IJAZ NISAR, J.--- Mian Khan son of Jiwa Khan (60), Amjad Ali son of Barket Ali (23),.Mukhtar Ali son of Bahader Ali (2S), Muhammad Rauf son of Muhammad Khan (22), Muhammad Afzal son of Haji Ahmad Bhatti (25), Ahmad Bhatti son of Jalal Din (80), Tanvir-ul-Haq son of Ghulam Sarwar (34) and Feroze son of Karam Elahi (45) were tried for the murder of Muhammad Aslam deceased. By judgment dated 1-11-1989, learned Sessions Judge, Gujrat convicted Mian Khan, Amjad, Mukhtar Ali and Muhammad Rauf under section 302/34, P.P.C. And 307/34, P.P.C. And sentenced them as under:
(1) Mian Khan and Amjad Ali:
(i) Death and a fine of Rs.2,000 or in default to undergo one year's R.I. As also Rs.10,000 as compensation to the legal heirs .Of the deceased under section 302/34, P.P.C., or in default to undergo 6 months' S.I. Each under section 302/34, P.P.C.
(ii) Three years' R.I. With a fine of Rs.1,000 or in default to undergo 6 months' R.I. Each and also to pay a sum of Rs.3,000 each to Shafqat P.W. Or in default to undergo three months' S.I. Under section 307/34, P.P.C.
(2) Mukhtar Ali and Muhammad Rauf: Imprisonment for life with a fine of Rs.2,000 or in default to undergo one year's R.I. Each and also to pay Rs.10,000 each as compensation to the heirs of the deceased or in default thereof to undergo 6 months' S.I. Each under section 302/34, P.P.C.
(ii) Three years' R.I. Each with a fine of Rs.1,000 or in default to undergo 6 months' R.I. Each with a further direction to pay a sum of Rs.3,000 each as compensation to Shafqat P.W. Or in default to further undergo three months' S.I. Each under section 307/34, P.P.C.
The sentences of imprisonment were ordered to run concurrently. Muhammad Afzal, Ahmad Bhatti, Tanvir-ul-Haq and Feroze were given the benefit of doubt and acquitted.
The convicted accused have filed Criminal Appeal No.779`89 while Shafqat Ali complainant has fled Cr. Revision No. 24/90 for enhancement of sentence of Mukhtar Ali and Muhammad Rauf and for enhancement of the amount of fine of the convicted accused.
The learned trial Court has made a reference for confirmation of the death sentence of Mian Khan and Amjad. All the matters shall be disposed of by this judgment. ,
2. Muhammad Afzal and his father Ahmad Bhatti accused (since acquitted) are Bhatti by caste while the other accused are Kashmiris.
The motive for the offence was that Mst. Rashida sister of Mian Khan appellant was murdered in January, 1988. Muhammad Aslam deceased and Shafqat Ali complainant (P.W.10) alongwith some others were challaned for that and were released on bail a few months before the occurrence.
According to the prosecution, Mian Khan, etc. Had murdered Muhammad Aslam deceased to avenge the murder of Mst. Rashida.
Shafqat Ali P.W.10 and Muhammad Aslam deceased had jointly obtained a cattle fair contract of Gujranwala and Octroi contract of Lala Musa, On 9-8-1988 at 8-30 p.m. They were returning from Gujranwala by car driven by their friend Muhammad Arif P.W.11, Member District Council, Gujrat..
Bashir Ahmad (not examined) was also accompanying them. They stopped in the man, Bazar of Lala Musa for the purchase of fruit. All of a sudden, Ahmad Bhatti empty handed alongwith his son Muhammad Afzal armed with a Klashnikov, Tanvir-ul-Haq and Amjad armed with .12 bore guns, Mukhtar Ali armed with a stengun, Rauf armed with a 7 m.m. Rifle and Mian Khan armed with a rifle came there. Ahmad Bhatti exhorted his co-accused to do away with the deceased whereupon Amjad fired a gunshot at him hitting his left shoulder, Tanvir-ul-Haq fired on the left side of his chest, Muhammad Rauf fired a shot hitting on the finger of the deceased. Mukhtar Ali fired' a shot hitting Muhammad Aslam deceased. Muhammad Afzal accused fired a shot hitting Shafqat Ali P.W: Feroze and Mian Khan fired from their rifles on the deceased. Thereafter, all the accused fired indiscriminately resulting in injuries to Shafqat Ali P.W.10. The latter fired from his rifle in self-defence on which the accused ran away from the spot. The deceased was removed to Lala Musa Hospital where he expired.
On hearing about the occurrence Muhammad Ashraf S.I. P.W.14 reached the spot and recorded statement Exh.P.E. Of Shafqat Ali P.W. He prepared the injury statement Exh.P.L. And the inquest report Exh.P.11/1 of the deceased He also prepared the injury statement of Shafqat Ali P.W. And arrested the accused.
3. Amjad appellant led to the recovery of .12 bore gun P.9 from the house of one Baqir through memo. Exh.P.G. Attested by Ghulam Rasool P.W.8. Muhammad Ashraf S.I. P.W.14 and Muhammad Rauf accused led to the recovery of 7 m.m. Rifle P.10 through memo. Exh.P.10 attested by Muhammad Khan P.W.9 and S.I. Muhammad Ashraf. Muhammad Afzal led to the recovery of his licensed rifle P.1. Mian Khan got recovered rifle P.6 from the house of one Baqir Dar through memo.
Exh.P.C. Attested by Muhammad Asghar and Muhammad Arif P.Ws. After completing the investigation, he challaned the accused excepting Tanvir-ul-Haq and Feroze who were placed in column No.2.
4. Dr. Tariq Mustafa P.W.15, conducted post-mortem examination on the dead body of Muhammad Aslam deceased and found the following injuries thereon:--
(1) Fire-arm injury wound .5 c.m. x .5 on the front of left axillary region edges were inverted.
(2) Fire-arm entry wound.5 c.m. x.5 c.m. On the left axillary region 1 c.m. Lateral to injury No. 1.
(3) Fire-arm entry wound 2-1/2 c.m. x 1 c.m. On the inner aspect of the left upper part of the upper arm and 5 c.m. Below injury No.2. An exit wound 5 c.m. x 2-1/2 c.m. On lateral aspect of the left shoulder. Edges were everted, it was exit wound of injury No.3.
(4) Fire-arm entry wound .5 c.m. x .5 c.m. On the lateral aspect of right side of the chest 10 c.m: below the right axilla. An exit wound 1 x 3/4 c.m. On the front of right chest and 5 c.m. Below and medial to the right nipple, it was exit wound of injury No.4.
(5) Fire-arm entry wound 5 c.m. x 5 c.m. On the back of lower part of the right upper arm edges were inverted. An exit wound measuring 2.5 c.m. x 2 c.m. On front of lower part of right upper arm, it was as exit wound of injury No.5.
(6) Fire-arm injury wound 3/4 c.m. x 3/4 c.m. On back of right elbow joint, edges were inverted. An exit wound 1-1/4 c.m. x 3/4 c.m. On the back of right forearm just below the elbow joint.
(7) Fire-arm abrasion 7-1/2 c.m. x 1/2 c.m. On back of outer aspect of upper part of right forearm.
(8) Fire-arm wound 2 c.m. x 2 c.m. On the base of left index finger on the dorsal aspect.
(9) Fire-arm wound 2-1/2 c.m. x 1-1/2 c.m. On front of head.
In the opinion of the doctor, injuries Nos.1 and 2 were sufficient to cause death individually in the ordinary course of nature. Death occurred due to shock and haemorrhage. Injuries Nos.1 and 2 were grievous and rest simple. All the injuries were caused by fire-arms.
Dr. Sohail Amjad P.W.12 medically examined Shafqat Ali P.W. And found the following injuries on his person:--
(1) An entry wound of about 1 c.m. x .5 c.m. x going deep on front side of left upper arm 10 c.m. From the left shoulder point. No exit wound was found corresponding to this injury.
(2) A lacerated charred wound of about 2 c.m. x .5 c.m. x .5 c.m. On top of head 8 c.m. From the front hair line.
The injuries were caused by fire-arm and were simple in nature.
5. The accused denied the prosecution allegations and attributed the case to enmity.
Mian Khan appellant admitted that his sister was murdered for which Muhammad Aslam deceased and Shafqat Ali P.W. Were challaned and were released on bail. According to him, the deceased was a desperado and had many enemies and had also made a murderous assault on Sardar Muhammad Choudhary, Civil Judge, Kharian.
Amjad appellant stated that his mother was a P.W. In the murder case of Mst. Rashida against Muhammad Aslam deceased and Shafqat Ali deceased.
Mukhtar Ali appellant stated that his maternal-uncle Mukhtar was a P.W. In the murder case of Mst.
Rashida.
No evidence was called by the accused in defence.
6. The prosecution examined Shafqat Ali P.W.1D and Muhammad Arif P.W.11 as eye-witnesses and Muhammad Asghar P.W.4, Muhammad Arif P.W.5, Ghulam Rasul P.W.8, Muhammad Khan P.W.9 and S.I. Muhammad Ashraf P.W.14 as recovery witnesses of the weapons from the accused.
7. Relying on the motive and the above-mentioned eye-witnesses and recoveries, the learned trial Court convicted and sentenced the appellants as stated above.
8. It is contended on behalf of the appellants that the prosecution evidence was highly interested and inimical, the number of the accused had been exaggerated, the recoveries of the weapons of offence were without any significance, for, no empties had been recovered from the spot, the eye-- witnesses had been disbelieved qua four accused and in the absence of some independent corroboration they could not have been relied upon against the appellants.
9. Learned counsel for Shafqat Ali complainant states that all the four accused were vicariously liable for the murder of Muhammad Aslam deceased and as such deserved the maximum penalty provided for the offence of murder and that there were no extenuating circumstances to withhold the death penalty in the case of Mukhtar Ali and Muhammad Rauf appellants.
10. Admittedly, Shafqat Ali P.W.10 was a business partner of Muhammad Aslam deceased while Muhammad Arif P.W.11 was their friend. Shafqat Ali P.W. Was also a co-accused with the deceased in the murder case of Mst. Rashida sister of Mian Khan appellant. The occurrence had allegedly taken place in a busy bazar of Lala Musa -but no independent witness was examined by the prosecution. Shafqat Ali P.W.10 and Muhammad Arif P.W.11 had been disbelieved against Muhammad Afzal, Ahmad Bhatti, Tanvir-ul-Haq and Feroze. Excepting Ahmad Bhatti the others were also alleged to have fired at the deceased and Shafqat Ali P.W. There was no community of interest among the accused. Copy of the F.I.R. Exh.D.J. Was produced by Muhammad Afzal A accused to show his enmity with Tanvir-ul-Haq. Some of the accused are Bhattis by caste while the others are Kashmiris. According to the prosecution, the occurrence had taken place when they had stopped for buying fruit. But it is not understandable as to how the appellants could know- about it before hand. Neither the fruit-seller nor .Any other person from that locality was examined by the prosecution. Although Shafqat Ali complainant is an injured P.W. But due to his close attachment with the deceased and enmity with Mian Khan appellant it is not considered safe to place implicit reliance on his testimony without any independent corroboration.
11. The recovery of fire-arms of the appellants is without any significance I because no crime empties were recovered from the spot with which they could match. The deceased was a desperado and had many enemies. In this behalf a reference may be made to the statement of Shafqat Ali P.W.10. He admitted that Muhammad Aslam deceased was challaned for the murders of Muhammad Din Gujjar and Bahader Khan and was acquitted. A case under section 352/506, P.P.C. Was registered against him for making murderous assault on Mr. Sardar Muhammad Choudhary, Civil Judge, Kharian.
12. For the foregoing reasons, the prosecution has not been able to prove its case against the appellants beyond any shadow of doubt. Consequently, we accept the appeal, set aside their conviction and sentences and acquit them of the charge. They shall be released forthwith, if not required in any other case.
13. The revision filed by Shafqat Ali stands dismissed for the reasons mentioned above.
N.H.Q./M-368/L