' SHEIKH ABDUR RAZZAQ, J.--- On 1-9-1989 at 1-30 a.m., Shahzad complainant (P.W.16) alongwith his father Haji Riaz Ahmad (deceased) Member District Council, Abdur Rashid son of Muhammad Abdullah, Sajjad Ahmad son of Siraj Din and Zafar Iqbal son of Hidayat Ali were returning to their house after offering Jumma prayer. His father was going 2/3 paces ahead of them. When they reached near the Baithak of Muhammad Amin son of Umar Din, the accused Saqib Ali and Sajid Ali sons of Riasat Ali armed with .12 bore guns having wrapped themselves in Chadars and concealing their weapons therein, emerged. They threw their Chadars and Saqib Ali fired with his gun at his father which hit him on the left side of his back. His father fell on the spot whereupon Sajid Ali fired upon his father but it missed. However, the pellets hit Muhammad Ishaque son of Ibrahim and Abdul Latif son of Muhammad Bakhsh who were going a few paces ahead of them. In the meanwhile, various other Namazis were attracted on the spot and seeing them coming the accused succeeded in decamping from the spot. The incident was witnessed by Abdur Rashid son of Sajjad Ahmad and Zafar Iqbal who were accompanying the complainant at the relevant time.
The injured Riaz Ahmad was immediately removed to civil hospital but before he could be provided any medical aid, he succumbed to the injuries.
2. The motive behind this occurrence is that a case under section 307/34, P.P.C. Was registered against Saqib Ali and others vide F.I.R. No,362, dated 3-8-1989 at Police Station Sadar, Faisalabad and the deceased had been supporting the complainant party of that case and had also got land vacated encroached upon by Rana Fazal Muhammad son of Bajay Khan. The accused Saqib Ali, Sajid Ali, Fazal Muhammad, Idrees Khan and Riasat Ali nourished a grudge against Haji Riaz Ahmad deceased and in prosecution of their common object committed the murder of deceased and caused injuries to Muhammad Ishaque and Abdul Latif. He left the dead body of his father under the supervision of Muhammad Hanif in civil hospital and made for police station to lodge report.
3. Amanullah Inspector (P.W.20) was posted as S.H.O. Police Station Sadar, Faisalabad who on the statement of Shahzad (P.W.16) lodged F.I.R. Exh.P.O. He thereafter made for Civil Hospital where he examined the dead body of Haji Riaz Ahmad, prepared injury statement and inquest report Exh.P.E.
And Exh.P.X. Respectively. He dispatched the dead body through Muhammad Suleman and Muhammad Idrees constables for post-mortem examination and made for the place of occurrence, where Muhammad Akram S.-I. Along with other police officials was present. He inspected the spot, secured blood-stained earth vide memo. Exh.P.P., secured Chadars of accused P.6 and P.7 vide memo. Exh.P.Q., prepared rough site-plan of the place of occurrence Exh.P.Y., secured last-worn clothes of the deceased P.3 to P.5 and a 'sealed phial and other documents vide memo. Exh.P.L. And secured M.L.R. Produced by Muhammad Ishaque injured. On 2-9-1989, he secured M.L.R. Of Abdul Latif injured in Civil Hospital. On 5-9-1989, he secured site-plans Exhs.P.C.
And P.C./1 prepared by Aurangzeb draftsman (P.W.2). On 5-9-1989, he arrested the accused Idrees and asat Ali. On the same day, he secured copy of F.I.R. No,559 of 1972 Exh.P.M. From Moharrir Kotwali vide memo. Exh.P.N. He could not record the statement of Abdul Latif as he was not in a position to make any statement. Thereafter, the investigation was transferred to Hameedullah Qureshi D.S.P. (P.W.23) who on 6-9-1989 secured various documents vide memo. Exh.P.G. After completing investigation, the case was sent up for trial.
4. A charge under section 302/307/34, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
5. To bring home guilt to the accused, prosecution examined P.W.1 Siraj Ahmad who on 1-9-1989 identified the dead body of Haji Riaz Ahmad deceased. He also attested memos. Exh.P.A. And EX11.P.B. Regarding securing of guns P.1-2 at the instance of accused Saqib Ali and Sajid Ali.
Aurangzeb draftsman (P.W.2) inspected the place of occurrence on 15-9-1989 and prepared site- plans Exhs.P,C. And P.C./1. Abdul Khaliq constable (P.W.3) was given two parcels by Muhammad Boota Moharrir Head Constable on 5-11-1989 for onwards transmission in the office of Forensic Science Laboratory Lahore. Muhammad Boota (P.W.4) Moharrir Head Constable deposed that on 24-10-1989, he was given two sealed parcels containing 12 bore guns for keeping in safe custody which he delivered to Abdul Khaliq constable (P.W.3) on 5-111989 for its delivery in the office of Forensic Science Laboratory Lahore. P.W.5 Muhammad Saleem Akhtar deposed that the deceased was his brother in law who had got the land acquired for the construction of school which was in possession of Fazal Muhammad accused. He also produced documents Exhs.P.D. To P.D. 1-4, Exhs.P.E. And P.F. To substantiate his contention which were secured vide memo. Exh.P.G. Dr. Muhammad Ajmal Mian (P.W.6) examined Abdul Latif injured on 1-9-1989 at 2-10 p.m. And found one fire arm injury on his person and issued medico-legal report Exh.P.H. And sketch of injury Exh.P.H./1. On the same day he also examined Muhammad Ishaque injured and issued M.L.R. Exh.P.J.
And sketch of injury Exh.P.J./1. On the same day, he also conducted post-mortem examination of Haji Riaz Ahmad and found the following injuries on his person:--
(1) 9 (Nine) fire-arm wounds each 1 c.m. x 1 c.m. Chest deep scattered in area 10 c.m. x 8 c.m. On back middle and right of middle line of chest, all circular with inverted margins directed from back to front of chest, a little right to left and below upward (inlet), with two abrasions each 1-3/4 c.m. 1- 3/4 c.m. Circular.
(2) A fire-arm wound 1 c.m. x 1 c.m. Chest deep through and through circular with averted margins situated at 12 O'Clock position of left nipple 6 c.m. Above passing through the left intercostal space between left 3rd and 4th Ribs outlet.
(3) A fire-arm wound 1 c.m. x 1 c.m. Chest deep through and through circular with averted margins situated at 9 O'clock position of nipple position 3 c.m. Away passing through left intercostal space between left 4th and 5th Ribs (outlet).
' In his opinion, death was due to shock and hemorrhage resulting from injury No,1 (injuries Nos.2 and 3 being its outlet). Injury No,1 was sufficient to cause death in the ordinary course of nature. It was grievous and ante-mortem and was caused by fire-arm. Probable time between injuries and death was immediate whereas between death and post-mortem examination was about 4 hours.
He produced post-mortem examination report Exh.P.K. And diagram Exh.P.K./1. P.W.7 Shahadat Khan constable deposed that on 13-9-1989, he was handed over one parcel containing blood-stained earth by Asghar Ali Head Constable for onwards transmission to the offior of Chemical Examiner which he delivered on 14-9-1989. Asghar Ali Moharrir Head Constable (P.W.8) corroborated the statement of P.W.7 Shahadat Khan in respect of delivery of parcel of blood-stained earth.
Muhammad Suleman constable (P.W.9) deposed that on 1-9-1989 he escorted the dead body for post-mortem examination where after he was given last-worn clothes of the deceased P.3 to P.5 which he produced before the Investigating Officer who secured the same vide memo. Exh.P.L.
Which bears his signatures. Muhammad Khalid (P.W.10) and Muhammad Ramzan (P.W.11) deposed about conspiracy of accused Fazal Muhammad, Riasat Ali and Idrees Ahmad for causing the murder of deceased. Muhammad Zamir (P.W.12) deposed about seeing of Saqib Ali and Sajid Ali armed with guns and Fazal Muhammad empty-handed going towards the village of the deceased.
Mohsin Abdul Wahid (P.W.13) also deposed about going of all the accused towards the village of the deceased. Noor Zaman Moharrir Head constable (P.W.14) deposed about the producing of copy of F.I.R. No, 559 of 1972 under section 302, P.P.C. Exh.P.M. Which was secured by the Investigating Officer vide memo. Exh.P.N. Muhammad Ishaque (P.W.15) is an eye-witness of this occurrence who was present along with Shahzad (P.W.16) complainant of this case and scribe of F.I.R. Exh.P.O. Both the P.Ws. Supported the prosecution version appearing in F.I.R. Referred above.
Sajjad Ahmad (P.W.17) is another eye-witness of this occurrence who corroborated the prosecution version of P.Ws.15 and 16. He further deposed that police also secured blood-stained earth vide memo. Exh.P.P. And two Chadars P.6 and P.7 vide memo. Exh.P.Q. In his presence. He further deposed that last worn clothes of the deceased and .a sealed phial were produced by Muhammad Suleman constable (P.W.9) which were secured by the Investigating Officer vide memo Exh.P.L.
(wrongly mentioned as Exh.P.R.). Munshi Muhammad Rashid (P.W.18) produced documents Exhs.P.R.
To P.V. Which were secured by the Investigating Officer. Nasir Ahmad Inspector (P.W.19) deposed that on 24-10-1989 both the accused Sajid Ali and Saqib Ali produced guns P.1 and P.2 which he secured vide memo Exhs.P.A. And P.B. He arrested the accused on the same day and lodged cases against them under section 13/20/65, Arms Ordinance as they were not in possession of valid licence of the said arms. Amanullah Inspector (P.W.20) is the Investigating Officer whose evidence has already been discussed above. Dr. Habibullah (P.W.21) deposed that on 2-11-1989, he addressed letter Exh.P.Z. To D.S.P. C.I.A. Faisalabad. Shan Muhammad Inspector (P.W.22) deposed that on 10-1-1990, he arrested the accused Fazal Muhammad and finally on 11-1-1990, he submitted challan against all the accused. Hamidullah Qureshi (P.W.23) is also one of the Investigating Officers whose evidence has already been referred above. The learned D.D.A. Produced Report of Chemical Examiner Exh.P.CC., report of Serologist EXh.P.DD. And report of Forensic Science Laboratory, Lahore Exh.P.FF., and thereafter, closed prosecution case vide statement dated 4-11- 1992.
6. When examined under section 342, Cr.P.C. The accused Idrees Khan, Riasat Ali and Fazal Muhammad denied the prosecution version and professed their innocence. The accused Fazal Muhammad also produced documents Exhs.D.F. And D.G. In support of his contention. The accused Saqib Ali and Sajid Ali also stated that they have been implicated in this case falsely. However, in reply to question 13 if he wanted to say anything else, the accused stated as follows: "I am innocent. I was not present at the time of occurrence. I had appeared before the police on the following day of the occurrence but the police had not shown my arrest and illegally detained me.
Muhammad Sharif Paternal cousin of my father had filed writ petition of habeas corpus in the Honourable High Court about my illegal detention. The police after receiving information about the aforesaid writ petition showed my arrest in police papers to save their skin."
' The accused Sajid Ali, in reply to question 12 if he wanted to say anything else, stated as follows:-- "I am innocent. I was not present at the time of occurrence. I had appeared before the police on the following day of the occurrence but the police had not shown my arrest and illegally detained me.
Muhammad Sharif paternal cousin of my father had filed writ petition of habeas corpus in the Honourable High Court about my illegal detention. The police after receiving information about the aforesaid writ petition showed my arrest in police papers to save their skin."
7. Upon culmination of trial, the appellant Saqib Ali was convicted under section 302/34, P.P.C. And sentenced to death with a fine of Rs,50,000 and compensation of Rs,50,000 payable to the legal heirs of the deceased. The appellant Sajid Ali was convicted under section 302/34, P.P.C. And sentenced to life imprisonment with a fine of Rs,50,000 and compensation of Rs,50,000 to be paid to the legal heirs of the deceased and in default of payment of fine or compensation or both, to undergo R.I. For six months each. Both of them were also extended benefit of section 382(B), Cr.P.C.
However, the accused Rana Fazal Muhammad, Riasat Ali and Idrees were acquitted by giving benefit of doubt.
8. The instant appeal has been filed by Saqib Ali and Sajid Ali against the said conviction and sentence. The learned Court of Session Faisalabad has also forwarded Murder Reference as required under section 374, Cr.P.C. Criminal Revision No,570 of 1993 has also been filed by Shahzad complainant against the order of acquittal passed in respect of Rana Fazal Muhammad, Riasat Ali and Idrees.
9. As the Criminal Appeal, Criminal Revision No,570 of 1993 as well as Murder Reference No,39 of 1993 arise out of the same judgment, so we propose to dispose of all these by this single judgment.
10. Arguments have been heard and record perused.
11. Contention of learned counsel for the appellants is that case against them rests on the ocular statement of complainant Shahzad (P.W.16), Sajjad Ahmad (P.W.17) and injured witness Muhammad Ishaque (P.W.15), that as per statement of complainant both the appellants were duly armed and fire of Saqib Ali accused hit the deceased whereas fire of Sajid Ali accused fortunately missed and incidentally hit Muhammad Ishaque and Abdul Latif (Majzoob), that to prove the injuries on the persons of injured, Dr. Muhammad Ajmal Mian (P.W.6) was examined who stated that injury on the person of Abdul Latif was of fire-arm whereas injury on the person of Muhammad Issaquah was of blunt weapon and could be caused by grazing of fire-arm, that this admission on the part of P.W.6, creates doubt about the presence of accused Sajid Ali as well as of injured Muhammad Issaquah (P.W.15), that the part attributed to Sajid Ali Accused, even if presumed to be correct, the same does not attract the provision of section 302/34, P.P.C. And even on this score the impugned judgment to the extent of Sajid Ali accused is not sustainable. So far as Saqib Ali accused is concerned, he submitted, that although a specific part is attributed to him, yet he does not deserve the capital punishment, as he being the youngest, must have acted under the influence of his elders, and as such was entitled to imposition of lesser sentence and placed reliance upon Mushtaq Ahmad and others v. The State 1985 SCM R 423 and Mukhtar Hussain and another v. The State 1985 SCM R 479. He, thus, submitted that the appeal to the extent of Sajid Ali may be accepted and the sentence awarded to Saqib Ali be modified to imprisonment for life.
12. Conversely, the impugned judgment has been supported by learned counsel for the State assisted by learned counsel for the complainant. Learned counsel for the complainant-petitioner submitted that trial Court was not justified in acquitting accused Rana Fazal Muhammad, Idrees Khan and Riasat Ali as sufficient evidence had come on record to prove their involvement in the commission of this offence.
13. A perusal of F.I.R. Exh.P.O. Lodged by complainant Shahzad (P.W.16) shows that a specific part has been assigned to both the accused-appellants Saqib Ali and Sajid Ali. Saqib Ali accused- appellant has been assigned a fatal injury to the deceased whereas injuries attributed to Sajid Ali accused-appellant are on the persons of injured Muhammad Ishaque (P.W.15) and Abdul Latif (not produced). Both Muhammad Ishaque and Abdul Latif were examined by Dr. Muhammad Ajmal Mian on 1-9-1989 at 2-10 p.m. He found the injury on the person of Muhammad Ishaque (P.W.15) to be of blunt weapon and further observed that it could be caused by grazing of fire-arm. However, in his cross-examination, he categorically admitted that the said injury was of blunt weapon. He further stated that he did not find any other data on the shirt of injured to hold injury having been caused except by blunt weapon. This admission of P.W.6, creates dent in the prosecution story regarding causing injury by Sajid All accused with a fire-arm on the person of injured Muhammad Ishaque (P.W.15). Again the description of injuries on the persons of Muhammad Ishaque (P.W.15) and Abdul Latif P.W. (not produced) reveals that these could not be caused by one and the same fire-arm. Admittedly, no other overt act is attributed to Sajid Ali accused except the one referred above. As the ocular account does not find support from medical evidence, so we are constrained to hold that prosecution has failed to prove the participation of Sajid Ali accused-appellant in the commission of this offence, beyond doubt. Consequently, findings of the trial Court holding Sajid Ali appellant as guilty are set aside and he is hereby acquitted. So far as accused-appellant Saqib Ali is concerned, he has been assigned a specific role of causing a fire-arm injury on the person of deceased Haji Riaz Ahmad culminating into his death. This aspect of prosecution version stands corroborated not only through the statement of complainant Shahzad (P.W.16) but also from the statements of eye-witnesses Sajjad Ahmad (P.W.17), Muhammad Ishaque (P.W.15) as well as Dr. Muhammad Ajmal Mian (P.W.6). All these P.Ws. Have been selected to lengthy cross-examination, but nothing has come on record to discredit their testimony.
14. At the far end of the arguments, it was also argued by the learned counsel for accused- appellant Saqib Ali that he was youngest of all accused at the time of occurrence and possibility could be ruled out that he might have acted under the influence of his elders and as such was entitled to imposition of lesser punishment and has been relied upon authorities referred above.
There being no documentary evidence produced by the appellant to prove his minority at the time of occurrence, he cannot derive any benefit on that score. So far as question of acting under the influence of elders is concerned, this plea is also devoid of any force as both Saqib Ali and Sajid Ali were of similar ages.' None of them was in a position to influence the other and there is no possibility that Saqib Ali had acted under the influence of Sajid Ali. The manner in which Saqib Ali accused-appellant caused the murder of deceased clearly shows that it was a pre-planned and calculated murder of deceased who was returning after offering his Juma prayer.
15. As a sequel to the facts stated above, the appeal to the extent of Saj id All is accepted, his conviction and -sentence is set aside and he is hereby acquitted and murder reference to his extent is answered accordingly. Death sentence awarded to Saqib Ali appellant is confirmed and Reference is answered accordingly. Appeal to the extent of Saqib Ali is hereby dismissed.
Criminalist Revision No, 570 of 1993 also fails and is dismissed.