IJAZ NISAR, J.- Muhammad Arif son of Khadim Hussain, Ahmad Din & Ghulam Qadir alias Gaman sons of Alam Din and Anwar Shah son of Niaz Shah were tried for the murder of Muhammad Aslam alias Laddu and for making a murderous assault on Muhammad Anwar P.W. By judgment dated 15-3-1992 learned Addl. Sessions Judge, Kasur acquitted Anwar Shah but convicted Muhammad Arif, Ahmad Din and Ghulam Qadir appellants under Sections 302 & 307/34 PPC. Under Sec. 302/34 PPC they were sentenced to imprisonment for life and a i.e of Rs. 10,000/- each or in default to undergo further R.I. For 2 years. Half of the i.e was ordered to be paid as compensation to the legal heirs of the deceased. Under Section 307/34 PPC they were awarded 10 years' R.I. And a i.e of Rs.
5,000/- each or in default to undergo further R.I. For one year. Both the sentences were ordered to run concurrently with benefit of Sec. 382-B Cr.P.C.
2. Muhammad Arif has filed Crl. Appeal No. 441/92 while Ahmad Din and Ghulam Qadir have filed Crl. Appeal No. 442/92. Both the appeals shall be disposed of together by this judgment.
3. The prosecution case in brief, is that on 18-4-90 at about 3-30 p.m. Ghulam Sabir PW 6, Muhammad Aslam deceased, Muhammad Anwar PW 7, Muhammad Sharif PW 8 and Jamal Din (not produced) travelled by tractor to Kanganpur Town to get a thrasher from the workshop of one Muhammad Siddiq. They had parked the tractor in front of the shop of Rang Elahi, Commission Agent. In the meantime Ghulam Qadir and Ahmad Din appellants armed with guns, Muhammad Arif appellant armed with a 7 m.m. Rifle and Anwar Shah (since acquitted) armed with a Dang came there. Ghulam Qadir raised a lalkara that progeny of Mian Sarwar be eliminated, and fired two gunshots hitting Muhammad Aslam deceased on his right leg. On receiving injuries Aslam fell down. Muhammad Arif fired a rifle shot hitting him on the left knee. Thereafter Ahmad Din fired two gunshots at the deceased hitting him on the left ankle and upper part of the right eye. Anwar Shah gave a Dang blow to the deceased on his right leg which was fractured. Muhammad Anwar PW 7 tried to intervene but Anwar Shah caused Dang injuries to him on his left shoulder and on the back of head. After the occurrence the accused fied away with their weapons.
4. Motive for the offence was that father of the deceased, namely, Mian Sarwar had murdered the step-father of Ghulam Qadir appellant about 36-37 years back. After 16 years of the said murder, brother of Ghulam Qadir appellant was murdered, for which Mian Sarwar was involved. Thereafter Mian Sarwar was murdered for which Ghulam Qadir appellant was challaned. He was on bail when the present occurrence had taken place. Security proceedings had been taken against both the parties and they were bound down.
5. The deceased was carried to Chunian hospital but he expired before any medical aid could be given to him. However, Muhammad Anwar PW was admitted to Kanganpur hospital. Ghulam Sabir PW 6 left for the Police Station and lodged FIR Ex. PC at 4-40 p;m. On the same day.
6. After recording the FIR, Mushtaq Ahmad, S.H.O. PW 13 commenced the investigation. He prepared the injury statement and the inquest report of the deceased. He took into possession 2 crime empties P.4/1-2 from the spot vide memo Ex. PG. One crime empty of 7 m.m. Rifle P.5 was also secured by him vide memo Ex. PH.
On 23-4-1990 he arrested Muhammad Arif, Anwar Shah and Ahmad Din accused. Ghulam Qadir appellant was arrested on 16-5-90. On 30-4-90 Muhammad Arif appellant led to the recovery of rifle P. 6 vide memo Ex. PJ. After completion of the investigation the accused were challaned.
7. Dr. Muhammad Arif PW 10 conducted autopsy on the dead body of Muhammad Aslam deceased
(20) on 19-4-1990 at 9-00 a.m. And found the following injuries thereon:-
1. Lacerated wound 2 c.m. x 1 c.m. x bone deep clip tical in shape. Margins were inverted and blackened, on the right side of the forehead near the end of the right eye brow.
2. Lacerated wound 3 cm in diameter. Margins inverted and blackened into bone deep. Gun powder was present around the wound. On the outer side of the left thigh lower end bone underneath fractured though and through. Wound was directed to the left.
3. Lacerated wound 4 c.m. x 2 c.m. Margins everted into muscle deep on the inner side of the left knee. Injury No. 2 communicated with injury No. 3. So injury No. 2 was entry wound and injury No. 3 was exit wound.
4. Two circular wounds, margins inverted 3/4 c.m. Diameter on the outer side of the right leg lower part. Margins were inverted into bone deep. Bone underneath was fractured that was tibia. Wound was directed to the left and upward.
5. Two lacerated wounds 1 c.m. Diameter each margins were everted on the inner side of the right leg middle part, bone deep. Injuries No. 4 and 5 communicated with each other, so injury No. 4 was entry wound and injury No. 5 was exit wound.
6. Lacerated wound 3 c.m. x 1 c.m. x bone deep on the inner side of the right leg lower l/3rd, bone underneath both tibia and fabula was fractured.
7. Lacerated wound 4 c.m. x 2 c.m. x muscle deep, margins inverted on the left sole near the heel.
In the opinion of the doctor the deceased died of shock and haemorrhage consequent upon injuries which were ante-mortem. Injury No. 6 was caused by blunt weapon while the rest were caused by firearms.
On the same day he also medically examined Muhammad Anwar PW 7 and found the following injuries on his person:-
1. Swelling 8 c.m. x 3 c.m. On the back of the head 10 c.m. Above the root of the neck.
2. Laceration 8 c.m. x 3 c.m. On the back of the left shoulder.
3. Complained of pain on the back of the chest middle part.
All the injuries were caused by blunt weapon. Injury No. 1 was kept under observation while the rest were simple.
8. At the trial the prosecution examined thirteen witnesses in support of its case. Ghulam Sabir PW 6, Muhammad Anwar PW 7 and Muhammad Sharif PW 8 furnished the ocular account. Ghulam Rasul PW 11 and Muhammad Siddiq PW 12 proved the recoveries from the spot and rifle P. 6 at the instance of Muhammad Arif appellant.
The accused pleaded not guily to the charge and attributed the case to enmity. Muhammad Arif appellant gave the following background of enmity with the complainant party: - "I have been falsely involved due to long standing enmity with the P.Ws. In the first instance, my maternal uncle Sardar Muhammad was murdered at the instance of Mian Abdullah who was uncle of Mian Sarwar and father of Qudrat Ullah P.W. Then this Mian Abdullah was murdered and my maternal uncle Bashir Ahmad, my Khalu Muhammad Tufail alongwith others were involved for that murder but were and acquitted. Then Mauj Din a cousin of my mother was murdered in which Sarwar alongwith others was challaned acquitted. Then Muhammad Hussain son of Mauj Din was murdered in which Sarwar alongwith Farzand, Qudrat Ullah, Sardar Ali and Ghulam Muhammad sons of Abdullah were challaned and acquitted. Then Sarwar was murdered in which Tufail and Mustafa First cousins of my mother alongwith my co-accused Ghulam Qadir alias Gaman and Shaukat were challaned, which case is still pending. After the murder of Sarwar, Aslam deceased injured Nazar Muhammad Dhool with i.e shots for the reasons that this Nazar belonged to the parly of my Khalu Muhammad Tufail. Aslam deceased along with others were challaned in that case which is still pending. All the P Ws. Are related inter sc and belonged to the family of the deceased while Sharif P.W. Is their servant and living with their family since long, and is under his influence".
This was also adopted by the other accused. They examined Muhammad Ashiq, Head Constable DW 1 in their defence who proved F.I.R. No. 81 dated 21- 6-1954 pertaining to the murder of Mauj Din in which Sarwar alongwith others was challaned. He also proved FIR No. 7, dated 7-1-1989, registered on the report of Nazir Ahmad for the injuries to Nazar Muhammad Thaool in which Aslam alias Laddu was the accused.
Muhammad Aslam Khan, D.S.P. Chunian was examined as C.W. 1 and Muhammad Ali, Inspector as C.W.2. Muhammad Aslam Khan C.W.1 stated that he had reported to the S.P., Kasur about the innocence of Ghulam Qadir alias Gaman, Ahmad Din alias Aliman and Anwar Shah (since acquitted).
9. Relying upon the ocular testimony and the motive the learned trial Court convicted and sentenced the appellants as discussed above. The recoveries of crime empties from the spot and that of ride at the instance of Muhammad Arif were not given any importance because the crime empties were not sent to the Forensic Science Laboratory for comparison with 7 m.m. Rifle.
10. Ahmad Din and Ghulam Qadir appellants are real brothers while Muhammad Arif appellant is their sister's son. The eye-witnesses arc also closely related to each other. Ghulam Sabir PW 6 and Muhammad Anwar PW 7 are real brothers while Muhammad Sharif PW 8 was an employee of P.W.
Ghulam Sabir.
11. It is contended that the appellants had been falsely involved because of the existence of long standing enmity between the parties. The deceased had other enmities also and might have been murdered by any of his enemies, In this context reference is made to F.I.R. No. 7, dated 7-1-1989 pertaining to the injuries caused to Nazar Muhammad Dhool by the deceased with firearm.
Admittedly, the incident in question had taken place during day time in a Mandi. It is an evidence that shops around the place of occurrence were open but no witness from the said shops was produced at the trial. There is a conflict between the medical evidence and the ocular evidence, entry and exit wounds were mentioned as two separate injuries. This fact shows that the occurrence was not witnessed by the persons produced by the prosecution but the story was concocted after the post-mortem of the deceased. Anwar Shah accused to whom the injuries of Muhammad Anwar P.W. Were attributed, was acquitted by the learned trial Court. If Muhammad Anwar P.W. 7 has not been believed against the person allegedly causing injuries to him, how can he be believed against others.
12. The motive is also uncertain. It is stated that Ghulam Qadir appellant had been released on bail in the case pertaining to the murder of Muhammad Sarwar father of Ghulam Sabir complainant. If that was so, the complainant party would be interested in his murder and not he. It is well settled that a person having a motive to falsely implicate another, is an interested witness and efforts should be made to seek independent corroboration of his testimony before, acting upon the same, but in the instant case no such corroboration is forthcoming. Ghulam Sabir PW 6 and Muhammad Anwar PW 7 are real brothers while Muhammad Sharif PW 8 is their servant. Though independent persons in the shops, situate in the vicinity of place of occurrence, were available yet they were not examined as witnesses. The statement of Muhammad Aslam Khan, D.S.P., Chunian (C.W.1) has made the case very doubtful. According to him he had reported to the S.P. About the innocence of Ghulam Qadir alias Gaman, Ahmad Din alias Ahmad and Anwar Shah accused. As already stated above, the recoveries of crime empties and that of rifle at the instance of Muhammad Arif appellant are without any significance because they were not sent to the Forensic Science Laboratory for comparison.
In the circumstances, discussed above, the prosecution has failed to prove its case against the appellants beyond reasonable doubt. Accordingly, I accept their appeals, set aside their convictions and sentences and acquit them of the charges. They shall be released forthwith, provided they are not required to be detained in any other case.