' The appellants, Hussain Khan and his son Khuda Yar and Ikramullah, have appealed against their conviction and sentence recorded by a judgment of the learned Additional Sessions Judge, Sheikhupura, dated 15-9-1988. The appellants were convicted under section 302 read with section 149 of the P.P.C. For the murder of Muhammad Ilyas and sentenced to imprisonment for life, fine of Rs,5,000 and in default of payment of fine R.I. For two years and under section 307 read with section 149 of the P.P.C. For causing injuries to Massan. Khan (P.W.14) and sentenced to seven years' R.I. Fine of Rs,3,000 and in default of payment thereof one year's R.I. Each. Each of the appellants was also directed to pay Rs,5,000 as compensation to the heirs of Muhammad Ilyas and Rs,3,000 as compensation to Massan Khan P.W. They were also convicted under section 148 of the P.P.C. And sentenced to two years' R.I. Each.
2. It appears that the co-accused of the appellants, Allah Ditta and Muhammad Yousaf, were also arrested along with them on 5-8-1984; they were bailed out during the trial and absconded.
3. The incident occurred at 4-00 p.m. On 20-7-1984 in the Bela of River Ravi near Thatha Kawaira within the limits of Police Station Syed Wala; its report was not made till as late as 6-00 p.m. On 21- 7-1984 by Maula Dad (P.W.13) and that too at the bus-stand. The distance between the place of occurrence and the police station was 9 miles.
4. The prosecution case was as follows. Maula Dad PW was a resident of Pindi Chari. He along with Falak Sher, Ch. Shahbaz Khan, Ashraf Ali, Massan Khan, Shaman and Amir Ali P.Ws. Was on his way to village Bakhshoo to see Aslam Khan Kharal Advocate. Muhammad Ilyas deceased was also with them. At about 4-00 p.m. When they reached the Bela of River Ravi in the area of Thatha Kawaira, there appeared riding on the mares, the appellants and their co-accused armed with guns. They started firing at them. The shots fired by Hussain Khan and Khuda Yar hit Muhammad Ilyas deceased and the shots fired by Ikramullah hit Massan Khan P.W. The other accused persons also fired shots but nobody was injured by their shots. Maula Dad was also armed with a gun. He fired in the air and when the appellants and their co-accused found that they too were armed with guns, they ran away.
5. Maula Dad and his companions carried Muhammad Ilyas and Massan Khan P.W. To the Civil Hospital Nankana Sahib. The Doctor examined them. Maula Dad obtained the medico-legal reports and was on his way to the police station, when he met Nazir Ahmad S.I. (P.W.16) at bus-stand. Syed Wala; the latter recorded the statement Exh.P.N. Of Maula Dad:
6. Dr. Capt. Muhammad Shafique (P.W.1) examined Muhammad Ilyas deceased at 9.00 a.m. On 21- 7-1984. He found the following injuries on his person:--
(1) Puncture wound having a definite collar on the lower half of left leg 1 c.m. x 1 c.m. (entry wound) there is no burning or tatooing.
(2) Puncture wound having a definite collar close to injury No,1 1 c.m. x 1 c.m. No burning and blackening of skin.
(3) Puncture wound 1 c.m. x 1 c.m. On the medial side of left leg. Close to the ankle joint (left) exit wound.
(4) Puncture wound 1 c.m. x 1 c.m. On the medial side of left leg close to ankle joint adjacent to injury No,3 (exit wound).
(5) Puncture wound (entry wound) on the post-lateral side of left leg 1 c.m. x 1 c.m. (reference X- Rays Film No, 295 dated 21-7-1984) injuries Nos.3, 4; 1, "2.- and 5 has given rise to fracture of left Tibbia and fibula.
(6) Puncture wound 1 c.m. x 1 c.m. (entry wound) on the middle of lateral aspect of left thigh.
(7) Puncture wound with everted edges on the medial side of left thigh 1 c.m. x 1 c.m.
(8) Puncture wound 1 c.m. x 1 c.m. With inverted edge on the left groin (entry wound).
(9) Puncture wound 1 c.m. x 1 c.m. With inverted edges adjacent to injury No,8 (entry wound).
' Injuries Nos.1, 2, 3, 4 and 5 were collectively grievous. All the injuries had been caused by fire-arm (long range fire) within about 12 to 15 hours duration. Exh.PA. Is the copy of the medico-legal report.
7. Dr. Capt. Muhammad Shafique also examined Massan Khan P.W. At 9-30 a.m. On the same day.
He found the following injuries on his person.
(1) Puncture wound 1/2 c.m. x 1/2 c.m. On the top of left knee joint. Whole of the joint swollen and painful. (entry wound).
(2) Puncture wound 1 c.m. x 1 c.m. On the entoral lateral aspect of left thigh, slightly above the left joint (entry wound).
(3) Puncture wound 1 c.m. x 1 cdn. On the medial of upper half of left thigh (entry wound).
' The injuries had been caused by fire-arm (long range fire) within 12 to 15 hours duration. Exh.P.B. Is the carbon copy of the medico-legal report. In the opinion of the Doctor, the injuries of Massan Khan P.W. Were the result of one shot. The injuries of Muhammad Ilyas were of the same dimension.
In his opinion, 'the injuries could not be caused if the assailants were on higher level. Injuries Nos.1, 2, 3, 4 and 5 were not individually grievous. Iniurios Nos.3 and 4 were the exit wounds".
8. The post-mortem examination of the dead body of Muhammad Ilyas was performed by Dr. Zaheer Anjam Sherazi (P.W.9) on 24-7-1984. He also found the same injuries as have been mentioned above. In his opinion, injuries Nos. 2 to 5 were sufficient to cause death in the ordinary course of nature. Death was due to haemorrhage and shock. Time between injuries and death was three days and between death and post-mortem examination 36 hours. Exh.P.F. Is the postmortem examination report.
9. The case was investigated partly by Nazir Ahmad S.I. (P.W.16) and partly by Muhammad Aslam S.H.O. (P.W.15). After recording the statement Exh.P.N. Of Maula Dad, Nazir Ahmad S.I. Reached the Tehsil Headquarters Hospital, Nankana Sahib, recorded the statements of Muhammad Ilyas and Massan Khan. He then went to the spot of incident, inspected it and prepared the rwigh site plan Exh.P.X. He also took into possession blood-stained earth vide memo. Exh.P.O. He found at the spot an empty cartridge P.3 and eight wads P.4/1-8 and took them into possession vide memo Exh.P.O.
On 23-7-1984, when Muhammad Ilyas died of the injuries, he had his dead body sent to the mortuary for post-mortem examination.
10. Muhammad Aslam (P.W.15) investigated in the case from 24-7-1984 onwards. He arrested Allah Ditta accused on 4-8-1984 and Hussain Khan, Khuda Yar, Ikramullah and Muhammad Yousaf on 5- 8-1984. On 12-8-1984, Hussain Khan led to the recovery of gun P.7, Khuda Yar led to the recovery of gun P.9 and Ikramullah led to the recovery of gun P.8. The guns were made into parcels.
11. In cross-examination, Muhammad Aslam S.H.O. Said that the deceased had accompanied the complainant and others to the place of occurrence from the village Rajab and not from village Pindi Chari. He had found as a result of his investigation that 'the accused party did not waylay the complainant party according to my investigation".
12. In their statements under section 342 of the Cr.P.C. The appellants denied that they were responsible for the injuries of the deceased man Muhammad Ilyas and Massan Khan P.W.
According td them, they had been falsely implicated on account of empty.
13. It may be mentioned here that the empty P.3 was sent to the Fire-arm Expert but was not found to have been fired from the guns recovered from the appellants.
14. The prosecution called 17 witnesses including Capt. Doctor Muhammad Shafique (P.W.1), Doctor Zaheer Anjam Sherazi (P.W.9), Nazeer Ahmad S.I. (P.W.16) and S.H.O. Muhammad Aslam (P.W.15), but its case primarily rested upon the ocular testimony of Amir All (P.W.12), Maula Dad (P.W.13) and Massan Khan (P.W.14).
15. Admittedly, there was a long-standing enmity between Maula Dad (P.W.13) and Hussain Khan, appellant. Maula Dad P.W. Admitted M his cross-examination that Hussain Khan and his son Khuda Yar were challaned for the murder of his father. One Shahadat was also an accused in the case.
Then Daulat, father of Shahbaz was murdered and in that case, Shahadat and his son were challaned. Those cases had resulted in acquittal. A son of Hussain Khan accused was murdered and Shahbaz along with others was challaned. According to him, `there is enmity between us and the accused for the last 50 years, and the accused are after my life'.
16. Amir Ali and Massan Khan P.Ws. Were not related to Maula Dad P.W. Both were labourers. Amir Ali P.W., however, admitted that he had abducted a woman and had taken refuge with Maula Dad P.W.
The real question, however, is whether in the circumstances of the case, their testimony inspires confidence.
17. As has been noticed above, the place of occurrence was the Bela of River Ravi. It is in evidence that at that place, there were clusters of reeds, more than a man's height. Maula Dad, Amir Ali and Massan Khan P.Ws. Accompanied by Shahbaz Khan, Mohammad Ilyas etc. Were on their way to village Bakhshoo, the purpose of the Vlsii according to Amir Ali being that Muhammad Aslam Khan Advocate, a resident of village Bakhshoo was annoyed with Amir Ali P.W. 'on previous elections'; Amir Ali P.W. Had contacted Maula Dad P.W. For rapproachement between Muhammad Aslam Khan Advocate and Amir Ali. Amir Ali P.W. Was a resident of Mauza Pir Ali within the limits of Police Station Chuchic, District Okara, Maula Dad was a resident of Pindi Chari within the limits of Police Station Syed Wala and Massan Khan was a resident of village Jahmra, Police Station Bahiak Tehsil and District Faisalabad. Maula Dad P.W. Admitted that Falak Sher, Shahbaz Khan, Muhammad Ashraf, Massan Khan, Shaman and Muhammad Ilyas left for village Bakhshoo with him 'without any specific purpose. They were in fact sitting at my Dera and they accompanied me to village Bakhshoo'. Muhammad Ilyas deceased was the resident of village Maiman, which was at a distance of 2-1/2 miles from village Pindi Chari and Maula Dad P.W. Admitted that `he had no business with me and had come only to see me'. Rai Muhammad Aslam Khan Advocate was not associated with the investigation of the case. Amir Ali P.W said said that he had left the spot immediately after the occurrence and had appeared before the police five or six days after the occurrence. Maula Dad P.W. Contradicted him saying that Muhammad Ilyas deceased and Massan Khan P.W. Were carried by him, Falak Sher, Shahbaz Khan, Ashraf Ali, Amir Ali and Shaman P.Ws. To Nankana Sahib Hospital. Before the police, Amir Ali P.W. Had said that `there were 8/10 other persons riding on mares who were accompanying us on the day of occurrence when we were passing through the reeds'.
' According to Maula Dad P.W., they had carried the injured persons straight to Nankana Sahib Hospital. Massan Khan P.W. However, said that `villagers came from the village and they lifted me from the place of occurrence. Shahbaz was one of them. Falak Sher was also one of them. They came after considerable time of the occurrence'. He went so far as to say that 'we were not sent to the hospital or police station on the day of occurrence because firstly we were taken to Okara and then to Nankana". Maula Dad P.W. Said that they had prepared a trolley and had carried the injured persons to the hospital. The truth of the matter, however, is that the injured did not reach the police station till the morning of 21-7-1984; as has been seen above, Muhammad Ilyas was examined by the Doctor at 9-00 a.m. And Massan Khan P.W. Was examined at 9-30 a.m. On 21-9-1984. As we saw according to Dr. Capt. Muhammad Shafique, the injuries sustained by Muhammad Ilyas and Massan Khan were not fired from a higher level. The prosecution case, however, was that the appellants were riding on the mares when they fired shots. Massan Khan P.W. Alone realised the importance of the Doctor's opinion and he, therefore, tried to bring the prosecution case in line with the Doctor's opinion saying that the appellants and their co-accused 'got down from the mares and started firing at us'. The appellants and their co-accused had admittedly no enmity with Muhammad Ilyas, Massan Khan P.W. An, the intended victim was Maula Dad P.W. Yet he escaped wholly unscathed. Amir Ali P.W. Said that 'Hussain Khan was the first who opened fire at Ilyas, which hit lower part of the abdomen. It was followed by a fire from Khudayar accused which hit lower part of the leg. Ikram fired which hit Massan P.W., on his leg". Maula Dad P.W. Was armed with a gun, yet he would have us believe that all that he did with his gun was to fire in the air. In view of these facts, learned counsel for the appellants argued and in my view with considerable force that the occurrence had not taken place in the manner stated by Amir Ali, Maula Dad and Massan Khan P.Ws. And that the appellants were named as culprits because of long enmity with Maula Dad P.W.
The inordinate and unexplained delay in the making of the F.I.R. And the fact that the injured did not reach the hospital till the morning of 21-7-1984, in my view, go a long way to show that it was a case in which either the occurrence had taken place in altogether a different manner or the culprits were not known and the appellants were named on account of their established and admitted enmity with Maula Dad P.W. For these reasons, I am of the opinion that the prosecution has failed to prove its case against the appellants beyond a reasonable doubt. I therefore, accept the appeal, set aside the conviction and sentence of the appellants and acquit them. They shall be released forthwith unless required in any other case.