' Khan Muhammad (aged 40 years) and Muhammad Ashraf (also 40 years) were tried for the murder of Rahmatullah. Sardar Muhammad Amir Akbar Khan, Sessions Judge, Lyalipur convicted them under sections 302/34, P. P. C. And sentenced each of them to imprisonment for life and to pay a fine of Rs, 5,000 each or in default of its payment to further undergo rigorous imprisonment for three years, vide his judgment passed on 17-2-1973. The fine, if realized, was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C. The convicts have come up in appeal.
2. Briefly, the prosecution case as discussed in the F. I. R., is that, on 28-6-1964 at about 7 a. m.
Rehmatullah deceased was riding carrier of the cycle driven by Habib Ullah complainant P. W. On the service road of Jhang Branch Canal on their way to their Chak No, 348/J. B. And when they reached near Chak No, 416/J. B. The appellants and their acquitted accused met them. One of them was Muhammad Ashraf appellant while the names of the other two including Khan Muhammad appellant were not known to the complainant. Muhammad Ashraf appellant and one other held the deceased in grip while the 3rd accused caught hold of the complainant. The complainant succeeded in getting himself released from his grip and ran raising alarm which attracted Allah Ditta, Jami Ahmad P. Ws. Betides Nawab and Amir (not examined), who were in their fields around the place. The witnesses were approaching the accused and the leceased when they saw that the deceased had fallen on the ground and Muhammad Ashraf appellant fired from his gun and hit him from a very close range. The other two accused threatened the witnesses with their revolvers. The accused then dragged the dead body of deceased, threw it in the canal and went away after crossing it. The complainant and other witnesses then brought out the dead body from the canal. Habib Ullah P. W. Then went to the Police Station, Gojra, after covering 6 miles and met Abdur Razzaq, Head Constable, P. W. At Tonga stand, Qadirabad where his statement was recorded at 9 a.m. On which formal F. I. R. Was registered on 28-6-1964 at 3 p. m.
' The motive alleged in the F. I. R. Is that the deceased was body-guard of the husband of his sister, Ch. Asghar Ali with whom the appellants had standing enmity. The descriptions of the two unknown accused were given in the F. I. R.
' Abdur Razzaq, Head Constable (P. W. 16) went to the spot after despatching statement (Exh. P. W.
6/A) of the complainant to the Police Station for registration of the F. I. R. On arrival at the spot he dispatched the dead body, to the mortuary for autopsy after preparing injury statement and inquest report. He secured blood-stained earth, vide memo Exh. P. W. 1/A and also took into possession a pair of jutis (Exh. P. W. 1/1-2) of accused, vide memo. Exh. P. W. 1/B. He recorded statements of Allah Ditta, Muhammad Jamil P. Ws. And Sardar Muhammad at the spot. He got prepared the site plan, on 1-7-1964. He handed over investigation to Muhammad Khan, S.H.O. On 28-6-1964. The said Muhammad Khan (P. W. 4) having reached the spot at 2. a. m., on 28-6-1964 secured the last worn clothes (Exh. P 2 to P 4) of the deceased and a phial (Exh. P. 5) from the doctor, vide memo. Exh. P. W. 4/1. He searched for the accused who was not available and ultimately he recommended proceedings under section 512 Cr. P. C. And put in challan.
' Amin Ali Shah (P. W. 13), on an application obtained necessary order for holding identification parade of Khan Muhammad appellant in the Multan Jail. Raja Irshad-ul-Haq Kiani (P. W. 9), Magistrate Ist Class, Multan supervised the identification parade of Khan Muhammad in the Jail at Multan, on 6-7-1965 in which Allah Ditta and Jamil Ahmad P. Ws. Correctly picked up Khan Muhammad appellant but Habib Ullah P. W. Could not identify him. The proceedings of the identification parade were recorded by Amin Ali Shah (P. W. 13) in zimni and the original was sent to the concerned Magistrate which was subsequently found lost. Snrdar Muhammad F. C. (P. W. 3) went in search of the accused with warrants of their arrest but the accused were absconding and could not be arrested and a proclamation was issued for appearance of the accused in Court.
Muhammad Ashraf appellant was arrested on 6-8-1966, according to the entry in the calendar and committed to the Sessions. Muhammad Anwar died before commitment.
3. Dr. Masud Farooqi (P. W. 0, conducted post-mortem examination on the dead body of Rehmat Ullah, aged 25 years, on 28.6-1964 at 6.45 p.m. And found two firearm injuries on it. Injury No, 1 was an irregular rounded hole If' x on the lower part of that neck at back in level with the 7th cervical and first dorsal vertebrae, injury No, 2 for four rounded wounds each irregularly circular 1" in diameter on the outer back part of the left side of the chest. Both injuries were caused by firearm, injury No, 1 was wound of entry and No, 2 was that of exit. On internal examination the doctor found that two vertebrae were smashed and the pellets had travelled downwards and forward towards injury No, 2, left lung was irregularly transverse by three tracks of pellets, wads were found in the lung and three pellets were recovered from around injury No,
2. Three ribs were fractured under injury No,
2. The stomach contained small quantity of fluid. The death resulted from gunshot wound of entry at injury No, 1 which smashed two vertebrae and caused fatal haemorrhage in the left lung which injury was sufficient to cause death in the ordinary course of nature.
4. At the trial prosecution examined 16 witnesses in all. Habib Ullah complainant (P. W. 14), Allah Ditta (P. W. 11) and Jamil Ahmad (P. W. 12) were examined as eye-witnesses while Ghulam Muhammad (P. W. 10) deposed that he reached the place immediately after the occurrence. The motive was given by Asghar Ali (P. W. 8) and Muhammad Tufail (P. W. 15) who deposed that the deceased and the complainant stayed with him for the night prior to the day of occurrence. The recoveries were proved by Sardar Muhammad (P. W. 7) besides the Investigating Officers. Raja Irshad-ul-Haq Kiani (P. W. 9) and Amin Ali Shah (P. W. 13) proved the identification parade of Khan Muhammad appellant. Other formal witnesses were also examined. All the witnesses supported prosecution case except Sardar Muhammad (P. W. 7) who was cross-examined by the Public Prosecutor. According to report of Serologist earth recovered from the spot was found stained with human blood.
5. The appellants pleaded not guilty to the charge. When examined under section 342, Cr. P. C. They denied the allegations and attributed their false implication due to enmity of Asghar All (P. W. 8).
Khan Muhammad appellant stated that no one could identify him in Jail and also denied that he ever absconded and explained that he had gone to Multan for the purpose of cultivation where he was arrested and sent to Jail. He denied the motive alleged by the prosecution. Muhammad Ashraf appellant similarly denied the motive alleged by the prosecution. He denied that he absconded and stated that he was arrested and was put in Lyallpur Jail, he applied for holding his identification parade and no prosecution witness could identify him in the parade in Jail. He also stated that he was involved in many cases by Asghar All P. W. But was acquitted and if he was to kill anyone he would have selected A--shar Ali P. W. The appellants did not lead any evidence in their defence.
6. The learned trial Judge believed the ocular evidence and proceedings of the identification parade (Ex. P. E.) of Khan Muhammad appellant. He found that the appellants had absconded after committing the crime and the same corroborated the ocular evidence. The learned counsel for the appellants has not appeared to argue the case in spite of his getting repeated adjournments and I have heard the arguments of the learned counsel for the State in his absence. The learned counsel for the State has submitted that convictions and sentences of the appellants be maintained because prosecution story is corroborated by the evidence of motive and the medical evidence. It is further corroborated by Muhammad Tufail P. W. With whom the deceacei and the complainant stayed for the night and the identification parade proceedings. I have read the entire evidence in the case and have considered it in the light of submissions made by the learned counsel for the State.
7. The prosecution story right from the F. I R is that the complainant and deceased having stayed as guests for the night were returning to their village on a bicycle when they were attacked on the canal service road. Muhammad Ashraf appellant was named in the F. I. R. And was attributed firearm injury to the deceased while Khan Muhammad appellant and Anwar accused since died were not named in the F. I. R. Because they were not known and their description was given.
Muhammad Tufail P. W. Proved the stay of the complainant and the deceased with him during the night. The eyewitness account has been given by Habib Ullah complainant, Allah Ditta and Jamil Ahmad. Habibullah is first cousin of the deceased. He stayed with the deceased as guest at the house of Muhammad Tufail P. W., was driving the bicycle with the deceased sitting on its carrier when the appellants and Anwar accused since died attacked. It is he who promptly lodged the F. I.
R. In which he described the manner of attack and weapon used by Muhammad Ashraf appellant and also named the eyewitnesses as well as Muhammad Ashraf besides giving description of the other two accused including that of Khan Muhammad appellant. His presence at the spot at the time of occurrence cannot be doubted on the evidence on record. He gave consistent account of the occurrence. Allah Ditta P. W. Was ploughing his field at a distance of l killa from the spot while Jamil Ahmad P. W. Was taking both in the canal in which the dead body of the deceased was thrown by the appellants. Both of them lived in dharis nearby. They are natural witnesses of the occurrence and have corroborated Habib Ullah complainant. Allah Ditta, Jamil Ahmad and Muhammad Tufail are independent witnesses, none of them is related with the deceased nor any one of them is inimical towards the appellants. I am satisfied that the occurrence took place in the manner alleged by the prosecution and was witnessed by all the three eyewitnesses including the complainant.
' Muhammad Ashraf appellant was previously known to Habib Ullah complainant and his identity was not in doubt, the incident having taken place during the day time. Khan Muhammad appellant was not named in the F. I. R. And was not previously known to any of the eye-witnesses. He was arrested in Multan district and his identification parade was held in which he was correctly picked up by Allah Ditta and Jamil Ahmad P. Ws. Mr. Irshad-ul-Haq Kiani, P. W., who supervised the parade deposed that the parade was so held, the parade report was given by him to Amin Ali Shah P. W.
Who after making out copy returned the report to the witness who sent it to the Hap Magistrate.
The report was not available at the time of trial and its copy was made out from zimni of Amin Ali Shah P. W. Which was proved. I am satisfied that the identification parade was held, a parade report was prepared which was lost and the same was proved from zimni of the A. S. I. Who had faithfully prepared a true copy of the report.
8. The ocular evidence is corroborated by the medical evidence which shows a firearm injury with .12 bore gun on the deceased as consistently alleged and proved by the prosecution. The motive alleged by the prosecution has also been proved and further corroborates the ocular evidence.
Both the appellants remained absconders and their conduct also corroborates the prosecution story. The defence version is not probable. On the evidence of record and in the circumstances of the case, the prosecution has proved guilty of the appellants beyond reasonable doubt.
9. As a result of above discussion, the convictions and sentences of the appellants are maintained and their appeal is dismissed.