MIAN ABDUL KHALIQ, J.---Javaid alias Jeda (23 years),,Liaquat Ali (50 years), 'Muhammad Shahbaz (45 years), Chiragh Din (62 years), Muhammad Imtiaz (18 years), Malik Iftikhar alias Assu (35 years), Sabir Hussain (35 years) (absconder) and Siraj Din (52 years) were tried by the learned Judge, Punjab Special Court for Speedy Trials No. 1, Lahore, for the murders of Qasim Ali and Akbar Ali, and murderous assault on P.W. 21 Muhammad Siddique. Vide his impugned judgment dated 18- 1-1989 Javaid, Liaquat Ali, Shahbaz and Sabir Hussain accused were convicted and sentenced under section 148, P.P.C. To 2 years' R.I. Each. They were also convicted under section 452, P.P.C.
Read with section 149, P.P.C. And sentenced to 5 years' R.1. Each and a fine of Rs.2,000 each, or in default to further undergo for 6 months' R.I. Each. The learned trial Court convicted and sentenced Javaid alias Jeda under section 302, P.P.C. Read with section 149, P.P.C. To death on two counts and a fine of Rs.10,000 on each count, in default whereof to undergo R.I. For two years on each count.
Liaquat Ali, Muhammad Shahbaz appellants and Sabir (absconder) co-accused were sentenced under section 302, P.P.C. Read with section 149, P.P.C. To suffer life imprisonment each on two counts and a fine of Rs.5,000 each on each count or in default to undergo further R.I. For 2 years on each count. They were also convicted and sentenced under section 307, P.P.C. Read with section 149, P.P.C. For murderous assault on Muhammad Siddique (P.W.21) to undergo imprisonment for life each and a fine of Rs.10,000 each, or in default to further undergo R.I. For 2 years each. Each of the accused was directed to pay Rs.50,000 as compensation to the heirs of both the deceased and were also ordered to pay Rs.20,000 each to Muhammad Siddique (P.W.21) as compensation under section 544-A, Cr.P.C. Or in default to undergo imprisonment for six months each. They were not extended the benefit of section 382-B, Cr.P.C. The appellants have filed appeals (Crl. Appeals Nos.25/1989 and 145/1989). The State has preferred Crl. Appeal No.87/89 against acquittal of Siraj Din, Chiragh Din and Muhammad Imtiaz, who were issued notices, but the same State appeal qua Muhammad Shahbaz, Liaquat Ali and Sabir Hussain for enhancement of sentence was dismissed.
Sabir Hussain was tried in absentia who filed Writ Petition No.7189/1989 challenging his trial, conviction and sentence in absentia. All the above cited appeals and the writ petition shall be disposed of by this judgment.
2. The prosecution case in brief as unfolded in the F.I.R. Exh.PS recorded at Police Station North Cantt., Lahore on 24-9-1989 at 6-45 p.m. By P.W. 23 Muhammad Hanif S.I. On the statement of Muhammad Din complainant (since murdered) is to the effect that on 24-9-1987 at 6-15 p.m. He along with Asif son of Abdul Rahim and Muhammad Siddique son of Allah Ditta were sitting in front of his house, suddenly two cars stopped in front of them, one of those was Toyota Corolla Registration No. LHF 1232 Model 1974 white coloured from which Javaid alias Jeda appellant armed with Klashnikov, Safdar alias Tedy (since killed in police encounter) son of Yaqoob armed with Klashnikov, Liaquat appellant armed with pistol .30 bore, Chiragh Din alias Babu armed with pistol .12 bore appeared and from the other car Toyota Corolla white coloured Model 1974 Siraj son of Qasim (acquitted co-accused) armed with 30 bore pistol, Sabir son of Qasim armed with double- barrel gun .12 bore, Shahbaz appellant armed with .12 bore double-barrel gun and Imtiaz son of Labhu armed with .32 bore revolver emerged, and witnessing them the complainant along with Asif P.W. (given up) and Muhammad Siddique (P.W.21) entered that Baithak of the house where Qasim Ali and Akbar Ali, his sons aged 15/16 years and 14 years respectively were enjoying T.V., who witnessing the complainant along with the P.Ws. Stood up, but meanwhile Javaid alias Jeda appellant reached and fired a burst of Klashnikov, which hit Akbar Ali deceased who died at the spot. The second shot of Klashnikov was fired by Safdar alias Tedy co-accused (since killed), which hit Qasim Ali deceased who succumbed to his injuries there and then. The third shot was again fired by Javed alias Jeda appellant which hit Muhammad Siddique (P.W.21) who fell down. The complainant and Asif luckily were saved and reached running on the roof top. Then Chiragh, Siraj, Sabir, Shahbaz and Imtiaz accused jointly fired at them, but both of them were saved. Thereafter all the accused made indiscriminate firing outside the house and escaped from the scene in their cars. Qasim Ali and Akbar Ali had succumbed to their injuries, and Muhammad Siddique (P.W.21) was seriously injured.
3. P.W.23 Muhammad Hanif S.I. recorded F.I.R. Exh.PS, reached the spot i.e. House of Muhammad Din complainant, sent Muhammad Siddique injured (P.W.21) to the hospital for medical examination with Muhammad Ashraf A.S.I., prepared injury statement Exh.FT, inquest report Exh.PU of Qasim Ali deceased and injury statement of Exh.PV and the inquest report Exh.PW of Akbar Ali deceased and despatched the dead bodies to the mortuary. He secured blood vide memo. Exh. PP after scratching the same from the place where Muhammad Siddique (P.W.21) was injured. He also secured blood vide memo. Exh.PN in the same way from the place where the dead body of Qasim Ali deceased was lying, and from near the dead body of Akbar Ali deceased vide memo. Exh.PO. He took into possession 28 crime empties of Klashnikov P.12/1-28 from the spot and also secured 9 leads of bullets P.13/1-9 and made into a sealed parcel vide memo Exh.PQ. He recorded the statements of the P.Ws and supplementary statement of the complainant. He then reached the Services Hospital, but could not record the statement of Muhammad Siddique (P.W.21) as he was not fit to make statement. Re delivered the sealed parcels to the Moharrir. He searched for the accused and investigated the case till 10-10-1987 when the investigation was transferred to Sardar Ali, Inspector/S.H.O. (P.W.16).
4. P.W.16 Sardar Ali Inspector had partly investigated the case and arrested Chiragh, Shahbaz, lmtiaz and Siraj accused on 10-10-1987 from the premises of the Sessions Court. On 30-10-1987 he formally arrested Javaid alias Jeda from the Police Station `B' Division, Sahiwal where he was already under arrest as proclaimed offender. He had also got declared Javaid alias Jeda, Safdar, Liaquat and Sabir accused as proclaimed offenders.
5. The accused were challaned and sent up for trial. A charge under sections 148, 452,109/302, 302/149, 302/149, 307/149 and 307/149, P.P.C. Was framed, which they denied and claimed trial.
6.The prosecution examined 23 P.Ws. In all to substantiate its base.
7. On 24-9-1987 at 7-20 p.m. P.W.8 Dr. Javaid Iqbal Khokhar medically examined Muhammad Siddique injured (P.W.21) and found the following injuries on his person:-- (1)Big circular wound about 2 inches in diameter on lateral aspect of left thigh below anterior superior iliac spine. There is burning and tattooing around skin. The skin was inverted margin.
(2)There was irregular wound of fire-arm on front of thigh about 6" above left knee. There was a tattooing and blackening of skin around.
(3)Irregular wound about 2" diameter on back of the left thigh about 6" above back of the left knee.
(4)There were multiple small pellets showing exit wound. All over the hip and buttock.
The injuries were kept under observation and the probable duration of injuries was fresh and caused by fire-arm. On 24-11-1987 he issued a letter Exh.PF to the Registrar, Surgical Unit No.111 Services Hospital, Lahore where the patient was admitted for treatment, for the supply of the details of the injuries, operation notes and the duration of stay in the ward, on which Dr.Tausif Ahmed (P.W.9) replied that the patient had fracture of left femural shaft at lower end, -for which condylar plate with screw was inserted. Written information supplied by Dr. Tausif Ahmad (P.W.9) is Exh.PF/1.
8. P.W.10 Dr. Muhammad Afzal on 25-9-1987 conducted autopsy on the dead body of Qasim Ali deceased and found the following injuries on his person:-- 1-A. Fire-arm wound of entry 0.75 c.m. x 0.75 c.m. On outer aspect of left arm 21 c.m. Below left shoulder top and 10 c.m. Above left elbow.
1-B. Fire-arm wound of exit 1.5 c.m. x 0.5 c.m. On back of left arm 18 c.m. Below left shoulder top and 13 c.m. Above left elbow.
On exploration there was injury to soft tissues only.
2-A. Fire-arm wound of entry 0.5 c.m. x 0.5 c.m. On interior fold of left axilla. 14 c.m. Below left shoulder top and 16 c.m. From mid-line.
2-B. Fire-arm wound of exit 2 c.m. x 2 c.m. On back of left shoulder 2.5 c.m below left shoulder top.
On exploration muscles underneath were injured and there was fracture of upper end of scapula.
Projectile made exit via 2-B.
3-A. Fire-arm wound of entry 2 c.m. x 1.5 c.m. On back of left arm 22 c.m. Above left elbow and 15 c.m. Below left shoulder top.
'3-BFire-arm wound of exit 7 c.Rn. x 3.5' c.m. On left axilla 13 c.m. Below shoulder top.
On exploration projectile entered through 3-A injured muscles and fractured upper end of left humerus and made exit view 3-B.
4-AFire-arm wound of entry 1 c.m. x 1 c.m. On front of left chest 6 c.m from mid-line and 5 c.m.
Above left nipple.
4-BFire-arm wound of exit 4.5 c.m. x 3 c.m. On front of left chest 12 c.m from midline and 17 c.m, below left shoulder top.
On exploration there was only soft tissue injury.
5-A. Fire-arm wound of injury 0.75 c.m. x 0.75 c.m. On front of right chest. 4 c.m. From midline and 6.5 c.m. From right nipple.
5-B. Fire-arm wound of exit 3 c.m. x 2 c.m. On back of left lumber area. 6 c.m. From midline and 8 c.m. Below injury `7-A'.
On exploration projectile after entry via 5-A injured soft tissue of the chest wall right side. Right pleura, lower lobe of right lung, left lobe of liver after perforating diaphragm and made exit via 5-B.
Right pleural cavity contained one litre of blood.
6-A. Fire-arm wound of entry 0.75 c.m. x 0.75 c.m. On left side of lower part of abdomen. 6 c.m. From midline and 16 c.m. Below left sub-costal margin.
6-B. Fire-arm wound of exit 3 c.m. x 3 c.m. On left side of back 5 c.m. Below `5-B' and 1.2 c.m. From midline.
On exploration projectile after entry via 6-A injured the peritoneum, loops of small intestine and fractured were vertebral column partly and made exit to `6-B'.
7-A. Fire-arm wound of. Entry 1 c.m. x 0.75 c.m. On back of left side of lumber area 8 c.m. From midline and 35.c.m. Below left shoulder top.
7-B. Fire-arm wound of exit 3.5 c.m. x 2.5 c.m. On outer side of right chest 2 c.m. Below axilla and 6 c.m. Outer to right nipple.
On exploration projectile after entry through 7-A injured the back muscles shattered the liver perforated right dome of diaphragm and lower portion (lobe) of right lung and fractured sixth rib right side on latteral aspect and made exit through injury 7-A.
(8)Fire-arm grazed wound 9 c.m. 3 c.m. On inner side of right arm 18 c.m. Above right elbow joint.
In the opinion of the doctor the injuries were ante-mortem and caused by fire-arm. The cause of death in this case was injury No. 5, damaging right lung and liver, injury No. 6 damaging small intestines and vertebral column and peritonium, and injury No. 7 damaging liver, diaphragm, right lung etc. Injuries Nos. 5, 6 and 7 were also individually sufficient to cause death in the ordinary course of nature due to haemorrhage and shock. The probable time that elapsed between injuries and death was immediate and that between death and post-mortem was within 18-30 hours.
Dr. Shehzad Nazir Leghari who conducted post-mortem examination on the dead body of Akbar Ali deceased had left Pakistan for 2 years and P.W.22 Muhammad Shah, Record Keeper, Department of Forensic Medicines, K:E. College, Lahore, was examined to prove the post-mortem report of Akbar Ali deceased and according to it the doctor had found the following injuries on his person:--- 1-A. A wound of entry 1 c.m. x 0.75 c.m. On collar of abrasion 10 c.m. From elbow on the outer and front side of right upper arm.
1-B. The .Wound of exit 2 c.m. x 1.5 c.m., 1 c.m. Above and medial to injury No. 1-A.
On exploration injuries Nos. 1-A and 1-B communicated with each other. Subcutaneous tissues and muscles were damaged.
2-A. A wound of entry 7 c.m. x 5 c.m. On the front of left thigh 4 c.m. Below anterior superior iliac skin 19 c.m. Above knee.
2-B. A wound of exit 10 c.m. x 5 c.m. On the posterior aspect of left thigh, 10 c.m above popliteal fossa.
On exploration, after entering at 2-A the bullet had injured the muscles, vessels and nerve and had fractured the femur and had come out at injury No. 2-B.
3-A. A wound of entry 0.75 c.m. x 0.75 c.m. On post aspect of shin 28 cm. Above the heal 19 c.m.
Below the knee on the left side.
3-B. A wound of exit 0.75 c.m. x 0.75 c.m. On lateral aspect of shin on the left side 18 c.m. Below knee and 21 c.m. Above ankle.
On exploration the bullet had damaged the muscles after entering at injury 3-A and had come out at No. 3-B.
4-A. A wound of entry 2.5 c.m. x 1.5 c.m. On the front of right chest 11 c.m. From nipple and 12 c.m.
From mid-line.
4-B. A wound of exit.3 c.m. x 2.5 c.m. On the back of the chest. Left side 9 c.m. From the mid-line 27 c.m. Below shoulder.
On exploration the bullet had damaged the third rib and had entered the pleural cavity contained 1000 cc blood. The right lung upper lobe was pierced through and through and after piercing it the bullet had entered left pleural cavity through posterior mediastineum after damaging descening arota, the left pleural cavity contained 500 cc of blood. The left lung lower lobe was also pierced through and through and after that, the bullet had damaged the seventh and eighth ribs and seventh inter-coastal space had come out through injury No. 4-B.
5-A. A wound of entry 0.75 c.m. 0.5 c.m. On the back of abdomen on left side 12 c.m. From mid-tine 11 c.m. Below injury No. 4-A.
5-B. An exit wound 2.5 c.m. x 2 c.m. On the front of right thigh 23 c.m. Below the anterior superior iliac spine 22 c.m. Above the knee.
On exploration after entering at 5-A the bullet. Had damaged the small gut at multiple places and large gut as well. The bullet had damaged the right inginal vessels and came out through injury No. 5-B.
6-A. A wound of entry 0.5 c.m. x 0.5 c.m. On the left gluteal region 8.5 c.m. From midline 19 c.m.
Below injury No. 5-A.
6-B. An exit wound 3 c.m. x 2 c.m. On the left side of the abdomen in front 18 c.m. Below the nipple and 9 c.m. From midling.
On exploration the muscles of gluteal region, left pelvic, large gut were injured.
According to the opinion of the doctor, the death in this case had occurred due to injuries Nos. 2, 4, 5 and 6 which had caused injuries to lungs, arota, femoral vessels, femur, large and small guts, leading to haemorrhage and shock. The injuries were sufficient to cause death individually as well as collectively in the ordinary course of nature. All the injuries had been caused by a fire-arm and were ante-mortem in nature. The death had occurred immediately after the receipt of injuries, while the post-mortem was conducted after 18-30 hours of death.
9. The motive behind the occurrence as stated by P.W. 21 Muhammad Siddique was that Ghulam Hassan son of Muhammad Din complainant was murdered by Javaid alias Jeda appellant and one Azam in 1985. Sabir and Muhammad Shahbaz appellants were also challaned in that case, while Muhammad Din complainant was pursuing the said case. The accused wanted Muhammad Din complainant to effect compromise in that case of Ghulam Hassan deceased but Muhammad Din complainant did not compromise. That murder case was still pending in Court when the present occurrence took place. Muhammad Din complainant was murdered about 10 months after the present occurrence.
10. Muhammad Din complainant was murdered and his statement could not be recorded by the trial Court. Muhammad Asif, an eye-witness was given up and only P.W. 21 Muhammad Siddique injured stated the ocular account and corroborated the contents of the F.I.R. Exh. PS recorded on the statement of Muhammad Din, complainant.
11. P.W.23 Muhammad Hanif S.I. On 24-9-1987 secured blood vide memos. Exhs. PN and PO after scratching it from the places where both Qasim Ali deceased and Akbar Ali deceased were lying dead. He also secured 28 crime empties of Klashnikov P. 12/128 from inside the Baithak and 9 lead of bullets P.13/1-9 from the same place and made into a sealed parcel vide memo. Exh.PQ. The memos. Were attested by P.W.19 Waris Ali and Muhammad Ashiq P.W. (given up). P.W. 11 Muhammad Ajmal Khan, Inspector C.I.A. Arrested Liaquat Ali appellant on 2-11-1987 and secured on his personal search pistol P-6 containing 8 live bullets P.7/1-8 vide memo. Exh.PH. On interrogation by Khadim Hussain S.I. (P.W.13) Liaquat Ali appellant also led to the recovery of a Klashnikov P.S, magazine P. 11 containing 20 bullets and Thela P.8 containing 12 bullets from, near the demolished wall of a deserted house situated near the Ganda Nallah. P.W.13 made into a sealed parcel and secured the same vide memo. Exh.PJ attested by P.W.12 Babar and P.W.13 Khadim Hussain S.I.
Reports of the Chemical Examiner Exh.PBB and that of the Serologist Exh. PCC respectively are positive.
12. The appellants when examined under section 342, Cr.P.C.Denied the prosecution evidence against them. Appellant Javed alias Jeda denied that he absconded, but stated that he appeared voluntarily. He further stated that he was falsely implicated in this case on account of enmity of his uncle Shahbaz and others with the complainant party and the police because they had filed writ petition of habeas corpus in the High Court and a case was ordered to be registered against the complainant party and the police officers. He further denied the recovery of Klashnikov and stated that it had been planted upon his brother Liaquat. He made statement on oath under section 340(2), Cr.P.C. And stated that he was told by Iftikhar alias Khan and one Faryad alias Faryadi at Pattoki Bus Stop that they had a dispute with the complainant party and had murdered Akbar Ali and Qasim AN deceased and they further told him that they had also injured a person with white hair and the complainant had falsely implicated him. He had not produced evidence in defence.
13. The learned trial Court evaluating the evidence on record passed the impugned judgment.
14. We have heard the learned counsel for the parties and have perusedthe record. It has been vehemently contended by the defence counsel that F.LR. Exh. PS was recorded after preliminary investigation and deliberations. The ocular account furnished on record by the statement of injured P.W.21 Muhammad Siddique is not in consonance with the medical evidence and his statement was recorded after delay of about I,-1/2 months under section 161, Cr.P.C He had enmity with the accused. His evidence is in' conflict with the medical evidence. The recovery of Klashnikov P.5 was planted and the report of Forensic Science Laboratory Exh.PDD, although positive had no evidentiary value. The role ascribed to the acquitted co-accused who were issued notices in the appeal by the State against their acquittal is that they made ineffective firing as that of Shahbaz appellant, and to Liaquat Ali appellant, no shot at all was ascribed. The case against appellants Shahbaz and Liaquat Ali is doubtful. The trial of Sabir appellant in absentia was against law.
15. The occurrence took place at 6-15 p.m. On 24-9-1987 whereas theF.I.R. Exh.PS was recorded on the statement of Mohammed Din complainant at 6-45 p.m. Only the same day at Police Station North Cantt., Lahore which is at a distance of 2 ,furlongs from the place of occurrence. F.LR. Exh.PS contains the names of the accused, the weapons carried by them, the names of the witnesses and the manner in which the occurrence took place. The complainant had lost his two young sons, whereas P.W. 21 Muhammad Siddique was seriously injured, leaving behind them the complainant had reached the police station and so in such a short period no deliberations could be made. The F.LR. Had, therefore, been recorded without deliberations, preliminary investigations but with promptitude. The complainant Muhammad Din was murdered and could not be produced. P.W.21 Muhammad Siddique received serious injuries at the hands of the accused and wads admitted in the hospital. The Investigating Officer wanted to record his statement under section 161, Cr_P.C. But could not as he was unable to make statement.
The same was stated by the Doctor in writing thrice on the query of the Investigating Officer. P.W. 21 Muhammad Siddique stated that he along with complainant Muhammad Din was sitting outside his house at about 6-15 p.m. On the relevant day when the accused arrived there in two cars.
Safdar alias Tedy (since dead) and Javaid alias Jeda appellant were armed with Klashnikov, Chiragh Din alias Babu, acquitted co-accused was armed with a gun, Liaquat Ali appellant armed with a pistol, Muhammad Shahbaz appellant armed with a gun, Siraj, acquitted co-accused armed with a pistol, Imtiaz, acquitted co-accused armed with a revolver and Sabir appellant armed with a double-barrel gun had emerged from the cars. On seeing them, he along with the complainant ran inside the Baithak, where Qasim Ali and Akbar Ali deceased were enjoying TV Javaid. Alias Jeda then entered the balthak and fired a burst with his Klashttiltov on Akbar Eli deceased, Who died at the spot due to the injuries. Safdar alias Tedy (since dead)also fired a burst with his Klashnikov on Qasim Ali deceased, who after receipt of injuries fell down and expired at the spot. Javaid alias Jeda fired another shat with his klashinkove on his left leg and on the different parts of his body.
Mohammed bin complainant .And Asif P.W. (given up) luckily ran upstairs. Chiragh, Siraj, habit, Shahbaz and Imtiaz accused also entered the Baithak while firing. The accused then fired many shots inside and outside the Baithak and left the spot. P.W.21 Mohammed Siddique stated the motive behind the occurrence i.e. Ghulam Hussain son of Mohammed Din complainant was murdered by Javaid alias Jeda appellant and one Azam in 1985. Sabir and Shahbaz appellants were also challaned in that case and he was a prosecution witness, while Mohammed Din complainant was pursuing the case of the murder of his son Ghulam Hassan. The accused wanted the complainant to effect compromise, who did not compromise. The above-said murder case was still pending when the present occurrence took place and Mohammed Din complainant was murdered about 10 months. After the present occurrence. It is pertinent to mention that P.W.21 Muhammad Siddique was also a prosecution witness in the murder case of Ghulam Hassan, the son of the complainant. He did not make any statement before the police in the present case till the doctor had permitted to do so. Even if it is presumed that he was fit to make statement, it can be visualized .That he was also under the apprehension that he might be killed, as an attempt on his life was already made in the present case and he was injured at the hands of the accused. He must have been frightened as two murders took place within his sight and earlier Ghulam Hassan was murdered. Only after about a month or so when fear and shock subsided, he was fit to make statement to the police.
16. It was vehemently contended by the learned counsel for the appellants that according to M.L.R.
Exh. PE, the doctor had found pellet marks on the injuries of P.W.21 Muhammad Siddique, whereas P.W.21 stated in his statement under section 161, Cr.P.C. As well as before the trial Court that he was fired at by Javaid alias Jeda appellant who was armed with Klashnikov. He stated that he had witnessed appellant Javaid alias Jeda firing a burst of Klashnikov at Akbar Ali, who succumbed to his injuries at the spot, Safdar alias Tedy (since dead) had fired a second shot of Klashnikov on Qasim, who also succumbed to his injuries at the spot. The co-accused had also reached inside the Baithak and fired. No doubt P.W.21 stated that he was fired at by Javaid alias Jeda, who was armed with a Klashnikov, but in such a situation when he had seen two young boys being murdered at the hands of the accused, he must have been perplexed, shocked, frightened and might not have been able to clearly see the fire he had received. He was injured during the occurrence and so his presence at the spot is not open to any doubt. The statement made by P.W: 21, in the circumstances, cannot be stated to be in 113 conflict with the medical evidence. The medical evidence is entirely in the nature of confirmatory or explanatory nature .And if there is direct evidence which is definite and pursuasive, confirmatory evidence is not of much consequence and cannot be in any case overweigh the direct evidence, which C has come on record in the shape of statement of P.W.21 Muhammad Siddique.
17. There is no doubt that the parties were locked in criminal litigation, but there is no iota of evidence on record that the complainant had falsely involved all the accused,. Ghulam Hassan, a son of the complainant was I0 murdered by Javaid alias Jeda accused along Sabir, Shahbaz and one Azam, which was still pending when the present occurrence took place. The accused were pressurising the complainant to effect compromise and on his refusal the present occurrence took place. Qasim Ali and Akbar Ali, two young sons of the complainant were murdered before his eyes and there was no reason or cause for him to involve the accused falsely in the present case. Asif P.W, another eye-witness could not be produced by the prosecution as he had been forced under the terror of the accused to leave the country while the complainant himself was murdered after the present occurrence by the accused party.
18. Klashnikov P.5 was no doubt secured at the instance of Liaquat appellant which was stated to be given to him by Javaid alias Jeda. P.W. 23 Muhammad Hanif S.I. Took into possession 28 crime empties P. 12/1-28 as well as 9 leads of bullets P.13/1-9 from the spot on the day of occurrence vide memo. Exh.PQ which he deposited with P.W.7 Akbar Ali, M.H.C. On 25-9-1987, who entrusted the same to P.W.4 Muhammad Riaz Constable for onward delivery of the same in the office of Forensic Science Laboratory on 28-9-1987. P.W.17 Bashir Ahmad S.I. On 28-4-1988 was entrusted with the sealed parcel of Klashnikov P.5 from the trial Court (Special Court for Speedy Trial No.1, Lahore) with the direction to deliver the same in the office of Forensic Science Laboratory who brought back the same from the Laboratory on 2-5-1988. P.5 was also a case property of two murder cases of Police Station Gulberg and Police Station Pattoki under trial before the Special Court for Speedy Trial No.2, Lahore. The sealed parcel containing empties was delivered in the office of Forensic Laboratory on 28-9-1987 whereas P.5 was deposited on 28-4-1988. The report of Forensic Science Laboratory Exh.
PDD was positive.
19. Muhammad Din complainant (since dead) narrated the facts as stated in the F.I.R. Exh. PS.
Liaquat, Shahbaz, Siraj, Chiragh and Imtiaz accused were stated to be armed with fire-arms, reached the place of occurrence, and Javaid alias Jeda appellant and Safdar alias Tedy (since dead) were stated to have fired with Klashnikovs on deceased Akbar Ali and Qasim Ali respectively, who succumbed to their injuries at the spot. The third fire was shot at P.W.21 Muhammad Siddique by Javaid alias Jeda appellant who was also injured and thereafter the complainant (since murdered) along with Asif P.W. (given up) reached the roof-top, when Chiragh, Siraj, Sabir, Shahbaz and Imtiaz were stated to have fired at the complainant and P.W. Asif (given up), but none was injured and thereafter the accused out of the house made indiscriminate firing and escaped in their cars. P.W.21 Muhammad Siddique stated that accused Safdar alias Tedy (since dead) and Javaid alias Jeda, both armed with Klashnikovs, Chiragh Din alias Babu armed with gun, Liaquat armed with pistol, Shahbaz armed with gun, Siraj armed with pistol, Imtiaz armed with revolver and Sabir armed with double-barrel gun reached the spot in two cars and on seeing them he, along with Asif P.W. (given up) and Muhammad Din complainant ran inside the Baithak, where Qasim Ali deceased and Akbar Ali deceased were already sitting. Javaid alias Jeda appellant entered Baithak and fired a burst with his Klashnikov on Akbar Ali deceased, who died at the spot. Safdar alias Tedy (since murdered) followed Javaid alias Jeda appellant in the Baithak and fired a burst with his Klashnikov on Qasim Ali deceased, who also expired at the spot. Javaid alias Jeda appellant then again fired a shot with his Klashnikov on P.W. 21 Muhammad Siddique. The complainant and Asif P.W. (given up) went upstairs to save themselves, when Chiragh, Siraj, Sabir, Shahbaz and Imtiaz also entered the Baithak while firing with their respective weapons. All the accused then fired many shots inside the Baithak and thereafter left the Baithak and while firing outside as well, they escaped. No empty of gun or pistol was secured by the police from the spot as well as no fire-arm was recovered from Chiragh, Siraj, Imtiaz and Shahbaz. Liaquat appellant led to the recovery of pistol P.13, but neither any empty of pistol was recovered from the spot nor any body was injured at his hands. P.W. 23 Muhammad Hanif S.I. Reached the spot after recording formal F.I.R. Exh. PS, but not noticed any bullet mark on any door, wall etc. Of the Baithak. The case of appellants Liaquat and Shahbaz was at par with the acquitted co-accused and giving them benefit of doubt we acquit them of the charge. The appeal against acquittal of Siraj, Chiragh and Muhammad Imtiaz is dismissed, and[ also appeal for enhancement of sentence to Liaquat, Shahbaz and Sabir IH Hussain preferred by the State is dismissed. Shahbaz and Liaquat are in jail, who shall be released forthwith, if not required in any other case.
20. Sabir Hussain appellant was tried in absentia, which is violative of law and his trial is illegal and void ab initio. His conviction and sentence is set aside. His sentence was suspended by this Court on 25-5-1992 vide order I passed in Criminal Misc. No.2/1991/BWP in Criminal Appeal No.145/1988. He shall appear before the District Magistrate, Lahore on 15-5-1994, who shall send his case to the Court of competent jurisdiction for retrial in accordance with law.
21. We set aside the conviction of appellant Javaid alias Jeda under section 148, P.P.C. The prosecution succeeded in establishing its case beyond doubt against Javaid alias Jeda under sections 452/43, P.P.C., 302/34, P.P.C., 302/34, P.P.C. And 307/34, P.P.C. His conviction and sentence under sections 452/34, P.P.C. And 302/34, P.P.C. For the murder of Akbar Ali deceased and under section 307/34, P.P.C. For murderous assault on Muhammad Siddique (P.W.21) is maintained. His conviction under section 302/34, P.P.C. For the murder of Qasim Ali deceased is altered from death to imprisonment for life and the sentence of fine and . Compensation is maintained. He has been awarded life imprisonment as the fatal shot to deceased Qasim Ali is attributed to his co-accused Safdar alias Tedy (since killed in police encounter).