RASHID AZIZ KHAN, J.-- Shaukat Ali, Kalu, Muhammad Shaft, Sarwar, Uaqat, Khalil and Ashiq were sent up trial by Police Station Sharqpur for offences u/ss 302, 148, 149 P.P.C. Additional Sessions Judge, Sheikhupura vide his judgment dated 11.3.89 gave the benefit of doubt to Muhammad Shaft and acquitted him of all the charges. The rest of the accused were however found guilty for the murder of Muhammad Anwar and each of them was convicted u/s 302/149 PPC and sentenced to imprisonment for life with a fine of Rs. 5000/- or in default two years R.I. Each of them was further convicted u/s 148 PPC and sentenced to two years R.I. They were also directed to pay compensation of Rs. 10,000/- each to the legal heirs of the deceased u/s 544-A Cr.P.C. Shaukat Ali, Kalu, Sarwar and Liaquat have challenged their convictions and sentences. Khalil and Ashiq have also challenged their convictions and sentences in a separate appeal. Complainant has also filed a revision seeking enhancement of sentence. All these matters shall be disposed of by this judgment.
2. Prosecution story in brief, as disclosed by Khushi Muhammad PW in the FIR Ex.P C, is that he has three sons. Out of them Muhammad Sadique and Muhammad Anwar have a shop in the village and third son Muhammad Arshad is employed in Lahore Corporation. Two days before Eid, Muhammad Anwar first informant's son was at the hotel of one Bashir where he had exchanged hot words with Liaqat and Ashiq. Muhammad Anwar gave a few slaps to them. They were however separated by Majeed and Muhammad Yaqoob. Ashiq and Liaqat allegedly left the place while threatening that they would take revenge of the insult. On 9.8.87 in the afternoon the first informant and his son Muhammad Anwar were lying on their cots in mango garden when at about 1.30 pm the accused persons armed with 12 bore guns, except Sarwar who was armed with a carbine, and Kalu with Dantar came there. Muhammad Shaft raised a lalkara that Anwar be taught a lesson for insulting Liaqat and Ashiq. Sarwar fired his carbine hitting Anwar near the neck. Khalil fired hitting on his right thigh. Ashiq fired his gun hitting Anwar on his left thigh. Shaukat's fire also hit on his left thigh. Liaqat's fire hit Anwar on his right knee, whereupon he fell down. Kalu gave Dantar blow to Anwar. The commotion attracted Muhammad Siddique and Muhammad Amin to the spot. The accused persons after the commission of offence ran away with their respective weapons from the spot.
FIR Ex.PC was lodged by Khushi Muhammad PW-3 with regard to an occurrence which took place on 9.8.87 at 1.30 p.m. In the garden of Hassan Din in the area of Burj Atari I6 kilo meters from Police Station Sharqpur. It was recorded by SHO Zafar Iqbal PVV. Ll on the same day at 2.30 p.m.
Zafar Iqbal SHO alter recording the statement Ex.PC came to the spot and prepared injury statement Ex.PN and inquest report Ex.PO of the deceased. Blood stained earth was secured vide memo Ex.PD. During investigation he secured gun P.S from Muhammad Khalil vide memo Ex.PJ.
Shaukat got recovered gun P.9 vide memo Ex.PK. The memos were attested by Muhammad Ashraf and Muhammad Buta PWs./On the same day, i.e., 10.9.87. Ashiq got recovered gun P.12 vide memo Ex.PD. He got prepared site plan Ex.PR and PR/1 of the spot and gave his notes in red ink thereunder.
After usual investigation he challaned the accused.
Dr. Khalid Yazdani, SMO, DHQ Hospital, Sheikhupura PW.7 conducted the postmortem examinations on the dead body of Muhammad Anwar on 10.8.87 and found the following injuries:-
1. An entrance wound of fire-arm 4 cm x 3 cm x deep into neck and chest on the back and right side of neck. Two pellets and one was removed from the wound.
2. An incised wound 5 cm x 3 cm on the back of left side of head. Bone was fractured.
3. Five entrance wounds of fire-arm each 0.5 x 0.5 cm on the front of and outer side of right thigh in an area of 12 cm x 7 cm.
4. An entrance wound of fire-arm 9 cm x 6 cm x fracture of the right femous just above the knee joint at front.
5. An entrance wound of fire-arm 4 cm x 3 cm on the outer side of left thigh.
6. An entrance wound of fire-arm 1 cm x 1 cm on the front of left thigh.
He had observed tattooing on all the wounds, in his opinion injuries were ante-mortem and caused with fire-arm except for injury No.2 which was caused with a sharp edged weapon. Death had occurred due to severe shock because of injury No.1\ individually and all the remaining collectively.
In cross-examination he admitted that injuries Nos.5 and 6 could be the result of one shot.
Prosecution in support of its case produced 12 witnesses in all. Muhammad Rafiq PW.1 had attested the recovery of gun PI at the instance of Khalil. He also attested the recovery of gun P.2 at the instance of Ashiq. Ocular account was furnished by Khushi Muhammad and Afzal Hussain PWs 3 and 4 respectively. Muhammad Buta PW.6 had attested the recovery of gun at the instance of some of the accused. PW.7 Dr. Khalid Yazdani had conducted the post-mortem examination.
Muhammad Yar ASI PW.8 had partly investigated the case. He had recovered gun at the instance of Liaqat accused. Muhammad Yaqoob PW.9 had deposed about the earlier incident which took place at the hotel of Bashir. He had separated the deceased and the accused. Zafar Iqbal PW 11, SHO had investigated the case and Muhammad Arshad patwari PW-12 had prepared site plan Ex.PR and PR/1 at the instance of the police.
At the conclusion of the prosecution evidence the appellants were examined without oath. They refuted the prosecution evidence and pleaded innocence. They however did not chose to appear on oath in their defence. Nor led any defence evidence.
It was contended by learned counsel for the appellants that the case against the appellants was highly doubtful. Submitted that the motive for the commission of the offence was not proved at all.
Argued that the recovery of guns at the instance of the appellants was not of any help to the prosecution because neither the guns were sent to the fire-arm expert Jior any crime empty was recovered from the spot which could connect the guns with the commission of offence. Argued that it has come on record that the eye-witnesses were interested and inimical, therefore, they cannot be relied upon unless corroborated but the corroboration is not available. Contentions were opposed by the learned counsel for the Slate as well as for the complainant.
1 have heard the learned counsel and gone through the evidence with his assistance. There is substance in the argument of the learned counsel for the appellants that recovery of guns at the instance of the appellants may not be of any help because neither any crime empty was recovered from the spot nor the guns were sent to the fire-arm Expert to get an opinion that they were in working order, In these circumstances they cannot furnish any corroboration to the ocular account.
As for as the motive for the commission of the offence is concerned it has been furnished by Khushi Muhammad PW3 and Muhammad Yaqoob PW.9. As far as Khushi Muhammad PW is concerned he in his statement made in Court stated that he was informed about the earlier incident by his deceased son. It is strange that he had not said so in the FIR that he was informed by his son. As for Muhammad Yaqoob, he is close relation of the deceased. He made material improvements.
According to him he was having meals at the hotel where the incident took place but before the police he had not said so. Similarly he stated in Court that he was having meals at the hotel of Bashir and in the same breath he said that Bashir was not present at the hotel. Taking the statement of both the witnesses it is clear that they are inconsistent and cannot be relied upon.
As far as the ocular account is concerned, both the eye-witnesses had made material improvements. PW3 Khushi Muhammad had ascribed each injury to each of accused but in Court he changed his statement by stating that the accused Khalil. Shaukat and Ashiq fired hitting the deceased. In Court he did not describe the part of body where injury was caused, whereas in the FIR he had done so. Similarly he did not ascribe any role to Liaquat accused. He had made number of improvements with which he was duly confronted but could not give any explanation. Af/al Hussain PWA gave detailed account of occurrence. In cross- examination, he however admitted that he was a Line-Superintendent in Wapda in District Lahore during the days of occurrence he was on duty when the occurrence took place. He had to admit that on the said date he had not made any application for leave. Even otherwise he had made number of improvements with which he was duly confronted. His presence at the spot at the relevant time is highly doubtful, In these circumstances, I feel reliance could be placed on his statement only if corroborated from some independent evidence.
I have given my careful consideration to every aspect of the case and have noticed that corroboration is available only against Kalu and Sarwar accused. Sarwar accused was ascribed a specific injury which was noticed by the investigating officer as well. Kalu was armed with Dantar and the doctor did find incised wound as well. As for as the remaining accused are concerned, in Court they were ascribed general role which cannot be used as a corroboration to the statements of the eye-witnesses. As an abundant caution, I accept the appeal of Shaukat Ali, Liaquat, Khalil and Muhammad Ashiq and acquit them of all the charges. They shall be released forthwith if not required in any other case. As far as Kalu and Sarwar are concerned, their appeals are dismissed.
Their convictions and sentences are upheld.
For the reasons discussed above, revision filed by Khushi Muhammad complainant also fails which is accordingly dismissed.