RAJA AFRASIAB KHAN, J.-- Muhammad Anwar (35), Abdul Ghafar (24/25), Muhammad Ashiq alias Thano (24/25), Abdul Ghani (40), Muhammad Ashiq (45/50) and Muhammad Shafi (65) were tried by Malik Mushtaq Ahmad, learned Additional Sessions Judge, Lahore, for the murder of Muhammad Rafique (35/40) and making an attempt to murder Khadim Hussain etc P.Ws in prosecution of their common object of an unlawful assembly. By judgment dated 21-3-1987, the learned trial Judge convicted the appellant Muhammad Anwar under section 302, P.P.C. And sentenced him to death plus a fine of Rs.10,000 or in default thereof to suffer one year's R.I. It was directed that in case of recovery of fine, half of it shall be paid to the were and children of the deceased. The learned trial Judge acquitted Muhammad Ashiq, Muhammad Shafi, Abdul Ghani, Muhammad Ashiq alias Thani and Abdul Ghaffar accused by giving them the benefit of doubt vide the same judgment.
Muhammad Anwar has challenged his conviction and sentence by filing this appeal. The learned trial Judge has sent a reference for confirmation of death sentence of the appellant under section 374, Cr.P.C. The complainant Khadim Hussain has moved criminal revision against acquittal of the acquitted co-accused. We propose to dispose of the above matters by this judgment.
2.The prosecution story is that on 2-8-1985 at 7 a.m. Khadim Hussain, complainant, his brother Muhammad Rafique (deceased) Shaukat All, his nephew and Muhammad Din, his brother-in-law, went to the house of Niamat to attend the Aqeeqa ceremony, of his newly-born son After attending the ceremony, the complainant party while on their way back' were -passing in front of the house of Muhammad Anwar son of kamzan wherefrom Muhammad Anwar, Abdul Ghani and Ashiq.
Armed with .12 bore rifles, Muhamniad Shafi armed with a revolver,. Abdul Ghaffar and Ashiq, alias Thano armed with sticks suddenly emerged and shouted that the, comp Laiuant would not be allowed, to go alive party because they had given evidence in defence of the accused in the murder case of Ghulam Rasool. All the accused indulged in indiscriminate firing. The Appellant Anwar fired which hit Muhammad Rafique on his back. On receipt of the injury, Muhammad Rafique fell down. The remaining members of the complainant party hid themselves behind the walls to save them. The accused ran away :from the Spot ;while firing and shouting. Muhammad Rafique in an injured condition was shifted by Khadim Hussain, Shaukat Ali' and Muhammad 13ui to the house of Muhammad Din where lid died On account of` the injuries.
Motive is that in the year1976, Ghulam RasooI alias Bato who is brother of Muhammad Shafi and Ashiq co-accused was, done to death. Khadim Hussain and the deceased Muhammad Rafique appeared as defence witnesses in the above case. The accused in the above case were; however acquitted. On account of this grudge, the accused in execution of their, common object murdered Muhammad Rafique.
Naeemul Hasan, S.I. Police Station Township P.W.10 on receipt of written complaint Exh. P.E. By Khadim Hussain recorded the formal F.I.R. Exlr.P.E./1.On 2-8-1985.
3. Ch: Muhammad Ashraf; SH.O: Police Station Township; (P.W.15) partly investigated the case: He visited the spot. On 18-8-1985; he arrested Abdul Ghani, Abdul Ghafar, Muhammad Shafi and Ashiq alias Thano: On 20-81.985 Abdul Ghaffar led to the recovery of stick P.7- which was taken into possession vide memo. Exh. P.M. Ashiq alias Thano led to the recovery. Of stick,,Pi6 -Which was also taken into possession vide memo. Exh: P.L. Muhammad Shafi' led to the recovery of revolver P.3 alongwith a holster P,5 -and licence P.4 which ,were taken into possession vide memo. Exh. P.K.
Warrants of arrest against Muhammad Anwar and Muhammad Ashiq, accused, were-obtained on 21-8:1985 by the Police Officer. Remaining investigation of he case was conducted by Nazar Ahmad, S,I. P.W:16. On 26-6-1986 he arrested -Anwar and Ashiq accused who were declared proclaimed offenders. Injury statement Exh P.O. And Inquest report Exh. P.Q. Of deceased were prepared by Sub-Inspector. Blood-stained earth was taken into possession vide Memo Exh. P.C. Six crime- empties from rear the baithak of Muhammad Anwar, five crime empties from near -the: wall of Muhammad Hussain, -four. Crime empties and a live- cartridge of pistol from the Ihata of Muhammad Hussain, were taken into possession vide memo Exh. P:D. Site .Plans Exh, .B, and Exh.PB./1 were got. Prepared by the Police. Officer from Sayed Inam Ali Shah,. Draftsman P.W.5 The reports of Chemical Finer .FAZ and-that of Serologist Exh. F.S. Were tendered in, evidence.
4.Dr. Saeed Ahmad P.W.13 conducted the post-mortem examination ---upon the dead body of Muhammad Rafique on 3-8-1985' at 10-30 aim- and fund the following on it.
"6 circular wounds with lacerated margins in the area of 7 x4 c.m. Back of right chest lower Part- 9.c.m. Below interior angle of right scapula and.9 c.m. From midline. Individual size was l ~e, 0.5 .c.m" x.1.3 c.m. 1 x p 8.Cm.; 1 x p.5 =., 2 x,1. 3 c.m. And 1.5 x 1.3 c.m,"
According to the Doctor; the cause of death was haemorrhage and shock-as a result of injuries to right and left lungs and spinal 'cord, which were sufficient to cause death in the ordinary course of nature: The injuries were ante-mortem and were caused with- fire-arm. The duration between 'injuries and death' was examination was about, 20 to 30 Chours.
5. Eyewitness, account was furnished by ,Khadim Hussain P.W.7-,and Shaukat: Ali-sP.W.9. The, appellant while: making a statement under section 342 Cr.P.C. Denied the allegations levelled against him and took the plea that he had been implicated in the case on account of party-faction and enmity. The appellant also submitted a detailed written statement vide Exh DD wherein he, took, the plea-that, he -absconded because of fear of being arrested by, the Martial Law Authorities. He stated that a lifting of Martial Law he himself, surrendered before the police,
6. It is `contended by the learned counsel that the prosecution has failed to prove its case against the appellant beyond reasonable doubt: Learned counsel argues that the motive as set up by the prosecution has not at all been proved and that in case of failure to prove the motive, the whole prosecution case -Would fail. Learned counsel Maintains that Muhammad Ashiq; Muhammad Shafi, Abdul Ghani; Muhammad Ashiq alias Thano and Abdul Ghaffar have been acquitted by the learned trial Court disbelieving the prosecution evidence and that on the same set of evidence the appellant-Muhammad Anwar cannot be convicted and sentenced. 'The learned State counsel submits that the appellant is nominated with a specific role in the commission of the erne and that there is "sufficient evidence on record to justify his conviction and sentence: None has appeared on behalf of the complainant in support of the revision petition
7. We have heard the learned counsel for the parties at considerable length and have read the record wit., utmost care. Khadim Hussain P.W 7 is real brother of the deceased, while Shaukat Eli P .W.9 is his real nephew. The occurrence in hand had taken -place on 2-8-1985 at a.m. Whereas the statement of the complainant was recorded by the Police Officer at 8-30 am within 90 minutes of the murder. This, would demonstrate the-promptness with which Khadim Hussain P.W.7 gave information about the murder to the police. In our view, mere relationship of two witnesses with deceased would not justify rejection of their reliable evidence. Presence of Khadim Hussain P.W.7 and Shaukat Ali P.W.9 is proved at the spot beyond doubt. Khadim Hussain in his evidence states that he' along with Muhammad Rafique deceased attended the Aqeeqa ceremony of son of Niamat Ali and that the complainant party was attacked when they were coming back from the house of Niamat Ali. Shaukat Ali P.W.9 also attended the aforesaid ceremony alongwith the complainant and the deceased. The witness deposed that they were subjected to attack by the appellant who fired from his gun, which hit Muhammad Rafique on his back. Muhammad Rafique in an injured condition was taken to the house of Muhammad Din where he died. Shaukat Ali P.W.9 supported the evidence deposed by Khadim Hussain P.W.7 in material terms inasmuch as he stated that he too attended the Aqeeqa ceremony of son of Niamat Ali on the day of occurrence.
The witness implicated Muhammad Anwar by saying that he fired from his gun which hit Muhammad Rafique on vital part of his body. The medical evidence lends full corroboration to the eye-witness account given by Khadim Hussain and Shaukat Ali. Dr. Saeed Ahmad P.W.13 deposed that the fire-arm injury damaged lungs and spinal cord of the deceased and that the said injury was sufficient to cause death in the ordinary course of nature. The fact that the appellant absconded after the murder of Muhammad Rafique would give sufficient support to the prosecution version that it was the appellant who committed the murder and, thereafter, became a fugitive from law. The appellant,, was arrested by the Investigating Officer on 26-6-1986 after about 11 months of the occurrence. The explanation of appellant for his disappearance just after murder is afterthought and is not at all convincing. His absence from the place of occurrence for such a considerable period would speak volumes against him. This in itself is a strong piece of circumstantial evidence against appellant, which does provide corroboration to the story of the prosecution. The argument that five co-accused were acquitted by the learned trial Judge on the basis of the same set of evidence and as such the appellant should also be acquitted has not at all convinced us. The acquitted co-accused did not do any overt act in the commission of the crime and that there was absolutely no evidence to connect them with the commission of the crime.
Evidence shows that they did not inflict any injury to the deceased or the prosecution witnesses.
We, therefore, find ample justification for their acquittal by the learned trial Judge. The case of the appellant stands altogether on a different footing. The appellant was found involved on the basis of reliable and trustworthy evidence of Khadim Hussain P.W.7 and Shaukat Ali P.W.9 in the commission of the crime D coupled with other strong circumstantial evidence. There is absolutely no direct enmity existing between the appellant and the complainant party. We do not find any justification to disbelieve the eye-witness account, which inspires confidence and is worth reliance.
The prosecution has thus succeeded in proving its case against the appellant beyond reasonable doubt. We, therefore, proceed to maintain the conviction of the appellant. We are of the view that the motive as set up by the prosecution being far-fetched is definitely shrouded in mystery.
Admittedly, appellant Anwar had no direct motive to commit the offence. In the circumstances, we refrain from awarding capital punishment to the appellant. His sentence of death is therefore, altered to life imprisonment. The sentence of fine, however, is maintained. With the above modification in the sentence, the appeal is dismissed. The death sentence of the appellant is not confirmed.
8. We do not find any substance in the revision petition for the reasons already recorded above and as such it is dismissed.