' MUHAMMAD AMIR MALIK, J.---On 13-9-1987 at about 9-30 a.m. In the premises of Tibba Rest House/R. M's Court Phalia, Zafar Iqbal and Nasar Iqbal sons of Muhammad Inayat complainant (P.W.11) were murdered and his third son namely Muhammad Zaman (P.W.12) and Shan Ali (P.W.13), a first cousin of the deceased, were injured. One Mukhtar (not produced) was also injured.
Muhammad Inayat complainant lodged the F.I.R. (Ex.P.H) at Police Station Phalia at a distance of one furlong from the spot at 10-00 a.m. And was recorded by Ghazanfer Ali (P.W.4) Sub-Inspector.
2. Riaz, Shera, Nazar, Nazir, Iqbal, Sultan, Saee, Arshad, Sikandar, Abbas, Anara and Khizar Hayat were tried by the Punjab Special Court for Speedy Trial No,IX, Gujranwala and vide judgment dated 22-3-1988 convicted and sentenced as under:-- Under Section 302/149, P.P.C; ' Riaz, Iqbal, Nazar alias Nazra and Sultan alias Tanni; Death and fine of Rs,25,000 each or in default thereof 2 years' R.I. On two counts each.
Under section 302/149, P.P.C.<./u> ' Arshad, Shera, Sikandar and Khizar Hayat; Imprisonment for life and fine of Rs,25,000 each or in default thereof 2 years' R.I. Each on two counts.
Under section 307/149, P.P.C.
' All the above 8 accused: 10 years' R.I. Each and fine of Rs,5,000 each or in default thereof one year R.I. Each, on three counts.
Under section 148, P.P.C.
' All the 8 accused to one years' R.I. Each. Muhammad Nazir, Saee Muhammad, Abbas and Anara were acquitted.
3. Nazar alias Nazra and Sultan alias Tanni were proclaimed offenders who were tried in absentia.
4. Riaz, Iqbal, Arshad, Shera, Sikandar and Khizar Hayat have appealed against their conviction and sentence (Crl. Appeal No,338/1988). Sultan alias Tanni also surrendered after conviction and has filed separate appeal (Crl. Appeal No,437/1991). The State have also filed appeal (Crl. Appeal No,339 of 1988) against the acquittal of the 4 accused and for the enhancement of the sentence awarded to Arshad, Shera, Sikandar and Khizar Hayat. This appeal as against Shera and Arshad was admitted and notices issued while as against the others it was dismissed in limine.
5. We propose to dispose of all the three appeals by a single judgment.
6. Riaz and Shera appellants, Nazeer and Nazar accused are the sons of Salehoon. They had a brother Lala as well. Khizar Hayat and Iqbal appellants are sons of said Lala. Arshad and Sikandar appellants are the sons of a sister of said Salehoon. Sace Muhammad accused is the real maternal-uncle of Riaz etc. Appellants and Anara and Abbas accused are the sons of Sace Muhammad. Sultan alias Tanni appellant is claimed by the P.Ws. As a relative of his co-appellants but this is disputed by the defence.
7. Muhammad Inayat complainant (P.W.11) is the father of Muzafar Iqbal and Nasar Iqbal deceased and Muhammad Zaman (injured P.W.12). Shan Ali (P.W.13) is the first cousin of the deceased.
Ahmad Khan P.W. (given up) is a brother of the complainant.
8. The above-mentioned Lala, the father of Iqbal and Khizar Hayat appellants and brother of Riaz and Shera appellants was murdered in the year 1984. Case under section 302/149/148, P.P.C. Was registered against Muzafar Iqbal, Nazar lqbal (the deceased of the present case) Muhammad Zaman, Shan Ali, Abbas and Ahmad Khan P.Ws. (of the present case). The two deceased and Zaman were also injured in that occurrence and a cross case under section 307/149, P.P.C. Was also registered against Riaz, Sace, Nazeer, Arshad, Nazar, Iqbal and Anara accused.
9. According to the F.I.R. (Ex.P.H.) lodged by Muhammad Inayat complainant (P.W.11), over the grudge of the murder of above-mentioned Lala (in the year 1984) the present occurrence had taken place. It is also an admitted fact on the record that in the murder case of Lala, Anara, Saee, Nazar Muhammad, Iqbal, Sikandar accused, Mst. Fatima mother of Nazar, Sohani and Mst.
Sardaran, the parents of Arshad appellant were the P.Ws. F.I.R. No,142 was lodged by Anara accused under section 336 P.P.C. On 9-6-1986 against Ahmad Khan P.W. And three others. Ahmad Khan P.W.
Lost election to Abbas in the year 1983. Abbas was supported by the accused/appellants' party. It is admitted by Muhammad Hussain (P.W.9) that Mst. Fatima sister of Muhammad Hussain P.W. Was abducted by Sultan appellant and was recovered. She was later on murdered but Muhammad Hussain showed ignorance in cross-examination whether she was murdered or her dead body was thrown in the river. The motive part of the story as set up in the F.I.R. Is proved, rather admitted in defence. It is also an admitted fact that the parties were at loggerheads since many years before the occurrence.
9-A. At the trial Muhammad Inayat, Muhammad Zaman and Shan Ali (P.Ws.11, 12 and 13) gave the ocular account of the occurrence. From the spot blood-stained earth from the place where Muzafar Iqbal, Nasar Iqbal (the deceased) Shan Ali, Muhammad Zaman P.Ws. And Mukhtar were injured, was recovered vide memos (Ex.P/J, K, L and M) respectively. 6 crime empties of .12 bore gun (P.1/1 to 6) vide memo (Ex.PN) were also recovered. Recovery evidence in this respect is provided by Ghazanfer Ali S.I. And Muhammad Hussain (P.Ws. 4 and 9). Riaz, Iqbal, Arshad, Shera, Sikandar and Khizar Hayat accused were arrested by Ghazanfer Ali S.I. On 2-10-1987. Riaz got recovered gun (P.14) after opening the lock (P.16) with key (P.15) from his house. The gun was secured vide memo (Ex.PY) and the key and lock vide memo (Ex.PZ). He also produced gun (P.7) of Nazra absconder and was secured vide memo (Ex.PAA) Iqbal, Sikandar, Shera and Arshad also got recovered guns (P.18, 20, 21 and 22) from the Dera of Riaz and were respectively taken into possession vide memos (Exs.P/BB, DD, EE., & FF. Khizar Hayat got recovered blood-stained Ballum (P.9) and was secured vide memo (Ex.PCC). The report of the Chemical Examiner and the Serologist (Exs.PKK and PLL) are positive. The recovery evidence is provided by Khizar Hayat and Ghazanfer Ali S.I. (P.Ws. 10 and 4). On 14-10-1987 Abbas accused from his Dera got recovered gun (P.24) vide memo (Ex.PHH) and Sace Muhammad got recovered his gun (P.25) vide memo (Ex.PII). The recoveries at their instance are stated to by Ghazanfcr Ali S.I. And Muhammad Hussain (P.Ws. 4 and 9). Ghazanfer Ali S.I. Conducted a raid in the graveyard of the village on 5-11-1987 wherefrom Sultan alias Tanni appellant was able to run away.
His gun alongwith a live cartridge (P.26 and 27) were secured vide memo (Ex.PJJ). It is so stated by Ghazanfar Ali S.I. And Muhammad Inayat (P.Ws. 4 and 11). The guns and the crime empties were sent to the fire-arms Expert in due course and his report is Ex.PMM. According to the report one empty each had been fired from the two guns got recovered by Riaz appellant, two empties recovered from the spot married the gun recovered from Iqbal appellant and one crime empty each married the guns recovered from Arshad appellant and that left by Sultan alias Tanni appellant in the grave yard.
10. Dr. Fazal Ahmad (P.W.1) medically examined Zaman P.W. At 10-45 a.m. On 13-9-1987. He was unconscious and not oriented in time and space, with feeble pulse, in agony with B.P. 80/50 MMGh.
He was having an incised wound 12 c.m. x 5 c.m. On the right middle region on the front of the chest with internal bleeding which was coming from mouth and nose. There was a long parallel cut on the shirt on the right side. The injury was fresh, by a sharp edged weapon and the patient was referred to the Emergency Unit Mayo Hospital, Lahore.
' This very doctor medically examined Shan Ali (P.W.13) at 10-55 a.m. He was in shock, with feeble pulse and blood pressure was 75/50 m.m. He was having the following injuries:--
(1) There were five fire-arm wounds on the left testi which were entrance wound and X-Ray was advised.
(2) There were five fire-arm wounds on the right testi which were exit wounds. X-Ray was advised.
(3) There were three fire-arm wounds on the internal aspect of left thigh. X-Ray was advised.
' All the injuries were kept under observation and on receiving the X-Ray report, were declared simple. All the injuries were by fire-arm and fresh. He too was referred to Mayo Hospital, Lahore.
' This very doctor conducted post-mortem examination on the dead body of Muzafar Iqbal on the same day at 4-40 p.m. Following injuries were present on the dead body.
(1) A group of fire-arm entry wound, 13 in number going into the deeper tissues on the left side of the lower chest and abdomen in an area of 14 x 12 c.m. Corresponding tears were present on the Kurta.
(2) Fire-arm entry wound .4 x .4 c.m. On the back of the left side middle of the chest, 2 c.m. Away from the vertebral column going into deeper tissues. Blackening was present all around the wound.
Corresponding tears on the Kurta and Bunian were present.
(3) Fire-arm wound 1 x 1 c.m. On the inner aspect of the middle of the left upper arm skin deep.
' On dissection muscles under injury No,1 were shattered and underlying, 7th, 8th and 9th ribs on the front were fractured. Left spleen was fractured. Transverse colon and measentry had multiple punctured wounds and so was the case of stomach and liver. Five metallic pieces were recovered from the abdominal cavity. Under injury No,2 3rd and 4th ribs on the back of left chest were fractured. Three metallic pieces were recovered from the chest cavity. The doctor did not rule out the possibility that injuries Nos.1 and 3 were the result of one fireshot.
11. On 13-9-1987 Dr. Ghazanfar Saleem Beg (P.W.2) performed the autopsy on the dead body of Nasar Iqbal deceased. It was having the following injuries:--
(1) Fire-arm entry wound 4 x 3-1/2 c.m. Going into deeper tissues blackening all around on the left side of neck, just below the ear. Corresponding tears present on Kurta (Band).
(2) Lacerated wound 4 x 2.5 c.m. Bone deep with underling fracture of skull bone, on left pareto occipital region of head.
(3) Fire-arm entry wound 4 x 3.5 c.m. Going into the abdominal cavity blackening all around the wound, on back, in left lumber region, 6 c.m. Away from vertebral column, corresponding tear on Kurta and Bunian present.
(4) Fire-arm exit wound 1 x 1 c.m. On front of abdomen on right side, 4 c.m. Away and below the unbilicus, corresponding hold present on Kurta and Bunian.
' On dissection under injury No,1 there was fracture on the base of skull extending from left ear to right ear involving the bones of base and foramena megna with the destruction of brain stem. Wad and three pallets were recovered from the cranial cavity. Parietal bone was fractured under injury No,2 Under injury No,3 muscles were shattered,. Left kidney ruptured, small intestine and stomach had multiple punctured wounds. 7 metallic pieces were recovered from abdominal cavity. The death was immediate and time between death and postmortem examination was about 4 to 8 hours.
' This very doctor medically examined Mukhtar Ahmad on 26-9-1987 who was brought by a constable. He was having a healed wound having scar 2 x 2 c.m. On back of left fore-arm .6 c.m.
Below the elbow joint.
12. The appellants at the close of the trial ascribed their involvement to enmity and pleaded innocence.
13. Learned counsel for the appellants contended that there was murder enmity between the parties, so Muhammad Inayat, Muhammad Zaman and Shan Ali (P.Ws. 11, 12 and 13), the eye- witnesses, who were near relatives of the deceased could not be believed unless corroborated, no corroboration was forthcoming on the record and in any case Muhammad Inayat complainant was not present at the spot, otherwise he too would have been injured. Learned counsel for the complainant and The State tried to defend the judgment.
14. As pointed out above there was murder enmity between the parties. Lala, the brother of Riaz and father of Iqbal appellants had been murdered in 1984 and the complainant party were the accused in that case. It is in the evidence that the case was still pending and the accused had been granted bail when the present occurrence took place. The motive part of the story as given in the F.I.R. And deposed to at the trial is, therefore, proved. Of course the motive cuts both ways but the near relative of the appellants had been murdered, and as is the custom and practice in such like affairs, it was the turn of the accused party to avenge the murder of Lala. The motive part of the story would therefore, be a corroborative piece of evidence.
15. The three eye-witnesses are closely related and inimical to the appellants corroboration, would be called for. In addition to the motive part of the story, the F.I.R. Also seems to have been promptly lodged and this would also serve as a corroborative fact. It, however, appears from the statements of the eye-witnessesthat all the able-bodied male members of the appellants' family have been involved. So in spite of the above mentioned two corroborative pieces of evidence one must look for further definite corroboration of an unimpeachable character. Such a corroboration is forthcoming as against Khizar Hayat, Riaz and Iqbal appellants only. The guns recovered from Riaz and Iqbal appellants have married the crime empties recovered from the spot as indicated above.
The sealed parcel of the crime empties was given by Ghazanfer Ali S.I. (P.W.4) on 14-9-1987 to Muhammad Sarwar A.S.I. (P.W.5) for safe custody in the Mal Khana. It was handed over to Zulfiqar Constable (P.W.7) on 28-9-1987 for delivery at the office of Forensic Science Laboratory. Ghazanfer Ali S.I. Gave 8 sealed parcels of guns and one of Ballum on 7-10-1987 to Muhammad Sarwar A.S.I.
And one parcel of gun on 5-11-1987 which he kept intact to Muhammad Ashraf (P.W.6) on 16-11-1987 for being taken to the Chemical Examiner and Forensic Expert. The report of the Chemical Examiner and the Serologist (Exs. P.L.L. And P.L.L./1) are positive with respect to the Ballum. The report of the Fire-arm Expert with respect to the guns recovered from Riaz and Iqbal, is also positive. The evidence as to the recovery of guns is provided by Ghazanfer Ali S.I. And Khizar Hayat (P.Ws.4 and 10). From the statement of Muhammad Hussain (P.W.9) it appears that Khizar Hayat is also a relative of the complainant family but the statement of Ghazanfer Ali S.I. Is forthright and we sec no reason why not to believe him as to the recovery of the crime empties, the guns as well as the Ballum.
16. The guns recovered from Arshad appellant and that left by Sultan alias Tanni in the grave-yard have also matched with crime empties recovered from the spot. According to the recovery.
Witnesses Sultan alias Tanni appellant was not seen by them running away from the spot. So even if his so-called gun left in the grave-yard was recovered, the same would not be of much use to the prosecution as against him. The report of the Fire-arm Expert though connects Arshad with the crime alleged but according to the F.I.R. Arshad had fired only one shot which had hit Muzaffar Iqbal deceased on the left arm. From the statement of Dr. Fazal Ahmad (P.W.1) it appears that this injury (1 c.m. x 1 c.m.) on the left upper arm of the deceased alongwith injury No,1 at his person could possibly have been the result of one shot. So considering this possibility as a measure of abundant caution we conclude that the injury ascribed to Arshad might not be there and so he also deserves to be granted the benefit of doubt.
17. The upshot is that the appeal on behalf of Riaz, Iqbal and Khizar Hayat appellants stands dismissed. The sentences of imprisonment passed upon Khizar Hayat would run concurrently. He would also have the benefit of the provisions of section 382-B, Cr.P.C. The appeal on behalf of the other 4 appellants, is accepted. They are granted benefit of doubt and are hereby acquitted. They be set at liberty forthwith if not required to be detained in any other case. The appeal on behalf of the State (Criminal Appeal No,339 of 1988) consequently fails and stands dismissed.