RASHID AZIZ KHAN, J.-Muhammad Iqbal (27), Manzoor Ahmad (25), Muhammad Mushtaq son of Muhammad Shaft (32) and Mushtaq Husain son of Muhammad Hussain (35) were sent up by Police Station Ferozewala, District Sheikhupura, for trial for offences under sections 302/307/34 PPC, for the murder of one Zulfiqar, and murderous assault on the witnesses. Sessions Judge, Sheikhupura, vide his judgment dated 26.1.1988 convicted and sentenced Muhammad Iqbal and Manzoor Ahmad under section 302/34 PPC to imprisonment for life. Muhammad Iqbal was sentenced to a fine of Rs.10,000/- or in default R.I. For two years. Manzoor Ahmad was also sentenced to a fine of Rs.5000/- or in default R.I. For one year. Both of them were also convicted under section 307/34 PPC and sentenced to three years R.L, and a fine of Rs.2500/,-, or in default, further R.I. For six months each. It was directed that the fine imposed under section 302/34 PPC, if recovered, the entire shall be paid to the legal heirs of the deceased as compensation. The fine imposed under section 307/34 PPC, if recovered, shall be given to the injured PW. The trial Court, however, gave the benefit of doubt to Muhammad Mushtaq son of Muhammad Shaft, and Mushtaq Hussain son of Muhammad Hussain, and acquitted them of the charges. The convicts have appealed. The State has also filed an appeal challenging the acquittal of Muhammad Mushtaq and Mushtaq Hussain. The State has also filed a Revision seeking enhancement of sentence of the convicts. All these matters will be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed in the FIR Exh.PB, lodged by Ch. Muhammad Ali, was to effect that he was a resident of Mauza Bhule Banewal. His nephew Zulfiqar Ali was in the business of property dealing in the village. Riaz Hussain son of Niaz Hussain, and Muhammad Iqbal son of Muhammad Hussain were also in the same business. A few days before the present occurrence, Riaz Hussain and Muhammad Iqbal had a fight with the first informant, nephew Zulfiqar over some customer, in which Riaz Hussain and Muhammad Iqbal had received injuries. They were angry about the same and Muhammad Iqbal used to openly announce that he would take revenge from said Zulfiqar. On 25.2.1985 at about 3:30 P.M., the first informant with Zulfiqar Ali, Imtiaz Ali, Muhammad Sharif and Faiz Ali were sitting on the roof of the house of Rehmat Ali, brother of the first informant, in the sun. Suddenly, on the roof of the House of Mushtaq son of Shafi, Muhammad Iqbal armed with a rifle, Mushtaq son of Muhammad Hussain, armed with l2 bore gun, Manzoor Ahmad and Mushtaq, armed with l2 bore guns, came. Muhammad Iqbal raised a lalkara that their enemies were sitting in front of them and should not escape. Muhammad Iqbal fired with his rifle hitting on the face of Zulfiqar who fell down on the ground. Mushtaq son of Muhammad Hussain fired hitting on the chest of Imtiaz Ali. Manzoor Ahmad fired with his rifle which hit in the abdomen of Imtiaz Ali. Mushtaq son of Muhammad Shafi fired with his rifle hitting on the left upper arm of Imtiaz. Manzoor fired again which hit Imtiaz on his left elbow and on the right inex finger of Muhammad Sharif. The first informant along with witnesses out of fear lay down on the ground. The assailants after firing many shots ran away from the spot.
3. Complaint Exh, PB was lodged by Ch. Muhammad Ali, PW-4; it was recorded by Irshad Ahmad, SI,PW-15 on 25.2.1985 at 4:30 P.M. On G.T. Road near Bhatti Petrol Pump, Ferozewala. Formal FIR Exhh.PB/1 was recorded the same day at about 4:40 P.M. It was drawn by Muhammad Ishaq, Moharrir/Head Constable, PW-16, with regard to an occurrence which had taken place on 25.2.1985 at 3:30 P.M. In the area of Village Bhule Banewal, District Sheikhupura, in the house of Rehmat Ali.
4. Irshad Ahmad after recording the complaint Exh.PB came to the spot and collected blood- stained earth from the roof of the house of Rehmat Ali, vide memo Exh.PF. He took into possession two crime empties P.3 and P.3/1 Of 7 MM Rifle, from the roof of the house of Mushtaq son of Shafi, accused, vide memo Exh.PG. He was still at the spot investigating the case when he received information from General Hospital, Lahore, that Zulfiqar injured had died. He converted the offence to section 302 PPC and proceeded to General Hospital. He prepared the inquest report Exh.PQ and sent the deadbody for autopsy. On 26.2.1985 he visited the Mayo Hospital to record the statement of Imtiaz Ali, injured PW. He enquired from the doctor vide Exh. PR if said Imtiaz was in a fit state to make a statement; the doctor replied in negative. On 6.3.1985, he visited the Mayo Hospital and recorded the statement of Imtiaz Ali. He got the site-plan Exh.PM and Exh.PM/1 prepared from the draftsman and gave his notes in red ink thereunder.
5. Muhammad Maqsood, Inspector /SHO, PW-18, also investigated the case. He arrested the accused in the present case. On 10.3.1985 Muhammad Iqbal accused while in custody got recovered 7 MM rifle P.5 from his house, which was secured vide memo Exh.PH. On 14.3.1985, Mushtaq accused got recovered gun P.6 from his house, which was secured vide memo Exh.PL. On the same day, Manzoor Ahmad also got recovered gun Exh. P.8 from his house, which was secured vide memo Exh.PK. Mushtaq son of Muhammad Shafi, accused, got recovered gun P.7 from his house, which was secured vide memo Exh.PJ. He got the recovery memos attested from the witnesses.
Dr. Muhammad Bashir, Medical Officer, Casualty Ward, Mayo Hospital, Lahore, PW-6, on 25.2.1985 at 4:15 P.M. Medically examined Zulfiqar and found:-
1. A lacerated wound punctured penetrating fire-arm injury 1/2 cm x 1/2 cm on the left eye-brow, on the left side of fore-head.
2. There is a confusional swelling on the left temporal fossa.
The injuries were caused with a firearm. As the condition of the injured was serious, he referred him to Emergency Surgical Ward for treatment.
On the same day at 4:20 P.M., he examined Imtiaz" PW, and found the following injuries:-
1. A lacerated, punctured, penetrating fire-arm injury 1/2cm on the left lower lateral chest. Depth was not probed.
2. A lacerated, punctured, penetrating fire-arm injury 1/2 cm on left lateral chest 10cm below the left nipple. Depth not probed.
3. A lacerated, punctured, penetrating, firearm injury 1/2cm x 1/2cm on the inner side of upper part of left fore-arm,-muscle deep. Depth was not probed. (It was a wound of entrance.).
4. A lacerated, punctured, penetrating fire-arm injury on the outer side of upper part of left fore- arm. Depth was not probed. (It was a wound of exit of injury No.3).
5. A lacerated, punctured, penetrating, fire-arm wound 3cm x 3cm on upper part of the left fore- arm 7cm from and below injury No.4.
6. A lacerated, punctured, penetrating firearm injury 1/2cm x 1/2cm on the outer aspect of left elbow.
All the injuries were caused with a firearm. Later on he declared the injuries Nos. 1,2 and 3 as grievous, the others were simple.
On the same day he had also examined one Muhammad Sharif and found one firearm injury on his person. The said Muhammad Sharif was not produced as PW.
Dr. Saeed Ahmad, PW-8, of King Edward Medical College, Lahore, on 26.2.1985 conducted the postmortem examination on the deadbody of Zulfiqar and found the following injuries:-
1. One stitched (black) wound left side forehead. After removing the stitches size of the wound was 1 x 1/2cm going scalp cavity deep, present 1.5 cm above left eyebrow outer and 9cm from left ear pinna and 7cm from the mid line.
2. Multiple abrasions left parietal area, size 7 x 5 cm 6cm above left ear on the skull.
3. Both eyes were swollen and sub-connectival haemorrhage was present.
4. Eight stitched (black silk) wound lower part of neck l2 cm long, transverse in direction.
In his opinion, the death had occurred because of injury No.1 which injured the brain, and was sufficient to cause death in the ordinary course of nature. All the injuries were antemortem. Injury No.3 was the result of fracture of skull, and injury No.2 was caused by a blunt object, whereas injury No.4 was a surgical wound.
6. The prosecution in support of its case had produced 18 witnesses in all. Khizar Hayat, Head Constable, PW-1, had kept in Malkhana a sealed parcel containing 7MM rifle which was handed over to him on 10.3.1985. On 17.3.1985 he handed over the said parcel to Muhammad Akram, Constable, for onward transmission to the concerned office. The eye-witness was furnished by Ch. Muhammad Ali, Imtiaz Ali and Jan Muhammad, PWs-4,5 and 7, respectively. The doctors who had examined the injured, and the one who had conducted the postmortem examination have already been discussed. Muhammad Hanif, PW-9 had witnessed the recovery of two crime empties of 7MM rifle from the roof of the house of Mushtaq. Muhammad Din, PW-10, had witnessed the recovery of 7MM rifle at the instance of Muhammad Iqbal appellant from his residential house. He had attested the memo Exh.PH. Nazir Ahmad, PW-11 had witnessed the recovery of guns from the co-accused of Muhammad Iqbal, appellant. Jaffar Hussain, PW-12, had deposed about the motive which had taken place a few days before the present occurrence. Muhammad Akram, PW-13, F.C. On 2.3.1985 had taken the sealed parcels containing two crime empties to the office of Forensic Laboratory and deposited there. He had also taken a sealed parcel containing 7MM rifle on 17.3.1985 and deposited in the same office. Muhammad Yaqoob, Draftsman, PW-14 had prepared the site-plan Exh.PM and Exh,PM/l on 2.3.1985 on the directions of the police and pointation of the witnesses.
Irshad Ahmad, Inspector/SHO, PW-15, had initially investigated the case. Muhammad Ishaq, HC, PW-16, had drawn the formal FIR Exh.PB/1 on 25.2.1985. Muhammad Maqsood, Inspector, PW-18, had completed the investigation and challaned the accused.
7. At the conclusion of the prosecution evidence, the accused persons were examined under section 342 Cr.P.C, without oath, wherein they refuted the prosecution allegations and pleaded innocence. Muhammad Iqbal, appellant in answer to a question further stated that on 25.2.1985, the elections for National Assembly were being held. The complainant party was supporting Manzoor Hussain, whereas the appellant side was supporting one Rana Tanvir Ahmad. The deceased alongwith Imtiaz, injured PW, was present on the roof of their house when 30/40 persons gathered on the roof raising slogans against the complainant side. Zulfiqar deceased opened fire which hit Faruq Shah, whereupon Faruq Shah also returned the fire. Thereafter many people started firing. Said Faruq Shah was injured, therefore, was removed to the hospital. The complainant party suppressed the correct facts and got the present case registered against them. Rest of the accused pleaded innocence and denied their participation.
8. The defence had also produced a defence witness Muhammad Khalid Javed, DW-1, Record- Keeper, Mayo Hospital, Lahore. According to the register, one Faruq Shah son of Muzaffar Shah was examined by Dr Ali Atif Waheed on 25.2.1985. According to his report Exh.DC, said Faruq Shah had received firearm injuries.
9. It was contended by learned counsel for the appellant that the prosecution had failed to prove its case. Submitted that no reliance on the sttement of Ch. Muhammad Ali, PW-4 could be placed because his presence at the spot was extremely doubtful. Argued that the said witness had admitted that he was polling agent of a contesting-candidate and, therefore, at 3:30 P.M. On the election day he could not possibly be present at the spot. Argued that Jan Muhammad, another eye-witness of the occurence could safely be ruled out of consideration for the reason that the point from where he asserts to have witnesses the occurrence is situated at a place from where he could not possibly see the assailants or the injured. Argued that Imtiaz Ali, another eye-witness of the occurrence had made such improvements that it became extremely unsafe to rely upon his testimony. Argued that all the witnesses had discredited themselves by making material improvements in their statments. Submitted that the recoveries at the instance of the appellants could not be of much help because they were not effected in the presence of any independent witness. Asserted that the motive for the occurrence was not proved at all. The contentions were opposed by learned Assistant Advocate General who asserted that the prosecution has succeeded in proving its case beyond any doubt. Argued that the eye-witness account was consistant and confidence inspiring. Asserted that the witnesses had frankly conceded that there was no back- ground of enmity with the appellants, therefore, the chances of substitution or false involvement could safely be ruled out of consideration. In support of appeal filed by the State he contended that the witnesses had implicated all the accused, therefore, the trial Court had erred by giving the benefit of doubt to the respondents by acquitting them. In support of the Revision filed by the State it was contended that the appellants had acted in a cruel manner and committed a cold blooded murder, therefore, normal penalty of death should have been awarded.
10. We have heard the learned counsel at length and gone through the evidence with his assistance. The prosecution in order to establish its case against the appellants mainly relied upon the eye-witness account corroborated by the medical evidence, motive, and the recoveries effected at the instance of the appellants. As far as the motive in the instant case is concerned, it has been furnished by PW-4 Ch, Muhammad Ali, and PW-12 Jaffar Hussain. According to Ch. Muhammad Ali, the deceased Zulfiqar Ali a few days before the occurrence had a quarrel with Riaz and Iqbal appellants over some customer as both of them were property dealers. In cross- examination, he admitted that he had not witnessed the occurence of altercation but was informed by the deceased that he had caused injuries to Riaz appellant. We have noticed that in his statement Exh.PB he had not mentioned this fact that he was informed by Zulfiqar deceased regarding the said incident. Imtiaz Ali, PW-5, simply stated that he had learnt about the incident of altercation between the deceased and the appellant side. He has not even disclosed the source of information, therefore, no reliance on his statement can be placed. Jaffar Hussain, PW-12, stated that a few days before the incident there was on altercation between Zulfiqar on one side and Riaz and Iqbal on the other, over a deal with a customer in which Zulfiqar deceased had caused injuries to Riaz and Iqbal. In cross-examination he admitted that he was a close relative of Jan Muhammad, an eye-witness to the occurrence. He further admitted that he was present at the spot but his statement was recorded two days after the occurrence. There is no explanation why his statement was recorded at such a belated stage. He was confronted with his statement before the police wherein he had stated that a fight had taken place between Zulfiqar deceased and Iqbal and Riaz a few days before the occurrence. A perusal of his statement indicates that it would not be safe to reply upon the same because he is a close relative of the complainant-side as well as he had made material improvements, therefore, the motive is ruled out of consideration.
11. Irshad Ahmad, Inspector, PW-15, after recording the complaint Exh PB. Came to the spot and recovered the empties of 7MM rifle from the roof of the house of the accused persons. It was sealed on the same day. The said crime empties were sent to the office of Forensic Science Laboratory on 2.3.1985 through Muhammad Akram, FC, PW-13. Thereafter Muhammad Maqsood, Inspector, PW-18, on 10.3.1985 interrogated Iqbal who got recovered rifle P.5 from his residential house which was secured vide memo Exh.PH- The said rifle was sent to the Office of Forensic Science Laboratory on 17.3.1985. The report of the Ballastic Expert Exh.PU was that the said empties had been fired from the rifle Exh. P.5, got recovered at the instance of Muhammad Iqbal appellant. The gun recovered at the instance of other accused was not even sent to the Firearm Expert, therefore, they cannot be used as corroboration. However, the gun recovered at the instance of the appellant in the presence of the witnesses is a strong piece of corroboration. The witnesses in whose presence the sai fund was recovered were cross-examined at length but the defence failed to bring anything on the record to indicate that they had not witnessed the same or were making a false statement. Therefore, the recovery of rifle P.5 at the instance of Iqbal appellant is relied upon. The ocular account in the instant case was furnished by Ch. Muhammad Ali, Imtiaz Ali and Jan Muhammad, PWs-4,5 and 7, respectively. Ch. Muhammad Ali had given a statement in detail corroborating the version as narrated by him in Exh.PB. He was cross-examined at length wherein he admitted that he was resident of Model Town, Lahore but had gone to the village on the day of incident as he was a polling agent of a contesting candidate. At about 3:30 P,M., he had gone to the house of bis brother and was sitting on the roof on a cot alongwith the deceased and the witnesses when they were attacked. In cross- examination, he further admitted that the roof on which they were sitting had a Pardah wall and its height was about three feet. He conceded that the place from where the assailants fired was about I0O feet away and in between there were three other houses. He stated that he saw the appellant Iqbal firing with his rifle on Zulfiqar on his fore-head, and thereafter he laid on the roof in order to save himself. In such circumstances, it is clear that he could not have seen the remaining part of the incident whereby the other accused are alleged to have fired, nor could he know whose fire hit Imtiaz injured at which part of the body. He otherwise is a close relative of the deceased and in such circumstances only that part of his statement can be relied upon which finds corroboration. Since the rifle recovered at the instance of Iqbal matched with the crime empties secured from the spot would lend corroboration to the statement of this witness against Iqbal appellant alone. As far as the remaining accused arg concerned, he is not relied upon. Imtiaz Ali, PW-5, gave a detailed account of occurrence. He was cross-examined at length wherein he stated that the first shot was fired by Iqbal which hit Zulfiqar in the fore-head and fell down. Thereafter, the accused persons fired hitting him on different parts of the body. He was confronted with his statement made before the police and he had to admit that he had stated that all the accused had fired one after the other and he kept on facing them. This on the face of it is most unnatural. In his statement before the Court he asserted that he along with other witnesses also laid on the ground after the first shot. If that statement is believed, there is no explanation available how he got injured. He had stated that the accused fired 10/15 shots in all, yet, apart from the two crime empties of 7MM rifle, not a single empty was secured. Therefore, we hold that this part of the statement stands belied by the fact that no empty was found at the spot. Even otherwise also, his statement does not inspire confidence as he has been making different statements.
12. As far as Jan Muhammad, PW-7, is concerned, his statement does not inspire confidence for the reason that he was standing at a point shown as 'L", in the site-plan Exh.PM at a distance of about I00 feet from the spot. According to him, he was standing on the ground whereas the assailants were standing on the roof of the house of one Mushtaq which was about 40 feet away from him, and in between there was house of one Rehmat Bibi. Similarly, he was standing at a distance of about I0O feet from the roof of Muhammad Ali where the deceased and the PWs were sitting. In between them it was the open place, yet we fail to understand how he could see the person sitting on the roof when there was a three feet pardah wall around the roof. Even otherwise also, the point where the accused persons were standing was in a different direction from the roof of the house where the deceased and the PWs were sitting and in such circumstances it is impossible to comprehend that simultaneously he could see whose fire was hitting to which person. In these circumstances, we hold that no reliance on the statement of Jan Muhammad, PW, can be placed.
13. For what has been discussed above we hold that the prosecution has been able to prove its case against Iqbal appellant alone as statement of Ch. Muhammad Ali finds corroboration against him only. As far as Manzoor is concerned, there is no corroboration to connect him with the commission of the occurrence. Ch. Muhammad Ali himself had admitted that after the first fire he had lay down on the ground, therefore, he could not have seen him firing. Imtiaz PW has been disbelieved because of his own conduct and divergent statement made by him. Jan Muhammad PW could not have seen the occurrence from the point he asserted to have witnessed. Therefore, we accept the appeal of Manzoor and set aside his conviction and direct that he be released forthwith, if not required in any other case.
14. As far as the Revision of the State seeking enhancement of sentence against Muhammad Iqbal appellant is concerned, we find the trial Court has rightly awarded him imprisonment for life and it is not a case where the penalty of death should be awarded as the motive has been disbelieved by us, and even otherwise also, it has come in evidence that the appellant-side was supporter of a different candidate who was opposing the candidate being supported by the complainant side. In such circumstances, the chances that something must have happened which resulted in the present incident. Firearm injuries on the person of one Faruq received on the same day have not been explained, therefore, we feel the sentence of life imprisonment would adequately meet the ends of justice.
For what has been discussed above, we dismiss the appeal of Muhammad Iqbal and maintain his sentence. For the same reasons, the appeal and Revision filed by the State fail which are also dismissed.