KHALIL-UR-REHMAN RAMDAY, J.--- Four persons, namely, Latif, Muhammad Jahangir, his son Farooq and one Muhammad Naveed were tried for the murder of Muneer deceased and of having murderously assaulted Bashir and Bahadur P.Ws.
2. Through his judgment, dated 8-9-1988, a learned Additional Sessions Judge at Lahore found all the four accused persons guilty of charges under sections 302/34 and under section 307/34, P.P.C.
3. For the charge under section 307/34, P.P.C. Each one of the four convicts was sentenced to seven years' R.I. And to a fine of Rs.2,000 or sufferance of six months' R.I. In default of payment of the said fine.
4. In pursuance of their convictions under section 302/34, P.P.C., Latif was sentenced. To death and to a fine of Rs.25,000 or sufferance of two years' R.I. In default of payment of the said fine. Each of the remaining three convicts was, however, punished with imprisonment for life and with a fine of Rs.10,000 or one year's R.I. In default of payment of fine.
5. The fine under the murder charge imposed on Latif convict-was ordered to be paid to the heirs of Muneer deceased.
6. Murder Reference No.13 of 1989 seeks confirmation of the death sentence imposed on Latif convict who, together with the other three convicts, challenges the convictions and the sentences recorded against them, through Criminal Appeal No.1050 of 1988.
7. Both these matters are being disposed of together through this single judgment.
8. The occurrence culminating in the above-noticed convictions had taken place on 29-3-1986 at 2-00 p.m. At the shop of Bahadur complainant who had alleged that he was sitting at his said shop alongwith his brothers, namely, Muneer deceased and Bashir (P.W.5), when all the four convicts who were armed with fire-arms, reached there while raising Lalkaras and on seeing whom, Muneer deceased ran and climbed on to the roof of a nearby under construction shop of one Hameed, whereas; Bashir P.W. Ran towards the Tall to save his life. Bahadur P.W. Allegedly kept sitting at his shop.
9. The complainant had further alleged that Latif appellant fired at Muneer deceased who was present at the roof of the nearby under construction shop which fire hit him on his head as a result of which, he fell dead at the spot. Naveed appellant fired at Bashir P.W. With his rifle resulting in an injury on the left leg of the said P.W. Jahangir convict caused an injury on the head of Bahadur complainant with the Butt of his Pistol. Farooq convict kept raising Lalkaras and continued firing in the air to create a scare and continued threatening any intervention, with dire consequences.
10. Bahadur complainant had claimed that on the preceding Basant Day, Arif a Sala of Muneer deceased had had a quarrel with Latif and Naveed appellants etc as a result of which, the said Arif had snatched the Pistol of Naveed appellant and further that it was through the intervention of the Mohalladars, that the said Pistol was returned to Naveed only after Latif, etc. Had publicly tendered apologies to the complainant party. According to the complainant, the appellants were offended with the complainant party because they were the ones who had manoeuvred public apologies from the appellants and that it was on account of this grievance that they had launched the attack resulting in the death of Muneer deceased and in injuries to Bashir and Bahadur P.Ws.
11. Jahangir, Farooq and Naveed denied the charges levelled against them and pleaded that they had been falsely involved on account of enmity and suspicion whereas Latif appellant, besides denying his involvement in the, occurrence in question, specifically pleaded that on the day of occurrence, his wife's sister, namely, Mst. Parveen Akhtar had got married with one Sanaullah and consequently he was present in the village of his in-laws, namely, Baddoke for the entire day of the occurrence in question. He had further pleaded that he was even a witness of the marriage in question and further that even in the marriage of his other sister-in-law, namely, Mst. Nasreen Akhtar which had taken place in April, 1981, he had been a witness of Nikah.
12. Latif appellant produced the Nikahnama (Exh.D.C.) which witnessed the marriage of Sanaullah with Mst. Parveen Akhtar and in which Nikahnama, Muhammad Latif appellant appeared as a witness. This marriage had taken place on 29-3-1986, which is the day of the present occurrence.
13. The said appellant also brought on record another Nikahnama (Exh.D.D.) relating to the marriage of one Riaz with Mst. Nasreen Akhtar, another sister-in-law of the said appellant and in which Nikah, Muhammad Latif appellant again appears as a witness. This marriage had taken place on 22-4-1981.
14. In addition to this documentary evidence and in addition to his own statement on oath recorded under section 340, Cr.P.C., Latif appellant examined Mansab Ali, Secretary of the concerned Union Council as D.W.1 who produced the original register pertaining to Nikahs which was maintained in the said Union Council and in which register, the marriage of Sanaullah with Mst.
Parveen Akhtar was registered on 29-3-1986 at serial No.15 and in which, Latif appellant appeared as a witness.
15. Abdul Aziz who was the Imam of the mosque of village Baddoke and who had performed the Nikah in question as Nikah Khawan, appeared as D.W.2 to state that the said Nikah had taken' place at about 2-00/2-30 p.m. On 29-3-1986 and that Latif appellant was present in the said ceremony and was one of the witnesses to the said Nikah.
16. Faqir Ali appearing as D.W.3, who was also a Secretary of the Union Council, had produced the register relating to the Nikah of Mst. Nasreen Akhtar, the other sister-in-law of Latif appellant which Nikah. Had taken place on 22-4-1981 and in which Nikah also, Muhammad Latif appellant was a witness.
17. Rehmat Ali and Safdar who were also the witnesses of the Nikah in question appeared as D.W.4 and D.W.5 and testified about Latif appellant's presence and participation in the Nikah in question.
18. Saeed Ahmad S.I. Who had inquired into the factum of the Nikah in question in pursuance of an order passed by a learned Additional Sessions Judge, appeared as D.W.6 and deposed that as per the inquiries conducted by him, the Nikah in question had taken place on 29-3-1986 as claimed by Latif appellant and the said appellant was one of the witnesses of the said Nikah.
19. During the course of the hearing before us, we also summoned the original register pertaining to village Baddoke which carried the Nikahnama in question and we were of the opinion that the same did not appear to be a fabrication.
20. The documentary and the oral evidence brought on record by Latif appellant is sufficient to reasonably establish that the marriage ceremony of Mst. Parveen Akhtar, a `sister of the said appellant's wife, had taken place on the day of occurrence at about 2-00/2-30 p.m. Which date and time coincided with the date and the time of the occurrence in question.
21. It is true that the prosecution case is being supported by two injured eye-witnesses of the occurrence in question and another witness who bears no malice towards the appellants party, yet the solemnization of the marriage of Latif appellant's sister-in-law at the time and on the day of the occurrence in question, creates sufficient doubts about the said appellant's participation in the occurrence in question.
22. The testimony of Maqsood Ahmad S.I./I.O. (P.W.10) further strengthens these doubts. He had admitted that after the arrest of Latif appellant, his very first version was that on the day and at the time of occurrence, the said appellant was busy in the marriage ceremony of his sister-in-law and further that a number of persons had appeared before him even from the side of the bridegroom of the marriage in question and had supported the version of Latif appellant. The said I.O. Had further admitted that according to his investigation, Latif appellant was present in village Baddoke in connection with the marriage in question from around 12-00 noon till around 6-00 p.m.
23. In view of the doubts which have thus crept into the prosecution case, the finding of the learned trial Court with respect to Latif appellant's participation in the occurrence in question, becomes untenable.
24. Consequently, we find that Latif appellant's participation in the occurrence in question is not free from doubt and he cannot, therefore, be convicted of the charges levelled against him.
25. Resultantly, the convictions and sentences recorded against Latif appellant on charges under section 302/34 and under section 307/34, P.P.C. Are set aside and he is acquitted of the said charges.
26. He is in custody and shall be set at liberty forthwith, if not required to be detained in any other case.
27. Farooq appellant is a son of Jahangir appellant.
28. He was allegedly armed with a Pistol but was attributed only the proverbial Lalkara and firing of shots in the air. He was not burdened with any other role in the occurrence in question nor was he saddled with any injury on the person of any of the three victims of the occurrence in question.
29. His participation in the occurrence in question also appears to be a doubtful affair. The benefit of this doubt has to be extended to him.
30. Therefore, the convictions and sentences recorded against Farooq appellant under section 302/34 and under section 307/34, P.P.C. Are also set aside. He is acquitted of the said charges.
31. He is on bail and is set at liberty after being discharged from his bail/surety bonds.
32. Despite the dents created by our findings in respect of the prosecution story relating to Latif and Farooq appellants, especially our decision relating to Latif appellant, we find that no exception can be taken to the findings of guilt recording against Naveed and Jahangir convicts.
33. Bahadur complainant and Bashir P.W. Are the real brothers of Muneer deceased. The occurrence in question had taken place at their shop. They had received injuries in the occurrence in question. Their presence at the place of occurrence at the relevant time is, therefore, not open to any doubt.
34. The occurrence in question had taken place in broad daylight and in a busy Bazar. In the circumstances, it cannot be believed that the assailants of the victims in question could have escaped unidentified. 1t is also not believable that these two eye-witnesses who had no background of enmity with the appellants in question, except the motive part of the prosecution story, would maliciously substitute Naveed and Jahangir appellants for the actual culprits.
35. It has come on record that the complainant party was locked-up in criminal litigation emanating from murders with other persons, especially the party of one Abdul Qayyum alias Qeema. In case the complainant party had to falsely implicate somebody in the occurrence in question, then the obvious choice would have been such like enemies of the complainant party and not the appellants in question against whom the complainant party bore no grudge or ill-will except the motive for the present occurrence.
36. The third eye-witness of the occurrence in question is Riaz who appeared as P.W.4.
37. He is a labourer by profession who claims to have been working as such on the under- construction shop of Hameed on the roof of which, Muneer deceased was done to death. The defence never challenged the factum of such a shop being under construction and this claim of the prosecution was even supported by the draftsman who appeared as P.W.8.
38. This Riaz P.W. Has no animosity against the appellants and in fact, none was even suggested to him.
39. Therefore, he is also an independent and reliable witness of the occurrence in question.
40. In view of these facts and circumstances, we have felt persuaded to believe that Navecd and Jahangir appellants did take part in the occurrence in question, as alleged and claimed by the prosecution.
41. The question of the conviction of Naveed and Jahangir appellants for the murder of Munir deceased when they were not alleged to have caused any injury to the said deceased and when the person who had been attributed the injury received by the deceased had already been acquitted, did engage our attention.
42. It was, however, conceded by Mr. M.B. Zaman, the learned counsel appearing for Latif appellant that there was no bar on convicting Naveed and Jahangir appellants for the murder of Muneer deceased even when the assailant-accused of having caused the death of such a deceased had been acquitted by us, with the only rider that such a findings of us, should be preceded by a rather careful scrutiny of the evidence on record because the prosecution evidence had been disbelieved by us in respect of a very important aspect of the prosecution case.
43. The learned Assistant Advocate-General and the learned counsel assisting him on behalf of the State also, canvassed that there was no legal bar in our way of convicting Naveed and Jahangir appellants on the murder charge in the above-mentioned circumstances.
44. As has been noticed above, the ocular testimony vis-a-vis Naveed and Jahangir appellants inspires confidence and even if some corroboration be required, the same is available in the form of motive and the medical evidence D available on record.
45. Consequently, we maintain the convictions and sentences recorded against Naveed and Jahangir appellants by the learned trial Court on charges under section 302/34 and under section 307/34, P.P.C.
46. Resultantly the appeal under adjudication which has been accepted to the extent of Latif and Farooq appellants, is dismissed to the extent of Naveed and Jahangir appellants.
47. It is, however, directed that the entire amount of fine imposed under section 302/34, P.P.C. Shall be paid to the heirs of the deceased; that the sentences of imprisonment awarded to the two appellants shall, run concurrently and that they shall also be extended the benefit of the provisions of section 382-B, Cr.P.C.
48. Naveed and Jahangir appellants are on bail. They shall be taken into custody forthwith to suffer the sentences recorded against them.
49. Murder Reference No.13 of 1989 and Criminal Appeal No.1050 of 1988 are disposed of in the above terms.
N.H.Q./M-440/L