IFTIKHAR HUSSAIN CHAUDHRY, J.- Ijaz Hussain son of Wali Muhammad and Muhammad Anwar son of Ghulam Mustafa were convicted for offence under Section 302, PPC and Ijaz Hussain appellant was awarded death sentence while Muhammad Anwar was awarded imprisonment for life by learned Additional Sessions Judge Chiniont, District Jhang by judgment dated 21.11.1993. Learned trial Court also directed to pay a fine of Rs.30,000/- each to both the convicts. In case of default, the convicts were sentenced to undergo rigorous imprisonment for three years, by judgment dated 21.11.1993 passed by Additional Sessions Judge, Chiniot in case FIR No. 438, dated 14.7.1991 under Sections 302/148/149/109, PPC Police Station Saddar, Chiniot, District Jhang.
2. The prosecution case as narrated' by Ata-ul-Jamia complainant PW2 was that about one year and nine months prior to the occurrence, he alongwith his brother Maula Bakhsh, Muhammad Siddique. Khushal, Mst Baito Bibi and Mst Sakina Bibi were sleeping at his Dhari situated in Square No. 44 of Chak No. 136/JB. At about "Azan wela, they got up on hearing the noise of barking of the dogs and saw Arif, Ijaz Hussain, Muhammad Anwar, Ahmad Ali, Muhammad Ali, Bashir Ahmad, Murtaza and Muzaffar Hussain carrying guns. Arif and Ijaz Hussain accused were standing near the cot of Maula Bakhsh. Ijaz Hussain and Ahmad Ali were standing near the cot of complainant. Bashir Ahmad, Ghulam Murtaza, Muzaffar Hussain and Muhammad Ali were standing around the cots of Khushal, Muhammad Siddique, Mst Baito and Mst Sakina PWs. The accused raised a lalkara that they had come to avenge murder of Wali Muhammad. Ijaz Hussain accused find a shot which hit Maula Bakhsh on the left side of his neck who died at the spot due to fire-arm injuries.
3. Motive behind the occurrence as stated by the complainant was that two and a half years prior to the occurrence Wali Muhammad father of Ijaz Hussain accused was murdered by unknown persons and the case was registered against the complainant and his brothers and they were found-innocent and were discharged from the case. According to complainant Karam Ali, Mehmood Ali and Ghulam Shabhir abetted the accused for the murder of Maula Bakhsh in presence of Muhammad Hayat son of Shabir and Bali son of Ali Muhammad.
4. Prosecution examined 12 witnesses at the trial to prove its case against the accused.
5. Dr. Nasir Ali PW10 conducted the post-mortem examination on the dead-body of Mania Baksh and noted the following injuries:
(I) A lacerated wound 2x2 cm with burnt and inverted margins 1. '/: cm above the left clavicle (in supra clavicular space). There was an area of blackening 10 x 10 cm around the wound. On dissection area below the . Wound was congested, muscles and soft tissues were congested, wound was opening into left pleural cavity. Left clavicle was fractured. Two pellets were palpable on the back of left chest, in lower part and that were removed.
He injuries were ante-mortem and caused by fire arm. The Medical Officer tendered in ev idence post-mortem report Ex.PG. b. Muhammad Hayat PW1 identified the dead-body of Mania Bakhsh deceased at the time of post- mortem examination. The witness stated that in his presence, karam Alt. Meh mood and Shabhir abetted their co-accused for the murder of Mania Bakhsh deceased.
7 Ata-ul-.Lamia complainant PW2 re-iterated the narrative contained in the FIR.
8. Muhammad Siddique PW3 furnished the eye-witness account and supported the prosecution case.
9. Muhammad Yar PW4 witnessed the recovery of gun P4 alongwith license which was recovered at the instance of ljaz Hussain accusal vide Memo. I .\ PC He also witnessed the-recovers of gun P5 which was recovered on the Plantation of Muhammad Anwar. Accused' vide memo. Ex.PD.
10. Amir Ali Patwari PWS prepared site-plan Ex.PE and Ex.PF/I.
11. Muhammad Yaqoob. S.I. PW-11 partly investigated the case. On 5.5.1992 he arrested ljaz Hussain.
Muzaffar Hussain. Ghulam Murtaza. Muhammad Anwar. Ahnfeltia Ali and Muhammad Ali. On II.5.1992 the Sub- Inspector recovered gun P4 and P5 at the disclosure of Ijaz Hussain and Muhammad Anwar accused. The witness arrested Bashir Ahmad accused on 25.5.1992.
12. Manzoor Hussain. Inspector PW-12 testified about the various steps taken by him during investigation.
13. Jafar Hussain. H.C. PW5. Ahmad Khan. E.C. PW6; Muhammad Boota. E.C. PW7 and Abdur Raul.
Constable PW9 were the formal police witnesses.
14. The accused in their statement under Section 442. Cr..P.C. Denied the prosecution case against them and professed their innocence. The accused examined. Syed Arif Ali Shah as DWI. And Yousaf as DW2 in their defence.
15. Learned trial Court believed the prosecution case to the extent of ljaz' Hussain and Muhammad Anwar am1 convicted and sentenced them as-noted above. Muzaffar Hussain. Bashir Ahmad.
Muhammad Ali. Ahmad Ali. Ghulam Murtaza. Karam Ali, Mehmood Ali and Shabhir were given benefit of doubt and acquitted from the case.
16. The convicts find Criminal Appeal No. 749/1993 while the complainant find Criminal Revision Petition No. 23M994 for. Enhancement of sentence to respondent No. 1 and against the acquittal of respondents Nos. 2 to-9. Learned trials Court also referred the matter vide Minder Reference No. 510/1993 lor confirmation or other wise of sentence of death awarded to ljaz. Hussain convict.
17. Learned counsel for the appellants contended that the prosecution case was disbelieved bv the learned trial Court to the extent of eight co-accused of the appellants and case of the appellants was not distinguishable from that ol the co- accused and no implicit reliance' can be placed upon the testimony of such untruthful .Witnesses who were, disbelieved to the majority of the accused. It was argued that it was night time occurrence. The deceased was done to death when he was asleep in his "dhari" and none of the prosecution witnesses were present near the place of occurrence and the appellants were involved in the case due to preexisting enmity between the parties. Learned counsel for the State supported the prosecution case. Learned counsel for the complainant on the other hand contended' that the convicts as well as the acquitted accused had motive to do away with the deceased and they having formed into an unlaw full assembly came to the spot and actually murdered Maula Bakhsh, It was submitted that the prosecution case was proved at the trial effectively, and in this view of the matter, Muhammad Anwar convict deserved the maximum penalty to be awarded to hint and that acquittal of the accused Muzaffar Hussain.
Bashir Ahmad. Ahmad Ali, Ghulam Murtaza. Karam Ali, Mehmood Ali and Shabhir being unwarranted was liable to be set aside.
18. We have heard the learned-counsel and have perused the record with care. -
19. The enmity between the parties has been admitted and in this view of the matter, the prosecution case particularly the testimony of Ata-ul-Jamia, P.W.2 and Muhammad Siddique P.W.3 who were real brothers of Maula Bakhsh, deceased, has to be scrutinized with care. No doubt, mere relationship of a witness with the victim is not a disqualification but at the same time where there is a long standing enmity between the parties, the witnesses closely related to a victim have reasons to wreak vengeance on their enemies, and therefore, the evidence furnished by such witnesses could be relied upon only when:they are shown to be the natural, persons at the spot, and. Are shown to have spoken the whole truth and their testimony is further corroborated by additional circumstances and other physical evidence1. According to the complainant Ata-ul-Jamia. Who appeared as P.W.2. Walli Muhammad, father of Ejaz Hussain was murdered about two years prior to the incident and Maula Bakhsh. Ata-ul-Jamia and other members of the complainant party were challaned to Court. Maula Bakhsh and his co-accused were let of from this case. It is further the case of the prosecution that on the fateful night Ata-ul- Jamia. Muhammad Siddique. And other members of the family slept in the "dluiri" belonging to the complainant parly. At about morning prayers time the accused variously armed came to the dhari and encircled the cots on which the complainant and Muhammad Siddique P.W.3 and other members of their family were sleeping. The complainant and Muhammad Siddique claimed that they woke up and saw various accused standing beside their cols and that then witnessed Ejaz Hussain having find at Maula Bakhsh deceased, It is also their claim that other accused threatened them with dire consequences on which they did not move. At trial the witnesses claimed that though they woke up vet they feigned that they were asleep so that the accused could not cause any harm to them. The claim of the 'eyewitnesses appears to be paradoxical. They claimed that they woke up on the barking of dogs and raising of alarm by the accused but incidentally Maula Bakhsh did not arise on the bed or walk.
The eye-witnesses Slate that they woke up but then said that they feigned to be asleep. If the complainant and other-members .Of his family were able to wake up at the barking of dogs or shouting of the accused. Maula Bakhsh could very well have (lone the same, It was not shown as to why he did not wake up. Then, if the witnesses and other members of the complainant family kept their eyes closed they could not have seen as to who had find at the deceased. The occurrence had taken place when it was fairly dark and it was not possible for people or the witnesses with eyes closed to have witnessed as to what was going on nearby. The claim of. The witnesses in this regard appears to be pre-pesterous. It has not been shown as to why the accused spared other members of the family when all ol them at their mercy. As observed above. Ata-ul-Jamia complainant was also an accused alongwith Maula Bakhsh in the murder case, of Wali Muhammad, father Of Ejaz Hussain. In case the accused had wanted to take revenge of that murder, no reason has been shown' as to why Ata-ul-Jamia, who claims to be present at the spot was spared as the degree of vendetta which the accused might be having against Ata-ul-Jamia or Maula Bakhsh was the same. From an overall view of the case it is manifest that the deceased was asleep in his house and the complainant or Muhammad Siddique, etc. The eye-witnesses were not present in his house nor were they sleeping there. They were present in their house located in the main village. Maula Bakhsh was done to death in the dead of night and apparently none had witnessed as to who the assailant was? The appellants and their co-accused were implicated in the case on account of pre-existing^ enmity. The tendency of the complainant party to involve a large number of people by assigning artificial roles is apparent front the fact that they had involved a' large number of persons in the case without any justification. Only one shot was find at the deceased but the complainant parly chose to implicate about a. Dozen of their enemies in the case. The complainant party and the witnesses by their conduct proved themselves to he untruthful and unreliable persons and no implicit reliance could be placed upon the testimony of such witnesses particularly when no independent circumstance corroborated the testimony of the eye-witnesses, It would be unfair and unjust to convict the appellants on the uncorroborated testimony of highly interested and inimical witnesses like Ata-ul-Jamia P.W.2 and Muhammad Siddique P.W.3.
20. The appellants deserve benefit of doubt to be extended to them, and consequently we do the same. Criminal appeal find by the convicts is allowed. The conviction and sentences awarded to Ejaz Hussain and Muhammad Anwar appellants are set aside. They shall be released from custody, if not wanted in any criminal case.
21. Criminal Revision Petition has been found" to-be without merit and is dismissed.
22. Murder reference is answered in the negative. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.