1. ' Abdul Rashid (70), Khurshid (46/47), Muhammad Yasin (50), Mehdi Hassan (17), Dilshad Ali (18) and Liaqat Ali (35/36) were sent up for trial by Police Station Phalia, District Gujrat for an offence under section 302/307/ 109/148/149, P.P.C. Arshad Ali and Rehmat Ali though were accused in the case, since they could not be arrested, therefore, were declared proclaimed offenders. Additional Sessions Judge, Gujrat vide his judgment dated 24-2-1991 gave benefit of doubt to Liaqat Ali and acquitted him of all the charges. Abdul Rashid, Khurshid, Yaseen, Mehdi Hassan and Dilshad Ali were, however, found guilty and each of them was sentenced under section 302/149, .P.C. To imprisonment for life with a fine of Rs,10,000, or in default one year R.I. It was further directed that the fine, if recovered, one-half of it shall be paid to the legal heirs of the deceased. Each of them was further convicted and sentenced under section 307/149, P.P.C. To seven years' R.I. They were also convicted under section 148, P.P.C. And each of them was sentenced to three years' R.I. The convicts have appealed. Complainant has also filed a revision wherein he has sought enhancement of sentences of the convicts under section 302/149, P.P.C. Wants enhancement of punishment under section 307, P.P.C. As well. It has also been prayed that the sentence of fine may also be enhanced. Both the matters will be disposed of by this judgment.
2. Prosecution story in brief, as disclosed in F.I.R. Exh.PB, lodged by Muhammad Sharif, was to the effect that on 6-6-1989 first informant with Muhammad Younis, Muhammad Ilyas, Abdul Sattar and Muhammad Salim at about 9 p.m. Came to village Manu. While they were going through a lane towards their house, Rehmat Ali, armed with .12 bore gun, Arshad Ali with 7MM rifle, Mehdi Hassan with .12 bore gun, Dilshad with .12 bore gun, Yasin and Khurshid and Rashid, armed with Sotas, who were sitting at the shop of one Rashid, came out raising Lalkaras when the first informant and his companions were at some distance from the shop. Rashid raised a Lalkara that they should not be spared and Muhammad Salim should be killed. The said accused attacked them. First informant and his companions in order to save their lives ran away. They took a turn in a lane when Rehmat fired at them which hit Muhammad Salim on his neck, who fell down. Arshad fired at the first informant which missed. Thereafter, Mehdi and Dilshad fired ineffective shots each. Yasin, Khurshid and Rashid gave Sota blows to the first informant. The fire-shots attracted the villagers to the spot, whereupon the accused persons while raising Lalkaras went back to their houses. Muhammad Salim died at the spot. The above-named accused had committed the offence at the abetment of Liaqat Ali. Motive for the occurrence was that a dispute with regard to land was going on with the accused persons and the first informant side. The accused persons wanted to take forcible possession of the land but Muhammad Salim did not permit them to do so. They had also given an application against Yasin who was an employee in the Canal Department, whereupon he was punished. For the said motive the occurrence was committed.
2. ' Complaint Exh.PB was lodged on 6-6-1989 at 10-15 p.m. By Muhammad Sharif, P.W., which was recorded by Wakalit Hussain, S.I., P.W.14 at Chowk Phalia on the basis of which formal F.I.R. Exh.PB/1 was drawn at 10-30 p.m. The same day by Muhammad Riaz, Head Constable, P.W.8.
3. ' Wakalit Hussain S.I., P.W.14 after. Recording statement Exh.PB sent the same for registration of formal F.I.R. Complainant Muhammad Sharif since was injured, therefore, he prepared his injury statement Exh.PL and sent him to Hospital for examination. He went to the spot and prepared inquest report Exh.PM and injury statement Exh.PN of Muhammad Salim, deceased, and thereafter sent the dead body for post-mortem examination, blood-stained earth was secured from the spot vide memo. Exh.PJ. On 7-6-1989, he took into possession blood-stained clothes of the deceased. On 8-6-1989, he arrested Liaqat Ali, and on 18-6-1989 he arrested Abdul Rashid, Khurshid, Yasin, Dilshad and Mehdi accused. On 28-6-1989, Rasheed accused got recovered Sota P1, which was secured vide memo. Exh.PA. He also effected the recovery of various arms from the accused persons and took them into possession vide separate recovery memos. He got prepared site plan Exh.PK and Exh.PK/1 from the draftsman and gave his notes in red ink thereunder. After usual investigation, he challaned the accused.
4. ' Dr. Parvaiz Tarrar, M.S., T.H.Q. Hospital, Phalia, P.W.5, on 7-6-1989 conducted the post-mortem examination on the dead body of Muhammad Salim and found the following injuries:---
(1) A fire-arm entry wound 9 c.m. x 5 c.m. On left side of neck touching upper border of chest.
5. ' On the same day, he also examined Muhammad Sharif and found the following injuries:---
(1) Abraided contusion 2 c.m. x 1.5 c.m. On back of chest left side middle part.
(2) Abraided contusion 3 c.m. x 1.5 c.m. On back of chest upper part and mid-line.
(3) A contusion with swelling 2 c.m. x 1.5 c.m. On left side forehead.
(4) Contusion with swelling 1.5 c.m. x 1 c.m. On right eye-brow.
(5) Patient complained of headache and contusion with swelling 1 c.m. x 1 c.m. On top of head left side.
6. ' Subsequently, the injuries on the person of Muhammad Sharif, P.W.3 were declared simple.
3. Prosecution in support of its case had produced 14 witnesses in all. P.W.1 Asghar Ali had witnessed the recovery of Sota P1 at the instance of Khursheed Ahmad accused. Ocular account was furnished by Muhammad Sharif and Muhammad Ilyas, P.W.2 and 3, respectively, Muhammad Afzal, P.W.4 had witnessed the recovery of gun P.3 at the instance of Mehdi accused. He also recovered the gun P4 at the instance of Dilshad accused and signed both the recovery memos. P.W.5 Dr. Pervaiz Tarrar had conducted the post mortem examination on the dead body of Muhammad Saleem, deceased. P.W.7 Khan had deposed about the conspiracy for the murder. P.W.8 Muhammad Riaz, H.C. Had recorded formal F.I.R. Exh.PB/1. P.W.10 Chan Peer Shah, Constable had escorted the dead body to the mortuary. P.W.11 Ali Nawaz had witnessed the recovery of one crime empty and signed the recovery memo. Baqar Ali, P.W.12 deposed about the commission of abetment by Liaqat accused. P.W.13 Mian Muhammad Siddiq Draftsman had prepared site-plan Exhs.PK and PK/1. P.W.14 Wakalat Hussain, Inspector had investigated the case.
7. ' At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They also produced four D.Ws. D.W.1 Muhammad Bashir, Lineman in WAPDA stated that in June, 1989, there used to be loadshedding in Chak Mano from 8 p.m. To 9-30 p.m. Muhammad Siddiq, H.C./Moharrar, Police Station Phalia, D.W.2 produced Roznamcha for the period 31-5-1989 to 29-6-1989, according to which Liaqat son of Rana Abdul Rashid, accused in the present case, was arrested and confined in. Lock-up Phalia at 4-30 p.m. On 6-6-1989. He was arrested under section 107/151, Cr.P.C. D.W.3 Dr. Abdul Ghafoor stated that on 23-7-1989 under the directions of Additional Sessions Judge, Gujrat he medically examined Rashid and opined that his eye-sight was weak because it was a case of mature cataract of right eye. He was advised operation. It was a case of diminished vision because of cataract right eye and aphakia left eye. Muhammad Mohsin, SDO, WAPDA, D.W.4 stated that there used to be loadshedding from 12-00 hours to 14-00 hours, from 16-00 hours to 18-00 hours, from 20-00 hours to 21-30 hours and from 24-00 hours to 01-30 hours in Village Mano Chak.
4. It was contended by learned counsel for the appellants that the prosecution had failed to establish its case beyond doubt against the appellants. Stated that the eye-witnesses were related and inimical towards the appellants, therefore, should not be relied upon. Asserted that there are glaring discrepancies in the statements of the eye-witnesses on which no reliance could be placed. Argued that it was a dark night and chances of mistaken identity could not be ruled out.
8. Relied upon defence evidence, according to which at the relevant time there was loadshedding.
9. Asserted that none of the appellants had caused injuries to the deceased and two of the appellants were only ascribed ineffective firing. Argued that Dr. Parvaiz Tarrar, P.W.5 had opined that the injuries on the person of Muhammad Sharif, P.W.2 could be self-suffered and in such circumstances in the absence of any corroboration the eye-witnesses could not be relied upon qua the appellants. The contentions were opposed by learned counsel for the State as well as for the complainant. It was argued by learned counsel for the complainant that the eye-witnesses were truthful and could be relied upon. Argued that one of the eye-witnesses was injured and his presence at the spot could not be ruled out.
5. I have heard the learned counsel at length and gone through the evidence with his assistance.
10. Prosecution, in order to establish its case has relied upon evidence of motive, recoveries at the instance of the appellants and the ocular account. As far as the recoveries in the instant case are concerned, they may not be of much help to the prosecution because the Sotas recovered at the instance of Khurshid and Yasin were not stained with blood, and the guns.Recovered at the instance of Mehdi and Dilshad were of no help because they were neither sent to the fire-arm expert nor there was any crime empty.
11. ' Motive for the occurrence, as disclosed by Muhammad Sharif, P.W.2 was that the complainant side had a dispute over some land with the accused party and the accused party wanted to occupy the land forcibly, but Muhammad Salim, deceased did not permit them. The next motive was that Yasin accused was an employee in Canal Department and an application against him was given by Abdul Sattar, P.W., whereupon Yasin was suspended. Liaqat accused was head of the party and he instigated his co-accused for the commission of the offence. In cross-examination, the witness had to admit that a civil case with regard to the land in dispute was pending in the Court but none of the accused in the present case were defendants in the said suit. This in itself would make it clear that the present appellants had no motive whatsoever for the commission of the offence.
12. Even otherwise, the prosecution has not given any instance where the appellants wanted to take forcible possession but failed because of Muhammad Saleem deceased. In these circumstances, it is held that the motive as set up by the prosecution has not been proved.
13. ' Ocular account in the instant case has been furnished by Muhammad Sharif and Muhammad Ilyas, P.Ws.2 and 3, respectively. Both of them gave detailed account of the occurrence. In cross- examination they made material improvements with which they were duly confronted.
14. Muhammad Sharif, P.W.2 admitted that in a criminal case against the complainant party, Dilshad and Khurshid were prosecution witnesses. He was also given suggestion that Rasheed and Yasin accused were old men of 70 years of age. He further admitted that appellants Rehmat, Liaqat, Arshad and Rashid did not have landed property. He refuted the suggestion that at the time of occurrence there was loadshedding. Similarly, Muhammad Ilyas, P.W.3 in cross-examination admitted that he had no agricultural land in Chak Mano. He further admitted that his father owned agricultural land in Jatoi Town where they had constructed houses as well. He further admitted that his brother lives in said Jatoi Town and his Identity Card also contained the address of said Jatoi Town. The witness, however, admitted that loadshedding, used to be observed from 8 p.m. To 9 p.m. He further admitted that he had no relations at Phalia.
15. ' In view of the statement of both the eye-witnesses, it is amply clear that they are interested and inimical. Muhammad Ilyas, P.W. Was admittedly not the resident of the place where the occurrence had been committed, and in such circumstances, he had no business to be present at the spot at the time of A alleged occurrence. Muhammad Sharif was injured but the doctor, who examined him, did not rule out the possibility of the injuries on his person being self-suffered. The appellants did not have direct motive for the commission of the offence. Fatal shots were fired by Irshad and Rehmat, who are still absconders. Their case stands on different footings from that of the appellants. Mehdi and Dilshad appellants are alleged to have resorted to ineffective firing. The rest of the appellants are alleged to have caused injuries with their Sotas but the same have been declared as self-suffered by the doctor. In these circumstances, medical evidence does not corroborate the ocular account, therefore, case against the appellants is not free from reasonable doubt. From the defence evidence, it is established beyond doubt that at the time of occurrence it was load shedding therefore, it was difficult for the witnesses to have seen which overt act was done by which of the appellant.
16. For what has been discussed above, it is held that it would not be safe to rely upon uncorroborated testimony of the eye-witnesses. Resultantly, appeal is accepted and the appellants are acquitted of the charges. They shall be released forthwith if not required in any other case. Appellants Abdul Rashid and Muhammad Yasin, are on bail. Their bail bonds shall stand discharged.
17. ' For the same reasons, the Revision filed by the complainant for enhancement of sentence fails, which is accordingly dismissed.