Case F. I. R. No. 11, dated 1-2-1991 under sections 302, 324, 148, 149, P.P.C. Was registered with Police Station Gunjial, District Khushab against Muhammad Hayat son of Golay Khan (27/28), Munshi Khan son of Golay Khan (32), Muhammad Khan and Sammand Khan sons of Sher Muhammad, and Muhammad Sher son of Fateh Sher (28), Muhammad Aslam Khan son of Zaman Rhan (28). Munshi Khan son of Ahmad Khan (21), Muhammad Ramzan son of Gulsher (19), and Suleman son of Allah Ditta (45/46) for the murder of A.I Khan (50). Sessions Judge, Khushab vide his judgment dated 13-8-1991 gave benefit of doubt and acquitted and-acquitted Suleman, Muhammad Rte, Muhammad Sher ans Munshi Khan son of Ahmad Khan. The-rest of the accused, namely Muhammad Hayat, Munshi Khan, Muhammad Khan, Samand Khan and Muhammad Aslam were however, found guilty for the offence under section 302/149,P.P.C. And each of them was sentenced to imprisonment for life with a fine of Rs.15,000 or in default of payment of fine, further undergo R.I. For four months. They were further ordered to pay Rs.15,000 each as compensation to the legal heirs of the deceased, and in default of payment of compensation, undergo further R.I. For four months each. Each of them was also convicted under section 148, P.P.C. To two years' R.I. The sentences were directed to run concurrently. They were also given benefit of section 382-B, Cr.P.C. The convicts have appealed.
Hakim Khan complainant has filed two Revisions, one bearing Crl. R. No.573/91 in which he has prayed for enhancement of sentences of the appellants; whereas in the other revision, bearing Crl.
R. No.574/91, the acquittal of four co-accused of the appellants was assailed. Both the petitions were directed to be heard alongwith the appeal. This judgment shall dispose of all these matters.
2. Prosecution story in brief as disclosed in F.I.R. Exh.PP lodged by Hakim Khan, P.W., was that Khizar Hayat had come to their house for the night in-between 1-2-1991 and 31-1-1.991 in order to go to Cattle Market Wan Bhuchran. On 1-2-1991 at 7 a.m. First informant with his brother A.I Khan, alongwith Mehr Khan and Khizar Hayat started for the cattle fair. A.I Khan was ahead of them. When they reached near the drain of rain, suddenly Munshi and Hayat sons of Golay Khan, Muhammad Khan and Samand Khan sons of Sher Muhammad, and Aslam Khan emerged out of the said drain while armed with fire-arms. They raised a Lalkara that A.I Khan would not be spared. Munshi Khan fired hitting A.I Khan on his chest. It was followed by Hayat Khan whose rifle shot hit A.I Khan on the back of his head. Muhammad Aslam's fire shot hit A.I Khan on the right side of chest. Samand Khan and Muhammad Khan fired their .12 bore guns hitting A.I Khan on his right arm and chest. A.I Khan fell down. The first informant with his companions raised alarm, whereupon the assailants started running towards the northern side. While the assailants were firing at A.I Khan, Suleman, Muhammad Sher, Muhammad Ramzan and Munshi Khan son of Ahmad Khan were standing on the north-western side of the road and were firing in the air, so nobody from the Dera of the first informant could come for help. The occurrence was witnessed, apart from the persons already mentioned, by Muhammad Khan son of Sohail Khan who was coming to their Dera, A.I Khan died at the spot on account of the injuries. Motive for the occurrence was that the assailants suspected the deceased of having illicit relations with Mst. Said Bibi, daughter of Golay Khan. They also had enmity of criminal cases with the assailants.
The occurrence in the instant case took place on 1-2-1991 at 7 a.m. In the area of Goliwali near the drain of rain, 16 miles from Police Station Gunjial, District Khushab, F.I.R. Exh.PP was got registered the same day at 10 a.m. By Hakim Khan, P.W.8, which was recorded by Faiz Muhammad, Inspector S. H.
O., P.W.12 at Police Station Gunjial Faiz Muhammad, Inspector/SHO, P.W.12 after recording F I.R. Exh.PP went to the spot and prepared inquest report Exh.PR and injury statement Exh.PS of the deceased and sent the dead body for autopsy. Blood--stained earth was removed from the spot vide memo. Exh.PD. A pair of Chappals of the deceased P.6 and P.7, was recovered vide memo. Exh.PC. From the spot, he secured 4 empties of .12 bore, P.8 to P11 and one empty of 7 MM P.12 vide memo. Exh. Eight empties of 7 MM rifle P.13 to P.20 with one missed empty of 7 MM rifle, P.21 and one empty of .12 bore, P.22, were secured, lying at the place 145 Karams from the spot, vide memo. Exh.PF. He got all the memos. Attested from witnesses. He arrested all the accused on 8-2-1991. On 16-2-1991, Muhammad Hayat while in custody got recovered rifle P.23 and four cartridges P.24 to P.27 from the house of one Azim vide Memo. Exh.PG. Munshi Khan son of Gola Khan got recovered gun P.28 with 3 cartridges P.29 to P.31 from the house of Aziz vide recovery memo. Exh.PH, Muhammad Khan accused got recovered gun P.32 with two cartridges P.33 and P.34 from the house of Azim vide memo. Exh.Pl. Samand Khan got recovered gun P.35 with 2 cartridges P.36 and P.37 from the house of Azim, which were secured vide memo. Exh.PJ. Muhammad Aslam got recovered gun P.38 and 2 cartridges P.39 and P.40 from his house vide memo. Exh.PK. Muhammad Sher got recovered gun P.41, 2 cartridges P.42 and P.43 from his house vide recovery memo. Exh.PL. Ramzan accused got recovered gun P.44 with 2 cartridges P.45 and P.46 which were secured vide memo. Exh.PM. Munshi Khan son of Ahmad led to the recovery of gun P.47 with 2 cartridges P.48 and P.49 vide memo. Exh.PN. All the recoveries were sealed in separate parcels and witnessed by Muhammad Sher, P.W.6 and the 1.0. Said P.W.12 Faiz Muhammad also got prepared site plan Exhs.PA and PA/1 from the Patwari and gave his notes in red ink there under. After the usual investigation he challaned the accused.
P.W. 11 Dr. Pirzada Syed Muhammad Aslam Shah, Sr. M.O., Civil Hospital, Quidabad, on 1-2-1991 at 2- 30 p.m. Conducted the post-mortem examination on the dead body of A.I Khan, 50 years of age, and found the following injuries:--
(1) A fire-arm lacerated wound of entry 1/2" x 1/2" x through and through on the back of head.
(2) A fire-arm lacerated wound of exit 1/2" x 3/4" on the back of right side of head 1" from injury No. 1.
(3) A fire-arm lacerated wound of entry 1/4" x 1/4" deep into the chest on the right side front near the sternum.
(4) A fire-arm lacerated wound of entry 1/4" x 1/4" through and through on the front lateral side of right upper arm 1 " below the right axillary fold.
(5) A fire-arm lacerated wound of exit of injury No.4 measuring 1/4" x 1/4" x through and through on the medial side of right upper arm at the same level.
(6) A fire-arm lacerated wound of entry 1/2" x 1/2" x deep into the right lateral side of chest 1" below the axillary fold of injuries Nos.4 and 5.
(7) A fire-arm lacerated wound of entry 1/2" x 1/2" x deep into the chest on the right lateral side.
3. The prosecution in order to establish its case had produced 12 witnesses in all. P.W.1 Bashir Ahmad, Patwari prepared site plan Exh.PA and PA/1. Muhammad Rafique, Constable P.W.2 had escorted the dead body and after post-mortem examination had produced last worn clothes of the deceased before the Investigating Officer. He had also delivered the sealed parcels of blood-- stained earth and empties in the Office of Chemical Examiner and Forensic Science Laboratory on 9-2-1991. Muhammad Rafiq, Constable, P.W.3 had delivered sealed parcels of guns in the concerned office on 23-2-1991.
Muhammad Aslam, the then Moharrir, P.W.4 had kept the sealed parcels in custody intact.
Muhammad Sher, P.W.6 witnessed the recoveries from the spot. P.W.7 Muhammad Siddique had witnessed the recoveries of fire-arms at the instance of the appellants and had signed the memos.
Eye-witness account was furnished by Hakim Khan, Khizar Hayat and Muhammad Khan, P. Ws.8 to 10, respectively. The doctor who had conducted the post-mortem examination appeared as P.W.11.
The case was investigated by Faiz Muhammad, Inspector/SHO, P.W.12. At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They further stated that they were involved in the instant case on account of enmity. They, however, neither appeared in their defence on oath nor produced defence witnesses.
4. Learned counsel for the appellants stated that the prosecution could not prove its case beyond doubt. Argued that the prosecution tried to establish its case from the eye-witnesses and sought corroboration from motive. It was pointed out that as far as the report of the Forensic Science Laboratory was concerned, it was negative, therefore, the recoveries at the instance of the appellants were of no consequence. Argued that it would be extremely unsafe to rely upon uncorroborated testimony of the eye-witnesses because of the previous enmity. As far Muhammad Khan P.W.10, was concerned, the first informant himself had stated that he had not witnessed the occurrence therefore, he should be ruled out of consideration. As far as Khizar Hayat, P.W.9 was concerned, he was a chance witness and had no business to be present at the spot at that odd hour of the morning. Contended that the presence of the first informant Hakim Khan was extremely doubtful. Asserted that had he been present at the spot, on account of previous enmity he would not have been spared. Argued that in any case he was highly interested and inimical therefore cannot be relied upon. The only corroboration available in the instant case was of motive, which was disclosed by this witness alone. The contentions were opposed by learned counsel for the State as well as for the complainant. They vehemently controverted the contentions.
5. I have heard the learned counsel at .Length and gone through the file. The prosecution in order to establish its case has mainly relied upon ocular account and sought corroboration from motive for the commission of the offence. It may be pointed out at the very out set that the empties secured from the spot did not match with any of the guns of the accused persons. Report of the Forensic Science Laboratory was negative in this respect, therefore, the recovery of guns at the instance of the appellants and of crime empties from the spot would not be of any consequence nor can be used for purpose of corroboration.
As far as the ocular account was concerned, it was furnished by Hakim Khan and Khizar Hayat, P.Ws.8 and 9, respectively. As far as Muhammad Khan, P.W.10 was concerned, he, according to his own admission, and that of Hakim Khan, P.W.8 had not witnessed the occurrence. Therefore, the ocular account was furnished by only two persons, i.e. Hakim Khan and Khizar Hayat, P.W.9 Hakim Khan, P.W. Was real brother of the deceased. Khizar Hayat P.W. Had no relationship but was on friendly terms. According to his own admission, he lived at a distance of one mile from the Dera of the deceased. The reason for his presence at the spot was that on the night preceding the occurrence he had come to the Dera of the deceased for purposes of going to cattle market on the following day. He spent the night at the said Dera. He was cross-examined at length. During cross- examination, he admitted that his wife and children lived at his Dera which was at a distance of only a mile away. He also admitted that if somebody from the house of the deceased wanted to go to the cattle market he had to pass his house. If that be so, then there was no justification for this witness to have spent the night at the house of the deceased simply for purposes of going to the cattle market. Even otherwise, he lived at such a close distance that there was no justification for him to have spent the night leaving his wife and children alonge. In these circumstances, I am of the view that it would be extremely unsafe to rely upon uncorroborated testimony of this witness, who otherwise also was only a chance witness.
Hakim Khan, P.W. Was real brother of the deceased. He was present with the deceased when surprised by the appellants: In cross-examination, he had to admit that there was a long standing enmity between both the parties and registration of criminal case were also admitted. This witness was not relied upon as far as participation of four acquitted accused was concerned. He also stood belied as far as the use of the fire-arms at the instance of the appellants was concerned. His enmity and interestedness was also conceded by the other side. After giving a careful examination to his statement, I am of the considered view that he could not be relied upon unless strong independent corroboration was available. As suggested by the complainant side that corroboration was available in the form of motive for the occurrence, I am afraid the same cannot be taken as such. The motive was disclosed by Hakim Khan, P.W., only. Therefore, in such circumstances, one part of the statement of this witness cannot be used for purpose of corroborating the same witness. There would have been a very strong corroboration had the empties secured from the spot matched with the gun of any of the appellants. In these circumstances, I feel it would be extremely unsafe to rely upon uncorroborated testimony of Hakim Khan, P.W.
For the reasons already discussed above, I find no merit in both the Revision petitions, which are, accordingly, dismissed.
The upshot of the discussion is that the prosecution has not been able to establish its case beyond reasonable doubt. Therefore, extending the benefit of doubt, the appeal is accepted, the convictions and sentences of the appellants are set aside and they shall be released forthwith if not required in any other case.