KHALIL-UR-REHMAN REMDAY J, - Haq Niwaz(42) and his brother Ahmad Yar (46) were tried by Judge, Punjab, Special Court for Speedy Trials No.X-Faisalabad, for having murdered Ahma and Mutalli sons of Shiait at 8 p.m.
On 18.9.1988 at Dhoonda Shah bus stop, Tehsil Bhawanay district Jhang. They were acquitted vide judgment dated 27.2.1989.
2. Not feeling satisfied, the State has preferred appeal against their acquittal.
3. ^The prosecution, case at the trial was that the two deceased were travelling in a bus. Both the respondents has also boarded the same bus. When the bus stopped at Dhoona Shah, the respondents alighted from the bus and started firing at the deceased. Haq Niwaz was alleged to have fired thrice at Mutalli. When Mutalli ran out from the bus, he was fired at twice by Ahmad Yar.
Haq Niwaz was also alleged to have fired thrice at Ahmad (Ahma) deceased when he was still in the bus. As a result of the injuries, Ahma died in the bus while Mutalli died outside the bus.
4. No weapon of offence was recovered from the respondents after their arrest. One Muhammad Niwaz, a brother of the respondents was arrested on 11.11.88 from Bhowana bus stop. He was found carrying pistol (P.9), which was taken into possession. The police had also taken into possession five empties from inside the bus.
5. Motive for the occurrence was that Allah Yar, a brother of the respondents, had lived with Shian, father of the two deceased for two years 17/18 years prior to the occurrence. Whereafter, he was lost and was never heard of. The respondents suspected that he had been murdered by Shian etc.
6. The prosecution examined Shian (PW 8), who had lodged the FIR, Muhammad Ali (PW 7) and Iqbal (PW 9), for ocular account. One Riaz, also named as an eyewitness and who had suffered injuries during the occurrence, was not examined as having been won over. A person named as Ilyas, who was mentioned in the FIR to have witnessed the occurrence, was not produced at the trial. In fact, all the three eyewitnesses, who were produced at the trial, stated that Ilyas was not present at the time of occurrence and that he had not witnessed the same.
7. Iqbal, the only witness who had suffered injuries during the occurrence, although asserted that he had witnessed the occurrence and seen the respondents committing the murder of. Both the deceased while firing pistol shots, was found to have stated during investigation under section 161 Cr.P.C.-that he did not know the assailants nor could identify them. He made certain other observations also, which were found contradictory to the medical evidence as well as the prosecution case put up at the trial. The learned trial Judge disbelieved the ocular account given by him mainly relying upon the facts that he himself while making statement before the police u/s 1,61 Cr.P.C, had stated that he did not know the assailants nor could identify them. We have gone through the reasons advanced in this regard by the learned trial Judge and we arc convinced that the conclusion arrived at vis a vis the testimony;of Iqbal did not warrant any interference.
8. The statements of Shian (PW 8), father of the deceased, and Muhammad Ali (PW 7) were not believed by the trial Judge on having found material contradictions in their statements, vis-a-vis, the medical evidence and the assertions made about the presence or non-presence of the persons, who had witnessed the occurrence. In that regard, learned trial Judge had particularly noted (hat although both the eyewitnesses had stated during investigation that Ilyas had witnessed the occurrence, but at the trial both of them asserted that nobody named as Ilyas had witnessed the occurrence and that they had inadvertantly named him. Shian, who had lodged the FIR, was particularly confronted with the portion of his statement, where the presence of Ilyas was mentioned. The only explanation he gave regarding that was, that he had mentioned his name inadvertantly.
9. On having gone through the reasons advanced by the trial Judge and after having considered the statements made by both the eyewitnesses, we are of the view that the learned trial Judge took a safer view in not relying on their testimonies.
10. The prosecution version stands dented seriously by another aspect also. In that, although the case of the prosecution at the trial as well as before the police clearly was that both the respondents had fired shots at both the deceased while standing outside the bus. The police claimed that they had found five empties lying in the bus. The empties were taken into possession and sent to the office of the Forensic Science Laboratory. Pistol (P.9) recovered from Muhammad Niwaz, a brother of the respondents, who was neither named as accused in the FIR, by the complainant, nor was challaned by the police, for having participated in the occurrence, was also sent to the Forensic Science Laboratory. It was found by the Expert that all the empties had been fired from the said pistol. It was never the case of the prosecution that the said pistol was licensed weapon of the respondents nor any evidence was produced that the said pistol belonged to any of the respondents or that any one of them had used the same for committing the murders.
Obviously, the above noted facts cast heavy shadows of doubts on the claim made by the eyewitnesses.
11. Having considered all pros and cons of the case, we are convinced that no case for interference in the judgment of acquittal is made out. The appeal is, therefore, dismissed, being without any merits.