KHALIL-UR-REHMAN RAMDAY, J. --Five brothers, namely, Javed, Abbas, Amer, Zahid and Altaf were charged and tried by a learned Additional Sessions Judge at Gujrat for the murder of one Tauqeer Shah.
2. Through his judgment dated 24-7-1988, the learned trial Court acquitted Abbas, Amer, Zahid and Altaf and found only Javed Shah guilty of the said charge and having accordingly convicted him under section 302, P.P.C., sentenced him to suffer death and to pay a fine of Rs.15,000 or to undergo two years' R.I. In default of payment of this fine. Half of the amount of fine was directed to be paid to the heirs of the deceased as compensation.
3. Murder Reference No.192 of 1988 seeks confirmation of the death sentence awarded to the appellant who in turn challenges his conviction and sentences through Criminal Appeal No.754 of 1988.
4. Tafseer Abbas complainant challenges the acquittal of the four accused persons through Criminal Revision No.495 of 1988 and through another Criminal Revision No.503 of 1988, he seeks enhancement of the amount of fine imposed on Javed convict and further prays that the amount of compensation awarded to the heirs of the deceased be also enhanced.
5. Ch. Nazir Ahmad, Advocate, appearing on behalf of the petitioner in Criminal Revisions Nos. 495 and 503 of 1988, prayed at the very outset, for permission to withdraw the said petitions.
6. The same have been dismissed as withdrawn through separate orders passed by us today.
7. This judgment shall, therefore, dispose of only Murder Reference No.192 and Criminal Appeal No.754 of 1988.
8. Tafseer Abbas complainant, who stated that he was employed as a police constable in Islamabad and had reached home on seven days leave on the night preceding the day of occurrence, alleged that on 24-12-1985 he was going to the office of Soldiers Board alongwith his brother Tauqeer deceased and just as they had reached near the office of Union Council, Madina, to hire a tonga, the five accused persons armed with fire-arms suddenly emerged from their tea shop whereafter Javed convict fired a shot with his .12 bore gun which hit the front chest of Tauqeer deceased which was followed by another shot fired by Abbas (acquitted accused) which landed on the right hand of the deceased. He had further alleged that having inflicted these injuries on the person of the deceased, the said assailants disappeared from the place of occurrence.
9. Tafseer complainant had further disclosed that about three and a half months prior to the occurrence, Javed convict who was then under the influence of alcohol had abused the complainant's younger brother, namely, Nadeem which had resulted in exchange of fire between the two, that though none had got injured in this incident but the said Nadeem Shah thereafter reported against Javed convict to the local C.I.A. Staff with respect to the illicit arms being retained by him in pursuance of which report, Javed convict and a companion of his were proceeded under section 13 of the Arms Ordinance of 1965 and that it was on account of this grievance that Javed convict and his brothers had shot the deceased to death.
10. The defence plea on the contrary was that they had been falsely implicated in the present occurrence on account of enmity and suspicion.
11. Through Criminal Miscellaneous No.2 of 1990 filed on 10-12-1990, it had been submitted before us that the heirs of the deceased had entered into a compromise and it had been consequently prayed that the appeal in question be allowed in terms of the said compromise. The said application was accompanied by a compromise deed executed by Tafseer Abbas complainant who is a brother of Tauqeer deceased, Mst. Zubaida Bibi who is the mother of the deceased and Nadeem Abbas who is the other brother of the deceased.
12. In pursuance of this application, we directed the production before us of all the heirs of the deceased in pursuance of which direction, the mother and the three sisters of the deceased appeared before us on 24-3-1991 and we even recorded their statements which statements verified the factum of the said compromise and through which statements, the said heirs of the deceased had declared that they had granted ---AFW--- to Javed appellant in the name of Allah.
Besides the abovementioned heirs, Tauqeer deceased had been survived even by two brothers, namely, Tafseer complainant and Nadeem. These two, however, did not appear before us as they had been reported to have left for abroad and it was thus not possible for them to make themselves available to this Court for the recording of their statements.
13. On account of the non-availability of the two surviving brothers of Tauqeer deceased, we considered it safe not to order acquittal of the appellant merely on the basis of composition of the said offence between the parties and decided to examine the case of the appellant on merits as well.
14. It transpires from the evidence available on record that Nadeem Shah who was a brother of the complainant and the deceased and with whom the appellant had allegedly exchanged fire and who had thereafter reported against the appellant to the C.I.A. Staff which incidents were allegedly the motive for the present occurrence, had never been produced to testify the said motive.
15. The only evidence available with the prosecution in proof of the motive in question is the statement of Tafseer complainant who was obviously neither a party nor a witness to the incident, which had led to the alleged commission of the offence in question.
16. Consequently, we find that the prosecution has failed to prove the motive as alleged.
17. The only eye-witnesses examined at the trial are Tafseer who is a brother of the deceased and Ibrar Hussain who is a husband of the sister of the deceased.
18. There is indication available on record that there was a very strong party faction existing in the village where the two parties resided and which enmity between the said parties had led to a number of murders.
19. The claim of Tafseer complainant was, that he was going to the office of the Soldiers Board alongwith his deceased brother to receive pension of their widowed mother. No proof was, however, offered either during the course of the investigation or at the trial to establish this assertion. The occurrence had taken place on 24-12-1985 and it is common knowledge that pensions are not ordinarily paid during such like days of a month and are in fact paid after the first of each month and in any case, there is no explanation offered by the complainant as to why they were going to the office in question for receiving the pension on, the last days of the month.
20. Ibrar P.W. Alleged that he was present at the shop of one Ihsan when the occurrence in question had taken place. He is a Form Vendor outside the Passport Office at Gujrat and the place of occurrence was two miles away from the said Passport Office. His presence at the place of occurrence at about 11-15 a.m. Is thus not readily believable because this time was such at which, he should be busy with his own business at the Passport Office. He asserted that I 8 he had helped carrying Tauqeer deceased into the tonga but asserts that his clothes never got blood-stained nor did he accompany Tauqeer deceased to the hospital despite being such a close relative of his.
21. This analysis of the ocular testimony would demonstrate that besides a background of animosity between the two parties, these two eye-witnesses were even chance witnesses of the occurrence in question.
22. The prosecution, story regarding the motive for the occurrence in question has already been disbelieved by us.
23. A gun was allegedly recovered at the instance of Javed appellant but no crime-empty was found at the spot and thus the said gun remains unconnected with the alleged commission of the offence in question and is of no assistance or of. Corroborative value to the prosecution case.
24. In the circumstances, we find that it would be unsafe to place explicit p reliance on the uncorroborated testimony of the two eye-witnesses.
25. Thus we find, that even on the merits of the case, the invovlement of Javed appellant in the commission of the murder in question is not free from doubt.
26. Resultantly, Criminal Appeal No.754 of 1988 is allowed and the conviction and the sentences recorded against Javed appellant through the impugned judgment are set aside. He is acquitted of the charge of murder and shall be released forthwith if not required to be detained in any other case.
27. Murder Reference No.192 of 1988 is answered accordingly,