for we are not sure if he was present at the scene of occurrence at the relevant time. We are informed that the sentence of death imposed upon Ghulam Muhammad appellant has since been commuted to imprisonment for life under a Presidential Order.
15. The appeal is disposed of accordingly.