1. ABDUL QADEER CHAUDHRY, J.---This order would dispose of two petitions; one riled by the petitioner against the dismissal of his appeal by the High Court and the other by the complainant against the acquittal of nine, respondents, vide judgment dated 16-5-1987.
2. The facts, in brief, are that on 30-8-1980, a little before `Sehriwela' outside the dera of Muhammad Hayat, Manak and Afzal (not deceased), Akbar P.W. 12 and Nazir P.W. 13 (not produced) were sleeping there, when Zulfiqar alias Zulla, Gulla, Ahmad, Said, Amir son of Ghulam, Yara, Muhammad Khan, Ghulam Hussain and Nawaz accused came. There. Zulfiqar and Gulla were armed with guns, Ahmad was carrying hatchet and the remaining accused had Sotas with them.
2. Zulfiqar fired at Manak, Gulla fired at Afzal, Said caused lathi blow to Manak and Ahmad accused gave hatchet blow on the neck of Afzal. Akbar P.W. Tried to rescue Afzal and was injured at the hands of the accused who were armed with Guns, Dangs and Sotas. The motive for the attack was that Amir was cultivating the land of his nephew Said without giving him any Batai. Said exchanged his land with Muhammad Hayat, father of Manak. Said obtained possession of the land given to him by Muhammad Hayat but Amir did not deliver the possession. It was under his cultivation. The matter was referred to Panchayat. After the death of Muhammad Hayat, Said and Amir accused approached Dost Muhammad P.W-11 and told him that the land given by Muhammad Hayat to Amir was of inferior quality and that in its place fertile land be given to him. Three/four days before the occurrence Said and Amir accused cut three shisham trees of Dost Muhammad standing on common boundary. They fought with each other.
3. Ten persons were tried by the learned Additional Sessions Judge, Sargodha, who acquitted Nawaz and Amir son of Sardara and convicted the remaining accused as hereunder:-
(1) Under section 148 PPC: One year's R.I.
(2) Under section 302,/149 PPC: Zulfiqar alias Zulla, to death and others to imprisonment for life and fine of Rs.5000 or in default thereof to undergo one year's R.I.
(3) Under section 302/149 PPC: All the accused to imprisonment for life, and fine of Rs.5000 each or in default thereof to undergo one year's R.I. Each.
(4) Under section 307/149 PPC: All the accused to 5 years' R.I.
4. The convicts filed appeal against their conviction. The complainant Dost Muhammad also filed two criminal revisions; one- against the acquittal of Amir and Nawaz respondents and the other for the enhancement of sentence of the all convicts other than Zulliqar, The learned High Court dismissed the appeal of Zulfiqar and accepted the appeal of other convicts. It also rejected the criminal revision petitions filed by the complainant.
5. Criminal Petition No.75-R/1987.
6. Learned counsel for the complainant Dost Muhammad has submitted that the names of Zulfiqar alias Zulla, Gulla, Ahmad, Said, Amir son of Ghulam, Yara, Muhammad Khan, Ghulam Hussain and Nawaz have been given in the First Information Report. The weapon of offence in possession of each accused was also mentioned. The identification of the accused could not be doubted as the accused persons were known to the complainant prior to the occurrence. There was a strong motive for launching an attack against the complainant party. Specific roles have been attributed to Zulfiqar, Gulla, Said and Ahmad. The witnesses have fully implicated the accused persons in the commission of the offence. Therefore, their acquittal is illegal. The learned counsel has not pressed the petition against the four accused who had not been named in the F.I.R. The learned High Court has accepted the statements of Dost Muhammad P.W. 11 and Akbar P.W.12 as their presence at the spot was natural and the incident took place on 17/18 of the lunar month and as such, the eye- witnesses were in a position to identify them. Yara, Ghulam Hussain, Muhammad Khan, Amir son of Ghulam Hussain were acquitted on the ground that these four accused were not known to the witnesses previously and the identification parade was held after two years of the incident. It was not humanly possible for Akbar and Nawaz to retain in mind the features of the four unarmed persons. These accused had also complained to the magistrate at the time of identification parade that they were shown to the eye-witnesses in the police station before the identification test. Dost Muhammad, P.W. 11 could not identify Yara, Ghulam Hussain and Muhammad Khan. The learned counsel for the complainant has not pressed the. Petition against these persons. The reason which weighed with the learned High Court in acquitting the other accused is that the witnesses are interested and inimical to the accused. There was strong motive for implicating the accused as there was dispute between the parties over the land and in such circumstances, it was necessary to examine the evidence of the interested witnesses with caution and care. Therefore, unless some corroboration was produced by the prosecution, it was not safe to convict the accused. The learned High Court has observed-that the eye-witnesses have thrown the net wide enough to involve as many as nine persons including all able-bodied persons of the family of Amin The number of persons whom they have named and charged with the commission of the crime does not appear to be commensurate with the number of injuries and the harm done to the deceased and the injured persons. Rather it exceeds and from the circumstances, it appears as open to doubt if the number of the culprits given was true. The prosecution sought corroboration from motive, recovery and weapons of offence from the appellants, medical evidence and absconsion of Zulfiqar appellant after the commission of the offence. The recovery and the motive were not relied upon by the High Court for the sound reasons and medical evidence proved the injuries. It was further observed that reasonable possibility of false implication of the persons named in the F.I.R. Or exaggerating the number of accused cannot be excluded. The recovery of the gun in the absence of recovery of crime empty and the recovery of Sotas which were not stained with blood were also discarded. As for the recovery of blood-stained hatchet from Ahmad, the same was not believed as the house was occupied by other persons also. Ahmad was arrested on 14-9-1980 and the recovery was effected on 27-9-1980 whereas the occurrence took place on 30-8-1980. Therefore, the recovery of hatchet Exh. P.7 was also not relied upon and it was held that the hatchet had been planted upon Ahmad. The above facts would clearly indicate that the complainant in his anxiety to rope in as many persons from the family of the accused had implicated some innocent persons also. One accused was acquitted by the trial Court and nine persons were acquitted by the High Court. The learned counsel for the complainant has submitted that two persons had died and two received injuries but this fact itself is not sufficient to convict the accused persons because the burden is always on the prosecution to establish its case beyond all reasonable doubt. In the present case, the corroborative pieces of evidence are not creditworthy, therefore, the direct evidence of the eye-witnesses was rightly discarded by the High Court. There is another fact that Ahmad was examined by Dr. Muhammad Anwar, D.W-1 who stated that Ahmad petitioner was admitted in his hospital on 28-5-1979 and his spinal column was operated upon on 1-6-79 and was discharged from 'the hospital on 25-7-79. All these facts would show that the judgment of the High Court is based on correct analysis of the legal position. There is no infirmity in the judgment therefore the petition filed by the complainant against the acquittal of the respondents is dismissed.
7. Criminal Petition No. 182/1987: Learned counsel for the petitioner Zulfiqar submitted that when the identification test, recovery and the motive have been disbelieved by the High Court, the petitioner could not be convicted on the same set of evidence. Nine co-accused have been acquitted. The High Court dismissed the appeal of Zulfiqar, petitioner, on the ground that he absconded for about two years after E the commission of the crime and this is a corroborative piece of evidence against the petitioner. The learned counsel submitted that the provisions of section 87 Cr. P.C. Have not been complied with, therefore, the absconsion of the accused had to be. Excluded from consideration. He relied upon Emperor v.
8. Multan Singh (A.I.R. 1919 Lahore 57), and Aminullah v. The State (PLD 1982 SC 429). The cases are distinguishable. This ground was not raised either before the trial Court or the High Court. There is no finding by the two Courts on this objection. The petitioner was residing at a distance of about three miles from the place of occurrence. The complainant and the accused knew each other prior to the occurrence. P.W-4 Ghulam Hussain, Foot Constable, and S.I. Muhammad Aslam, P.W-7 deposed about the absconsion of Zulfiqar and the proceedings taken as a result of which proclamation Exh. P.W-4/D was issued against him. In view of the above statement of the witness, sufficient compliance of section 87 Cr.P.C. Had been done. His father, two brothers, first cousin and a relative had been arrested on capital charge. It cannot be believed that he did not know anything about the case. Additionally, he had not taken the plea of alibi in defence. Minor irregularities, if any, during investigation, are condonable under section 537 of the Criminal Procedure Code. No explanation has been given about his absconsion for such a long time, Thus, the case against the petitioner Zulfiqar stood proved. There is no force in this petition.
9. As a result of the above discussion, both these petitions are dismissed and leave to appeal is refused.