' Maratab Ali son of Sajawal and Sh. Muhammad Naeem son of Muhammad Saleem have called in question the judgment of the Additional Sessions Judge, Kasur, dated 19-11-1996 whereby both the appellants were convicted under section 302(b)/34, P.P.C. For the murder of Muhammad Imran and each of them was sentenced to life imprisonment along with a direction to pay compensation in the sum of Rs,20,000 which, if realized, would be given to the heirs of the deceased and on failure to pay the amount to further undergo six months' S.I. Both the appellants were convicted under section 337A(i)/34, P.P.C. For causing injuries to Khadim Hussain (P.W.5) and sentenced to two years R.I. By way of Tazir and also to pay an amount of Rs,5,000 each by way of Daman which was to be given to Khadim Hussain and on the failure of the appellants to pay this amount they would remain in jail as if sentenced to simple imprisonment. Benefit of section 382-B, Cr.P.C. Was extended.
2. Complainant Khadim Hussain has filed Criminal Revision No,423/96 seeking enhancement of sentence awarded to the appellants. I intend to dispose of both these matters through this single judgment.
3. The unfortunate incident in which a minor, aged two years, namely, Muhammad Imran was killed and Khadim Hussain his father was injured, took place on 21-7-1995 at mid-night in the house of Khadim Hussain situated in Mauza Tarkhanwala, Police Station Saddar, Raiwind lying at a distance of 15/16 miles from the said police station. The matter was reported by Khadim Hussain to Inspector Yacloob Virk (P.W.9) near Railway Phatak, Zafarke at 6 a.m. On 21-7-1995 and formal F.I.R. Was registered at 6-45 a.m. On the same day vide Exh.PG/1.
4. Prosecution version gleaned out from the First Information Report, authored by Khadim Hussain, is that Maratab Ali appellant is his uncle and is famous for his notoriety. About 12 days back Maratab Ali took a bicycle of a guest who had come to the house of Riasat Ali, parked in front of the house, and hid it in the house of Bashir Ahmad. Riasat Ali doubted Maratab Ali to have stolen the bicycle. However, the appellant denied the charge. The complainant called a Punchait and made a statement that Maratab Ali was the actual culprit for removing the bicycle and had hidden it in the house of Bashir Ahmad from where it was recovered. Maratab Ali bore a grade for the disclosure made by the complainant and stated before Riasat Ali that the complainant had defamed him for which he would not be spared: On the night of 21-7-1995 he was sleeping in the courtyard of his house along with his infant child Imran aged 2 years, on the same cot whereas Muhammad Ashraf son of Anwar Ali and Imtiaz Ali son of Shahbaz Ali were also sleeping in the courtyard on their respective cots, when one unknown person removed the cloth from his face and in the light of the electric bulb he identified Maratab Ali who was armed with a pistol and was standing at the foot of his cot and by raising Lalkara instantly fired at him but because of his taking evasive action bullet hit his infant son Muhammad Imran on his left leg. Muhammad Ashraf and Imtiaz also woke up and tried to apprehend the unidentified person who was also armed with a pistol and in order to avoid capture unidentified person hit the butt of the pistol on the head of the complainant, and threatened Ashraf and others that in case they tried to apprehend him they would be shot dead.
Immediately thereafter both of them managed to escape by jumping over the wall. The complainant took his son Imran to the Civil Hospital, Kot Radha Kishan where he was admitted and obtained the medico-legal report. However, at 4-30 a.m. Imran succumbed to his injuries in the hospital. It was stated that the unidentified person can be recognized by him if brought before him who along with Maratab Ali in furtherance of their common intention murdered his minor son and launched a murderous assault on him resulting in injuries.
5. Muhammad Yaqoob Virk, Inspector/S.H.O. Police Station Raiwind, Saddar, Kasur after recording statement of the complainant (Exh.P.G) sent the same through Constable Muhammad Ramzan to the Police Station for registration of the case. He thereafter went to the Police Station Kot Radha Kishan, prepared the inquest report (Exh.P.N) and injury statement (Exh.P.0) of the dead body of Muhammad Imran and sent the same through constable to the mortuary for post-mortem examination. He thereafter proceeded to the spot where he prepared rough site plan (Exh.P.Q) and thereafter took the blood-stained earth in possession vide memo. Exh.P.J. An empty of .30 bore was taken in possession vide memo. Exh.P.K. On 25-7-1995 Maratab Ali and Muhammad Naeem appellants were arrested. Muhammad Naeem was sent to the judicial lock-up for identification parade whereas physical remand of Maratab Ali was obtained. Identification parade of Naeem appellant was conducted on 30-7-1995 under the supervision of Allah Dad Tarrar, MIC, Kot Radha Kishan. Thereafter on 31-7-1995 physical remand of Naeem was obtained. On the same day i,e, 31- 7-1995 Maratab Ali got recovered pistol .30 bore lying in an iron box placed in the residential room of his house along with 8 live bullets (P.9/1-8) which alongwith pistol P.4 were secured vide memo.
Exh.P.L. Similarly Muhammad Naeem got recovered revolver (P.5) from the heap of wood lying on the roof of his house which was unloaded contained bullets (P.6/1-5) which were secured vide memo. Exh.P.M along with the revolver.
6. On 21-7-1995 at 12-30 p.m. Dr. Zulfiqar Ahmad, Medical Officer, D.H.Q. Hospital, Kasur conducted the post-mortem on the dead body of Muhammad Imran aged 2 years and found the following injuries on his person:---
(1) A lacerated wound half x 1/2 c.m. With abraded an inverted margin on front and inner side of left thigh in the middle (entry wound).
(2) A lacerated wound 1 x 3/4 c.m. With averted margin on inner side of left lower leg just below the knee-joint. It was the exit of the injury No, 1 .
(3) A lacerated wound on tip of third toe of left foot with missing nail.
' In the opinion of the doctor deceased died due to shock as a result of excessive haemorrhange caused to blood vessels under injuries Nos.1 and 2 which were entry and exit wounds respectively whereas Injury No,3 was a glazing wound. All the injuries were anti-mortem in nature and caused by fire-arm weapon. Probable time that elapsed between injuries and death was within 6 hours approximately and that between death and post-mortem was within 12 hours.
7. Dr. Masood Aziz, Rural Health Centre, Kot Radha Kishan on 21-7-1995 at about 2-30 p.m. Examined Khadim Hussain aged 33 years and found the following injuries:---
(1) Lacerated wound 1-1/2 c.m. x 14 c.m. x skin deep on the left side of top of head.
(2) Abrasion 1/2 x 1/2 c.m. On the outer surface of the pinna of left ear.
' Both the injuries were declared as Shajjah Khafifah and caused within three hours with blunt weapon.
8. After completing the investigation challan was submitted in Court. Appellants were indicted, they denied the charge, pleaded not guilty and claimed a trial. During the trial prosecution examined as many as 10 witnesses. Ocular testimony account was furnished by Muhammad Ashraf Bhatti (P.W.6) and the complainant Khadim Hussain (P.W.5) while Riasat Ali (P.W.7) was the recovery witness and Allah Dad Tarrar, MIC, Kot Radha Kishan supervised the identification parade of Naeem appellant. Prosecutor tendered in the evidence report of the Forensic Expert (Exh.PX) which was positive opinion that the empties recovered tallied with the pistol .30 bore recovered at the instance of Maratab Ali appellant. Appellants when examined under section 342, Cr.P.C. Denied their participation in the occurrence and the recovery of crime weapons and in reply to the question as to why the prosecution has brought the case against them Maratab Ali stated as under: "It is a false case. In fact Mst. Inayat Bibi my step-mother owned agricultural land in various villages. Haji Anwar Ali father of Shahbaz Ali and Muhammad Ashraf P.W. And grandfather of Khadim Hussain P.W. As general attorney of said Mst. Inayat Bibi transferred the total land owned by my step-mother to Niaz Ali, i,e, father of Khadim Hussain complainant, Shahbaz Ali and Muhammad Ashraf P.W. I demanded the possession from the P.Ws. Which annoyed them.
Incidentally some unknown invitee while escaping himself fired or the inhabitants themselves fired in the dead hours of the night, which hit Imran infant deceased and as the P.Ws. Have got motive to involve me in this false case. They called up a false story and showed fictitious residence of Muhammad Ashraf in the village and involved me in this false case. They in connivance with each other while showing their false presence in this connection withheld natural witnesses fabricated injury on the person of the complainant and narrated unnatural instance which stand contradicted by the medical evidence. The P.Ws. Are related inter se and they are inimical towards my family as stated earlier."
9. Naeem appellant stated that he was falsely involved because he is a nephew of Muhammad Ali who got the lease of fruit garden from Muhammad Ashraf P.W. Muhammad Ashraf abused him to which he retaliated in the same coin which annoyed Ashraf and in order to avenge earlier incident he was got arrested on 23-7-1995 and the said case was foisted upon me.
10. Learned counsel for the appellants bitterly criticized the prosecution evidence and stated that both the eye-witnesses are related to the deceased, they are inimical and as such interested in the conviction of the appellants. It was stated that there was no motive for Naeem to join Maratab Ali in the commission of the offence alleged against them and further neither Naeem was named in the F.I.R. Nor his description, features, height and age was mentioned. It was pleased that the judgment being contrary to the evidence both the appellants merited acquittal. Conversely learned counsel appearing for the complainant and the State have supported the conviction and sentence recorded by the trial Judge.
11. I have considered the arguments of the respective counsel and have also gone through the record.
12. As far as the case of Naeem is concerned there, is ample evidence on record which throws doubt regarding his complicity in the case. Trial Judge did not believe the identification parade for the reason that the witnesses did not clef his role at the time of the occurrence and further Muhammad Ashraf (P.W.6) who is practicing Advocate at Kot Radha Kishan seems to have seen appellant Naeem before the Magistrate at the time when orders were to be fetched to send him to judicial lock-up. No connection between Naeem and Maratab has been shown. Motive urged by the prosecution also does not concern Naeem as well as the role attributed to him becomes highly doubtful when the doctor who examined Khadim Hussain stated that the injuries on the person of Khadim Hussain could be result of fall. If at all Khadim Hussain along with other witnesses tried to apprehend Naeem, who was armed with a pistol, could have used it conveniently instead of hitting Khadim Hussain with butt of his revolver. Case of the prosecution against him is highly doubtful, therefore, I accept the appeal, set aside his conviction and sentence recorded by the trial Judge vide judgment, dated 19-11-1996 and he shall be released forthwith if not required in any other case.
13. Taking up the case of Maratab Ali motive against him does not seem to be proved as neither any complaint was lodged by Khadim Hussain regarding threats meted by him to the complainant when he was named as a person responsible for the theft of bicycle belonging to the guest of Riasat Ali nor any witness was examined by the Investigating Officer to prove the motive alleged by the prosecution. Recovery of the crime empty also becomes highly doubtful because the day on which it was sent to the Forensic Expert i,e, 31-7-1995 on the same day pistol was also recovered from him. As to why the empty was not sent earlier although it was recovered on 31-7-1995, the prosecution evidence is quiet. Therefore, the recovery of the empty along with pistol at the instance of Maratab Ali seems to be highly doubtful and no credence could be placed on the same. So far as the ocular testimony is concerned presence of Muhammad Ashraf (P.W.6) also is not reliable. He was resident of Kot Radha Kishan and was a practicing lawyer in the said city. Distance of Kot Radha Kishan from Wara Tarkhana Wala where the occurrence took place is about 7 miles as deposed by the Investigating Officer. Children of the said witness are school-going at Kot Radha Kishan. No cogent reason has been given to convince me that Muhammad Ashraf (P.W.6) was present at the place of occurrence. He should have, ordinarily slept at his house with his family.
14. However learned counsel for the appellants could not convince me regarding the statement of Khadim Hussain P.W.5 that it was tainted with ulterior consideration. Occurrence took place in the house of Khadim at night. He was supposed to be there taking nap in the dead of the night and his infant son sleeping in the same cot was very natural. In the light of the electric bulb he identified Maratab Ali who was not only known to him previously but also was related to him. There is absolutely no animosity pointed out by the learned counsel between P.W.5 and the appellant. The mere fact that property belonging to the step-mother of the appellant was distributed amongst other heirs including P.W.6 does not create vendetta in the mind that P.W.5 had deposed falsely against the appellant and toed the line of P.W.6 as both P.W.6 and the appellant are related to him.
Evidence of Khadim Hussain is trustworthy and inspire confidence. No law has been shown to me by the learned counsel that conviction cannot be based on the solitary statement of the truthful witness present at the scene of occurrence. Infant child of the complainant namely Imran was done to death by the appellants who came there with prior concert of firing at Khadim Hussain P.W.5 but instead killed his son Imran. Appellant Maratab Ali has been dealt with leniently by the trial Judge in imposing alternate sentence of Life imprisonment . No mitigating circumstance has been pointed out. I, therefore, dismiss the appeal of Maratab Ali and uphold the conviction and sentence recorded by the trial Judge vide its judgment dated 19-11-1996.
' Criminal Revision No,423 of 1996 for reasons rendered in the appeal is dismissed.